New York’s new sealing law which authorizes the sealing of up to one felony conviction and two total convictions went into effect in New York last week and is already creating new possibilities for those with old criminal convictions. Up until recently a New York expungement law would be considered to be almost impossible. After all as experienced criminal defense lawyers there is rarely a week that goes by without a call from someone asking about “expunging” criminal convictions and we as attorneys were frustrated with what used to be the answer; that there was no way of sealing old criminal convictions in New York.
Like all the uncertainty surrounding all new laws no one really knows how impactful CPL 160.59 will be. One factor will be whether prosecutors routinely oppose applications to seal under CPL 160.59 or not. The other will be what types of hearings are used by the Court and lastly how generous will the Courts be in sealing old convictions.
Another question pertains to the use of prior alcohol related driving convictions to deny people driver’s licenses. The New York Department of Motor Vehicles (DMV) is currently applying a twenty-five year look back and denying those with three or more alcohol related driving convictions reinstatement of their driver’s licenses. These revocations are essentially turning into lifetime revocations. As we reported last month, our firm has already filed a lawsuit against DMV because we believe that prior DWI convictions cannot be used to deny people licenses if the Court (or the Department of Corrections) has issued a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.
The question is what effect will a sealing order pursuant to 160.59 have on prior DWI convictions? When passing CPL 160.59 the New York State Legislature listed offenses that are not eligible to be sealed. These offenses include sex crimes, violent felonies and attempts and conspiracies to commit those crimes to name some of the crimes that are excluded from the new sealing law. Conspicuously absent from the list of excluded crimes are DWI charges.
There is a rule of statutory interpretation which in latin is “inclusio unus est exclusion ulterius” or inclusion of certain items in the list shows that those items that were excluded were excluded purposefully. In other words we can infer that by including some crimes in the list of crimes which cannot be sealed the legislature intended to leave out those that are not included such as DWI and therefore the legislature intended that DWIs be sealed if all of the other criteria is met.
So what effect would sealing have on a DWI conviction in New York or any conviction for that matter. In order to find the effect of the new sealing Statute we have to look at the New York State Executive Law, specifically New York State Executive law 296. While a full discussion of Executive Law 296 is beyond the scope of this blog suffice it to say that the tile of the section is “Unlawful Discriminatory Practices.” Section 296 (16) makes it an Unlawful Discriminatory practice to use a sealed conviction against a person in any licensing or hiring decision unless that use is specifically authorized by law. In addition it is an unlawful discriminatory practice to ask a person to disclose a sealed conviction except specifically authorized by law.
It therefore seems that convictions sealed under 160.59 cannot be used as basis to permanently revoke a person’s license.