2022 New York Laws
CPL - Criminal Procedure
Part 2 - The Principal Proceedings
Title H - Preliminary Proceedings in Local Criminal Court
Article 160 - Fingerprinting and Photographing of Defendant After Arrest--Criminal Identification Records and Statistics
160.58 - Conditional Sealing of Certain Controlled Substance, Marihuana or Specified Offense Convictions.
§ 160.58 Conditional sealing of certain controlled substance, marihuana
or specified offense convictions.
1. A defendant convicted of any offense defined in article two hundred
twenty or two hundred twenty-one of the penal law or a specified offense
defined in subdivision five of section 410.91 of this chapter who has
successfully completed a judicial diversion program under article two
hundred sixteen of this chapter, or one of the programs heretofore known
as drug treatment alternative to prison or another judicially sanctioned
drug treatment program of similar duration, requirements and level of
supervision, and has completed the sentence imposed for the offense or
offenses, is eligible to have such offense or offenses sealed pursuant
to this section.
2. The court that sentenced the defendant to a judicially sanctioned
drug treatment program may on its own motion, or on the defendant's
motion, order that all official records and papers relating to the
arrest, prosecution and conviction which resulted in the defendant's
participation in the judicially sanctioned drug treatment program be
conditionally sealed. In such case, the court may also conditionally
seal the arrest, prosecution and conviction records for no more than
three of the defendant's prior eligible misdemeanors, which for purposes
of this subdivision shall be limited to misdemeanor offenses defined in
article two hundred twenty or two hundred twenty-one of the penal law.
The court may only seal the records of the defendant's arrests,
prosecutions and convictions when: (a) the sentencing court has requested and received from the division
of criminal justice services or the Federal Bureau of Investigation a
fingerprint based criminal history record of the defendant, including
any sealed or suppressed information. The division of criminal justice
services shall also include a criminal history report, if any, from the
Federal Bureau of Investigation regarding any criminal history
information that occurred in other jurisdictions. The division is hereby
authorized to receive such information from the Federal Bureau of
Investigation for this purpose. The parties shall be permitted to
examine these records;
(b) the defendant or court has identified the misdemeanor conviction
or convictions for which relief may be granted;
(c) the court has received documentation that the sentences imposed on
the eligible misdemeanor convictions have been completed, or if no such
documentation is reasonably available, a sworn affidavit that the
sentences imposed on the prior misdemeanors have been completed; and
(d) the court has notified the district attorney of each jurisdiction
in which the defendant has been convicted of an offense with respect to
which sealing is sought, and the court or courts of record for such
offenses, that the court is considering sealing the records of the
defendant's eligible misdemeanor convictions. Both the district attorney
and the court shall be given a reasonable opportunity, which shall not
be less than thirty days, in which to comment and submit materials to
aid the court in making such a determination.
3. At the request of the defendant or the district attorney of a
county in which the defendant committed a crime that is the subject of
the sealing application, the court may conduct a hearing to consider and
review any relevant evidence offered by either party that would aid the
court in its decision whether to seal the records of the defendant's
arrests, prosecutions and convictions. In making such a determination,
the court shall consider any relevant factors, including but not limited
to: (i) the circumstances and seriousness of the offense or offenses
that resulted in the conviction or convictions; (ii) the character of
the defendant, including his or her completion of the judicially
sanctioned treatment program as described in subdivision one of this
section; (iii) the defendant's criminal history; and (iv) the impact of
sealing the defendant's records upon his or her rehabilitation and his
or her successful and productive reentry and reintegration into society,
and on public safety.
4. When a court orders sealing pursuant to this section, 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;
provided, however, the division shall retain any fingerprints,
palmprints and photographs, or digital images of the same.
5. When the court orders sealing pursuant to this section, the clerk
of such court shall immediately notify the commissioner of the division
of criminal justice services, and any court that sentenced the defendant
for an offense which has been conditionally sealed, regarding the
records that shall be sealed pursuant to this section.
6. Records sealed pursuant to this subdivision shall be made available
to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section
eight hundred thirty-five of the executive law, and federal and state
law enforcement agencies, when acting within the scope of their law
enforcement duties; or
(c) any state or local officer or agency with responsibility for the
issuance of licenses to possess guns, when the person has made
application for such a license; or
(d) any prospective employer of a police officer or peace officer as
those terms are defined in subdivisions thirty-three and thirty-four of
section 1.20 of this chapter, in relation to an application for
employment as a police officer or peace officer; provided, however, that
every person who is an applicant for the position of police officer or
peace officer shall be furnished with a copy of all records obtained
under this paragraph and afforded an opportunity to make an explanation
thereto.
7. The court shall not seal the defendant's record pursuant to this
section while any charged offense is pending.
8. If, subsequent to the sealing of records pursuant to this
subdivision, the person who is the subject of such records is arrested
for or formally charged with any misdemeanor or felony offense, such
records shall be unsealed immediately and remain unsealed; provided,
however, that if such new misdemeanor or felony arrest results in a
termination in favor of the accused as defined in subdivision three of
section 160.50 of this article or by conviction for a non criminal
offense as described in section 160.55 of this article, such unsealed
records shall be conditionally sealed pursuant to this section.
