By David Brand
Assemblymember Aravella Simotas announced Thursday that she is introducing legislation to correct an age-related flaw in the state’s record-sealing law that was highlighted by Queens Supreme Court, Criminal Term Administrative Judge Joseph Zayas in a decision late last year.
Current state law enables people with one felony conviction to get the conviction sealed if the judge granted them youthful offender treatment at the time of their sentencing — which may have occurred decades in the past.
Simotas’ bill would amend New York State Criminal Procedure Law to enable individuals with certain felony convictions who have stayed crime-free for ten years, to apply for conviction sealing if they were eligible for but did not receive youthful offender (YO) status at the time of sentencing.
“Expanding eligibility for conviction sealing will give people who committed crimes in their youth the chance to become full members of society in adulthood. If someone has stayed out of trouble for ten years, I think they should be granted the chance to move beyond the burden of a criminal record,” said Assemblymember Aravella Simotas.
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. Sex offenses, violent felonies, and serious felonies are not eligible for sealing.
The current conviction-sealing law was designed to give former offenders a second chance, but the measure’s strict regulations have limited its impact and, in some cases, reinforced long-standing inequities in the criminal justice system, Zayas said in a December 2018 decision to deny an application made by a woman, who applied to seal a 1984 robbery conviction. The Eagle reported on the decision in December.
The woman, identified by the court as Jane Doe, was 16 at the time of her lone felony conviction for second-degree robbery for stealing a high school classmate’s “unicorn charm” in 1984.
Last year, she applied to seal the conviction — her only brush with the justice system.
She was disqualified under current sealing law because second-degree robbery is considered a violent felony.
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.
The 35-year-old conviction continues to haunt the woman. She was prevented from getting a job as a nursing home, home care or hospice worker when her potential employer conducted a criminal background check.
In her conviction-sealing application, the woman said she was not aware that the conviction was not already sealed.
“This is exactly the sort of experience that one would expect would motivate a person to move to have a conviction sealed,” Zayas wrote in a footnote in his decision to deny.
Legal Aid attorney Emma Goodman leads the organization’s conviction sealing initiative and advocates for reforms to expand the law’s reach so that more New Yorkers qualify to have their records sealed.
“Changing the eligibility guidelines for people who were not offered YO is definitely a step in the right direction,” Goodman said. “I think it’s great that that is being thought of for people didn’t receive YO treatment and that people are paying attention.”
As of Nov. 16, at least 52 Queens residents have had their records sealed since the law was introduced, according to data compiled by the Queens District Attorney’s office. In total, as of mid-November, there were 66 decisions made on conviction-sealing applications in Queens.
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.”