Articles Posted in Sealing and Expungement

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.

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Unlike DWI arrests in New York where you refuse to “blow,” there are other DWI or DUI crimes that are based on evidence of a person having a BAC of .08 or more. These drunk driving crimes are codified in New York Vehicle and Traffic Law 1192.2. While VTL 1192.2 is the same misdemeanor offense as a Common Law or Refusal DWI of VTL 1192.3, they are also different. These former DUI crimes are not based on whether you were staggering, unsteady on your feet and had slurred speech, but simply on whether your BAC was equal to or exceeded .08 even if you did not exhibit any of the indicia of intoxication. This blog entry addresses the conviction sealing eligibility issues found in New York Criminal Procedure Law 160.59 as it relates to a VTL 1192.2 arrest and conviction. Further, this article briefly examines whether you can seal a DWI conviction and, if so, how you file an application to seal your DWI.

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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.

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A crime that is routinely prosecuted in New York City, and likely elsewhere through the State of New York, is New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon. More specifically, if you knowingly possess a gravity knife or a switchblade knife you are guilty of a class “A” misdemeanor. Because of the severity of the crime, its creation of a permanent criminal record as a result of a conviction, and the fact that what the State identifies as a gravity knife often results in regular people being charged with crimes they had no idea they violated, there are many offenders who should consider having their old criminal conviction for PL 265.01 sealed in accordance with New York Criminal Procedure Law 160.59. For that matter, whether you had metal knuckles, a slingshot, shirken, chucka stick or any other per se weapon, conviction sealing is an option to consider.

One of the problems with PL 265.01, and reason why it is an offense that you should seek to seal from your criminal record, is that on  its face a conviction for any weapon offense has the worst possible connotation for and to a prospective employer. While one might argue a switchblade knife is often associated with a dangerous instrument, a gravity knife can be something as simple as a multi-tool purchased at a hardware store. While this blog does not address the merits of the law, the questions posed here are can you apply to have your conviction for NY PL 265.01 sealed with the passage of CPL 160.59 and is Fourth Degree Criminal Possession of a Weapon an eligible offense?

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In the State of New York, a DWI arrest and conviction can be based on different theories of the law. One such DUI or drunk driving crime is found in New York Vehicle and Traffic Law 1192.3. Often referred to as either Common Law DWI or Refusal DWI, this Driving While Intoxicated crime is based not on a “blow” of .08 or higher, but merely on a police officer’s experience and observations of, for example, a flushed face, watery-bloodshot eyes and the smell of alcohol on your breath. No, this blog entry does not address the legality of a refusal to provide a breath sample or the legal sufficiency of a DWI complaint charging VTL 1192, but a set of question asked by countless individuals convicted of DWI in New York: Can I seal my criminal conviction for a Common Law or Refusal DWI or DUI and, if so, how do I seal and remove the DWI arrest from my rap sheet or criminal record?

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Can a judge seal my conviction for Marijuana Possession? Is misdemeanor possession of marijuana an eligible crime for sealing purposes under New York Criminal Procedure Law 160.59? Specifically, I was convicted of New York Penal Law 22.10, Criminal Possession of Marihuana in the Fifth Degree, after the police arrested me for smoking marijuana in public. What about my conviction for Fourth Degree Criminal Possession of Marijuana, New York Penal Law 221.15, after the police arrested me with more than two ounces of the green leafy stuff?

Before diving into the answers to your questions, proceed with some degree of confidence. Whether or not a judge ultimately grants your sealing application and motion, know that arguably NY CPL 160.59 became the law of New York State to help people just like you.

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A common question that is repeatedly asked is whether or not a judge must hold a hearing before granting or denying a sealing motion according to New York Criminal Procedure Law 160.59. In other words, if you want your criminal conviction erased from the public domain can a judge do so without giving the prosecution both an opportunity to respond in a public forum outside of a motion seeking to preclude sealing?

Because I have addressed New York’s criminal conviction sealing statute in great detail throughout this blog and on our website by breaking down the relevant procedures, benefits and eligibility requirements of NY CPL 160.59, I will not do so again here. However, for those with criminal records and convictions in New York beyond ten years old, if you were not aware let this blog serve as notice that as long as you have no more than two total convictions, of only one can be a felony, and those convictions are not sexual or violent crimes, you are potentially able to have your conviction sealed and “removed” from public view. In terms of process, however, beyond filing a motion for sealing, can a judge require more materials and evidence in the form of a hearing before rendering his or her decision?

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You’ve taken responsibility and paid your dues. It now begs the question. Can my misdemeanor conviction be sealed? Can my drug arrest be expunged? Is there a statute in New York to clear my criminal record? Its been years, even decades, since my arrest, conviction and sentencing for Seventh Degree Criminal Possession of a Controlled Substance in New York. How do I now get a conviction for New York Penal Law 220.03 vacated, cleaned, washed away, expunged, sealed or any other relief to keep my past from destroying my future? As you can discuss with your criminal defense attorney and conviction sealing lawyer, whether you were convicted by a plea of guilty or by a jury of your peers, simple possession of cocaine, crack-cocaine, heroin, or any other controlled substance can be sealed from your record with a motion to your sentencing court in accordance with New York Criminal Procedure Law 160.59.

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What is the benefit of sealing my criminal record? Why would I want to expunge an old arrest? Even if my criminal case is sealed, can employers still see my case, the evidence or accusations? All reasonable questions to ask your criminal defense attorney, or more appropriately your conviction sealing lawyer, the answer to these questions start with the purpose behind New York State’s passage of Criminal Procedure Law 160.59. NY CPL 160.59, the New York sealing statute, allows for the “public removal” or in some cases limited access to certain past criminal convictions. As addressed in other blog entries and in substantive detail on Crotty Saland PC’s New York Sealing Law Information Page, the goal of NY CPL 160.59 is to allow individuals who have led law abiding lives for more than ten years, have eligible non-sex offense and other convictions, and can provide a reason for a court to consider a sealing motion, to file for “expungement” of the criminal case(s). The caveat to all of this is that the law limits your eligibility to a criminal past involving no more than two convictions of which only one can be a felony and even if the court agreed with your sealing attorney’s application, no judge can actually expunge your criminal record. That’s right. While you may have your criminal record sealed and blocked from public view, law enforcement will have the ability to access your criminal history in perpetuity.

This all begs the question that you will no doubt vet with your NY CPL 160.59 sealing attorney. If I seal my criminal record who can see it?

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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.

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