New York State’s Clean Slate Law
July 25th, 2023 | Chris Christian, Director of Compliance
The New York Senate and Assembly have passed a new clean slate law, Assembly Bill 1029C (A1029C) which amends existing New York state law as it relates to the automatic sealing of certain criminal conviction records after certain time periods. Commonly known as “Clean Slate” laws, these laws refer to a legislative policy model designed to provide relief for individuals with criminal record history, allowing them to have their criminal records expunged or sealed from public record systems. The main purpose of these laws is to eliminate barriers to employment and housing, restore civil rights, and provide opportunities to help those eligible for criminal record relief.
Automatic Sealing of Records
The new law automatically seals certain traffic infractions or crimes after a specific period has passed related to each type of record:
- Certain convictions of the vehicle and traffic law will be sealed after three years.
- Misdemeanor convictions, if at least three years have passed from the defendant’s release from incarceration or the imposition of sentence if there was no sentence of incarceration.
- Felony convictions, if at least eight years have passed from the defendant’s release from incarceration or the imposition of sentence if there was no sentence of incarceration.
Conditions for Automatic Sealing
The new law also provides for certain conditions to be met for a conviction record to quality for automatic sealing. In those instances, the following conditions must apply:
- The defendant does not have a subsequent criminal charge pending in the state.
- The defendant is not currently under the supervision of any probation or parole department for the conviction eligible for sealing.
- The conviction is not for an offense defined as a sex offense or sexually violent offense under section one hundred sixty-eight-a of the correction law.
- The conviction is not for a class A felony offense defined in the penal law, other than class A felony offenses defined in article two hundred twenty of the penal law.
- The defendant is a natural person.
- The defendant does not have a subsequent felony charge pending in another jurisdiction that is not a felony charge related to reproductive or gender affirming care or the possession of cannabis which would not constitute a felony in New York.
- The defendant does not have a subsequent felony conviction in another jurisdiction in the preceding eight years that is not a felony conviction related to reproductive or gender affirming care or the possession of cannabis which would not constitute a felony in New York.
Exemptions for Access to Sealed Records
Conviction records sealed must not be accessed by or made available to any person or public or private agency, except for the following purposes:
- Any court, defense counsel or prosecutor for the purposes of a pending criminal proceeding or proceedings brought in a criminal court.
- Qualified law enforcement agencies when acting within the scope of their law enforcement duties.
- The court, prosecutor, and defense counsel if the defendant becomes a witness in a criminal or civil proceeding.
- Individuals or entities that are required by a local, state, or a federal law or regulation to request and receive a fingerprint-based check of criminal history information.
- The commissioner of education or the office of school personnel review and accountability from receiving or using convictions sealed for purposes of applicable educational laws.
- Individuals or entities that are required by a local, state, or a federal law or regulation to request and receive a fingerprint-based check of criminal history information in relation to the individual’s fitness to have responsibility for the safety and well-being of children or adolescents, elderly individuals, individuals with disabilities, or otherwise vulnerable populations.
- Any prospective employer of a police officer or peace officer, in relation to an application for employment as a police officer or peace officer.
- Any federal, state, or local officer or agency with responsibility for the issuance of licenses to possess a firearm, rifle or shotgun or with responsibility for conducting background checks before transfer or sale of a firearm or explosive.
- For the purposes of civilian investigation or evaluation of a civilian complaint or civil action concerning law enforcement or prosecution actions.
- For information provided to an individual or entity pursuant to paragraph (e) of subdivision four of section eight hundred thirty-seven of the executive law or for bona fide research purposes.
- When an individual seeks to avail themselves of a public program or benefit.
- For the collection of restitution, reparation, fines, surcharges, or fees imposed.
- Transportation network companies that are required or authorized by state law to request criminal history information.
- The state education department for the purposes of investigating professional misconduct, consideration of restoration of a professional license pursuant to section sixty-five hundred eleven of the education law, or determinations for issuing a license to practice a profession or issuing certificates and privileges for which prior licensure is required.
- The office of mental health and the office for people with developmental disabilities, where such agencies are statutorily authorized to receive such information.
Instances Where Law is Not Applicable
The law does not prohibit, affect, impact, and/or make requirements in certain situations in the following ways:
- Does not interfere with applicable laws, rules and regulations requiring the division of criminal justice services to administer and maintain criminal history records.
- Does not require the sealing or destruction of DNA information maintained in the New York state DNA database of an individual whose conviction is sealed.
- Does not require the sealing or destruction of records maintained by the department of motor vehicles or conflict with vehicle and traffic law, the federal Driver’s Privacy Protection Act, the REAL ID Act of 2005, section 7209 of the Intelligence Reform and Terrorism Prevention Act of 1986, the Commercial Motor Vehicle Safety Act of 1986, the Motor Carrier Safety Improvement Act of 1999, or regulations promulgated pursuant to any such chapter or act.
- Does not prohibit entities required by federal law to consider sealed convictions, or by rules and regulations promulgated by a self-regulatory organization that has been created under federal law, from making an inquiry about or considering an applicant’s criminal history for purposes of employment, licensing, or clearance from inquiring into convictions sealed.
- Does not permit sealing of a conviction before the expiration or termination of a sentence of incarceration, parole, probation, or post-release supervision for such conviction.
- Does not affect or invalidate any active order of protection issued in relation to a conviction sealed under this section.
Implementation of Clean Slate
Implementation of A1029C will be an arduous and complex effort. In general, the law establishes the required coordination efforts between various state agencies. First, The Department of Corrections and Community Supervision, in coordination with the Division of Criminal Justice Services, must provide the Office of Court Administration with the data necessary to determine appropriate records to be sealed. Next, the chief administrative officer of each local correctional facility must provide the Office of Court Administration with the data necessary to determine appropriate records to be sealed. Finally, upon the sealing of a conviction record, the Office of Court Administration must then immediately notify the Division of Criminal Justice Services, the court of conviction, county clerks and the heads of all appropriate police and sheriff departments, prosecutors’ offices, and law enforcement agencies that the conviction is sealed.
The law requires that the Office of Court Administration make efforts to promptly seal all conviction records, eligible for sealing, where such convictions were entered on or before the effective date of the law and ensure sealing of such convictions is completed no later than three years after the effective date of the law.
“Clean Slate” legislation like New York A1029C has been passed in other states such as California, Connecticut, Colorado, Michigan, New Jersey, Pennsylvania, and Utah. As a legislative movement, clean slate is still relatively young, complex, and evolving. Employers should consider reviewing their screening policies and programs in light of the new law, since certain types of offences will no longer be available once the law is in effect and records have been sealed. Employers should also consult with their legal counsel when considering updating their background screening and hiring policies and programs.
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