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?
The very short answer to the above question is “yes.” However, a judge has discretion when ordering a hearing in some circumstances while he or she must conduct a hearing in others. Specifically, upon your attorney’s filing of a motion or application to seal one or both of your criminal convictions, the District Attorney in the county of your sentencing has 45 days to object to your sealing. Pursuant to CPL 160.59(6) a judge “shall” conduct a hearing on your application to “consider evidence offered by either party that would aid [the judge] in his or her decision whether to seal the records of the defendant’s conviction.” However, barring an objection by the District Attorney, “shall” is really interpreted as “if the judge wants to do so.”
It seems very unlikely and impractical that a judge would mandate a hearing in most non-violent and no-victim crimes because there are likely tens of thousands, if not hundreds of thousands, of such offenses eligible for sealing. It would seem quite impractical for any court to conduct hearing upon hearing upon hearing (keep it going…) without causing a bottleneck in the court’s regular business. However, if a victim opposes your sealing and advises the prosecution or the District Attorney chooses to exercise their statutory right, then a judge must conduct the hearing.
Yes, gathering up a potential witness or preparing to testify is no easy task, but the advantage you will have should you reach this stage in the sealing process is that your evidence and ammunition will already be in your collective hands. Fortunately, in the end, most New York sealing attorneys do not believe courts will demand hearings in the regular course of their business for sealing non-violent and non-victim crimes the further they are beyond ten years. Its always a good idea to prepare for the worst and hope for the best, but if done thoroughly and with the proper amount of advocacy, your attorney can seal your criminal case without the time, anxiety and expense of a hearing.
To learn more about New York sealing laws, NY CPL 160.59, or to take the New York Conviction Sealing Quiz, review this blog and our Crotty Saland website.
Crotty Saland PC is a New York sealing and “expungement” law firm representing clients throughout the entire State of New York. Prior to staring their criminal defense practice, the New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office.