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Is There Expungement in New York? An Analysis of the Current State of the Law

Is There Expungement in New York? An Analysis of the Current State of the Law

Expungement in New York: How Close is it to Becoming Reality?

Criminal proceedings can be exhausting. These types of cases are taxing on individuals charged with a crime, along with their families, reputations, and futures. For anyone that's been charged with a crime, the possibility of expungement gives new hope. Expungement is the process where a criminal conviction record is effectively sealed, also known as "setting aside a criminal conviction." Criminal records are often searched upon seeking new employment. A previous criminal record could mean the difference between beginning a new career and staying stagnant. Unfortunately, New York has no expungement law as of yet.

In very limited circumstances, a conviction record can be sealed. For instance, records have the potential to be sealed for drug offense convictions, or for individuals that completed a judicial diversion program, Drug Treatment Alternative to Prison program, or other similar program specified under CPL 160.58. Sealing records is an effective and powerful tool. New York's highest court, the Court of Appeals, has previously held that sealed records cannot be unsealed for purposes of sentencing, for employment disciplinary hearings, or even eviction proceedings.

Although there is no expungement statute in New York, lawyers, judges, politicians, and policy makers recognize the fact that other jurisdictions have such a law. The question remains: should an individual be continuously punished for committing a non-violent offense years after the conviction? Or, simply: can people change? Criminal law functions in several different respects: laws typically penalize, discourage, or rehabilitate. If an individual commits a crime and suffers the consequences, whether it is community service, a monetary fine, or prison time, the effects of the conviction can haunt the individual every time his or her records are searched. Chief Judge Jonathan Lippman has proposed new legislation in an effort to make New York's criminal history record policies fairer and more rational. While many criminal defense professionals favor the policy change, others fear that these changes will diminish the effect of deterrence that laws have on individuals deciding whether they should commit a crime or not. If an individual knows that criminal records can potentially be sealed, will that encourage them to commit a crime? Or will this level the playing field for good people that are suffering the longstanding effects of a conviction that is already several years old?

Chief Judge Lippman's proposal also responds to inquiries regarding the sale of criminal background information. The Judge has stated that "beginning April 1 st, when the office of Court Administration responds to requests for electronic searches of criminal record information, it will no longer list misdemeanor convictions of individuals who have no other previous criminal convictions and who have not been rearrested within 10 years of the date of the conviction." This policy rewards years of good behavior for individuals that may have committed a crime in the past, but have since changed their ways.

While hope for new expungement legislation is on the horizon, the outlook remains uncertain since some type of expungement and sealing legislation has been introduced in every session of Congress since 2004. Do you think it's time for New York to adopt a "Second Chance Law"?

The Long Island Criminal Defense Attorneys at Schalk, Ciaccio & Kahn continue to monitor the current legislation pending in New York as it pertains to expungement and will update our site and social media pages as information comes down on these potential landmark changes to the criminal justice system.