Any conviction can seriously impact your life and livelihood. But a felony can stop you in your tracks. Depending on the crime, it can determine where you are allowed to live, what your housing situation looks like, whether you can get a student loan to further your education, and even where you can work. A felony conviction, federal or state, can drastically alter your life – and not in a good way.
In the best-case scenario, you want your conviction sealed or expunged.
That would simplify your life tremendously, especially after you have paid your debt to society and done your time. Especially when you are trying to get your life back on track.
However, getting your conviction sealed or expunged is no easy task. In some cases, it is impossible. In fact, federal law only has one provision for expunging a criminal record while New York has no such expungement law.
What is Expungement?
An expungement is a legal action that removes or expunges a criminal conviction from government records. Essentially, it makes it as though the conviction never existed.
The person’s criminal record, or the part that is expunged, is destroyed or blotted out so that no one is able to look up the conviction or even the arrest in public records. This action is often sought by people who are convicted of crimes, nevertheless, most crimes and convictions are not eligible for expungement.
What is Criminal Record Sealing?
Criminal record sealing is similar to expungement, but the record is not completely removed. Instead, when a person’s criminal record is sealed it is removed from the view of the public. However, it can still be reopened or accessed by law enforcement or via a court order.
Sealing a juvenile criminal record is governed by a different set of laws than sealing an adult criminal record.
Expungement vs. Pardon
People who are not eligible or unable to get an expungement may be able to qualify for a pardon.
A pardon is quite different from an expungement, a pardon does not remove the criminal record, it only removes the consequences of being convicted, such as negative immigration consequences or the ability to hold certain professional licenses. This means that when a person gets a pardon, they still have the conviction on their record, and if anyone runs their background check, such as a potential employer, landlord, or anyone checking their background, they will still see the conviction. Expungement means that the criminal record is forever destroyed and no one will be able to ever see it again. Thus, if you apply for housing or for a job you will not be able to say that you don’t have a criminal record if you got a pardon. But if your record was expunged then you can say with confidence you have no criminal record.
However, there are benefits to getting a pardon. When a person gets a pardon while they are still serving time, the sentence ends immediately once the pardon is granted.
Unfortunately, pardons are very rarely granted. The President of the United States must sign off on all federal pardons and it just isn’t very common regardless of who is in office.
In order to apply for a pardon, a person cannot apply for it until it has been at least five years from the date of conviction. They must include in their application an explicit request for a pardon, why they are applying for it, and include any evidence that may support their case.
What are Criminal Records Removal Services
There are some companies that offer “criminal records removal services.” The name can be misleading because the criminal records are not truly removed. These services do, however, limit the public’s ability to view a person’s online criminal record.
These companies remove evidence of a person’s conviction from internet databases and away from public view. They also have online reputation restoration services that often accompany these programs that essentially “bury” public internet articles about the person and their crime so that they are nearly impossible to find.
If your online reputation is a concern, these services may help, but the name is misleading because they do absolutely nothing to remove the conviction or crime from your record. When a prospective employer or landlord runs a background check on you, they will see the conviction.
The Fresh Start Act of 2021
H.R. 5651, The Fresh Start Act of 2021, gives states that have laws in place governing record sealing or expungement the ability to apply for a Federal grant that is designed to help improve that automated infrastructure already in place that clears records for individuals who meet the criteria for expungement or sealing.
The purpose of the act is to give “rehabilitated offenders” a better chance at securing the things that will help them thrive in society, including stable jobs, education, and housing.
Currently, an estimated one in three adults in the US has something on their record that may prevent them from getting jobs, education, and housing. These are three key elements that experts cite in reducing recidivism. While many of those people qualify for record sealing or expungement, the process to get it done is long, expensive, and complex.
For the next five years, the program authorizes $50 million per year to be allocated to states so they can automate their criminal records programs, making the expungement and sealing process easier.
Each state is eligible to apply for as much as $5 million. Of that amount, 10% is for research and planning. The rest is for implementing the program.
States that delay expungement or sealing of records because of fees or fines are prohibited from receiving these grants.
Under the act, states are also required to report how many records have been expunged or sealed. That information must be broken down by race, ethnicity, and gender.
Federal Expungement and Sealing Laws
There is only one federal law that addresses expunging federal criminal records.
Under 18 U.S.C. 3607(c) the only legal provision that is given for a record expungement is when the person is found guilty of a minor drug offense as described in the Controlled Substances Act (21 U.S.C 844).
(c) Expungement of Record of Disposition.— If the case against a person found guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C. 844) is the subject of a disposition under subsection (a), and the person was less than twenty-one years old at the time of the offense, the court shall enter an expungement order upon the application of such person. The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof. The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings. A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose.
New York Expungement and Sealing Laws
New York is one of the few states in the US that does not allow for the expungement of criminal records.
However, the state does allow some criminal records to be sealed in certain conditions.
CPL § 160.59 allows certain misdemeanor and felony criminal convictions to be sealed.
This law provides relief that is very similar to expungement. While it does not erase the conviction, but it makes it no longer visible to the public.
However, there are certain provisions and eligibility requirements that must be met by the person who is seeking to have their records sealed. For instance, they will be disqualified if they have any of these convictions:
- They committed a sex offense including those that require SORA registration
- They committed a felony under Article 125 of New York Penal Law, including murder.
- They have committed a crime that was legally defined as a “Violent Crime” like first-degree burglary or first-degree assault
- They committed a Class A felony which could include a crime like first-degree criminal possession or sale of a controlled substance or other crimes that involve significant weights of drugs
- The attempt to commit any crime such as those listed here or is not an eligible crime
Some of the crimes that may be eligible for sealing under New York law include:
- Third Degree Assault: NY Penal Law 120.00
- Petit Larceny: NY Penal Law 155.25
- Fourth Degree Criminal Mischief: NY Penal Law 145.00
- Third Degree Criminal Mischief: NY Penal Law 145.05
- Theft of Services: NY Penal Law 165.15
- Fourth Degree Grand Larceny: NY Penal Law 155.30
- Third Degree Grand Larceny: NY Penal Law 155.35
- Drunk Driving and DWI: VTL 1192.3 and VTL 1192.2
- Fourth Degree Criminal Possession of a Weapon: NY Penal Law 265.01
- Third Degree Trespass: NY Penal Law 140.10
- Second Degree Trespass: NY Penal Law 140.15
- Third Degree Burglary: NY Penal Law 140.20
There are many more crimes that are eligible for sealing. Still, there are specific criteria that must be met even if the person has a qualifying crime on their record. The person seeking to have their record sealed must:
- Criminal records requirements
- Have no more than two misdemeanors on their record, or
- Have no more than one felony and one misdemeanor conviction
- Must have had no criminal convictions or arrests for at least ten years
Some convictions can become eligible for sealing once the person completes a drug treatment program successfully.
When Might Expungement be Justified?
When seeking expungement or sealing of a criminal record, you will have to go before a judge and provide your argument.
Some courts have reserved sealing or expunging criminal records for “exceptional circumstances” which may include:
- Mass arrests that made it difficult or impossible to know if the law was followed by law enforcement or not
- Civil rights workers were arrested to harass them
- Police records were misused by law enforcement
- An arrest was made and was proper when it occurred, but it was based on a law that was later determined to violate a person’s constitutional rights
Other justifications for expungement or sealing of records include:
- The arrest records do not protect society
- The arrest and conviction records will not serve as an aid in state or federal criminal investigations in the future
- The records are likely to be misused in the future
- There was extreme misconduct demonstrated by law enforcement
The Expungement Process
There are no real clear-cut laws detailing how to file for an expungement or seal a record. Typically, it begins after the conviction was entered by the court. The application is filed in the clerk’s office, or the person may write a letter to the judge. It is important to be as descriptive, detailed, and persuasive.
This is why you need a good criminal defense attorney who will help you through this arduous process.
At the Litvak Law Firm, we have the skills, education, and experience to help you get an expungement or get your records sealed so you can get on with your life. Mr. Litvak has the experience and the drive to go to bat for you and make sure that your rights are protected.
Call today at (718) 989-2908. Don’t try to do this alone. It likely won’t end well if you do. Let your lawyer handle it.