Sealed Criminal Cases in New York

New York expunges criminal cases that don't result in criminal convictions. This is known as "sealing". Sealing eliminates public access and, for the most part, government access to records of criminal cases.

By way of background, under New York's Penal Law, an "offense" is conduct for which a "sentence" of imprisonment or a fine may be imposed.  Offenses are divided into "felonies" and "misdemeanors", which are "crimes"; and "violations" and "traffic infractions", which are not crimes. 

So, a person convicted of a misdemeanor or a felony has been convicted of a crime. A person convicted of a violation or a traffic infraction has been convicted of a "non-criminal offense".


Sealed Favorable Dispositions

The "disposition" of a criminal case is its end result.

The following "favorable dispositions", where the accused is convicted of nothing – not even a non-criminal offense – are sealed in New York:

  1. An appealed criminal conviction that results in dismissal of all charges. (An "appeal" challenges a criminal conviction in a court of higher authority than the trial court where the conviction occurred.)
  2. Dismissal based on certain defects in the accusatory instrument. (The "accusatory instrument" is a written document, filed in court, that accuses a person of a crime, such as a "complaint", an "information", or an "indictment".)
  3. Dismissal based on the accused receiving immunity.  (A witness who asserts the Fifth Amendment privilege against self-incrimination, but who is forced to testify under threat of being held in contempt, might receive "immunity" – the inability to be prosecuted for crimes about which the witness testified.) 
  4. Dismissal based on "double jeopardy" (previous prosecution for the same offense).
  5. Dismissal based on expiration of the statute of limitations.  (Most felony prosecutions must begin within five years of the date of the alleged crime; misdemeanor prosecutions must begin in two years; petty offense prosecutions must begin in one.)
  6. Dismissal based on a violation of the accused's right to a "speedy trial" (the right to be brought to trial within a reasonable period of time after prosecution begins).
  7. Dismissal "in furtherance of justice" (one or more compelling factors clearly demonstrate that conviction or prosecution would result in injustice).
  8. Dismissal where evidence presented to the grand jury is not sufficient to support any of the charges. (Before a felony charges can go trial, a "grand jury" usually must screen the prosecutor's evidence and indict the defendant.)
  9. Dismissal based on the grand jury proceeding being "defective". (The grand jury was "illegally constituted"; fewer than 16 grand jurors were present; fewer than 12 grand jurors voted to indict; the defendant didn't receive the opportunity to testify; or the the integrity of the proceeding was impaired to such a degree that "prejudice to the defendant may result".)
  10. Dismissal following an "adjournment in contemplation of dismissal" (a court-ordered period of time, usually six months or a year, during which the defendant must meet certain convictions, such as not getting re-arrested; not violating an order of protection; completing a program or community service).
  11. Dismissal following a "felony hearing" (a seldom-conducted proceeding to screen the sufficiency of evidence against the accused) , upon finding no reasonable cause to believe that the defendant committed an offense.
  12. Dismissal based on the court not having jurisdiction.
  13. Dismissal based on being accused under a statute that is unconstitutional or otherwise invalid.
  14. Dismissal based on other legal impediments to conviction.
  15. Termination of a prosecution by "felony complaint" (a pre-indictment accusatory instrument charging one or more felonies) containing no homicide charges, that has "not been presented to a grand jury or otherwise disposed" within 12 months after arraignment.
  16. A verdict of "complete acquittal" (a judge or jury finding the defendant "not guilty" of all charges after trial).
  17. A trial order of dismissal based on grounds that the "trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense". 
  18. An order "setting aside the verdict", where the court hasn't ordered a new trial and the prosecutor hasn't appealed, upon grounds that: a) would require reversal or modification as a matter of law on appeal; b) juror misconduct occurred outside of the court's presence; or c) new evidence has been discovered since trial.
  19. An order "vacating the judgment", where the court hasn't ordered a new trial and the prosecutor hasn't appealed, upon grounds that: a) the court lacked jurisdiction over the action or the accused; b) the judgment was procured by duress, misrepresentation, or fraud by the court or a prosecutor; c) the prosecutor or the court knew during trial that material evidence was false; d) the prosecutor presented material evidence at trial in violation of the defendant's constitutional rights; e) the defendant was incapable of understanding or participating in the proceedings due to mental disease or defect; f) improper and prejudicial conduct, occurring off the record during trial, would have required reversal if it had occurred on the record; g) new evidence discovered after trial is "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant"; h) DNA testing performed after a guilty plea demonstrates "a substantial probability that the defendant was actually innocent"; i) DNA testing performed after a guilty verdict creates a reasonable probability that the verdict would have been more favorable to the defendant if the evidence had been presented at trial; j) the judgment was obtained in violation of the defendant's constitutional rights.
  20. An order invalidating the conviction upon a writ of habeas corpus, where the prosecutor hasn't appealed, or where determination of the prosecutor's appeal has been against the prosecutor.
  21. The grand jury dismisses all charges.
  22. Prior to filing an accusatory instrument in a local criminal court, the prosecutor "elects not to prosecute".
  23. Following arrest, but prior to filing of an accusatory instrument in a local criminal court, "the arresting police agency ... elects not to proceed further".
  24. The accusatory instrument alleged a marijuana offense, marijuana was the only substance involved, the conviction was only for one or more "violations" (non-criminal offenses), and at least three years have passed since the offense occurred.

As result of these favorable dispositions, under New York law (but not necessarily under federal law or the laws of other states):

"the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution."


Sealed Non-Criminal Convictions

"Violations" and "traffic infractions" are offense categories under New York law.  They are non-criminal offenses: a person convicted of a violation or a traffic infraction has not been convicted of a crime.

A conviction of any "violation", except loitering for the purpose of engaging in a prostitution offense, is ordinarily sealed.

A conviction of any "traffic infraction", except driving while ability impaired, is ordinarily sealed.


Sealed Criminal Convictions

Previously, only one type of criminal conviction could be vacated and sealed in New York: convictions arising from arrests for certain prostitution-related crimes, where the accused was a sex-trafficking victim. This is another type of favorable disposition where the arrest and prosecution are deemed a nullity.

However, recent legislation now increases the opportunity to "expunge" other criminal convictions.


"Confidential" Youthful Offender Adjudications

In some instances, a "youthful offender adjudication" replaces a criminal conviction for a person who was 18 years old or younger on the date of the crime. 

Except where specifically required or permitted by statute, or by specific authorization of the court, "all official records or papers" regarding the underlying criminal case are "confidential". Confidentiality is similar to sealing.


Judicial Diversion Dismissals

"Judicial diversion" is a court-monitored treatment program available to some people who are charged with drug-related felonies.  The vast majority  of defendants who participate in judicial diversion must first plead guilty to a felony. Sometimes, upon program completion, courts vacate the conviction and dismiss the indictment. 

However, dismissal following successful completion of judicial diversion is not sealed. This seems to be an unintended error in the statute. The error should be corrected. Without sealing, dismissal loses most of its value.


Bruce Yerman is a New York City criminal defense attorney.


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