MEMORANDUM In 2017, the Legislature enacted a new statute which allows individuals who have been crime-free for 10 years to request sealing of up to two criminal convictions. The new statute, CPL 160.59, makes sealing available, for the first time, to prior convictions of misdemeanors and nonviolent felonies. The defendant now moves to seal his 2005 judgment of conviction pursuant to CPL 160.59.The court file indicates that on May 13, 2005, the defendant was one of 36 individuals indicted on charges of enterprise corruption, promoting gambling in the first degree, possession of gambling records in the first degree, and conspiracy in the fifth degree. The indictment alleged that the defendants were engaged in an illegal sports and horse racing betting operation, and that the defendant was one of the operation’s many “runners.” On June 22, 2005, the defendant pleaded guilty to one count of promoting gambling in the first degree, a class E felony, in full satisfaction of the indictment. In exchange for his plea, the defendant was sentenced to a conditional discharge. The defendant was 34 years old at the time of his plea, and his prior criminal history consisted of a conviction for the violation of driving while ability impaired by the consumption of alcohol (Vehicle and Traffic Law §1192). A criminal history report obtained by the court after the defendant filed his sealing motion confirms that in the 13 years following his gambling conviction, he has not been arrested or convicted of any other crime.In support of his motion, the defendant states that at the time of his 2005 conviction, he was in the hospitality and restaurant business and hoped to either continue on that career path or find employment in the public sector. However, as a result of his conviction, he was immediately terminated from his job at a private country club. Although the defendant was ultimately able to find new employment, he believes that having a felony conviction on his record has prevented him from being able to advance to a better position. In fact, the defendant avers that he has been turned down from every job where he was required to disclose his felony conviction. In addition to limiting his employment opportunities, the stigma of his prior conviction has also caused the defendant embarrassment.The People note that the defendant’s case appears eligible for sealing under the new law, and take no position on whether his motion should be granted, leaving the matter to the court’s discretion. However, the People reserve the right to oppose the motion should the criminal history report obtained by the court from the Division of Criminal Justice Services contradict the defendant’s claim that he has no other convictions.CPL 160.59, which became effective on October 7, 2017, allows eligible individuals to petition the court to seal up to two convictions, only one of which can be a felony. To be eligible, an individual must have no convictions on their record for at least 10 years and have no charges pending. Excluded from sealing are convictions for sex crimes, child pornography, homicides, certain conspiracy charges, and Class A or violent felonies. The new statute represents “the first time New York will seal prior convictions — the current law only sealed violations and dismissed cases,” and “aligns this state with a majority of other states in addressing the collateral consequences of past convictions” (Kamins, Barry, New Criminal Justice Legislation, 89-Dec New York State Bar Journal, 20). According to a press release announcing the new law, making sealing available to individuals who have remained crime-free for at least 10 years is part of “Governor Cuomo’s ongoing efforts to eliminate unnecessary barriers to opportunity and employment that formerly incarcerated individuals face and to improve the fairness and effectiveness of the state’s criminal justice system” (“Governor Cuomo Announces Raise the Age Law that Seals Non-Violent Criminal Convictions Takes Effect October 7″ https://www.governor.ny.gov/nes/governor-cuomo-announces-raise-the-age-law-seals-non-violent-criminal-convictions-takes-effect).In considering an application for sealing under the new law, the court must consider all relevant factors, including the circumstances and seriousness of the offense for which the defendant is seeking relief, the character of the defendant and the measures the defendant has taken toward rehabilitation, the impact of sealing the defendant’s record upon his or her successful and productive reentry and reintegration into society, and the impact of sealing the defendant’s record on public safety (see CPL 160.59[7]).The court notes that the scope of sealing authorized by CPL 160.59 is more limited than the sealing authorized by CPL 160.50 for records pertaining to criminal proceedings that terminate in favor of the accused, and by CPL 160.55 for records pertaining to criminal proceedings that terminate by conviction for noncriminal offenses. In contrast to those statutes, the new law permits the Division of Criminal Justice Services to retain a defendant’s fingerprints, palmprints, and photographs (CPL 160.59 [8]). It also permits sealed records to be made available to “qualified agencies” as defined in Executive Law 835(9), to “federal and state law enforcement agencies, when acting within the scope of their law enforcement duties,” including for hiring purposes, and to officials and agencies responsible for the issuance of gun licenses (CPL 160.59 [9]).Here, it is undisputed that the defendant meets the eligibility requirements for sealing under CPL 160.59. He was convicted of the nonviolent class E felony of promoting gambling in the first degree, which is an offense eligible for sealing under the new statute. Furthermore, over 10 years have elapsed since his conviction, and the criminal history report obtained by the court confirms that he does not have any subsequent criminal convictions or arrests. The defendant has also submitted a sworn statement describing the negative impact his conviction has had on his opportunity for career advancement. Guided by the legislative history and taking into consideration the relevant factors, including the nonviolent nature of the defendant’s offense, the low risk to public safety, and the benefit that sealing will have on his employment opportunities, the court finds that sealing is appropriate in this case (see People v. Jaime S., 59 Misc.3d 472 [Sup. Ct. NY Co. 2018]). Accordingly, the defendant’s motion to seal his conviction pursuant to CPL 160.59 is granted to the extent permitted by that statute.This constitutes the order and decision of this court.The clerk of the court is directed to serve a copy of this order and decision upon the attorney for the defendant and on the District Attorney.Kew Gardens, New YorkDated: July 9, 2018
