SEALING CRIMINAL CONVICTIONS UPDATE: As New York Senate Bill 5385-2013 Moves Forward, Criminal Record Sealing Gains Momentum
For the vast majority of New Yorkers with criminal convictions, the record is a permanent stain. No matter how many years go by, the record forever remains. No amount of good deeds can change it. Currently, New York has no expungement or sealing law applicable to adults who are convicted of felonies or even misdemeanors (other than in the limited instance of defendants convicted of a drug offense or certain specified offenses who complete a judicial diversion program, DTAP program, or other judicially sanctioned drug treatment program [CPL 160.58]). A conviction typically follows an ex-offender to the grave, presenting roadblocks to education, employment, housing and other opportunities … long after the debt to society has been fully paid.
This month, Senator Lee Zeldin (https://www.nysenate.gov/senator/lee-m-zeldin) introduced a bill to take a first step toward second chances for minor offenders who have changed their lives. Bill number S5385 is “An act to amend the criminal procedure law and the executive law, in relation to permitting the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor offenses.” It is entitled “The Second Chance for Ex-Offenders Act.” It can be found in its entirety at this link: https://open.nysenate.gov/legislation/bill/S5385-2013.
The bill is confined to certain misdemeanors, youthful offender adjudications and non-criminal offenses only, not felonies. Anybody with a felony conviction or more than three misdemeanor convictions is ineligible. Applicants would have to wait at least seven years from the date of sentence to be eligible, have no new convictions or undisposed arrests, and have been finished with the terms of their sentence for at least five years. The application would be made to the sentencing court, the prosecution could object, and the judge would have discretion to grant the application or deny it by reviewing certain factors. Sealing, if granted, would afford the same protection as CPL section 160.50: it would render the arrest and conviction a nullity.
Importantly, Senator Zeldin’s bill contains a “spring-back” provision. If the person is arrested for a crime subsequent to the sealing of the records, the record “springs back” and is immediately un-sealed and can qualify as a conviction for sentencing purposes on the new crime and may be used to establish an element of a crime as provided in the penal law (however, if the new arrest results in a non-criminal conviction or a dismissal, the record would be re-sealed). The net effect of this provision is “lifetime probation.” The person enjoys the benefits of a sealed record only so long as he or she maintains a law-abiding lifestyle, providing a powerful incentive against recidivism.
Two years ago, the Criminal Justice Section of the New York State Bar Association formed a committee to offer recommendations as to what position the State Bar should take on the issue of sealing criminal records for ex-offenders. I was honored to be appointed by Criminal Justice Section Chair Marvin Schechter, Esq., as Co-Chair of this Sealing Committee, alongside Jay Shapiro, Esq. Our Report and Recommendations were adopted by the House of Delegates of the Association, and have become a legislative priority. While this bill does not go as far as the Association’s position, it is a move in the right direction. If passed in the Legislature, it will help many thousands of people who have overcome rough patches and now deserve a fresh start and a chance at opportunity. Regrettably, even a modest, limited bill such as this will likely be met with resistance by those who ideologically or politically oppose second chances for anyone ever convicted of a crime. Senator Zeldin should be commended for his courage in championing this bill and helping to foster awareness of this important issue.
I will keep you apprised of developments as S5385 moves forward.