People often experience collateral consequences from having a criminal record. It can impact their ability to work, their ability to go to school, their ability to vote, and even their ability to obtain certain public benefits. Because of this, many people ask how to expunge their criminal record.
The problem is that New York is a state that does not allow you to fully expunge your record (with the exception of Marijuana cases, which I will cover in detail in a future post). However, while you cannot expunge your record, in certain cases you may be able to get it sealed.
So, what’s the difference?
Expungement vs. Sealing
When your record is expunged it is completely destroyed as if it never happened. When your record is sealed, it is hidden from the public, police, and law enforcement, but it still exists and can come up under certain circumstances. For instance, if your record is sealed and you apply for a job that requires you to carry a firearm, that employer may be able to see your prior conviction. If you find yourself on parole or probation, your parole/probation officer may have access to it. Additionally, if you are arrested in the future, a judge can potentially issue an order unsealing the conviction so that law enforcement and the prosecutor can see it.
What Types of Convictions Can I Get Sealed?
The first thing to know is that you can only get your criminal record sealed in certain circumstances. Generally speaking, you can only get two convictions sealed and only one of them can be a felony. With that being said, if you have several convictions related to the same incident you MAY be able to get all of them sealed.
However, not all convictions are eligible for sealing. Some convictions that are deemed to be more heinous are not eligible for sealing. These include certain sex crimes, violent felony offenses, class “A” felony offenses, and a number of others. If you have any question about whether the specific offense you are attempting to get sealed is eligible, you should contact an experienced attorney to help you.
Ok, So How Do I Actually Get My Record Sealed?
The most important step in actually getting your record sealed is going to be speaking with an experienced attorney to help guide you through the process. Speaking generally though, the first step in the process will be to go to the court where you were convicted and obtain a copy of the certificate of disposition for your application.
Once you have that, your attorney can begin working on the application to seal your criminal record by detailing the various reasons you are eligible to have your conviction sealed. Some of these factors include that at least ten years has passed since you were either sentenced or released from prison, you do not have a pending criminal case, and you only have two convictions on your record.
After that application is complete, your attorney and you will bring it, along with the certificate of disposition and any other supporting documentation you have that supports your argument for sealing, before the judge who originally sentenced you. If the judge who sentenced you has since retired, don’t worry, you can also bring it before another judge who is sitting in the same court where you were sentenced. Once it’s submitted, you will also have to serve the application upon the District Attorney’s Office, who will then have 45 days to notify the court about their position on your application for sealing.
If the D.A. objects, then you will have a hearing where your attorney and the Assistant District Attorney will present their arguments and evidence in support of their positions. In some circumstances, the judge can require a hearing even if the D.A. does not object to sealing.
Finally, after the hearing concludes (or if there was no hearing) the judge will consider how long ago you were convicted, the severity of the charge of which you were convicted, your character and any steps you’ve taken towards rehabilitation (i.e. drug treatment, alcohol treatment, anger management, etc.) and a number of other factors. Then, he or she will make their decision.
I hope this information is helpful to people who are looking to get their records sealed. If you have any questions at all about this or any other topic, please don’t hesitate to contact me.
All the best.