Beginning October 7, 2017, New York will permit expungement of a wide range of felony and misdemeanor convictions.
You should understand expungement if: 1) you were last convicted of a crime 10 years ago; or 2) you are considering a plea bargain that would result in a criminal conviction, and you would like expungement to be available in the future.
Expungement involves sealing official records that relate to certain criminal convictions, and outlawing discrimination based on the sealed convictions.
If you've been convicted of a crime, official records of the conviction are available to the public. Individuals, businesses and government agencies can access your conviction records when conducting background checks. They may question you about your conviction.
Criminal convictions often result in lost employment opportunities, denial or revocation of government-issued licenses, and numerous other "collateral consequences".
Previously, official records of criminal convictions remained public forever. Now, New York courts may expunge certain convictions.
When convictions are expunged, "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", with limited exceptions.
Furthermore, "It shall be an unlawful discriminatory practice ... for any person ... to make any inquiry about ... or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by ... a conviction which is sealed ..., in connection with the licensing, employment or providing of credit or insurance to such individual", subject to limited exceptions.
So, expungement has two main features: 1) sealing official records of expunged criminal convictions; and 2) outlawing certain forms of discrimination based on expunged criminal convictions.
Only an "eligible offense" may be expunged. You seek expungement by applying to seal an eligible offense.
An eligible offense is any crime defined under New York law except: a violent felony, a sex offense, an offense involving sexual performance by a child, homicide and related offenses, a class A felony, conspiracy to commit an ineligible offense (conspiracy to commit a violent felony, conspiracy to commit a sex offense, etc.), felony attempt to commit an ineligible offense, or an offense for which registration as a sex offender is required.
You may apply to a court for sealing if you've been convicted of one or two eligible misdemeanors; one eligible felony; or one eligible felony and one eligible misdemeanor.
You may not apply for sealing if you've been convicted of: i) a non-eligible offense (a violent felony, a sex offense, etc.); ii) eligible offenses consisting of two or more felonies; or iii) eligible offenses consisting of more than two crimes of any kind (for example, one felony and two misdemeanors; three misdemeanors; etc.).
To clarify, if you've been convicted of too many eligible offenses, none of them may be sealed. For example, if you've been convicted of three eligible offenses, you can't get two of them sealed so that only one conviction would remain on your record.
An eligible offense may be sealed only after ten years has passed since the court sentenced you on your latest conviction. If the court sentenced you to a period of jail, ten years must pass since your latest release from jail.
If you've been convicted of multiple eligible offenses committed as part of one "criminal transaction", all such offenses count as one eligible offense.
When considering an application to seal an eligible offense, the judge must consider any relevant factors, including but not limited to: (a) the amount of time that has elapsed since your last conviction; (b) the circumstances and seriousness of the offense for which you're seeking relief, including whether the arrest charge was not an eligible offense; (c) the circumstances and seriousness of any other offenses for which you stand convicted; (d) your character, including any measures that you've 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 you're seeking relief; (f) the impact of sealing your record upon your rehabilitation and upon your successful and productive reentry and reintegration into society; and (g) the impact of sealing your record on public safety and upon the public's confidence in and respect for the law.
Your application for sealing should address all relevant factors, backed up with documentary evidence when possible.
Ten years is a long time. Nevertheless, if you're currently negotiating a plea bargain that will result in a criminal conviction, you should try to preserve your right to seek sealing in ten years.
First, because conviction of one non-eligible offense will forever bar you from sealing, try to negotiate a plea to an eligible offense.
Second, if you've previously been convicted of one or more eligible offenses, understand how conviction of another eligible offense would affect your future eligibility for expungement.
For example, if your criminal record consists entirely of a conviction of one eligible felony, then conviction of another eligible felony would automatically bar expungement in the future. However, conviction of an eligible misdemeanor would not.
Third, remember that multiple convictions arising from one criminal transaction count as only one eligible offense.
So, if you're convicted of three felonies related to one criminal transaction – for example, felony convictions of burglary, grand larceny and criminal possession of stolen property, for breaking into a retail store on one occasion and stealing stealing $5,000 worth of property – then the convictions count as one eligible felony offense, not three. Three felony convictions in this scenario would not automatically bar expungement.
Fourth, try to avoid structuring a plea bargain that would result in multiple convictions related to "multiple criminal transactions".
For example, if you're arrested for committing a string of three separate commercial burglaries, each burglary is a separate criminal transaction. Try to avoid pleading guilty to one felony per transaction, because conviction of more than one eligible felony would permanently bar sealing.
Likewise, in the same scenario, try to avoid pleading guilty to one misdemeanor per transaction, because conviction of more than two eligible misdemeanors would automatically bar sealing.
Instead, try to structure a plea bargain where you would be convicted of one eligible offense to cover all three burglaries. Such a conviction would not automatically bar sealing.
Bottom line: before pleading guilty, thoroughly consult with your lawyer to make sure you understand the effect your plea will have on your ability to seek sealing in ten years.
Contact New York City criminal defense lawyer Bruce Yerman, at 646-360-0290, for a free initial consultation about expunging your criminal conviction.