New York CPL § 160.58
Conditional sealing of certain controlled substance, marihuana or specified offense convictions
§ 160.58 Conditional sealing of certain controlled substance, marihuana
or specified offense convictions.
1. 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 of this chapter who has
successfully completed a judicial diversion program under article two
hundred sixteen of this chapter, or one of the programs heretofore known
as drug treatment alternative to prison or another judicially sanctioned
drug treatment program of similar duration, requirements and level of
supervision, and has completed the sentence imposed for the offense or
offenses, is eligible to have such offense or offenses sealed pursuant
to this section.
2. 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.
In such case, the court may also conditionally seal the arrest, prosecution
and conviction records for no more than three of the defendant's prior
eligible misdemeanors, which for purposes of this subdivision shall be
limited to misdemeanor offenses defined in article two hundred twenty
or two hundred twenty-one of the penal law. 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.
3. At the request of the defendant or the district attorney of a county
in which the defendant committed a crime that is the subject of the sealing
application, the court may conduct a hearing to consider and review any
relevant evidence offered by either party that would aid the court in
its decision whether to seal the records of the defendant's arrests,
prosecutions and convictions. In making such a determination, the court
shall consider any relevant factors, including but not limited to: (i)
the circumstances and seriousness of the offense or offenses that resulted
in the conviction or convictions; (ii) the character of the defendant,
including his or her completion of the judicially sanctioned treatment
program as described in subdivision one of this section; (iii) the defendant's
criminal history; and (iv) the impact of sealing the defendant's records
upon his or her rehabilitation and his or her successful and productive
reentry and reintegration into society, and on public safety.
4. When a court orders sealing pursuant to this section, all official
records and papers relating to the arrests, prosecutions, and convictions,
including all duplicates and copies thereof, on file with the division
of criminal justice services or any court shall be sealed and not made
available to any person or public or private agency; provided, however,
the division shall retain any fingerprints, palmprints and photographs,
or digital images of the same.
5. When the court orders sealing pursuant to this section, the clerk of
such court shall immediately notify the commissioner of the division of
criminal justice services, and any court that sentenced the defendant
for an offense which has been conditionally sealed, regarding the records
that shall be sealed pursuant to this section.
6. Records sealed pursuant to this subdivision shall be made available to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section eight
hundred thirty-five of the executive law, and federal and state law enforcement
agencies, when acting within the scope of their law enforcement duties; or
(c) any state or local officer or agency with responsibility for the issuance
of licenses to possess guns, when the person has made application for
such a license; or
(d) any prospective employer of a police officer or peace officer as those
terms are defined in subdivisions thirty-three and thirty-four of section
1.20 of this chapter, in relation to an application for employment as
a police officer or peace officer; provided, however, that every person
who is an applicant for the position of police officer or peace officer
shall be furnished with a copy of all records obtained under this paragraph
and afforded an opportunity to make an explanation thereto.
7. The court shall not seal the defendant's record pursuant to this
section while any charged offense is pending.
8. If, subsequent to the sealing of records pursuant to this subdivision,
the person who is the subject of such records is arrested for or formally
charged with any misdemeanor or felony offense, such records shall be
unsealed immediately and remain unsealed; provided, however, that if such
new misdemeanor or felony arrest results in a termination in favor of
the accused as defined in subdivision three of section 160.50 of this
article or by conviction for a non criminal offense as described in section
160.55 of this article, such unsealed records shall be conditionally sealed
pursuant to this section.