Effective October 7, New York law now authorizes state courts to seal nonviolent criminal convictions that are more than ten years old. The newly enacted New York Criminal Procedure Law § 160.59 allows criminal defendants to apply to seal one felony and one misdemeanor conviction, or two misdemeanor convictions, for offenses other than violent and Class A felonies and most sex crimes. The application can be made after the later of ten years from the date of conviction or release from prison.
The law is permissive, allowing—but not requiring—the sealing of records on a defendant’s application. The law also permits a district attorney to oppose the application within 45 days of its filing. District attorneys for some of New York’s largest counties and for Manhattan, however, have publicly signaled they do not anticipate challenging such applications “except on rare occasions.”
An application under the new law must be made in the county in which the conviction occurred, and will be presumptively assigned to the sentencing judge. Assuming the district attorney voices no objection, the court can grant the application without a hearing; if the district attorney opposes it, however, a hearing is mandatory. The decision to grant or deny an application is within the judge’s discretion and is made based on a multifactor test. The end result of that discretion, and the variances in rates at which district attorneys oppose such applications, is a likely disparity in successful sealing applications between different jurisdictions. The law also bars prosecutors from requiring defendants to waive the ability to request sealing as part of a plea deal.
The effect of a successful application to seal under the new law is not to make the records entirely inaccessible. While they are generally not publicly available (including to background screening companies, employers, or landlords), the statute includes a number of exceptions. For example, the records remain accessible for gun ownership background checks and to child protective services offices, among others.
The new law represents a significant expansion of the ability to seal a New York state criminal conviction as compared to the old law and is likely to result in increased numbers of older-than-ten-year convictions being sealed from public access (and, as a result, being removed from consideration in hiring or tenancy decisions).