Do courts have their own rules...

[rlrl]

What is the name of your state?(NY)... when it comes to sealing certain information related to a conviction? Here's my story:

I was charged 10 years ago with a class B misdemeanor but pled guilty to a violation, a non-criminal offense. My criminal records (fingerprints, DA records, police records, prints recalled from FBI) were sealed as per 160.55 of the NY CPL (known as the "partial seal") but the court record is open because of the conviction.

When i called the court of conviction in 2000 to ask how the general public did background checks, they told me the checks are done through the NY state office Of Court Administration(OCA). They told me at the time that the OCA record will show the guilty plea to the violation, the sentence information,docket #, but the original charge will be removed from the record.

I did a background check on that record through a record retrieval company (5 years ago) and yes, the sentence info, guilty plea to the conviction were there but the original charge was noted as "Sealed".

A few years later i was chatting with someone from my public defenders office, they had told me that to their knowledge the OCA DOES list the original charge on their background reports. So i called the OCA again and they told me different things. One person said they seal the original charge if you had the charges reduced, another person said they used to do that but no more.

So my question is: will my original charge be sealed or will it now be listed? Was this an error that they made?

When someone is charged with a higher offense and plead to a lower one, does the court seal the original charge or do they keep it?

 

[You Are Guilty]

As far as I'm aware, the record of the original arrest (and charge) should remain sealed. Of course, it's somewhat dependent on the actual charges that were originally brought (and whether the court/ADA requested the records not to be sealed within 5 days after the conviction).

You can approach the DA's office in the county of conviction and attempt to ascertain exactly what the status of your records are, as they will have much more success at rectifying any errors, if there are any, than you will.

The problem is that it's not all too difficult for a motivated individual with the right knowledge to obtain the information you think is/should be sealed anyway (see, e.g., "private investigator"). Not to suggest anything improper, but if your goal is to avoid truthfully answering questions about the arrest in the hope that the veracity can't be checked (because the records are sealed), you ought to rethink that one.


{edit}
To answer your second question, it's only sealed if the lower charge is a violation and doesn't fall in the exemptions listed in the statute (i.e. loitering).

 

[rlrl]

Thank for posting...

your input. Actually the letter of disposition from the court has the original charges(in number format) on it and the original complaint is available in the record. However, as you read above, the abbrevriated background report lists the original charge as 'sealed". Seems a bit odd to me.

So far i have been lucky in my 10 years. It hasn't affected my job, insurance or my ability to get a new place to live. I even checked with National Background Data (NBD) company in Florida and they didn't have my record in their files. Due to that they access NY Dept of Corrections (DOC) files my record wasn't there(was only a violation). Any background questions so far were all about crimes and not violations

Though I've been lucky so far I know someday this is going to catch up to me and i will have to explain it...

RL

 

[You Are Guilty]

I wouldn't be too concerned. I understand that certain Federal-level checks may be a bit more comprehensive and turn it up, but unless someone knows what to look for, it's rather unlikely that the original charge will be discovered. I know several people (in NY) who were arrested and initially charged with felonies and later pled to violations, who all managed to be admitted to the NY bar, so clearly, in most cases, the records remain sealed as they should.

What was the original charge? (Or if you prefer not to say, was it one of the exemptions to the sealing statute?)

 

[rlrl]

Thanks...

I was charged with a class B misdemeanor back in 1996. The potential sentence carried a maximum jail sentence of 90 days. I pled guilty to the violation disorderly conduct. I had a year's conditional discharge, paid a $50 fine and in a year the criminal records were sealed.

This type of case, a guilty plea to a non criminal, non-fingerprintable offense, is "partially" sealed under 160.55 of the NY CPL. The offense i was convicted, of disorderly conduct, qualifies for sealing. However some other non-crimes such as major traffic violations are not sealable but mine definitely is because i have the court record with me. On the dispo.

it says 'sealed".
The thing is that since there was a guilty plea to an actual offense, the record is still public in the court. However the fingerprints on the state level are sealed, prints recalled from the FBI, so a background check for a license or job (except for law enforcement) should come back clear. It's as if the event never happened

The FBI can always get it by simply searching the court records in NY

Violations generally don't count for licenses or state jobs if you're printed for the job/license. But if they search the court records they'll see the violation

 

[nyhov11]

Question:

I just have a quick question as to the sealing reasons of your case. I, myself, was given an option to a ACD(dismissed/sealed if i stay out of trouble for a year) almost a year ago. Was that the reason your case was supposed to be sealed or another reason?

thx

 

[rlrl]

In NY sealing automatically happens...

under 160.55 (termination of criminal action via plea to a non-criminal offense like disorderly conduct) such as happened in my case. After the sentence of conditional discharge which lasts for a year, the court sends a sealing order to NY DCJS for sealing of fingerprints, to the police dept for sealing of mug shots, to the DA for sealing of papers and the FBI for expungement of the fingerprints.

The exact thing happens in a 160.50 which covers an ACD like in your case. 160.50 also covers dismissals, acquitals. Only law enforcement can unseal your record and ask you questions such as "have you ever been arrested?".

Actually you are the luckier of the 2 of us. Since i pled guilty to a violation(160.55), i have a conviction so my court file is open. So if anyone searches the courts for a conviction they will find out about me!! in NY a 160.55 sealing is commonly referred to as the 'partial seal".Criminal records sealed, court file open. But if fingerprinted for a job or license, no record.

In your case of the ACD(160.50) you did not have a conviction so your court record will be sealed as well.

You are totally free!!

 

[nyhov11]

Thx

For replying. I did not know about that sealing policy for non-criminal pleas. I dont think a standard background search would catch your court record, unless they have a reason to search further. In my case, in Oct. my ACD is up, and my record should be clean, or possibly a few months after Oct.

[CPL 160.50 Exceptions
Cases dismissed pursuant to CPL 170.56 (marijuana adjournment resulting in dismissal) qualify for sealing but do not allow for the return or destruction of documents. The documents remain on file and can be used as the basis for making future identifications.]

Im not too sure if this will come up at some later point though. I dont know if the documents it refers to are the court records or the police reports, or that its on file just for law enforcement and not for the public. A close friend of mine completed his ACD a few years back, and was re-arrested for a different charge some time later, and nothing about his first arrest showed up. Either way, its not like either of us are so bad for society, right?

 

[rlrl]

Looked forward from hearing from you...

My violation can always be accessed if an employer does a search through the NY state Office Of Court Administration(OCA). All they need is $52 and my name and DOB. However if an employer uses a background reporting company the employer should not receive it because according to NY Fair Credit Reporting law a non-criminal offense is not reportable in a consumer report for an end-user in NY. Some employers only search Dept Of Corrections (DOC) records about offenders who were jailed for more than 1 year. In that case a violation wouldn't show up. In NY state since a violation conviction is not sealed in the court but is sealed at DCJS, it is known as the "partial seal".

I am going to check out the 170.56 law and get back to you

 

[rlrl]

I just checked 160.50 law...

and i did see the 170.56 exception. I'm confused. On one hand it seems to say that prints/pictures will not be returned to you or destroyed but the next paragraph says that DCJS and law enforcement agencies have to destroy your prints even in a 170.56.

I'm stumped. you got me.

go to this site--www.hirenetwork.org. click on publications. there are several publications pertaining to NY and background checks. try the most recent additions at the bottom. They may explain the 170.56

I am curious about this one myself.

You can contact the court and ask about ths specifics of sealing

You can get a letter of disposition from the court to see what is sealed

Try running your prints through NY DCJS and see if your record is sealed

Send an inquiry to the identification unit at DCJS asking for the status of the sealing.

if you do these let me know how it works out

 

[nyhov11]

WoW

Thank you so much for the website. I checked out one of the publications about info on rap sheets and sealing info, I think thats one of the most important things i've seen in my life. Theres so much in there, and i'll need more time to go through it, but i got a few things...

For employment, pertaining to an ACD, I do not have to disclose ANY info on arrest [if no conviction] especially if sealed.... Public employers, hospitals among them, (i'm planning to apply to one in a couple of years) can access rap sheets AND dcjs file, but i think (HOPE) nothing will show after the ACD is up.

I will definitely try all of your suggestions a few months after the dismissal, especially since i just read that it is common for there to be mistakes on your rap sheet

If you happen to come across any other info on that CPL 170.56, it will be greatly appreciated (or anybody else )

thx again

 

[rlrl]

I was just on the hirenetwork site...

and I was reading one of their later publications "impact of juvenile and criminal records in ny state". in the section about sealings they mentioned about an arrest for less than 7/8 ounce of marijuana and that the records get sealed in 3 years provided there are no more arrests. it didn't mention the code 170.56 you mentioned so i'm not sure if this is the same one