New York courts routinely seal criminal proceedings where all charges are dismissed, or where the defendant is convicted of nothing more serious than a non-criminal offense.
Courts Seal Favorable Dispositions
Courts routinely seal criminal proceedings that result in a favorable disposition.
The “disposition” of a criminal case is its final outcome.
A “favorable disposition” is the final outcome of a criminal case where the defendant is convicted of nothing.
Courts seal criminal proceedings that result in the following favorable dispositions:
- 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.)
- 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”.)
- 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.)
- Dismissal based on “double jeopardy” (previous prosecution for the same offense).
- 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.)
- 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).
- Dismissal “in furtherance of justice” (one or more compelling factors clearly demonstrate that conviction or prosecution would result in injustice).
- 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.)
- 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”.)
- 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).
- 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.
- Dismissal based on the court not having jurisdiction.
- Dismissal based on being accused under a statute that is unconstitutional or otherwise invalid.
- Dismissal based on other legal impediments to conviction.
- 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.
- A verdict of “complete acquittal” (a judge or jury finding the defendant “not guilty” of all charges after trial).
- 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”.
- 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.
- 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.
- 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.
- The grand jury dismisses all charges.
- Prior to filing an accusatory instrument in a local criminal court, the prosecutor “elects not to prosecute”.
- Following arrest, but prior to filing of an accusatory instrument in a local criminal court, “the arresting police agency … elects not to proceed further”.
- 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.
When courts seal criminal proceedings as the result of favorable dispositions, New York law (but not necessarily under federal law or the laws of other states) nullifies the arrest and prosecution:
[T]he 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.
Criminal Procedure Law Section 160.60.
The law regards an arrest and prosecution that result in a favorable disposition as if they never happened.
Crimes and Non-Criminal Offenses
Under New York Law, an offense is conduct for which a “sentence” of imprisonment or a fine may be imposed.
- crimes: felonies and misdemeanors; and
- non-criminal offenses: violations and traffic infractions.
So, a person convicted of a misdemeanor or a felony is convicted of a “crime”. A person convicted of a violation or a traffic infraction is convicted of a “non-criminal offense”.
Courts Routinely Seal Non-Criminal Convictions
Courts seal criminal proceedings that result in convictions of nothing more serious than violations or traffic infractions.
Exceptions to this rule are convictions of loitering for the purpose of engaging in a prostitution offense, a violation; and driving while ability impaired, a traffic infraction.
Courts Sometimes Seal Criminal Convictions, Eventually
Under certain circumstances, recent law provides an opportunity for courts to seal criminal proceedings that resulted in a criminal conviction.
Sealing may not occur until 10 years after the most recent conviction. A person with more than two prior criminal convictions is not eligible to have any criminal convictions sealed. Certain convictions – “violent felonies”, for example – may not be sealed.
Previously, New York courts could seal criminal proceedings that resulted in only one type of criminal conviction: convictions arising from arrests for certain prostitution-related crimes, where the accused was a sex-trafficking victim.
“Confidential” Youthful Offender Adjudications
In some instances, courts replace criminal convictions with “youthful offender adjudications” for defendants who were 18 years old or younger when the crime occurred.
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”.
Though courts do not formally seal criminal proceedings that result in youthful offender adjudications, the effect of confidentiality is similar to sealing. Documents related to the arrest and prosecution are not available to the public.
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, though dismissal follows successful completion of judicial diversion, the Court does not seal the proceedings.
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 sealing lawyer in New York City. His office is located on the fourth floor of 160 Broadway in Manhattan.
If you’d like a free consultation to discuss sealing, or any other issue related to criminal defense or family law, call Bruce at:
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