Tuesday, June 14, 2011

Preparing for a Successful Conditional Sealing Motion

Perhaps the most underutilized portion of the 2009 Rockefeller Drug Law reform, CPL § 160.58 allows for the conditional sealing of felony and misdemeanor offenses defined in Articles 220 and 221 of the Penal Law and specified offenses defined in §410.91(5).  In addition, a maximum of three prior misdemeanor PL §§ 220 and 221 convictions may be sealed.  Conditional Sealing provides a meaningful second chance for individuals who have proven commitment to their rehabilitation.  The process of Conditional Sealing under this section may be initiated sua sponte by the court, or much more likely, by the defendant’s motion. 

Before preparing a sealing motion, counsel should first determine whether the defendant is eligible for such relief.  CPL § 160.58 lists the following three types of programs that, upon completion, can render a defendant eligible for conditional sealing: 

(i)                 a judicial diversion program under article 216 of the Criminal Procedure Law;

(ii)               one of the programs heretofore known as drug treatment alternative to prison; or

(iii)             another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as (i) and (ii).

The first category is self explanatory, and defendants are clearly eligible if they have completed a Judicial Diversion program under CPL article § 216.  With regard to the second category, though the Legislature did not specifically define “programs heretofore known as drug treatment alternative to prison,” this phrase is generally understood as meaning traditional drug courts and District Attorney sponsored diversion programs, commonly called DTAP programs.  See e.g. Barry Kamins, NYSBA Criminal Law Newsletter, Fall 2009, at 6; Office of Court Administration, July 7, 2009 Memorandum to All Supreme Court Justices and County Court Judges Exercising Criminal Jurisdiction, at 3-4.  With the third category, it is clear that the Legislature intended to expand the reach of conditional sealing beyond traditional judicial diversion and drug courts, and in so doing, opened the door to argue for sealing cases where defendants have completed treatment as a court-ordered condition of probation or where they have completed Shock Incarceration and the Willard Drug Treatment Program.  All of these programs can be judicially ordered, constitute alternatives to a lengthy period of incarceration, and include substance abuse treatment and supervision.  The Onondaga County Court has already ruled that court-ordered treatment as a condition of probation constitutes “another judicially sanctioned drug treatment program.”    

Finally, a defendant is not eligible for Conditional Sealing until he or she has also completed any imposed sentence. 

Upon determining that the defendant is eligible for conditional sealing, the next steps require counsel to gather information and prepare the motion.  When collecting information and writing a Conditional Sealing motion, counsel should keep in mind the factors the statute requires the judge to consider in making a decision regarding an eligible defendant.  Specifically, CPL § 160.58(3) states that the judge “shall consider any relevant factor, including but not limited to” the following:

(i)                 the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions;

(ii)               the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of the section;

(iii)             the defendant’s criminal history; and

(iv)             the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.” 

We encourage counsel to obtain the defendant’s official criminal history.  This will confirm that the primary offense is an eligible offense, and will also allow counsel to identify prior misdemeanor offenses that may also qualify for conditional sealing.  Counsel should also obtain information evidencing the defendant’s successful completion of the sentence(s) for each conviction to be sealed.  If this information is not “reasonably available,” a sworn affidavit is an acceptable alternative.  It would seem that the affidavit may be sworn by the defendant, although this is not explicitly stated in the statute.  Additionally, counsel should consider informing the court of any legal barriers to the job or occupation that the defendant wishes to pursue.  But even more importantly, as a general matter, counsel should inform the court of recent research showing that 90-93% of employers now screen job applicants for criminal records.  See e.g.  Society for Human Resource Managers, Background Checking: Conducting Criminal Background Checks (Jan. 2010 ) (survey of its human resource manager members found that 92% regularly conduct criminal background checks on job applicants);  National Employment Law Project (NELP), 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks  for Employment, (March 2011) (survey of postings on Craig's list and found that most employers regularly include in their on-line job postings a warning that people with a criminal record "need not apply.").  This information is useful in convincing the court that Conditional Sealing can go a long way in helping the defendant obtain stable, living-wage employment.  Furthermore, proof of any counseling programs completed by the defendant should be included.  Finally, any information showing the defendant in a positive light is helpful (e.g. character references, proof of community service, letters from counselors, evidence of job training).

The motion itself should specifically explain why the defendant is eligible for conditional sealing and why the defendant is a good candidate for this relief.  If the defendant has completed a judicial diversion program under CPL § 216, or a drug court program, convincing the judge of your client’s eligibility should not be difficult.  On the other hand, if your client has completed another “judicially sanctioned drug treatment program,” this task may be more challenging.  This language is rendered meaningless if courts limit Conditional Sealing eligibility to completion of only Judicial Diversion, drug court, or DTAP; clearly the Legislature included this language to expand the reach of Conditional Sealing.  CCA is happy to partner with lawyers who are willing to push for full implementation of this statute to include those who have completed judicially sanctioned programs such as judicially ordered Shock, Willard or judicially ordered treatment under the supervision of probation.  A positive bench decision and a memo of law regarding this issue can be found on CCA’s website, or by clicking on the links below:

            Finally, in this area of law that is still new, it is important that the early cases generated on the topic are positive.  Counsel should be careful in the selection of cases in which conditional sealing is requested.  Attorneys can learn from cases such as People v. Modesto, 32 Misc3d 287.  In Modesto, the Court denied the defendant’s motion for conditional sealing.  Although the defendant completed Shock as well as an inpatient treatment program while under parole supervision, neither of these programs were court ordered, and as such, not judicially sanctioned as § 160.58 requires.  This alone would have been reason enough to deny the application.  But the Court went further, and in what is nothing more than dicta, pointed out many perceived flaws with the application including the defendant’s failure to provide his criminal history, any specific proof of adverse effect upon employment opportunities, or the defendant’s failure to include a copy of the Certificate of Relief from Disabilities he claimed he had obtained.  None of this information is required by the statute, but it does impose a heavy burden on applicants.  We can only hope that other courts do not adopt the increased burden placed on Conditional Sealing applicants by the Judge in this decision.  Additionally, the court complained that no character evidence was submitted on behalf of the defendant other than proof that he had completed business training.  It is important to remember that CPL § 160.58(3) requires that the Judge consider the defendant’s character in making a conditional sealing decision.  As such, letters of recommendation may be important.  Overall, this case illustrates the importance of adequate preparation and of carefully analyzing a case before filing a motion for Conditional Sealing to determine whether defendant is or is not an eligible and appropriate candidate.  


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  5. is there anyway to petition the court yourself without hiring a lawyer? I fit all three criteria without a doubt.