By: Edward Martinovich, Esq. and Ariella Rosenberg
Convicted sex offenders in Binghamton, New York could risk re-arrest if they pull off the highway to a gas station or stop for a cup of coffee. How can this occur, you wonder? The New York legislature just passed a new law that makes it illegal for convicted sex offenders to live, work, or even drive in the city. Binghamton, NY is not unique in the passage of such laws. The goal of these types of laws is to restrict the offenders ability to live in or pass through local communities; communities within which women and children reside. The emotional tension runs so deep that when one local community passes such a law, the neighboring communities do the same. The end result is few if any communities remain where a convicted sex offender can put down roots and continue his rehabilitation while out on parole. Thus, it is very important for one who has been convicted of a sex offense to know and understand the many laws that affect his life and his movement.
Criminal records can have a profound and lasting effect on an individuals life, be it on an employment application or in a background check, or by someones prying eyes looking at them on the internet. Even without a conviction, a criminal record often reveals any arrest or citation, despite the fact that the accused may have been acquitted of the crime in question or the case may have been dismissed. To address the harsh consequences of this situation, New York State has incorporated the process of expungement into its criminal code.
Expungement generally is used to describe the process by which some convictions can be dismissed or some criminal records can be sealed. When a criminal record is sealed pursuant to a court order, the effect of the sealing is that the general public cannot access the record. However, sealed records may be used by government agencies when background checks are performed for government jobs or when law enforcement agencies are investigating criminal allegations. Thus, even in cases where a sealing is ordered, it is not sealed for all purposes. More importantly, the rules change when a juvenile (under 18 year old) is involved versus when an adult criminal record is involved. Sealing in the juvenile court is not commonly referred to as expungement.
Further, although a conviction may be changed to a dismissal as a result of the expungement process, the words on the record may still remain. Thus, the arrest and the dismissal may still appear when the individuals criminal background check is run.
Moreover, the rules and requirements of expungement, and even the very definition of expungement, vary from state to state. This article is devoted to the New York State provisions of expungement as they specifically relate to sex offense convictions. For issues arising outside the state of New York, and for answers to legal questions in all states, it is always advisable to contact an attorney licensed to practice law in the state at issue and experienced in the subject matter of the inquiry.
Juvenile offenders in New York can be as young as 13 years old, when they are alleged to have committed the most serious of crimes (i.e., 1st degree murder). Youthful offenders are at least 16 and less than 19 years old. Every youth is eligible except in certain circumstances. It is a determination of the court to decide whether a youth will be treated as a youthful offender and will be granted a youthful offender sentence. When a youth receives youthful offender adjudication, it is a substitute for a criminal conviction. See NY Criminal Procedure Law Section720.10. However, in situations where a youth has been convicted of rape in the first degree, sodomy in the first degree or aggravated sexual abuse, the court must consider a number of factors before youthful offender treatment is granted. These factors are: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution. Where the court determines that the eligible youth is a youthful offender, the court shall make a statement on the record of the reasons for its determination, a transcript of which shall be forwarded to the state division of criminal justice services, to be kept in accordance withthe executive law. NY CPL Section 720.10(3).
In cases where a defendant is granted youthful offender status, all records are automatically sealed upon adjudication. See NY CPL 720.35. This provision exists to insure that young offenders do not carry the stigma of a criminal record with them throughout their lives.
N.Y. Crim. Proc. Law 720.15(1) provides generally for the sealing of records involving juvenile offenders and youthful offenders, and for the privacy of the proceedings conducted against these younger offenders.
The sealing of all records in a criminal case, including those involving sexual offenses, occurs when the outcome of the case is favorable to the defendant, that is, when all of the charges have been dismissed, where there has been a complete acquittal, or where there has been an overturning of the judgment of conviction after an appeal or other court order. NY CPL 160.50. In such cases, the defendant has the right to the sealing of every photograph, all fingerprints and palm prints, and all official records and papers. See NY CPL 160.5 (1) (a-e).
Much more difficult than cases of acquittal is the possibility of expungement where an actual conviction has been entered. In cases where there is a conviction for an infraction or a violation (not a misdemeanor or a felony), except the violations of loitering and driving while impaired, the sealing of records is permissible. See NY CPL 160.55. There are certain instances where a misdemeanor conviction may be reduced to a violation after the period of probation is over and all the terms are completed. If this occurs, then the sealing of records will also occur pursuant to law.
There are certain sexual offenses that are defined as misdemeanors (and not felonies) by New York State. These include sexual misconduct, defined as sexual conduct with another person without their consent and sex with animals and dead human bodies (NY Penal Law Section 130.20); forcible touching, defined as intentionally, and for no legitimate purpose, forcibly touching the sexual or other intimate parts of another for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire (NY PL130.52); sexual abuse in the third degree, defined as sexual contact without consent (NY PL130.55); and sexual abuse in the second degree, which is sexual contact with a person incapable of consent or of a minor under 14 (NY PL 130.60). There may exist situations where these can be reduced to violations; however, in all motions to reduce the charge the prosecutor may oppose the motion. Further, even in cases that are reduced to violations and thus are technically appropriate for sealing, the prosecutor can also present arguments to the court as to why the interests of justice demand that the records not be sealed. Therefore, in practical application, in cases originally involving misdemeanor sex offenses, the expungement or sealing of the records may not occur.
Further, in cases where there is a conviction of a felony sexual offense, the possibility for expungement is even more limited. Expungement is usually only available if one has received a pardon from the governor.
As one can see from the brief discussion herein, the law and procedure governing the expungement or sealing of records in New York is quite complex and involves more exceptions than rules, especially in matters involving unlawful sexual conduct. Thus, it is always good judgment to seek the advice and counsel of an attorney licensed to practice law in New York State, and one experienced in the area of criminal law generally and sex crimes more specifically. If you think that your case may be eligible for expungement, contact an attorney. Expungement does not occur automatically. It requires in most cases a written motion or application pursuant to stringent legal requirements. To promote ones individual rights, you must be proactive in seeking legal guidance to ensure the best possible chances of clearing your record.
Tags: expungement, juvenile offenders, New York, sex offense