Monday, January 31, 2011

CPL §160.58 Sealing is Retroactive

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 New York State, affirmed the retroactive nature of CPL §160.58 by writing:

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.


  1. What if you were not actually sentenced to Willard by the court, but went there as a result of a parole violation, are you still eligible for sealing under this statute?

  2. Alan Rosenthal3/10/11, 8:41 AM

    CPL § 160.58 certainly invites its application to a wide range of defendants who have successfully completed rug treatment. CCA has suggested the applicability of conditional sealing to those cases where the person has completed court ordered shock, court ordered Willard (parole supervision sentence) and to individuals who have been placed on probation and given a court ordered condition of probation that they participate in drug or alcohol treatment. On the CCA website under "Tools for Attorneys" you will find a form for the motion and a memo of law that supports a broad interpretation of the applicability of this statute.
    The operative term is "judicially sanctioned drug treatment program." Although we endorse a broad application, I think that a parole violator who ends up in Willard may a stretch to pull that in under the meaning of "judicially sanctioned."

    Alan Rosenthal

  3. If I attended and completed a drug rehab and halfway house last year, an OASIS program regarded as one of the best in NY state, am I elligable for this conditional sealing? I was convicted of having ten dollars worth of cocaine and a criminal trespassing charge in 1997. That's all I have on my record, I was sentenced to time served(one night in jail)and convicted. I'm intrested in working in health care and this could be a big problem. The program was almost one year long...but not"judicialy sanctioned", I got help on my own.

  4. Alan Rosenthal4/23/11, 8:13 AM

    The statute is very specific in its requirement that the treatment program be judicially sanctioned. That you sought out treatment for yourself rather than being forced to do so by a court is commendable but does not fall within the statute. It should. Hopefully one day the legislature will see the light and confer the benefit of sealing on a broader array of people who need the benefit of sealing in order to help their employment efforts.

    Alan Rosenthal

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  6. Hi Alan; Are you familiar with the recent "sealing" case People v. Modesto? If not here is the link
    The court seems to narrowly interpret what is "judicially snctioned" or "court ordered." I thought "Shock" Incarceration would count as an alternative for prison, but this court denied that assumption. What do you think? Shock,Willard; are these acceptable alternatives? For the new legislation to work retro actively; especially for felonies committed in the 80`s and 90`s, there needs to be some flexibility in the interpretation of "court ordered drug program."

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  8. According to CPL 160.58, defendants convicted of an eligible offense who have completed a "judicially sanctioned drug treatment program" are eligible to have their case conditionally sealed. We provided analysis of People v. Modesto on this blog in a post titled "Preparing for a Successful Conditional Sealing Motion" on June 14th. In Modesto, the court did not reject the notion that a defendant who completed the Shock or Willard programs would be eligible for conditional sealing. Rather, it appears that the Court denied the defendant's motion for conditional sealing because there was no evidence that a judge “sanctioned” the Shock or inpatient programs completed by the defendant.

    We believe that completion of Shock or Willard programs should render a person eligible for conditional sealing. But we recognize that courts may need some convincing of this. We also recognize that for conditional sealing eligibility under CPL 160.58(1), participation in these programs must be “judicially sanctioned.” For the Shock program, this means at least a Judicial Shock recommendation or, after 2009, a Judicial Shock order.

  9. When all is said and done (and let's say sealed) what is the client supposed to answer on a job application? What about employer background checks? Law enforcement can still get at the record. Can an applicant say he/she wasn't arrested? On what I see, he/she should not. I think an employer can an applicant to waive certain privileges/rights.

    Employer database sweeps today almost devalue the concept of sealing for these drug offenses. What can the job applicant count on?

  10. Excuse the above grammatical error. What I hear more and more, is that even though there is "sealing", employers are demanding that applicants agree to extensive background checks. These sort of checks may include law enforcement databases. Therefore the applicant who committed a drug felony 30 years ago and within the contemplation of this statute, is screwed for answering truthfully (a Certificate of Relief from Disabilities won't help in the private sector) and screwed if they lie and say they were not convicted of a crime.

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