In New York state, you cannot "expunge" your criminal record. A record that is expunged is permanently erased. However, you can "seal" your criminal record, which means it will become invisible to the general public. Expungement and sealing are sometimes thought to be the same, but they are not. Expungement destroys a record, whereas sealing only closes the document to the public.
The most obvious benefit of sealing your record is that it will be removed from the rap sheet sent to employers, and your fingerprints, palm prints and mug shots will all be destroyed. In some cases, sealing can be reversed or the record can be temporarily opened by court order. New York's highest court, the Court of Appeals, has previously held that sealed records cannot be unsealed for purposes of sentencing, for employment disciplinary hearings, or even eviction proceedings. However, it should be noted that a sealed criminal record can often be used against you in subsequent criminal prosecutions.
If you wish to seal your record, you must file a motion with the court. In addition to requesting that records be sealed, an individual in New York may also request that palm prints, fingerprints, proofs, copies, and photographs be destroyed when the criminal case is found in favor of the requester. All DNA records, samples, records, and other documents in relation to DNA testing will be reversed upon record sealing according to Consolidated Laws 995-c. In New York a favorable finding includes acquittal, outright dismissal, and dismissal upon adjourning in the completion of dismissal pursuant to CPL 170.55.
New York record sealing is only available for a number of drug-related offenses and “specified offenses” which are contained in New York Penal Law Article 220, Article 221 and New York Criminal Procedure Law § 410.91. It does not matter if you plead no contest, plead guilty, or were convicted, to an offense qualifying under New York law for record sealing. However, to qualify to have your criminal record sealed, you must not have any current charges or warrants pending, and have successfully complete a qualifying alternative sentencing program, which include:
•A Qualifying Diversion Program (NY CPL § 216.05);
•Drug Court or a District Attorney sponsored DTAP Program;
•A sentence of Willard;
•A Comprehensive Alcohol and Substance Abuse Treatment Program (NY PL 60.04(6));
•Shock Incarceration (NY PL 60.04(7)); or
•Probation With Drug Treatment Ordered as a Condition.
Drug Offences Which Qualify for Record Sealing in New York
The following drug-related offenses, set forth in NY PL Article 220 and Article 221, are eligible to be sealed:
•Criminal possession of a controlled substance in the seventh, fifth, fourth, third, second or first degrees
•Criminal possession of a controlled substance; presumption.
•Use of a child to commit a controlled substance offense
•Criminal sale of a controlled substance in the fifth, fourth, third, second or first degrees
•Criminal sale of a controlled substance in or near school grounds
•Criminally possessing a hypodermic instrument
•Criminal injection of a narcotic drug
•Criminal sale of a controlled substance to a child
•Criminally using drug paraphernalia in the second or first degrees
•Criminal possession of precursors of controlled substances
•Criminal sale of a prescription for a controlled substance or of a controlled substance by a practitioner or pharmacist
•Criminal possession of methamphetamine manufacturing material in second or first degrees
•Criminal possession of precursors of methamphetamine
•Unlawful manufacture of methamphetamine in the third, second or first degrees
•Unlawful disposal of methamphetamine laboratory material
•Operating as a major trafficker
•Witness or victim of drug or alcohol overdose.
•Unlawful possession of marijuana.
•Criminal possession of marijuana the fifth, fourth, third, second or first degrees
•Criminal sale of marijuana in the fifth, fourth, third, second or first degrees
"Specified Offences" Which Qualify for Record Sealing in New York
The "Specified Offenses," set forth in NY CPL § 410.91, are eligible to be sealed:
•Burglary in the third degree (§ 140.20)
•Criminal mischief in the third degree (§ 145.05)
•Criminal mischief in the second degree (§ 145.10)
•Grand larceny in the fourth degree as defined in subdivision one, two, three, four, five, six, eight, nine or ten of 155.30
•Grand larceny in the third degree (§ 155.35) (except where the property consists of one or more firearms, rifles or shotguns)
•Unauthorized use of a vehicle in the second degree (§ 165.06)
•Criminal possession of stolen property in the fourth degree as defined in subdivision one, two, three, five or six of 165.45)
•Criminal possession of stolen property in the third degree (§ 165.50) (except where the property consists of one or more firearms, rifles or shotguns)
•Forgery in the second degree (§ 170.10)
•Criminal possession of a forged instrument in the second degree (§ 170.25)
•Unlawfully using slugs in the first degree (§ 170.60)
•An attempt to commit any of the aforementioned offenses if such attempt constitutes a Felony offense
•A Class B Felony offense defined in article two hundred twenty where a sentence is imposed pursuant to paragraph (a) of subdivision two of 70.70 of the penal law
•Any class C, class D or class E controlled substance or marihuana Felony offense as defined in Article 220 or Article 221
Not Eligible For Sealing Sealing is not available for crimes such as loitering with intent to engage in deviant sexual activity, prostitution, driving while impaired, or where a court order is in place to prevent the sealing. Sealing is not possible for violent crimes.
Even if you criminal record cannot be sealed, you can obtain a Certificate of Relief from Disabilities or a Certificate of Good Conduct. These are legal documents that are evidence of your rehabilitation. Both certificates serve similar purposes, however, the Certificate of Relief may be applied for right after you are released, while there is a waiting period to apply for the Certificate of Good Conduct.
Certificate of Relief from Disabilities
When you are unable to seal your New York criminal record, in many cases you may seek a Certificate of Relief from Disabilities. It does not remove your conviction from your record and your conviction will still appear in a background search, but a Certificate of Relief gives you a presumption of rehabilitation and restores most legal disabilities stemming from your conviction. It can restore your ability to own a firearm under New York law, restore your ability to obtain many professional licenses, and improve your chances of obtaining a better job. New York government agencies that issue licenses must consider this certificate when deciding to give you a license. This is also true of New York employers; they must consider your certificate when you apply for a job with them.
To qualify for a Certificate of Relief from Disabilities, you must have only one felony on your record and any number of misdemeanors. However, if you have more than one felony from the same indictment, that will be counted as only one felony conviction. There is no waiting period to apply, and in some instances you may do so while still incarcerated or during sentencing.
Certificates of Relief can be issued either by the sentencing court or the Department of Corrections and Community Supervision. If your conviction resulted in a commitment to a NY correctional facility or was in a federal court or other state court (and you reside in NY), then your Certificate would be issued by the Department of Corrections and Community Supervision, and all other cases would be handled by the sentencing court. In order to grant the certificate, the issuing authority must find that the relief to be granted by the certificate is consistent with your rehabilitation and with the public interest. Furthermore an investigation into your circumstances will be conducted and will include (but is not limited to) examining your employment history and other means of support, proof of payment of your income taxes for the last three years and proof of payment of restitution and fines.
If you have more than one felony, then you will not be eligible for a Certificate of Relief from Disabilities but you may be eligible for a Certificate of Good Conduct, which has much of the same effects as a Certificate of Relief, there is just a waiting period before you can apply.
Certificate of Good Conduct
If you have been convicted of two or more felonies and/or any number of misdemeanors, you may apply to receive a Certificate of Good Conduct.
A Certificate of Good Conduct may eliminate any mandatory legal bar or disability enforced because of your convictions. This certificate restores your right to apply for certain occupational licenses, but does not guarantee they will be granted. Other rights may be restored as well such as the ability to be appointed legal guardian to a child, and the ability to vote if you are still on parole. In addition, only a Certificate of Good Conduct may restore the right of an individual to apply for public office.
There is a waiting period before you can apply, which depends on your most serious offense. It starts from the date of the last time you were released from prison or the date of your last felony conviction (if you didn’t receive time), whichever is later. If your most serious conviction was a misdemeanor then you must wait at least one year. If your most serious conviction is a C, D, or E felony, you must wait at least three years. If your most serious conviction is an A or B felony, then the wait is at least 5 years. The waiting period for a Certificate of Good Conduct begins on the date payment has been made on any fines imposed by the courts, or when you are no longer on parole or supervision by the courts.
The Department of Corrections and Community Supervision may issue the certificate once it is satisfied that certain conditions are met. The department must be satisfied that:
•You have conducted yourself in a manner warranting the issuance of the certificate; this means that during the mandatory waiting time you have displayed good conduct. You should have committed no new crimes and paid any fines or restitution.
•The relief granted by the certificate is consistent with your rehabilitation
•The relief granted is consistent with public interest
•If your previous convictions were in another jurisdiction you must demonstrate that there are specific facts and circumstances and specific sections of New York law that have an adverse impact on you The Department of Corrections and Community Supervision will conduct an investigation into your circumstances, which will include looking at your employment history and means of support, proof of payment of income taxes and proof of payment of fines and restitution among other factors.
The main difference between the two certificates is who is eligible to apply for each. A Certificate of Relief from Disabilities can be issued, in certain situations, as early as at the time of sentencing. However, a Certificate of Good Conduct has a statutorily required waiting period. Both certificates may be issued to remove legal bars or disabilities or to remove only specific bars or disabilities. Only a Certificate of Good Conduct will restore the right of an individual to apply for public office. §703-a(1); §703-b(1)(a); §701(1); §702(2)
"Youthful offenders" are those who are at least 16 years old, but under 19 years old. They are eligible for automatic record sealing when their cases settle. All records are sealed, but they are still available to the institution where the person was committed, the parole office, the probation department, and the state registry of orders of protection.
If for some reason your record was not sealed, a sealing motion may be filed in the family court where your case was originally heard. New York Family Court Act Section 375.2 provides the court may seal records of a juvenile case that resulted in a finding of delinquency, if the finding of delinquency was not a finding that that the petitioner committed a designated felony. The judge can seal the records if the he or she finds the sealing to be in the interest of justice. The motion must be filed after the juvenile has turned 16 years old. If the sealing is denied, there is a one-year waiting period before you can refile for the relief. Sealing means that records held by the police department, the court, the district attorney, and the probation department will be sealed and treated as if they never existed. If someone asks these agencies about a sealed record, the law requires the agencies to answer that they "have no record of that matter." The law says that you can legally say that you were not adjudicated or arrested.
Frequently Asked Questions
What is in a sealed record?
When a record is sealed it will include official records, official papers, judgments of the court, orders of the court, and court decisions. All duplications and copies of these documents of file in all police agencies, courts, and prosecutor offices will be sealed. These sealed records are then not available to any person or public or private agency for any purpose. A record may be unsealed in the interest of justice, such as further proceedings and applications for particular employments and licenses.
What are the benefits of record sealing?
Being able to legally state that you have not been arrested or convicted of a criminal offense to employers and landlords
Becoming eligible for professional licenses and certificates you previously did not qualify for
Increased eligibility for student loans, housing assistance, and government programs
Improving your ability to obtain better job opportunities
Improving access and admission to college and other educational resources
Eliminating the concern and potential embarrassment of failing a background check by removing public access to sensitive personal information
Who can view sealed records?
A sealed record can still be viewed by specific people under the right circumstances, namely:
You, if you get a copy of your own rap sheet;
Any agency you apply to for a gun license;
Your employer, if you apply to work as a law enforcement or a peace officer;
Your employer, if you apply for a job that requires you to carry a gun;
The military, if you apply to enlist;
Your Parole or Probation Officer, if you are arrested while on parole or probation;
Prosecutors and other law enforcement officials, if they show a court that "justice requires" them to have the information;
Sealed convictions for violations, such as disorderly conduct, are available to anyone who goes to the court where the conviction occurred.