2023 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.