160.59 Sealing Petition Results in “Public Expunging” of Client’s Firearm Conviction for Third Degree Weapon Possession

Can I have my firearm conviction sealed? Does New York Criminal Procedure Law 160.59 apply to weapon and gun crimes? The short answer to the above questions is “maybe.” Fortunately for a recent Crotty Saland PC client, the specific answer was “yes.” A complicated sealing application, after litigating an old 1980s conviction for New York Penal Law 265.02(1), Criminal Possession of a Weapon in the Third Degree, where the prosecution argued that the sentencing court incorrectly recorded the conviction as a non-violent offense, the presiding judge agreed with our lawyers’ motion to “expunge.” In substance, the District Attorney argued that the charges contained in the indictment were violent felonies and, as a result, the conviction was not an eligible offense pursuant to CPL 160.59(2)(a).

Our client, a former Marine who had no prior brushes with the criminal justice system before or after the late 1980’s criminal case, pleaded guilty to possessing a loaded .357 magnum legally possessed and registered out of state but not in New York. The initial claim involved our client possessing the gun with the intent to use the same unlawfully against another person. Despite the arrest and charge, the then prosecutor and judge allowed our client to plea down from the statutory violent offense of Second Degree Criminal Possession of a Weapon and Third Degree Criminal Possession of a Weapon (a different subsection than the final disposition).

Upon filing our sealing petition, the prosecution asserted that because our client did not have a prior criminal conviction and due to certain notations made by the clerk within the court file, the recorded plea incorrectly noted an inaccurate subsection of PL 265.02. Therefore, because the crime was a violent one, our client was ineligible for sealing. Despite the People’s contention, the reviewing judge examined the certificate of disposition that was “presumptive evidence of the facts stated in such certificate.” Without minutes or something else to support their position, the official record clearly demonstrated a non-violent plea even if the resolution was atypical. Although the papers filed by each side were far more extensive than provided here, the People ultimately did the “right thing” by filing a supplementary motion stating that while they unequivocally believed our client to be ineligible for CPL 160.59 relief, should the court disagree they took no position on sealing. Fortunately, with perseverance and both our compelling sealing motion and supplementary filing, the court sealed our client’s decades old criminal conviction.

To learn more about sealing a criminal case in New York, from eligibility requirements to the benefits of relief, more information is available on Crotty Saland PC’s New York conviction sealing information page. Additional materials, including a criminal sealing quiz, is available as well.

Crotty Saland PC is a criminal defense practice representing clients in all sealing applications, petitions and motions throughout the State of New York. Both founding partners served together as prosecutors in the Manhattan District Attorney’s Office prior to establishing the law firm.

Updated: