If I Seal My Criminal Record Who Can See It: Sealed Record Background Checks

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 Saland Law 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?

Before overreacting to the fact that New York State does not expunge criminal convictions, the most significant difference between sealing a criminal record and expunging a criminal conviction is not who can see, but who cannot see your criminal past. Expungement, for lack of a better term, obliterates and removes your criminal conviction everywhere in both the public and private sector. Sealing, however, allows the police and prosecutors to access your criminal record as it relates to their law enforcement work. For example, if you had a conviction for Petit Larceny, PL 155.25, from 2003 and you were now arrested for possessing a gravity knife in violation of Fourth Degree Criminal Possession of a Weapon, PL 265.01, prosecutors could still use your past conviction to enhance your current conviction as permitted by law. At the same time, whether expunged or sealed, the public record of your conviction in most situations would be visible to no one. At bottom, assuming you lead a law abiding life, practically speaking there may be little difference between expungement and sealing pursuant to CPL 160.59.

Effective October 7, 2017, New York Executive Law 296(16), also referred to as New York Human Rights Law, prohibits:

“…any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual…in connection with the licensing, employment or providing of credit or insurance to such individual.”

Additionally, New York Human Rights Law 296(16) fortifies the protections provided to those who have successfully sealed their cases pursuant to NY CPL 160.59 as follows:

“[N]o person shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual [including those criminal convictions sealed pursuant to NY CPL 160.59].

While this sealing statute and pseudo expungement law gives a clear path to privacy in most employment and other contexts, it is not all encompassing. Specifically, the government will have access to your criminal past in regulating gun and firearm applications and some employment including jobs as a police or peace officer. Although not addressed in this blog, anyone who pursues and secures sealing pursuant to CPL 160.59 should recognize that the statutes makes it unlawful to discriminate and make inquiries into sealed criminal convictions. The exception to this rule is where a specific statute requires disclosure or permits the same (addressed by Saland Law PC elsewhere).

To read more about New York’s Sealing Law, the eligibility requirements, process and other important elements of this law as well as to take the New York CPL 160.59 Eligibility Quiz, follow the highlighted links. Both this blog and New-York-Lawyers.org have valuable and easily readable materials on sealing New York criminal convictions.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York conviction sealing lawyers at Saland Law PC represents clients in “expungement” and sealing throughout the State of New York.


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