Ten Years for a Second Chance? New York’s Sealing Statute Lags Behind Other States

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[co-author: Alexander Volpicello]

In 2018, Proskauer highlighted the importance of a New York law that gives those with criminal convictions an opportunity to build a better life. New York Crim. Proc. Law § 160.59 (“CPL 160.59”) allows persons convicted of certain crimes to apply for their criminal record to be sealed upon meeting two requirements: (1) at least ten years have passed since their release from prison; and (2) a record of two or fewer criminal convictions only one of which can be a felony. Once sealed, these records are inaccessible to the public and through routine background checks, such as those used by landlords and employers. Though CPL 160.59 has provided some with a needed second chance, it has excluded far too many people.

Many other states have implemented their own laws permitting criminal records to be sealed — in 2019 alone, 31 states and D.C. enacted bills creating, expanding, or streamlining conviction record sealing, set-asides, or expungement. New York was one of those states, reforming the system by automatically sealing drug convictions for now decriminalized offenses, as well as sealing certain pending matters where there has been no activity in the past five years. Nevertheless, New York did not take the opportunity to expand the scope of CPL 160.59 and thus it remains severely underused compared to original estimates.

New York’s blanket ten-year waiting period regardless of the type of offense appears to prioritize simplicity over justice. Ten years is the longest waiting period of any state, and nearly all other states differentiate their waiting period based on the seriousness of the offense. This adds up to New York requiring the longest and most rigid waiting period of any state.

Other states generally use one of two differentiation schemes: ranges and categories. Ranges are exemplified by Colorado law, which mandates a waiting period of one to five years depending on the precise subclass of offense the conviction falls into. Massachusetts, on the other hand, uses broad categories to determine waiting periods, assigning waiting periods of three and seven years to misdemeanors and felonies, respectively. A shift to a Massachusetts-style regime to create appropriate waiting periods based on the offense being sealed would be easy to implement.

New York’s law is also exceedingly narrow in the number and type of conviction that qualifies for sealing. Petitioners may only qualify with up to two misdemeanors, or one felony and one misdemeanor. Regardless of the severity of the crime, the amount of time passed since, or the sentence served, any individual with more than two misdemeanors is automatically barred from relief.

By contrast, Rhode Island allows any person convicted of fewer than six misdemeanors to expunge all of those misdemeanors after five years, with first-time offenders given the option to file a motion for the expungement of all records, including felonies (crimes of violence excluded). In Ohio, an individual can be convicted of up to five felonies and still qualify for relief. Assuming the person can show the appropriate rehabilitation, having, for example, three misdemeanors instead of two should not arbitrarily exclude deserving New Yorkers from a fresh start. The restrictive nature of CPL 160.59 does a fundamental disservice to those who have meaningfully and significantly improved their lives in the years since their convictions.

Through close collaboration with the Community Service Society of New York and The Legal Aid Society’s Cased Closed Project, Proskauer attorneys have experienced first-hand how important and impactful yet restrictive and narrow CPL 160.59 is, especially when one considers other states. By revisiting the ten-year waiting period restriction in the New York record-sealing law, and providing for the sealing of more than just two prior convictions, New York can join its peer states in opening the door to thousands already waiting for and who absolutely deserve a second chance.

The authors wish to acknowledge former Proskauer Summer Associate Nicholas Urban for his significant contributions in drafting this blog post.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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