Sealing Criminal Court Records in New York under CPL 160.50 and 160.55
Law Offices of Robert Briere 212-786-2999
NYC Criminal Courts follow the laws set forth in the New York Criminal Procedure law with regards to the sealing of records. The subject of sealing criminal records in NYC was placed at the top of the menu because the issue of what "sealing" of a criminal record really means under New York Law seems to be a source of endless confusion for both clients and even experienced NYC criminal defense lawyers.
In spite of the confusion and abundant misinformation on the topic, it is a critical area of New York Criminal Law. After all--for most-- the most debilitating consequence to a criminal charge is not jail, a fine or community service, but the record that may result.
The following information reflects my understanding of what happens to charges when they are disposed of in New York State either by conviction (plea, jury verdict of guilty) or by dismissal, (acquittal or dismissal, ACD) I put it in a "frequently asked questions" since people frequently ask me these questions.
WHAT IS THE DIFFERENCE BETWEEN SEALING AND EXPUNGEMENT IN NEW YORK?
"Expungement" means that the record is actually removed from the system. "Sealing" means that the record exists, but that it is shielded from public view. When a record is sealed at the Court level it means that the Court file is stored at the Particular Courthouse where the sealing was ordered, and that there is also an electronic record there of the case, but neither the actual file nor the computer record is available to the public.
Technically, one could say that, under New York CPL 160.50, there is a combination of sealing and expungement with regards to criminal records. The fingerprints, photographs and arrest records are supposed to be destroyed (expunged) at the police level, but the Court Records are neither destroyed nor returned, Instead, under CPL 160.50 they are sealed at the Court level and are also sealed in Albany, New York. But even Albany maintains a special electronic file of the arrest which is not disclosed except under very limited circumstances.
What Records can be sealed in New York?
First, in New York, a record of a criminal conviction, which is any misdemeanor or felony except a youthful offender adjudication, is never sealed and is considered a public record available to anyone through the OCA website for a $55 fee. It does not matter if the person had the charge reduced from a felony to a misdemeanor or only received probation. There are no exceptions to the rule.
In New York, the only records that get sealed are complete dismissals including:
ACD's other forms of dismissal and Acquittals, these get the full seal treatment of CPL 160.50. On the other hand, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.
How does sealing of a New York Record differ between CPL 160.50 and CPL 160.55?
A sealing under 160.50 occurs in New York when a criminal charge is dismissed completely, while a sealing under 160.55 occurs when a criminal charge is reduced from a misdemeanor or felony to a violation or infraction.
A sealing under CPL 160.50 is unquestionably favorable to one under CPL 160.55 since the 160.50 sealing essentially prevents the incident from showing up in a background check. In a nutshell, a sealing under 160.50 will mandate destruction of the arrest record and the sealing of the court file. A dismissal after an adjournment in contemplation of dismissal ("ACD") will result in a 160.50 sealing.
A sealing under 160.55 is not as comprehensive as the 160.50 sealing. The 160.55 sealing occurs when someone is arrested or charged with a criminal offense, but is ultimately convicted of a violation or infraction, the sealing of the arrest records is accomplished pursuant to CPL 160.55 (1) (c), which means that records of the arrest, such as mugshots, arrest reports and fingerprints are destroyed.
However, unlike a termination of the action favorable to Defendant such as a complete dismissal where both the arrest records AND the court papers are sealed under CPL 160.50, a sealing under 160.55 does not seal the Court file since there is no provision contained in CPL 160.55 for the sealing of court records. As far as I am aware, sealing under 160.55 will not prevent background checkers from finding out about a criminal matter that was reduced to a violation, all they have to do is show up at the courthouse where the case was heard and have the defendant's name, along with something in addition such as docket number, arrest date, arrest number, etc.
Can a record sealed under 160.55 ever be completely sealed under 160.50?
While, technically, courts may have the inherent power to seal their own records, it is up to the Court's discretion and one would likely have to make a strong, compelling showing in order to persuade the Court to order the 160.50 sealing.
Call Robert Briere at 212-786-2999 for a free consultation