How do I Expunge or Seal My Criminal Conviction for Identity Theft: Does CPL 160.59 Apply to NY PL Sections 190.78, 190.79 and 190.80

The term “identity theft” is one that makes anyone and everyone cringe. After all, there are few people who have not been effected by a fraud crime relating to Identity Theft. Unfortunately, when many people hear of this offense they often think large scale fraud involving social security numbers, bank accounts and thousands, if not many more, dollars. If you have been convicted of an Article 190 crime such as Third, Second or First Degree Identity Theft, then you don’t need a criminal lawyer or sealing attorney to advise you how adversely having such a conviction on your criminal record has impacted getting a job, securing a promotion, or merely finding solid employment. Fortunately, your question of whether you can seal or expunge a conviction for Identity Theft in New York can finally be answered. While most convictions that are neither legally defined as violent crimes nor considered sex offenses are initially eligible for sealing pursuant to New York Criminal Procedure Law 160.59, the same cannot be said for expungement. Do not panic. While New York does not expunge criminal convictions and “only” potentially seals certain crimes, sealing can potentially “erase” your criminal conviction from public view and New York Penal Law 190.78, 190.79 and 190.80 are all likely NY CPL 160.59 eligible offenses.

Beyond a conviction being at least ten years old, it is important to also understand that you cannot have more than one felony conviction and two convictions in total to be eligible for record sealing in New York (barring the offenses being part of the same criminal transaction). This is relevant because while Third Degree Identity Theft, New York Penal Law 190.78, is a class “A” misdemeanor, Second and First Degree Identity Theft, New York Penal Law 190.79 and 190.80, are both felonies. More specifically, these two latter offenses are class “E” and class “D” felonies respectively.

Easy in application, but not necessarily in a formal motion when convincing your sentencing judge or court, assuming the Identity Theft conviction is beyond ten years, you have no pending criminal cases, you have no more than two convictions and no more than one felony you are starting off in the right place. Further, if your crimes are not class “A” felonies, violent crimes pursuant to CPL 70.02 or offenses that require SORA registration, then you appear eligible for criminal case and conviction sealing.

As repeatedly noted, eligible for sealing and actually sealing are quite different. NY CPL 160.59 allows for the District Attorney to challenge your sealing motion within 45 days of receiving your conviction sealing application. Because Identity Theft is a victim crime and a prevalent one costing countless dollars to individuals and businesses alike, it would be of little surprise if prosecutors challenged the sealing of an Identity Theft conviction especially if that complainant is local or the offense was part of a larger scheme. If the District Attorney does push back, then a judge would be required to commence a hearing prior to rendering a decision.

On its face, there is nothing precluding the crime of Identity Theft from sealing and publicly being removed from your criminal record as long as all of the other requirements are met. Will prosecutors object? Will there be a hearing? While you cannot answer that question in advance, being prepared, presenting the strongest motion for sealing and ensuring your counsel advocates with evidence, facts and mitigation will put you in the best place to “erase,” “seal” and hide your criminal conviction so you your past mistake does not haunt you forever.

To learn more about the crime of Identity Theft and New York CPL 160.59’s sealing provisions and procedures, review the links here or go directly to Crotty Saland PC’s New York Conviction Sealing and CPL 160.59 Information Page. There will find crime specific information, process, procedures, eligibility requirements, benefits and a short CPL 160.59 sealing quiz.

Crotty Saland PC is a New York criminal defense and conviction sealing law firm. The New York criminal record sealing attorneys at Crotty Saland PC represent clients in all CPL 160.59 sealing applications throughout the State of New York.

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