How Do I Get a Misdemeanor Expunged in New York State?

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In some U.S. states, a person can request an expungement (also known as an expunction) of his criminal record. This is a legal process in which the record of an arrest or criminal conviction is erased. While there is no New York expungement statute as such, you can ask the court to seal certain convictions.

Difference Between Expunging and Sealing

When a criminal record is expunged, it is legally erased. In other words, it is as if the arrest, the court case and the decision (court verdict) never happened. When a record is sealed, it still exists, but all fingerprint and palm print cards, booking photos and DNA samples relating to the case are returned to the defendant. One possible exception is digital fingerprints, which are not destroyed if the individual's fingerprints were already on file from a different unsealed case.

Additionally, most records are hidden from the public, such as Department of Criminal Justice System, police, prosecutor and certain court records.

If someone is concerned about misdemeanors that prevent employment, sealing her record removes that worry, although a prospective employer can still see sealed records if she applies for a job where she carries a gun. The defendant can still view sealed records, as can anyone she authorizes to ask for her records, her parole officer, if she is arrested during a period of parole or probation, and a law enforcement agency after making a request to the court. If she is not a United States citizen, the Immigration Department can still see her sealed convictions.

Conditions for Sealing in New York

Certain conditions must be met before the court will seal a misdemeanor conviction in New York. Firstly, the person must have no more than two misdemeanors, or no more than one felony and one misdemeanor. Secondly, he must not have been arrested or convicted of a crime for at least 10 years. This period begins from the date of conviction or the release from prison, whichever is later.

Courts have the discretion to seal up to two convictions, of which only one may be a felony. However, if someone has more than two convictions, he may still be able to get them sealed if the convictions are related to the same one or two incidents. In other words, the court may decide to group multiple convictions together and deal with them as one conviction.

How to Seal a Misdemeanor

The first step to get criminal records sealed in New York is to obtain a Criminal Certificate of Disposition Request Form for CPL 160.59 Sealing Application from the court.

The Certificate of Disposition is an official court document that reveals what happened in a criminal case. It states the crime a person was charged with, what she was convicted of, the date she was convicted and the sentence she received. Employers may ask prospective employees to provide a Certificate of Disposition for each of their convictions.

This must be completed and returned to the court, with the correct fee. The fee is $5 if the court is located outside New York City, and $10 if the court is located within the five boroughs of New York City: Manhattan, Brooklyn, Queens, The Bronx and Staten Island. If someone can’t afford the fee, she may be able to get a fee waiver.

Supporting Documentation for a Sealing Application

When the Certificate of Disposition arrives from the court, the Sealing Application (also known as the Notice of Motion and Affidavit in Support) must be signed in the presence of a notary public. All evidence in support of the request for sealing should be attached, such as verification of employment, letters of recommendation from teachers/professors, or certificates of successful completion of a drug/alcohol treatment program.

Submitting the Sealing Application

The Certificate of Disposition, the Sealing Application and any other supporting documents should then be served on the District Attorney's Office by mail or by hand delivery. The person who mailed or delivered the documents must complete the Affidavit of Service and sign it before a notary public.

The Defendant should make a copy of all documents for her own records, before filing the originals with the court where the most serious conviction was entered (if it concerns more than one conviction). There is no fee to file the papers with the court.

Final Step in the Sealing Application

After the sealing application is approved, a Seal Order, signed by the court, will be sent to the Defendant. Upon receipt of this document, there is one important final step to complete the sealing process. A Request for Seal Verification form must be completed in full and sent (with a copy of the Seal Order) to the NYS Division of Criminal Justice, Correspondence Unit – 5th Floor, 80 South Swan Street, Albany, NY 12210.

This confirms that the NYS Criminal History Record has been sealed.

New York Expungement Bill

Following a New York expungement bill that became law in July 2019, certain marijuana misdemeanors are automatically expunged under certain circumstances, for example, if a person was convicted of a misdemeanor before August 28, 2019. Before this date, criminal possession of marijuana in the fifth degree (which included smoking marijuana in public, holding marijuana out in the open and possessing more than 25 grams of marijuana) was a Class B misdemeanor.

Likewise, if the defendant was charged with unlawful possession of marijuana before this date, all records of the conviction will be automatically expunged.

If she was charged with unlawful possession of marijuana in the first degree or unlawful possession of marijuana in the second degree after August 28, 2019, her record will be automatically expunged as soon as her case is over. It may take up to a year (until August 27, 2020) for all applicable records to be expunged.

Read More: How to File for Expungement in New York

Alternatives to Sealing in New York

If someone's criminal history record can’t be sealed (for example, if he has been arrested in the last 10 years), he may still be able to get a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct, which can remove some of the negative consequences of a criminal conviction, like being automatically disqualified for a particular license or job.

Someone may be able to get a Certificate of Relief from Civil Disabilities if she has been convicted of any number of misdemeanors, but not more than one felony. If she was convicted of two or more felonies or wants to apply for a public office job, she should apply for a Certificate of Good Conduct.

Checking Criminal Records

Anyone can check his criminal record by carrying out a criminal history record search (CHRS). All this involves is providing his name and birthday and paying the fee of $65. Sealed records and expunged marijuana records shouldn’t come up on this search. If they do, it’s possible to ask to have the error corrected.

The first step is to go to the court where the case was heard and request a Certificate of Disposition. If this document says the case is sealed, the next step is to send it to the Department of Criminal Justice Services (DCJS) with a written request for correction.

If the certificate doesn’t have a stamp to confirm sealing, the court clerk can check the file. If the file says the case is sealed, the clerk can stamp the certificate to confirm sealing. The stamped (original) certificate should then be sent to the DCJS together with a written request for correction.