It has come to our attention that there are a very small number of jurisdictions that are still debating the issue of whether Conditional Sealing under CPL §160.58 should be applied retroactively to cases that began and were completed prior to October 2009, the statute's effective date. We at CCA believe there should be no debate. CPL §160.58 was intended to be retroactive, the language of the statute indicates it is retroactive and many diverse sources and jurisdictions agree it should be applied retroactively.
The plain language of CPL §160.58(1) clearly contemplates retroactive eligibility for Conditional Sealing. CPL §160.58(1) states, in part, that a person who has been convicted of certain offenses who “has successfully completed a judicial diversion program under article two hundred sixteen of this chapter [Judicial Diversion], or one of the programs heretofore known as drug treatment alternative to prison, or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section.” [emphasis supplied]
The Legislature could have explicitly stated that this statute would only apply prospectively. It did not. Rather, it explicitly included the clause “heretofore known as drug treatment alternative to prison,” which indicates a consideration of judicially sanctioned drug treatment programs that have been in existence for many years, including drug court and district attorney sponsored diversion programs. This language indicates that the Legislature intended the statute to be retroactive.
On July 7, 2009, Michael Colodner of the Unified Court System circulated a memo to all Supreme Court Justices and County Court Judges Exercising Criminal Jurisdiction. In that memo, Mr. Colodner set out the Unified Court System’s understanding of the 2009 DLRA. Footnote 6 of that memo states that the Conditional Sealing statute applies retroactively:
Conditional sealing is available not only to cases arising under CPL Article 216, but also to cases diverted to “one of the programs heretofore known as drug treatment alternative to prison [D-tap] or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” (CPL 160.58(1)). Because the D-tap program started in 1990, any defendant who successfully completed a D-tap or similar program and who is otherwise eligible for conditional sealing may request sealing pursuant to CPL 160.58
Colodner July 7, 2009 memo, p. 4, footnote 6 [emphasis supplied]
The Unified Court System’s reading of the statute is endorsed by Judge Barry Kamins, who wrote an article describing the provisions of the 2009 DLRA for the New York State Bar Association, New York Criminal Law Newsletter in the Fall of 2009. Judge Kamins, who is generally accepted as a reliable authority in the field of criminal law in
, affirmed the retroactive nature of CPL §160.58 by writing: New York State
the sealing may be done in cases where the defendant has been convicted and sentenced after successfully completing a judicial diversion program, or a drug treatment program that was in existence prior to the judicial diversion program. Thus this provision allows defendants who have completed drug treatment in existing drug treatment courts around the state to immediately file motions for conditional sealing.
New York Criminal Law Newsletter, Fall 2009, page 6 [emphasis supplied]
The Division of Criminal Justice Services (DCJS) also has indicated its belief that Conditional Sealing eligibility is retroactive. DCJS has tracked implementation of the 2009 DLRA, including Conditional Sealing, and has provided quarterly briefings CCA staff members have attended. These briefings reveal two important points.
First, since October 2009 (the date of enactment of the Conditional Sealing statute), there have been several Conditional Sealing applications granted across the State. Given that most Judicial Diversion, drug court, and district attorney sponsored diversion programs take 18-24 months to complete, it is not conceivable that these Conditional Sealings were granted prospectively; that is, they must have been granted retroactively for completion of judicially sanctioned diversion programs that began (and may have been completed) prior to the effective date of Conditional Sealing statute.
Second, at each of these briefings, Sean Byrnes, Acting Commissioner of DCJS, has evinced his belief that Conditional Sealing is retroactive, stating that his agency was prepared for even more Conditional Sealing applications to be granted in the months immediately following the effective date of Conditional Sealing.
It is worth noting that many of the Courts who have so far ordered Conditional Sealing pursuant to CPL §160.58 must have done so retroactively, as the Conditional Sealing occurred before clients would have had time to get through a judicially sanctioned treatment program by the time of the sealing. See DCJS Preliminary Impact of 2009 DLRA October 2010 report. In addition, CCA has successfully represented clients who have obtained Conditional Sealing on old cases without drawing an objection from DAs or Courts about the retroactivity of CPL §160.58. In one case, CCA successfully obtained Conditional Sealing of a 1989 conviction for which the person completed a judicially sanctioned treatment program much like DTAP and drug court.
Finally, it bears emphasizing that the plain language of the statute is consistent with the overall intent of the Legislature in enacting the 2009 DLRA. As one court concisely stated, the 2009 DLRA designs “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.” People v. Danton, 27 Misc.3d 638, 895 N.Y.S.2d 669 (N.Y. Sup. February 02, 2010) It was the intent of the Legislature to expand access to treatment and more therapeutic sentencing options to as many criminal defendants as was reasonably possible. To that end, it does not comport with the stated intent of the DLRA of 2009 to read CPL §160.58 in such a restrictive way as to prevent past successful participants in judicially sanctioned treatment the opportunity to argue to a Judge that some of their criminal convictions should be sealed from the public eye.
This debate should be brought to an end.