Appellate Court: New York Sealing Law Applies to Drug Cases Occurring Prior to 2009

This week the Law Firm of Higbee & Associates won an appeal on behalf of a New York client, who had petitioned the court to seal her record in 2013. The lower court denied her request on the grounds that the record sealing law, which went into effect in 2009, did not apply to convictions that occurred prior to the statute’s enactment. The appeals court reversed the lower court’s decision and ruled that convictions that occurred prior to the passage of the sealing law but that are otherwise eligible under CPL § 160.58 can be sealed.

Case History

In 1996, the defendant in this case was convicted of Criminal Possession of a Controlled Substance in the fourth degree. She was sentenced to a 3-year conditional discharge, which she successfully completed without any violations.
Immediately following her arrest, she entered an inpatient substance abuse treatment program for 21 days. Following that, she lived in a supporting living house for 14 months. She also attended Alcoholics Anonymous meetings during that time.

In the time since her conviction and serving her sentence, the defendant has shown that she has really turned her life around. She earned three Associate degrees, and since receiving her Nursing degree in 2006, she has been employed as a Registered Nurse. In 2013, she filed a Motion for Conditional Sealing, pursuant to CPL § 160.58. She applied to have her conviction sealed in order to have more opportunities for advancement in her career. Her conviction had continued to affect her career, despite the record being from 17 years ago.

Lower Court’s Decision

When reviewing the motion to conditionally seal defendant’s records, the court acknowledged all of the factors that worked in favor of sealing, including completion of drug treatment, compliance with her sentence, and her subsequent educational and employment achievements. The court also acknowledged that there were no subsequent arrests on her criminal record in any state. The People took no position on the sealing motion, indicating in their response that defendant was eligible for the relief but granting the order was in the discretion of the court.

Despite everything the defendant had done since her conviction, the court concluded that CPL § 160.58 was not retroactive and could not be applied to cases for which the sentencing occurred before §160.58 was enacted. The lower court denied defendant’s motion to seal her record. Defendant, through Higbee & Associates, appealed the lower court’s decision to the Appellate Division, Fourth Judicial Department, of the Supreme Court of the State of New York.

Appeal Court’s Review

The Appellate Division ruled that there is nothing in CPL §160.58 to suggest that it does not apply to criminal records relating to prior convictions. The court stated that application of the record sealing law to these pre-2009 convictions does not make the statute “retroactive,” because the statute deals with “restricting future access to existing records.” The fact that some of the records relate to events occurring before the statute was enacted is “immaterial.”

The court also reviewed the legislative history of CPL 160.58. That review revealed that the legislature included in 12 other sections within that chapter that the section was limited “to offenses committed on or after the [effective] date . . . and . . . to offenses committed before such date provided that sentence upon conviction for such offense has not been imposed on or before such date.” However, the legislature did not include any retroactivity rule in the section of the law that created CPL 160.58. There is nothing in the plain language of the statute or the legislative history to indicate this relief would not apply to these previous convictions.

Appellate Court’s Decision and Outcome

The Appellate Court reversed the lower court’s order and sent the matter back to the lower court to consider the factors listed in the statute. The factors enumerated in the statute include: (1) the circumstances and seriousness of the offense; (2) the character of the defendant, including completion of the treatment program; (3) the defendant’s criminal history; and (4) the impact that sealing the records will have on defendant’s rehabilitation and successful and productive reintegration into society and on public safety.

Sealing of New York Drug Conviction Cases Going Forward

The decision in this case is important for former offenders in New York, because it clarifies the law for all other lower courts deciding these sealing petitions in the future. The relief offered by CPL § 160.58 would have been extremely limited if it could not be applied to convictions and sentences imposed before 2009.

Those with pre-2009 drug offense convictions, for which a drug treatment program was completed, can now petition the court to seal their record and be confident that the judge will make the decision based on the factors listed above and not summarily dismiss the request on the basis of the date the case occurred. This allows those who have long moved past their conviction and been rehabilitated and law-abiding for several years to experience the benefits of having their drug conviction sealed.

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2 Responses to Appellate Court: New York Sealing Law Applies to Drug Cases Occurring Prior to 2009

  1. Keith K. says:

    If the courts refuse to expunge a case, are they required to give a written reason? Thank You so much for all your hard work!

    • Jenna Thorne says:

      It really depends on the state, county and the individual judge as to how much information is provided on an order denying an expungement request. Many times the order will specify a reason the case is being denied or it might refer to the opposition filed by the District Attorney. You should have received the opposition in writing and could review it to determine the information that the judge relied on when deciding the case. If the information is not readily available on the order itself or the order does not refer to another document, you can request a copy of the transcript to determine what was said on the record at the hearing to see why the judge denied the expungement. If that is not an option, you could also at that point reach out to the district attorney to see if they are able to provide additional information. If none of the above options are successful in obtaining the information, you can also try filing a motion for reconsideration to request the judge reconsider the denial.

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