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Memo in Support of Amending CPL 160.

50 to Allow Sealing of
Dismissals and Marijuana Violations That are More Than Twenty Years Old

Proposed Amendment
This amendment would simplify the process by which dismissed cases and non-criminal convictions for
marijuana possession that are more than 20 years old can be sealed. In 1991, the Legislature amended
Criminal Procedure Law (CPL) 160.50 to allow individuals whose arrests were terminated in their favor
or who were convicted of marijuana violations (Penal Law 221.05) to have the records sealed
automatically, unless a judge determined that such sealing was not in the interests of justice. Prior to
1991, judges had to stamp these cases sealed before they would be sealed, and many courts
inadvertently failed to do so. Under current law, people with pre-1991 dismissed cases and non-criminal
marijuana convictions are required to bring motions to seal. These motions are time consuming and take
court resources to process. In some cases, records have been lost or destroyed, making the process
more difficult and even, in some cases, impossible. This leaves individuals whose dismissals or noncriminal marijuana convictions took place more than 20 years ago in a worse position than those whose
arrests occurred later.
For these reasons and as discussed below, the Coalition of Reentry Advocates urges that Subdivision 4
of CPL 160.50 be amended as follows:
4. A person in whose favor a criminal action or proceeding was terminated, as defined in
paragraphs (a) through (h), (k) or (l) of subdivision two three of this section, prior to the effective
date of this section subdivision as most recently amended, and whose records have not been
sealed pursuant to subdivision one of this section, may apply to have the records of such criminal
action or proceeding sealed at the clerks office for the court in which the criminal action or
proceeding was terminated. Application may be made by the person or by his or her attorney.
Upon a determination by the clerk that the action or proceeding was terminated in the person's
favor as defined in subdivision three of this section, the clerk of the court shall immediately notify
the commissioner of the division of criminal justice services and the heads of all appropriate police
departments and other law enforcement agencies that the action has been terminated in favor of
the accused and that the record of such action or proceeding shall be sealed. Upon receipt of
notification of such termination and sealing, all records relating to the criminal action shall be
sealed, as required under subdivision one (c) of this section, and all photographs, photographic
plates or proofs, palmprints and fingerprints shall be destroyed or returned as specified in
subdivisions one (a) and (b) of this section. may upon motion apply to the court in which such
termination occurred, upon not less than twenty days notice to the district attorney, for an order
granting to such person the relief set forth in subdivision one of this section, and such order shall
be granted unless the district attorney demonstrates to the satisfaction of the court that the
interests of justice require otherwise. A person in whose favor a criminal action or proceeding was
terminated, as defined in paragraph (i) or (j) of subdivision two of this section, prior to the effective
date of this section, may apply to the appropriate prosecutor or police agency for a certification as
described in said paragraph (i) or (j) granting to such person the relief set forth therein, and such
certification shall be granted by such prosecutor or police agency. This paragraph shall not apply
to cases in which the court declined to seal for reasons stated on the record, pursuant to
subdivision one of this section. When an applicant under this subdivision presents to the court
clerk fingerprint records from the New York State Division of Criminal Justice Services or a court
disposition which indicate that a criminal action or proceeding against the applicant was dismissed
but the supporting court records cannot be located, have been destroyed, or do not indicate
whether the dismissal was a termination in favor of the accused as that term is defined in
subdivision three of this section, the clerk of the court wherein such criminal action or proceeding
was terminated shall proceed as if the matter had been so terminated.

Need for Amendment

The Legislature in 1991 recognized that many cases terminated in a persons favor or that resulted in
non-criminal convictions of unlawful possession of marijuana were not getting sealed because of
administrative error, and thus amended Criminal Procedure Law (CPL) 160.50 to allow those cases to
be sealed automatically unless the judge determined that such sealing was not in the interests of justice.
The numbers of errors where cases were supposed to be sealed but were not dropped dramatically.
Unfortunately, many thousands of cases that should have been sealed before the amendment passed
remained open to public view. To address this problem, the Legislature included a provision requiring
that individuals whose cases occurred prior to the amendment file motions to have such cases sealed.
It has now been more than 20 years since the law was changed. While the motion requirement may
have made sense at the time that the legislation was enacted, when the cases were more recent, it no
longer does, for the following reasons:
1) When people file motions to get their cases sealed, they often find that many of the relevant records
have been destroyed or misplaced by the courts, making it difficult or impossible for the court to
process or grant the sealing motion.
2) Filing these complex motions can be difficult for individuals to do on their own, and it can be very
difficult for them to find affordable representation. Since post-conviction assistance of this sort is
generally not funded by New York State or its localities, public defenders and assigned counsel
generally do not perform this work.
3) Given the time that has elapsed since the cases were in court, sealing them is very costly and time
consuming for all parties the district attorneys (who must look for their files and respond to a
motion), the court clerks (who must try to locate ancient case files, calendar motions, etc.), the
judges who must decide whether to grant motions for cases that may be thirty or forty years old,
which did not result in a conviction for a crime they ended in either dismissal or conviction of noncriminal possession of marijuana, and for the individuals legal representatives (in the rare cases
where they are available).
Because sealing of pre-1991 dismissals and violation-level marijuana convictions is not automatic,
employers and licensing agencies which have the authority to fingerprint currently have access to
information which they are barred from asking about or considering under the New York State Human
Rights Law (NY Executive Law 296(16)). However, there can be no doubt that information about cases
that are dismissed or that resulted in a marijuana violation does affect the judgment of at least some
employers and licensing agencies when they see it, an eventuality that arises solely because the arrests
in question happened to occur prior to the advent of automatic sealing. This treats people with decadesold arrests less favorably than those whose arrests occurred after 1991, and exposes them to needless
discrimination. Simplifying the sealing process will correct this inequality, help many New Yorkers lead
productive, law-abiding lives, and save the courts and State money.

Memo in Support of Amending CPL 160.55 to Allow Sealing of


Convictions for Violations and Offenses That are More Than Twenty Years Old

Proposed Amendment
This amendment would simplify the process by which convictions for non-criminal violations or offenses
that are more than 20 years old can be sealed. In 1991, the Legislature amended Criminal Procedure
Law (CPL) 160.55 to allow individuals whose arrests terminated in a conviction for a non-criminal
violation or offense (except for a conviction for loitering for the purpose of prostitution (PL 240.37(2)) or
a conviction for driving while ability impaired (VTL 1192(1)) to have their records sealed automatically,
unless a judge determined that such sealing was not in the interests of justice. Prior to 1991, judges had
to stamp these cases sealed before they would be sealed, and many courts inadvertently failed to do
so. Under current law, people with pre-1991 violation-level convictions are required to bring motions to
seal. These motions are time consuming and take court resources to process. In some cases, records
have been lost or destroyed, making the process more difficult and even, in some cases, impossible. This
leaves individuals whose non-criminal convictions took place more than 20 years ago in a worse position
than those with the same convictions which occurred later.
For these reasons, and as discussed below, the Coalition of Reentry Advocates urges that Subdivision 3
of CPL 160.55 be amended as follows:
3. A person against whom a criminal action or proceeding was terminated by such person's
conviction of a traffic infraction or violation other than a violation of loitering as described in
paragraph (d) or (e) of subdivision one of section 160.10 of this chapter or the violation of
operating a motor vehicle while ability impaired as described in subdivision one of section eleven
hundred ninety-two of the vehicle and traffic law, prior to the effective date of this section
subdivision as most recently amended, and whose records have not been sealed pursuant to
subdivision one of this section, may apply to have the records of such criminal action or
proceeding sealed at the clerks office for the court in which the criminal action or proceeding was
terminated. Application may be made by the defendant or by his or her attorney. Upon a
determination by the clerk that the court did not find that the interests of justice required that the
case not be sealed, as defined in subdivision one of this section, the clerk of the court shall
immediately notify the commissioner of the division of criminal justice services and the heads of
all appropriate police departments and other law enforcement agencies that the record of such
action or proceeding shall be sealed. Upon receipt of notification of such termination and sealing,
all records relating to the criminal action shall be sealed, as required under subdivision one (c) of
this section, and all photographs, photographic plates or proofs, palmprints and fingerprints shall
be destroyed or returned as specified in subdivisions one (a) and (b) of this section. may upon
motion apply to the court in which such termination occurred, upon not less than twenty days
notice to the district attorney, for an order granting to such person the relief set forth in
subdivision one of this section, and such order shall be granted unless the district attorney
demonstrates to the satisfaction of the court that the interests of justice require otherwise. This
paragraph shall not apply to cases in which the court declined to seal for reasons stated on the
record, pursuant to subdivision one of this section. When an applicant under this subdivision
presents to the court clerk fingerprint records from the New York State Division of Criminal
Justice Services or a court disposition which indicate that a criminal action or proceeding against
the applicant resulted in a sealable conviction, but supporting court records cannot be located,
have been destroyed, or do not indicate whether the court ordered that the case not be sealed,
the clerk of the court wherein such criminal action or proceeding was terminated shall proceed as
if the matter had been so terminated.
Need for Amendment
The Legislature in 1991 recognized that many cases terminated in a conviction for a non-criminal violation
offense or traffic infraction were not getting sealed because of administrative error, and thus amended

Criminal Procedure Law (CPL) 160.55 to allow those cases to be sealed automatically unless the judge
determined that such sealing was not in the interests of justice. The numbers of errors where cases
were supposed to be sealed but were not dropped dramatically.
Unfortunately, many thousands of cases that should have been sealed before the amendment passed
remained open to public view solely as a result of administrative errors. To address this problem, the
Legislature included a provision requiring that individuals whose cases occurred prior to the amendment
file motions to have such cases sealed.
It has now been more than 20 years since the law was changed. While the motion requirement may
have made sense at the time that the legislation was enacted, when the cases were more recent, it no
longer does, for the following reasons:
1) When people file motions to get their cases sealed, they often find that many of the relevant
records have been destroyed or misplaced by the courts, making it difficult or impossible for the
court to process or grant the sealing motion.
2) Filing these motions can be difficult for individuals to do on their own, and it can be very difficult for
them to find affordable representation. Since post-conviction assistance of this sort is generally not
funded by New York State or its localities, public defenders and assigned counsel generally do not
perform this work.
3) Given the time that has elapsed since the cases were in court, sealing them is very costly and time
consuming for all parties the district attorneys (who must look for their files and respond to a
motion), the court clerks (who must try to locate ancient case files, calendar motions, etc.), the
judges who must decide whether to grant motions for cases that may be thirty or forty years old,
which did not result in a conviction for a crime they ended in a conviction for non-criminal violation
or offense, and for the individuals legal representatives (in the rare cases where they are
available).
Because sealing of pre-1991 violation-level convictions is not automatic, employers and licensing
agencies which have the authority to fingerprint currently have access to information which they would be
barred from asking about or considering under the New York State Human Rights Law (NY Executive
Law 296(16)) had these cases been sealed. This treats people with decades-old convictions less
favorably than those whose convictions occurred after 1991, and exposes them to needless
discrimination. Simplifying the sealing process will correct this inequality, help many New Yorkers lead
productive, law-abiding lives, and save the courts and State money.