NY Crim Pro L § 160.59 (2021)
2021 New York Laws CPL - Criminal Procedure Part 2 - The Principal Proceedings Title H - Preliminary Proceedings in Local Criminal Court Article 160 - Fingerprinting and Photographing of Defendant After Arrest--Criminal Identification Records and Statistics 160.59 - Sealing of Certain Convictions.

§ 160.59 Sealing of certain convictions.   1.  Definitions:  As  used  in this section, the following terms shall have the following meanings:  (a) "Eligible offense" shall mean any crime defined  in  the  laws  of this  state  other  than  a  sex  offense defined in article one hundred thirty of the penal law, an  offense  defined  in  article  two  hundred sixty-three  of  the  penal law, a felony offense defined in article one hundred twenty-five of the penal law, a violent felony  offense  defined in  section  70.02 of the penal law, a class A felony offense defined in the penal law, a felony offense defined in article one hundred  five  of the  penal  law where the underlying offense is not an eligible offense, an attempt to commit an offense that is not an eligible offense  if  the attempt  is  a  felony,  or  an  offense for which registration as a sex offender is required pursuant to article six-C of  the  correction  law. For  the  purposes  of this section, where the defendant is convicted of more than one eligible offense, committed as part of the  same  criminal transaction  as  defined  in  subdivision  two  of section 40.10 of this chapter, those offenses shall be considered one eligible offense.  (b) "Sentencing judge" shall mean the judge  who  pronounced  sentence upon  the  conviction under consideration, or if that judge is no longer sitting in a court in the  jurisdiction  in  which  the  conviction  was obtained, any other judge who is sitting in the criminal court where the judgment of conviction was entered.   1-a.  The chief administrator of the courts shall, pursuant to section 10.40 of this chapter, prescribe a form application which may be used by a defendant to apply for sealing pursuant to  this  section.  Such  form application  shall  include  all the essential elements required by this section to be included in an application for sealing.  Nothing  in  this subdivision  shall  be  read  to  require  a  defendant to use such form application to apply for sealing.   2. (a) A defendant who has  been  convicted  of  up  to  two  eligible offenses  but not more than one felony offense may apply to the court in which he or she was convicted of the most serious offense to  have  such conviction  or convictions sealed. If all offenses are offenses with the same classification, the application shall be made to the court in which the defendant was last convicted.  (b) An application shall contain  (i)  a  copy  of  a  certificate  of disposition or other similar documentation for any offense for which the defendant  has been convicted, or an explanation of why such certificate or other documentation is not available; (ii) a sworn statement  of  the defendant  as  to  whether he or she has filed, or then intends to file, any application for sealing of any other eligible offense; (iii) a  copy of  any  other  such  application  that  has  been  filed;  (iv) a sworn statement as to the conviction or convictions for which relief is  being sought; and (v) a sworn statement of the reason or reasons why the court should, in its discretion, grant such sealing, along with any supporting documentation.  (c)  A  copy  of any application for such sealing shall be served upon the district attorney of the county in which the conviction, or, if more than one, the convictions, was or were obtained. The  district  attorney shall  notify  the  court within forty-five days if he or she objects to the application for sealing.  (d) When such application  is  filed  with  the  court,  it  shall  be assigned  to  the  sentencing  judge unless more than one application is filed in which case the application shall  be  assigned  to  the  county court  or the supreme court of the county in which the criminal court is located, who shall request and receive from  the  division  of  criminal justice  services  a  fingerprint  based  criminal history record of the  defendant, including any sealed or suppressed records. The  division  of criminal  justice services also shall include a criminal history report, if any, from the federal bureau of investigation regarding any  criminal history  information  that occurred in other jurisdictions. The division is hereby authorized to receive such information from the federal bureau of  investigation  for  this  purpose,  and  to  make  such  information available to the court, which may make this information available to the district attorney and the defendant.   3.  The  sentencing  judge, or county or supreme court shall summarily deny the defendant's application when:  (a) the defendant is required to register as a sex  offender  pursuant to article six-C of the correction law; or  (b)  the  defendant  has  previously  obtained  sealing of the maximum number of convictions allowable under section  160.58  of  the  criminal procedure law; or  (c)  the  defendant  has  previously  obtained  sealing of the maximum number of convictions allowable under subdivision four of this  section; or  (d)  the time period specified in subdivision five of this section has not yet been satisfied; or  (e) the defendant has an undisposed arrest or charge pending; or  (f) the defendant was convicted of any crime after  the  date  of  the entry  of  judgement of the last conviction for which sealing is sought; or  (g) the defendant has failed to provide the court  with  the  required sworn  statement  of  the  reasons why the court should grant the relief requested; or  (h) the defendant has been convicted of two or more felonies  or  more than two crimes.   4.  Provided  that  the  application  is  not summarily denied for the reasons set forth in subdivision three of this section, a defendant  who stands  convicted  of up to two eligible offenses, may obtain sealing of no more than two eligible offenses but not more than one felony offense.   5. Any eligible offense may be sealed only after at  least  ten  years have  passed  since  the  imposition  of the sentence on the defendant's latest conviction or, if the defendant was  sentenced  to  a  period  of incarceration,   including   a   period   of  incarceration  imposed  in conjunction with a sentence of probation, the defendant's latest release from incarceration. In  calculating  the  ten  year  period  under  this subdivision,  any  period of time the defendant spent incarcerated after the conviction for which the application for sealing is sought, shall be excluded and such ten year period shall  be  extended  by  a  period  or periods equal to the time served under such incarceration.   6.  Upon  determining that the application is not subject to mandatory denial pursuant to subdivision  three  of  this  section  and  that  the application is opposed by the district attorney, the sentencing judge or county  or  supreme  court shall conduct a hearing on the application in order to consider any evidence offered by either party  that  would  aid the  sentencing judge in his or her decision whether to seal the records of the defendant's convictions. No hearing is required if  the  district attorney does not oppose the application.   7. In considering any such application, the sentencing judge or county or  supreme court shall consider any relevant factors, including but not limited to:  (a) the amount of time that has elapsed  since  the  defendant's  last conviction;  (b)  the  circumstances  and  seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;  (c)  the circumstances and seriousness of any other offenses for which the defendant stands convicted;  (d) the character of the defendant, including any  measures  that  the defendant  has  taken  toward  rehabilitation,  such as participating in treatment programs, work, or schooling, and participating  in  community service or other volunteer programs;  (e)  any  statements  made  by the victim of the offense for which the defendant is seeking relief;  (f) the impact of sealing the  defendant's  record  upon  his  or  her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and  (g)  the impact of sealing the defendant's record on public safety and upon the public's confidence in and respect for the law.   8. When a sentencing judge or county or supreme court  orders  sealing pursuant  to  this  section, all official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal  justice  services or  any  court  shall  be sealed and not made available to any person or public or private agency except as provided for in subdivision  nine  of this   section;   provided,  however,  the  division  shall  retain  any fingerprints, palmprints and photographs, or digital images of the same. The clerk of such court shall immediately notify the commissioner of the division of criminal justice services regarding the records  that  shall be  sealed  pursuant  to  this  section. The clerk also shall notify any court in which the defendant has stated, pursuant to  paragraph  (b)  of subdivision  two of this section, that he or she has filed or intends to file an application for sealing of any other eligible offense.   9. Records sealed pursuant to this section shall be made available to:  (a) the defendant or the defendant's designated agent;  (b) qualified agencies, as defined  in  subdivision  nine  of  section eight  hundred  thirty-five  of the executive law, and federal and state law enforcement agencies, when acting within  the  scope  of  their  law enforcement duties; or  (c)  any  state or local officer or agency with responsibility for the issuance  of  licenses  to  possess  guns,  when  the  person  has  made application for such a license; or  (d)  any  prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four  of section  1.20  of  this  chapter,  in  relation  to  an  application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police  officer  or peace  officer  shall  be  furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an  explanation thereto; or  (e)  the criminal justice information services division of the federal bureau of investigation, for the purposes of responding  to  queries  to the national instant criminal background check system regarding attempts to  purchase  or otherwise take possession of firearms, as defined in 18 USC 921 (a) (3).   10. A conviction which is sealed pursuant to this section is  included within  the  definition of a conviction for the purposes of any criminal proceeding in which the fact of  a  prior  conviction  would  enhance  a penalty or is an element of the offense charged.   11.  No  defendant shall be required or permitted to waive eligibility for sealing pursuant to this section  as  part  of  a  plea  of  guilty,  sentence  or  any  agreement  related  to  a  conviction for an eligible offense  and  any  such  waiver  shall  be  deemed   void   and   wholly unenforceable.