I called my ex-girlfriend dozens of times and was ultimately convicted of Second Degree Aggravated Harassment. There was an order of protection issued, but I completed my anger management without any problems. Can I now get my criminal record cleaned and erased? Can I purge or seal a conviction for New York Penal Law 240.30? Does it matter I was incarcerated for three months and then had to complete three years probation?
With the passage and implementation of New York Criminal Procedure Law 160.59, “Sealing of Certain Convictions,” what was once an irrevocable and permanent blemish on one’s criminal record may no longer be the case. Instead of answering “yes” when an employer inquires about a criminal record, should you successfully seal an eligible conviction, New York Executive Law 296(16) precludes most potential employers from asking about your sealed criminal conviction or mandating that you divulge any information about the same.
While the above is an enormous benefit to any person who has dealt with a criminal conviction but has since paid his or her dues, merely because the law has changed does not mean that every offense or person is eligible for sealing.
In the realm of Aggravated Harassment in the Second Degree, often associated with Domestic Violence crimes, sealing pursuant to NY CPL 160.59 is treated no different than any other non-violent and non-sexual offense. Is your PL 240.30 conviction beyond ten years old? In the event you were incarcerated in a New York State prison or county jail, such as Rikers Island, has at least ten years passed since you were released from custody? Do you have a current criminal case pending? Is this your only conviction excluding convictions for non-criminal violations such as Disorderly Conduct? Assuming your Aggravated Harassment in the Second Degree is not the only criminal offense on your rap sheet, do you have no more than one eligible felony or misdemeanor? Meaning, is your other criminal conviction an eligible offense as opposed to one that is, for example, a class “A” felony? Assuming these legal questions are answered correctly you should have the foundation to file a motion for criminal record sealing.
Even though nothing prevents a judge from sealing a PL 240.30 conviction, know that Second Degree Aggravated Harassment is a victim crime whether it is domestic or otherwise. This is important to recognize because unlike other low level misdemeanors such as Petit Larceny, Criminal Possession of Marijuana and Theft of Services, it is potentially likely prosecutors will exercise their right to oppose the sealing of your case. In such an instance, a judge would then be required to hold a CPL 160.59 hearing where both your sealing lawyer and the prosecution would not merely rely on submissions and the application for sealing, but present evidence.
By no means should you read this blog entry as an assertion that each and every case and motion to seal an eligible PL 240.30 conviction will be opposed by the local District Attorney and mandate a hearing, but preparing for the worst and erring on the side of caution is in your best interest. Can you or your CPL 160.59 sealing lawyer get in touch with and gain the support of the complainant and victim from more than a decade ago? Will she or he support your application? If not, what, if any, steps have you taken in your life since that time to put yourself back on the right track and move away from the mistakes you accepted responsibility for all those years ago?
At bottom, Second Degree Aggravated Harassment is an eligible crime for sealing. However, eligibility is just the beginning. Whether you are successful in this “expungement” and removal from public view depends on more factors, elements and the advocacy of your counsel.
To learn more about the crime of Second Degree Aggravated Harassment, New York Penal 240.30, as well as New York criminal conviction sealing and New York Criminal Procedure Law 160.59, review both this blog and the Saland Law PC website.
Founded by two former Manhattan prosecutors, the New York CPL 160.59 sealing lawyers at Saland Law PC represent clients in all NY CPL 160.59 motions and applications in every New York county and municipality.