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New York Criminal Record-Sealing Program Revisited

by Ed Lyon

Criminal Legal News first reported on a 2017 law passed by the New York State Legislature that allows citizens to have certain criminal records sealed in its January 2019 issue (p.38-39).

Former prisoners could have up to two misdemeanors or one nonviolent felony and one misdemeanor conviction sealed after a 10-year offense-free period after their release from prison or jail. Sex offenders and recidivists were not included. At the time that article was written, only 549 of the 600,000 eligible citizens had taken advantage of the law, leaving a mere 599,451 to go.

By October 2019, the total number of people taking advantage of that two-year-old law had risen from 549 to 1,758. Although that is a positive showing, it’s still pretty dismal considering the fact that there’s still a pool of around 600,000 New Yorkers eligible to have their criminal records sealed under the law.

Like most things involving the law, criminal record-sealing is apparently not a simple process. New York Legal Aid is currently representing 300 citizens seeking to have their records sealed. As general counsel Judy Whiting of New York’s Community Service Society pointed out, “People have to bare their souls to get relief that I and many other people think should be given them as a matter of course.” This refers to the fact that people seeking criminal records sealing must apply to their convicting court for the sealing order. Whiting’s organization helps applicants do this, but she feels expungement is actually a much better avenue.

One record-sealing recipient earned $32,000 yearly as a nursing assistant. Once he got his records sealed, he applied to work as a certified emergency room nurse, enabling him to earn $82,000 yearly. However, due to an error in the court order granting him the sealing of his criminal records, they still showed up in a background check. Further, as reported in the January 2019 Criminal Legal News on p. 9, New York City cops have access to, and routinely use, sealed criminal records on a regular basis. Hence, the reasoning behind the rationale and drive for Whiting and others for expungement rather than records-sealing.

New York’s legislature seems to agree and is responding positively, although only with a small first step. The 2019 legislature recently passed a law decriminalizing marijuana possession. Part of that bill provides for the automatic expungement of past convictees’ marijuana possession convictions by this year. It’s a step in the right direction, hopefully with many more to follow. 



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