Two years on, state record sealing law has underwhelming impact in NYC

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By David Brand

Two years after the state enacted a justice reform measure that was expected to help hundreds of thousands of eligible New Yorkers seal their criminal records, the law has had a decidedly smaller impact.

Just 1,819 New Yorkers, including 115 people in Queens, had their convictions sealed between October 2017 through the end of September 2019. Advocates blame the underwhelming results on the law’s limited scope and a lack of awareness of the measure. 

“Nobody knows about it, the application-based process has been difficult for people and it’s way more complicated than sealing or expungement should be,” said Legal Attorney staff attorney Emma Goodman, who leads the agency’s sealing initiative. 

The measure is also finely tailored. It 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 at least 10 years. Sex offenses and violent felonies are not eligible for sealing.

Despite the limitations, the law was initially expected to benefit up to 600,000 New Yorkers, state officials said in 2017. 

But across the five boroughs, just 930 people have had their convictions sealed in the first two years under the measure. “Fewer than 1 percent of the expected pool of eligible people have accessed the law,” said Kate Wagner-Goldstein, senior staff attorney at the Legal Action Center.

Queens’ 115 sealed records were the second highest in the city, behind only Manhattan, with 623. The bulk of Manhattan’s sealed convictions occurred in August, when a state Supreme Court justice ordered the sealing of more than 300 records for people convicted of a specific low-level marijuana possession charge if they had no other criminal convictions.  

There were 97 sealed convictions in the Bronx, 76 in Brooklyn and 19 in Staten Island as of September.

In most cases, district attorneys, including the Queens DA, have embraced the measure and contested few qualifying applications, Goodman said. Incoming DA-elect Melinda Katz has also been a proponent of the measure. She hosted a series of conviction-sealing workshops throughout 2018. “The burden of a past, non-violent mistake should not ruin or impede future opportunities for the rest of one’s life,” Katz said last year. 

A spokesperson for the Office of Court Administration said that the “overwhelming number” of  qualifying applicants have had their cases sealed.

The problem, Goodman said, is that few people who apply actually qualify. 

Many applicants have more than one felony conviction or more than two misdemeanors. Others have convictions from decades ago that may have been adjudicated differently today. 

That was the case for one Queens woman who tried to seal a 34-year-old robbery conviction, that dated back to her teenage years. The woman, identified by the court as Jane Doe, applied in 2018 to seal her lone felony conviction for second-degree robbery, which occurred when she was 16. The conviction was based on a plea deal she agreed to after she stole 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. The woman was not offered youthful offender status at the time of the plea deal. The conviction prevented her from obtaining a job, prompting her to apply for sealing.

Queens Supreme Court Justice Joseph Zayas reluctantly denied her motion to seal the record and critiqued the limits of the law in his decision.  

“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 December 2018 decision.

He recommended 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.”

Queens Assemblymember Aravella Simotas took up the cause, sponsoring a bill that would amend New York State Criminal Procedure Law to enable individuals apply if they were eligible for but did not receive youthful offender status at the time of sentencing. The bill passed the Assembly 143 to 1, but failed to pass the State Senate. 

“It is unfair for New Yorkers, who in their youth made a mistake, not to be able to seal their record,” she told the Eagle. “You’re criminal record follows you for the rest of your life.”

“It’s an issue of humanity and fundamental fairness,” she added.

Simotas said the youthful offender consideration could be the first step in expanding the measure so that more people qualify while allowing judges to make the final decision.

“We’ll start there and move forward,” she said. “We have to give judges discretion to determine when it is appropriate to [seal convictions]. They don’t have that ability right now.”