Nobody likes an answer of “maybe,” but the practical reality to the question of whether a conviction or criminal record for Assault in New York can be sealed is partially yes and partially no. First, with the negative, New York has no provision in its criminal procedure law to expunge your conviction for any degree of Assault. However, there is a remedy for anyone convicted of a non-violent Assault (that’s right, non-violent) to seek a sealing of their criminal conviction from their public criminal record. Doesn’t make sense? Bare with me.
Assuming that you have no more than two misdemeanor convictions or one misdemeanor and one felony, the judge before whom you were sentence has the authority pursuant to New York Criminal Procedure Law 160.59 to seal your criminal conviction subject to a few relevant and critical points as to eligibility.
Before jumping into the general provisions of Crim. Pro. Law 160.59, crimes defined as violent offenses are not eligible for sealing. Therefore, a conviction for Second Degree (NY PL 120.05) or First Degree Assault (NY PL 120.10), class “D” and “B” felonies respectively, are not crimes for which sealing is an option. By law these offenses are classified as violent pursuant to New York Criminal Procedure Law 70.02(1)(c). Although punching someone in the eye and giving them a shiner or even cracking another person’s ribs from repeated strikes may seem violent, a conviction for Third Degree Assault, New York Penal Law 120.00, is not a legally defined violent offense. Because of this, on its face every Third Degree Assault conviction is eligible for sealing while the same does not hold true for the violent versions of this crime that involve a serious physical injury or the use of a weapon or dangerous instrument.
Knowing that your conviction and criminal record for Assault in the Third Degree is eligible for sealing, the follow up questions are when the crime occurred, how extensive your criminal record is and whether you have an ongoing criminal case. No, these are not all of the relevant questions, but if your PL 120.00 case is beyond ten years, you are not seeking the sealing of more than two convictions and you don’t currently have a criminal case, then you may be eligible for sealing and this expungement alternative. Even assuming eligibility is not a concern, it is important to recognize that being eligible for a CRPL 160.59 sealing is not the same as a judge or court granting such an application. Simply, your sentencing court is not required to seal your case merely because you satisfied all the elements for record sealing. Instead, the court has a litany of issues it will address. For example, what have you been doing with your life since your conviction? What, if anything, does the victim have to say about your request and does the District Attorney wish to be heard? What is the value or greater good to your sealing? What were the underlying facts and allegations? Not an exhaustive review of the relevant materials that your sentencing judge will review, there are many intricacies that you must familiarize yourself with not solely for the drafting and filing of your NY CPL 160.59 application, but in the event the judge requires a hearing prior to rendering a decision.
At bottom, recognize that Third Degree Assault is an eligible offense and the two more serious felony crimes of Second and First Degree Assault are not eligible for sealing due to their inclusion in New York’s violent crime statute.
To get further information on New York sealing applications and motions from eligibility through practical results of sealing, take a moment to read through this blog area on sealing and expungement as well as the Saland Law PC’s New York sealing law information page.
The New York criminal lawyers and former Manhattan prosecutors at Saland Law PC represent clients in sealing motions and applications throughout New York State.