Judge's Record-Sealing Denial Highlights 'Shortcomings' of Second-Chance Law

Administrative Judge Joseph Zayas has called on the state legislature to amend the 2017 conviction-sealing law.  Eagle  file photo

Administrative Judge Joseph Zayas has called on the state legislature to amend the 2017 conviction-sealing law. Eagle file photo

By David Brand

The 1984 case of a 16-year-old convicted for a robbery offense and denied youthful offender status has revealed persistent flaws in the New York State conviction-sealing law, says Queens Criminal Court Administrative Judge Joseph Zayas. A decision on that case last week prompted Zayas to call for legislative reforms.

The conviction-sealing law, enacted in 2017, was designed to give former offenders a second chance, but the measure’s strict regulations have limited its impact and highlighted long-standing inequities in the criminal justice system, Zayas said in his Dec. 12 decision to deny an application made by a woman seeking to seal a 1984 robbery conviction.

The woman, identified by the court as Jane Doe, applied for sealing of her lone felony conviction for second-degree robbery. That conviction was based on a plea deal she agreed to after she participated in the theft of a high school classmate’s “unicorn charm” in 1984. It was her only brush with the justice system, but second-degree robbery is considered a violent felony, which disqualified her from having her conviction permanently sealed under current law.

Had the then-teenager been offered a plea deal for third-degree robbery — a non-violent felony — she would have been eligible for conviction-sealing, according to court documents published on Dec. 12.

“The Court, regrettably, is constrained to deny the motion because, as the People correctly contend, defendant's conviction of a violent felony offense makes her ineligible for sealing under the statute,” Zayas wrote in his decision.

Young people demonstrate in support of Raise the Age prior to passage of the law. Photo via the NYS Senate

Young people demonstrate in support of Raise the Age prior to passage of the law. Photo via the NYS Senate

The law specifically enables New Yorkers with no more than two misdemeanor convictions or one felony and one misdemeanor conviction to have their convictions sealed if they have remained crime-free for ten years. However, violent felonies, sex offenses and other “serious felonies” are not eligible for sealing — even in the cases of youthful offenders.

Doe discovered that her 34-year-old conviction had not been sealed when she applied for a job in health services, according to court documents. She was denied the job after a background check unearthed the old conviction.

Zayas criticized the law for not taking into account an offender’s youthful status —  even though it was part of the Raise the Age package of legislation. Under Raise the Age, which took effect Oct. 1, an adolescent under age 18, who is charged with a robbery without the use of a “deadly weapon” and without causing significant injury, would have their case reassigned to Family Court, Zayas added.

“This case also highlights another important, yet perhaps unanticipated, shortcoming of the new sealing statute: its failure to explicitly address criminal records of younger offenders, even though it was enacted as part of the Raise the Age legislation,” Zayas said, suggesting that the state legislature “consider amending [the law] to allow for the sealing of convictions of violent felony offenses committed by defendants who were eligible for youthful offender treatment, but did not receive it.”

Amending the statute, Zayas continued, would enable Doe and other youthful offenders “to receive substantially the same treatment that a sixteen-year-old would receive today if she were arrested under similar circumstances.”

Legal Aid staff attorney Emma Goodman, who leads the organization’s conviction-sealing initiative, said Zayas’ “hands were tied” by the limited law. But she commended him for calling on the legislature to amend the record-sealing law to include discretion and to ensure it caught up with current Raise the Age law provisions.

“The issue in this recent decision is a no-brainer because with Raise the Age, 16- and 17-year-olds are not prosecuted as adults anymore,” Goodman said. “Judge Zayas’ attention to this issue really raises awareness about the flaws in the sealing law. The legislature should pay attention to him and other members of the judiciary who are noticing every day that the law could be better and really affect people’s lives in a positive way.”

Goodman specifically said the state Assembly and Senate should remove the “blanket exclusion” for certain types of crimes, especially in a case like Doe’s that occurred more than 30 years ago and remains her only conviction.

“Some people have done incredible things with their lives and it’s not fair to say, ‘You did something wrong and you’ll never move past that,’” she said.

The strict provisions in the conviction-sealing law have contributed to its limited reached since taking effect in 2017. Though the state initially estimated that the law could help hundreds of thousands of New Yorkers seal old convictions and get a second chance, just a few hundred have benefited statewide so far.

As of Nov. 15, at least 52 Queens residents have had their records sealed, according to data compiled by the Queens District Attorney’s office. In total, there have been 66 decisions made on conviction-sealing applications in Queens as of Nov. 15. In addition to the 52 granted applications, 13 were denied and 1 was dismissed.

Twelve of the denials were based on ineligibility and one was denied “on merits.” A spokesperson for the DA’s office said the numbers may be incomplete because of a “lag in receiving the data.”

On Monday, Gov. Andrew Cuomo unveiled an agenda for the first 100 days of his third-term, which begins Jan. 1. As part of the platform, Cuomo pledged to 'Ensure Fairness in the Criminal Justice System.’”

As of press time, Cuomo’s press office did not respond to request for comment.

This article is Part Five in a series about young adults detained on Rikers Island and the implementation of the Raise the Age law.

Part One | Part Two | Part Three | Part Four