There are many reasons that a defendant may want a record of criminal conviction to be erased or destroyed. The process in many states by which this may be done is called expungement.

In New York, however, expungement does not mean the records have will be destroyed, though some of the physical underlying materials may be destroyed pursuant to a successful application for expungement.

More accurately, an expunged record in New York is one that has been sealed from the public so that it may no longer be viewed by the public. This means the record of conviction still exists; it has only been hidden from the public.

After a record has been sealed, it may be accessed thereafter only by specific persons and may be used in very limited circumstances. Keep in mind also that you can only expunge two eligible criminal convictions, which means all your records of conviction may not be subject to expungement.

Why Seal a Case?

People are convicted for a variety of criminal offenses, ranging from misdemeanors to felonies. Having a criminal record can cause many problems for those seeking certain privileges, such as the privilege of gaining employment, voting, and obtaining permanent residency, public housing, or loans.

Private landlords also often run criminal background checks which may reveal criminal conviction. A landlord may determine not to rent an apartment to you because of your conviction.

What Types of Cases Can be Expunged in New York?

If a case is terminated in your favor, it maybe be sealed without you having to do anything. Among other reasons, the case has been terminated in your favor if you were acquitted, the case was dismissed, the conviction was vacated, or the prosecutor declined to prosecute.

Criminal records of youthful and child offenders also are automatically sealed. Additionally, certain traffic infractions and violations may be partially sealed automatically. Generally, all other circumstances require that you formally apply for your criminal convictions to be sealed.

Expungement Eligibility Requirements and Restrictions

Records of conviction may be expunged for defendants whose cases were terminated in their favor. Because expungement is not a constitutional right, there are procedures in place that identify specific cases that may be expunged.

Until recently, expungement was only allowed in a very limited number of cases.. You now may seek to have certain felonies and misdemeanors expunged if you have no more than two misdemeanors, or one felony and a misdemeanor conviction.

Generally speaking, criminal convictions that may not be expunged include records of the following:

  • Most sex offenses;
  • Violent crimes;
  • Class “A” felonies; and
  • Other statutory felonies.

Additionally, you will be required to demonstrate that at least 10 years have passed since your sentencing or release and the application for expungement. You cannot apply if you have current or pending charges, recent convictions, or already have received sealing of the maximum records.

What Types of Materials Can Be Expunged in New York?

Physical copies of fingerprints, mugshots, palm prints and other underlying documents used in your case will be destroyed once the records have been sealed. Other materials, such as samples of DNA, may be returned to you or destroyed. Some digital materials may still be accessed by the court and law enforcement agencies.

What is the Process For Expungement in New York?

You first must prepare an application to seal your criminal record supported by the underlying documents of your conviction. You should also provide a sworn statement of the reasons the application should be sealed.

The supporting documentation is an essential part of the application and you risk your application being summarily dismissed if you do not include it.

The application is made before the judge who sentenced you. It must be served on the District Attorney who then must notify the court of any objection to the application for expungement.

If the District Attorney does formally object, a hearing will be held to allow both sides to state their positions. Even if the District Attorney doesn't object, the judge still may conduct a hearing before ruling on your application.

In deciding whether to grant your application, the judge may consider several factors, including:

  1. The passage of time since your last conviction;
  2. The seriousness of the crime and the circumstances under which you committed the offense;
  3. Other offenses of which you have been convicted;
  4. Information about your character and about how you have been living your life since your conviction;
  5. Any statements by the victim of the offense you are now seeking to have sealed;
  6. Whether sealing the record will impact your successful rehabilitation and reintegration into society; and/or
  7. The impact on the public safety and on the public's respect for and confidence in the law.

Who Can See Records After Expungement?

Generally, the public cannot review records that have been sealed. Of course, you will continue to have access to your records, along with anyone you authorize.

Your parole office will also have access to your records while you are on probation or parole, a prosecutor if you move for a dismissal on a marijuana charge, or a law enforcement agency with court approval.

Should I Get an Attorney To Help With My Expungement?

Establishing the bases for an application for expungement may be complicated for some. A New York criminal attorney may be able to help you present a strong application for why your record should be expunged.