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Sealing of Criminal Records in New York

Todd Spodek, Esq. - 1/3/2010

In New York State there is no such things as an expungement of criminal records. There is what is called “sealing.” Sealing basically means that all fingerprints, palm prints, photographs and official records and papers are destroyed or returned to the defendant.

Under Criminal Procedure law 160.50(1) when a case is resolved in favor of a defendant, the record of the action must be sealed, unless the Court directs otherwise.

In Favor of a Defendant includes the following:

* Acquittal at Trial
* Dismissal by Grand Jury – No True Bill
* Dismissal in the Interests of Justice – Clayton Motion
* Dismissal of Information
* Adjournment in Contemplation of Dismissal (“ACD”)
* Decline Prosecution (“DP”)
* Decline to File Accusatory Instrument (By the Police)
* Order Setting Aside the Verdict
* Order Vacating a Judgement
* Habeaus Appeal
* Unlawful possession of Marijuana – Penal Law 221.05

In these situations, the records are automatically sealed. The records with the Police, the Prosecutor, Division of Criminal Justice Services (“DCJS”), and the Court are all sealed. These records are available to the defendant or his/her agent.

The other type of sealing that occurs is with Violations and Traffic Infractions. In these circumstances, the DCJS, Police and prosecutors files are all sealed. The difference here is that the Court records are not sealed. The Court needs to keep a record of these convictions.

When a third-party does a criminal history record search (“CHRS”) on an individual only the convictions of misdemeanors and felonies will come up. Offenses will no longer show.

Common Infractions and Violations include the following:

* Trespass
* Disorderly Conduct
* VTL Violations
* Harassment in the 2nd Degree

The only time that sealing does not occur under these circumstances, is when the District Attorneys office moves upon not less than 5 days notice to stop the sealing in the interest of justice.

Lastly, a record of a sealed arrest remains in a confidential file at DCJS and can only be accessed under the following circumstances:

* The client requests it
* The client applies for a gun license
* The client applies for a job as a law enforcement or peace officer
* The client is arrested while on probation or parole
* If a prosecutor or law enforcement establishes that “justice requires” it.