Expungement of Criminal Records – General – New York
1. What is an expungement?
The process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.
2. Do the records just disappear?
No, the DNA records ordered expunged may be destroyed or returned to the person requesting the expungement or the attorney representing them. New York Consolidated Laws § 995-c.
3. What records may be expunged?
DNA records and any samples, analyses, or other documents relating to the DNA testing of an individual in connection with the investigation or prosecution of a crime which resulted in the conviction that was reversed or vacated or for which the pardon was granted. New York Consolidated Laws § 995-c.
There is a procedure for sealing records when a criminal action is terminated in favor of the accused. A sealing order under CPL § 160.50 includes all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office. Sealed records are not made available to any person or public or private agency for general purposes, but may be unsealed in the interest of justice and used in later proceedings and applications for licenses, certain employment. Records may also be conditionally sealed under CPL § 160.58.
4. Who is eligible for an order to expunge criminal records?
Persons seeking to expunge DNA records must have a conviction which was later vacated, reversed, or pardoned. New York Consolidated Laws § 995-c.
Under CPL § 160.58, 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 who has successfully completed a judicial diversion program, drug treatment alternative to prison, or another judicially sanctioned drug treatment program of similar duration.
5. How do I get records expunged?
In all the above cases of persons eligible for expungement, the expungement is to be made as a matter of law. For sealing of records under CPL § 160.50, the court may order the records sealed on its own motion or the motion of the person in whose favor a criminal action or proceeding was terminated. In the case of others seeking to have records sealed under CPL § 160.58 , 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. 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.