Expungement / Record Sealing Petition and Eligibility Memo — New York

Expungement / Record Sealing Petition and Eligibility Memo (New York)

Quick-Reference Summary

Part A — Eligibility Memo

I. Statutory Framework

New York's record-relief regime is uniquely layered. The state has no general "expungement" statute for convictions; instead, the Criminal Procedure Law provides graduated sealing remedies. A sealed record continues to exist in NYSID/NICS-style databases but is removed from public-facing background checks and from most pre-employment, housing, and licensing inquiries.

§ 160.50 — Sealing upon favorable termination. When a criminal action terminates in favor of the accused (acquittal, dismissal on the merits, dismissal in furtherance of justice, dismissal for legal insufficiency, expiration of ACD, declination by the prosecutor), all records of the action are automatically sealed. The arrest is "deemed a nullity" and may not be used against the accused.

§ 160.55 — Sealing of fingerprint and arrest records on non-criminal disposition. When a charge is reduced to a non-criminal violation or traffic infraction (e.g., disorderly conduct under PL § 240.20), the fingerprint/arrest record (but not the court record of the violation) is automatically sealed and returned to the defendant.

§ 160.57 — Clean Slate Act (added L. 2023, Ch. 565, eff. Nov. 16, 2024). Automatic sealing of eligible New York State convictions after a waiting period:

• Misdemeanor: 3 years from sentencing (or release from incarceration, whichever is later).
• Non-A felony: 8 years from sentencing (or release).
• Class A felonies are excluded except drug-related Class A felonies under PL Art. 220.
• Sex offenses (PL Art. 130) and sexually violent offenses are excluded.
• The petitioner must (i) not currently be on probation, parole, or post-release supervision; (ii) have no pending criminal charges anywhere; (iii) not have been convicted of any new crime during the waiting period (any new conviction resets the clock).

The Unified Court System has three years from the effective date (until November 16, 2027) to seal pre-existing eligible records. Newly eligible records are to be sealed on a rolling basis as the waiting period expires.

§ 160.58 — Conditional sealing on completion of judicial diversion. Available to defendants who complete a court-ordered substance-abuse treatment program under CPL Art. 216. Limited to three eligible convictions (the qualifying drug/property felony plus up to two misdemeanors). Sealing is "conditional" — it may be unsealed on arrest for a new crime or other specified events.

§ 160.59 — Discretionary sealing motion. The defendant may move to seal up to two prior convictions, of which not more than one may be a felony. Waiting period: 10 years from the latest of (i) the most recent sentence or (ii) release from imprisonment. Excluded: sex offenses, sexually violent offenses, certain violent felonies (PL § 70.02), Class A felonies, homicide offenses (PL Art. 125), and offenses requiring SORA registration. The court must consider statutory factors (CPL § 160.59(7)) including the seriousness of the offense, the defendant's character, the time elapsed, the impact of sealing on public safety, and the impact on rehabilitation.

Marijuana automatic expungement (MRTA, 2021). Cannabis Law and amendments to PL § 221.05 et seq. provided automatic expungement (true expungement — destruction) of certain marijuana-related convictions. This is separate from CPL Art. 160 and is administered by the Office of Court Administration.

II. Eligible vs. Ineligible Offenses

III. Waiting Period Analysis

Traffic infractions and violations (disorderly conduct, harassment 2d) are not criminal convictions and do not affect the Clean Slate or § 160.59 clock.

IV. Subsequent-Conviction Bar

Under Clean Slate (§ 160.57), any subsequent criminal conviction during the waiting period resets the clock to the latest conviction. The petitioner must complete the new waiting period before any prior conviction is sealed; the new conviction must itself be eligible before it is sealed.

For § 160.59 motions, the defendant must not have been convicted of any crime since the conviction(s) sought to be sealed and must not have any criminal charges pending.

A probation/parole revocation that results in reincarceration restarts the Clean Slate clock from the new release date. A violation that does not lead to revocation/reincarceration does not affect the clock.

V. Restitution and Outstanding Obligations

Restitution and other monetary obligations are not, by their terms, conditions precedent to Clean Slate sealing. However, an open probation/parole case (which may stem from non-payment) defeats eligibility because the petitioner must not be "under community supervision." For § 160.59, restitution is one of the factors courts may consider under the "interest of justice" test.

VI. Effect of Expungement / Sealing

Public/employment effect. Sealed convictions are not visible on most background checks. Under Exec. Law § 296(16) and Corr. Law Art. 23-A, employers may not inquire about or take adverse action based on sealed convictions, with statutory exceptions for licensed positions, law-enforcement hiring, gun licensing, and fingerprint-based background checks for work with children, the elderly, or vulnerable adults. Negligent-hiring liability is curtailed: under the Clean Slate Act, sealed convictions cannot be introduced against the employer in a negligent-hiring suit (with the exempt-employer exception).

Access to sealed records. Sealed records remain visible to:

1. Law enforcement, prosecutors, defense counsel, courts.
2. Gun licensing authorities (NY State Police and local licensing officers).
3. Government entities required by state or federal law to conduct fingerprint-based background checks (school districts, the State Education Department, OCFS, DOH for hospitals/nursing homes/childcare).
4. Entities authorized to conduct fingerprint checks for positions working with children, the elderly, or vulnerable adults.
5. The New York State Education Department for licensing and disciplinary purposes.
6. Private transportation network companies (Uber, Lyft) under VTL Art. 44-B.

Immigration. New York sealing does not eliminate a "conviction" for federal immigration purposes under INA § 101(a)(48)(A). ICE and federal agencies have access to NYSID records irrespective of state sealing. Non-citizen petitioners must consult immigration counsel.

Firearms. Sealing does not restore firearm rights lost under federal 18 U.S.C. § 922(g); gun licensing authorities retain access to sealed records.

Duty of care for exempt employers — Civ. Rights Law § 50-G. Exempt employers receiving sealed records owe a duty of care; knowing and willful disclosure of a sealed record without consent that causes injury can give rise to civil liability.

VII. Automatic-Relief Program — Clean Slate Act

The Clean Slate Act (L. 2023, Ch. 565), codified at CPL § 160.57, took effect November 16, 2024. Mechanics:

• The Office of Court Administration (OCA) is responsible for identifying and sealing eligible convictions.
• OCA has three years from the effective date (until November 16, 2027) to seal pre-existing eligible convictions.
• No application or filing fee is required for Clean Slate sealing.
• The Act applies only to New York State convictions — federal convictions and out-of-state convictions are not affected.
• The Act imposes new notice obligations on entities receiving criminal-history information (must furnish a copy to the applicant and notice of correction rights under DCJS regulations).

A defendant who believes a conviction should have been sealed but has not been may request a rap sheet from DCJS (Office of Information Services, Record Review) and, if necessary, file a motion to compel sealing under CPL § 160.57.

Part B — Petition Template

Caption

[Supreme / County / City / Town / Village] Court, County of [____________________], State of New York
Indictment / SCI / Docket No.: [________________________________]
Date of Conviction: [__/__/____]

NOTICE OF MOTION AND AFFIDAVIT IN SUPPORT OF SEALING PURSUANT TO CPL § 160.59

I. Movant Information

Name: [________________________________]
Aliases: [________________________________]
Date of Birth: [__/__/____]
NYSID Number: [________________________________]
Current Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

II. Underlying Case Information

[Complete for each conviction sought to be sealed — maximum 2; not more than 1 felony.]

Conviction 1:

Conviction 2 (if applicable):

[Same fields as above.]

III. Eligibility Statement

Movant, under penalty of perjury, states:

☐ At least ten years have elapsed since the latest of: (i) the date of the most recent sentence; or (ii) the date of release from incarceration (CPL § 160.59(5));
☐ Movant has not been convicted of any crime since the conviction(s) sought to be sealed;
☐ No criminal charges are currently pending against Movant in any jurisdiction;
☐ Movant has been convicted of no more than two eligible offenses, not more than one of which is a felony (CPL § 160.59(2));
☐ None of the convictions is:
☐ A sex offense (PL Art. 130);
☐ A sexually violent offense (Corr. L. § 168-a(3));
☐ A homicide offense (PL Art. 125);
☐ A Class A felony;
☐ A violent felony (PL § 70.02);
☐ An offense requiring SORA registration;
☐ A conspiracy to commit any of the above;
☐ Movant has paid all monetary obligations imposed as part of the sentence OR a payment plan is in place.

IV. Statement of Grounds for Relief

In support of this motion, and addressing the factors enumerated in CPL § 160.59(7), Movant states:

1. Circumstances and seriousness of the offense. [Describe the underlying conduct, mitigating circumstances, and contextual factors.]
2. Character of the defendant. [Letters of support, employment record, family responsibilities, community involvement, treatment completion.]
3. History and character of the defendant since the conviction. [Time elapsed; absence of further criminal-justice contact; rehabilitation evidence.]
4. Impact of sealing on public safety. [Why sealing poses no risk — completion of supervision, stable life, no recidivism indicators.]
5. Impact of sealing on the successful rehabilitation of the defendant. [Employment barriers, housing barriers, licensing barriers, family impact.]
6. Statements by the victim (if any have been received and waiver of confidentiality granted).

Movant attaches as exhibits: certificate of disposition (Ex. A), DCJS rap sheet (Ex. B), letters of support (Ex. C), employment records (Ex. D), treatment-completion documentation (Ex. E), and any other supporting materials.

V. Service of Notice

CPL § 160.59(3) requires service on the District Attorney with a copy of the motion, the certificate of disposition, and the supporting affidavit. The DA has 45 days to respond. If the DA does not consent or the court orders a hearing, the court must hold a hearing within statutory timeframes.

VI. Requested Relief

WHEREFORE, Movant respectfully requests that this Court enter an Order:

☐ Sealing the records of the conviction(s) identified in Part II pursuant to CPL § 160.59;
☐ Directing the Clerk of Court, the Division of Criminal Justice Services (DCJS), and all other agencies in possession of records of the conviction(s) to seal those records and to withhold them from public disclosure;
☐ Directing that the conviction(s) shall not be disclosed except as authorized by CPL § 160.59(8);
☐ Granting such other and further relief as this Court deems just and proper.

Signature Block and Verification

STATE OF NEW YORK
COUNTY OF [____________________]

[MOVANT NAME], being duly sworn, deposes and says: I am the movant herein. I have read the foregoing affidavit and motion and know the contents thereof; the same is true to my own knowledge except as to matters therein stated to be on information and belief, and as to those matters, I believe them to be true.

[________________________________]
Movant

Sworn to before me this [__/__/____]

[________________________________]
Notary Public, State of New York

Submitted by:

[________________________________]
Attorney for Movant
[Firm Name, Address, Telephone, Email]
Attorney Registration No.: [____]

Part C — Filing Checklist

☐ Certificate of disposition obtained from court clerk for each conviction
☐ DCJS criminal history record (rap sheet) obtained via Office of Information Services Record Review — https://www.criminaljustice.ny.gov/ojis/recordreview.htm
☐ Verify waiting period: 10 years from latest sentence/release for § 160.59; 3/8 years for § 160.57 Clean Slate
☐ Confirm no subsequent convictions and no pending charges (NY and other jurisdictions)
☐ Confirm offense not on § 160.59 exclusion list (sex offenses, violent felonies, Class A, homicides)
☐ Confirm no more than 2 eligible convictions and no more than 1 felony
☐ Notice of Motion and Affidavit prepared per CPL § 160.59(3) requirements
☐ Exhibits compiled: certificates of disposition, rap sheet, support letters, employment/treatment records
☐ No filing fee (statutorily waived for § 160.59)
☐ Service on District Attorney (with all motion papers and exhibits)
☐ Calendar 45-day DA response period; calendar potential hearing date
☐ For Clean Slate (§ 160.57): no filing required; verify DCJS rap sheet status after waiting period elapses
☐ Post-grant: Certified order delivered to DCJS, Office of Information Services
☐ Post-grant: Certified order delivered to arresting agency, court clerk, sheriff (jail records)
☐ Post-grant: Movant notifies known commercial background-check vendors and disputes continued reporting under NY GBL § 380 et seq. and 15 U.S.C. § 1681i

Sources and References

• CPL § 160.50 — https://www.nysenate.gov/legislation/laws/CPL/160.50
• CPL § 160.55 — https://www.nysenate.gov/legislation/laws/CPL/160.55
• CPL § 160.57 (Clean Slate Act) — https://www.nysenate.gov/legislation/laws/CPL/160.57
• CPL § 160.58 (conditional sealing) — https://www.nysenate.gov/legislation/laws/CPL/160.58
• CPL § 160.59 (discretionary sealing) — https://www.nysenate.gov/legislation/laws/CPL/160.59
• Clean Slate Act, L. 2023, Ch. 565 — https://www.nysenate.gov/legislation/bills/2023/S7551
• NY Unified Court System — Clean Slate Act overview — https://www.nycourts.gov/criminal-history-record-search/new-york-states-clean-slate-act
• DCJS Record Review — https://www.criminaljustice.ny.gov/ojis/recordreview.htm
• Correction Law Art. 23-A (employment) — https://www.nysenate.gov/legislation/laws/COR/A23-A
• Civil Rights Law § 50-G (Clean Slate liability) — https://www.nysenate.gov/legislation/laws/CVR/50-G