LESSENING THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION:
YOUR CONVICTION DOESN’T HAVE TO BE A LIFE SENTENCE
You may have pleaded guilty to a crime thinking that you would serve your sentence (ie., jail, probation, conditional discharge, payment of fines), and then go about living your life without any problems. When you pleaded guilty or were sentenced, the Judge probably told you about all the details of your sentence, such as the amount of jail time you would have to serve, the length of your probation, and the amount of any fines and surcharges. But it’s likely the Judge did not tell you about the many “collateral consequences” of your conviction that will follow you around and limit your opportunities for the rest of your life. For example, you may have applied for a job, and after a background check was done, you were told that you could not have the job because of your conviction. Or you may have applied to live in public housing, only to be told that you, and your family, could not live there because of your old conviction. You may have applied for one of many professional licenses, such as to be a Certified Nurses Aide, or Licensed Clinical Social Worker, only to be told that because of your past conviction you would not be given that license. You may have applied for financing to buy a home or start a business, but were denied due to your old conviction. You may have tried to purchase a home in a condominium community, or cooperative apartment building, only to be denied because of your old conviction. You may have tried to get a license to possess a firearm, only to be told that because of your past conviction, you could not be licensed. The list of “collateral consequences” goes on and on.
So what can be done to put some of these “collateral consequences” behind you? At Bernfeld, DeMatteo & Berfeld, LLP, we specialize in helping our clients minimize the “collateral consequences” that often turn a conviction into a life of lost opportunity.
SEALING AN OLD CONVICTION UNDER §160.59 OF NEW YORK’S CRIMINAL PROCEDURE LAW
You don’t have to go through the rest of your life with that criminal conviction on display to the entire world. In New York, a conviction that’s over 10 years old can be sealed. Once it is sealed, it cannot be seen by the general public, which includes employers, most New York State professional licencing boards, landlords, banks, friends and family.
What is sealing?
Sealing is when the court system closes off the general public, and several NYS licensing boards, from seeing or learning anything about your prior conviction. To get a case sealed, a motion (written application) has to be made to the Court in which you were convicted.
How can sealing help you?
Once a conviction is sealed, New York law says that employers cannot discriminate against you because of the prior conviction. In fact employers cannot ask about a sealed conviction and, for most employers and licensing authorities, you are under no obligation to disclose a sealed conviction.
If applying for a non-law enforcement job where there is a background check, a sealed conviction will not turn up. That means there is a better chance of getting that job.
If applying for any kind of financing, and there is a background check, a sealed conviction will not turn up, meaning there is a better chance of getting financing.
If coaching a child’s sports team, and there is a background check, a sealed conviction will not turn up, and coaching a child’s team can continue.
If employed as a financial professional licensed by FINRA, once a conviction is sealed, under certain circumstances it can be removed from the BrokerCheck profile. Future employers, competitors and customers will not learn of the prior conviction.
Once a conviction is sealed, there is the peace of mind knowing that others, whether family, friends or business associates, cannot learn about something embarrassing that happened years ago.
Am I eligible for Sealing?
The best way to find out if you are eligible for sealing is to schedule a free consultation (Link) with an attorney experienced with sealing.
But here are the basic requirements:
You are most likely eligible for sealing if:
- You have no more than two criminal convictions in your past. One of those convictions can be a felony, as long it is not a “violent felony” under NY Law , or a conviction for which you had to register as a sex offender. It also cannot be a Class A or Class AII felony. If you have two felonies of any type, you will not be eligible to have anything sealed. If you have more than two convictions of any type, such as three misdemeanour convictions, you will not be eligible for sealing of any kind. Convictions for violations such as “Disorderly Conduct” do not count because they are not criminal convictions.
- You have no pending cases at the time that you submit your sealing motion. 3. Ten years must have passed with no new convictions since the date of sentence, or the date that you were released from prison.
- You can demonstrate that sealing your conviction will not pose a risk to public safety. 5. You can demonstrate that sealing your conviction will contribute to your rehabilitation and enhance your opportunities.
How will Bernfeld, DeMatteo & Bernfeld, LLP prepare my sealing motion?
Once we determine that you are eligible for sealing, Joseph DeMatteo, an experienced sealing attorney, will spend a good deal of time talking to you to learn about your conviction record. Joe will delve into your background to understand what led to your prior offense, and to present it in the most positive light possible. Joe will also talk to you about what has happened since your conviction, focussing on your struggles, accomplishments, rehabilitation, education, family circumstances and goals for the future. Joe will draft a written motion that will tell your story to the Court in the most compassionate and persuasive manner possible. Joe will be there to fight for you in the event that the prosecutor thinks that your case shouldn’t be sealed.
At Bernfeld, DeMatteo & Bernfeld, we have successfully obtained the Sealing of many old convictions, giving our clients the opportunity to improve their lives.
GET RELIEF FROM MANY OF THE DISABILITIES THAT THE LAW IMPOSES ON PERSONS WITH CONVICTION RECORDS
In New York State a felony conviction carries with it a variety of legal disabilities that the Judge or your attorney may not have told you about. For example, if you are convicted of a felony, you cannot obtain a New York State license to possess or carry a firearm. You may not obtain a license to be a real estate broker or insurance broker. There are a variety of businesses that you cannot own or manage, such as a liquor store, a bar or a construction company that does public work. If you are involved in child care, health care or education, you may lose your license or contract or be unable to get a license or contract. The list of automatic disabilities goes on and on. In addition, there are many license applications that require you to disclose any prior convictions, whether misdemeanour or felony, and where the licensing authority has the discretion to deny your license because of a conviction record.
To overcome many of these disabilities, there are two Certificates of Rehabilitation for which a person with a conviction record can apply. They are known as a Certificate of Relief from Civil Disabilities (COR) and a Certificate of Good Conduct (COGC). If such a Certificate is granted to a person with a prior conviction, it means that the person is presumed to be “rehabilitated.” As a result, many of the automatic disabilities are lifted, and you can be considered for the license or job that you were seeking. Similarly, although the law might not impose an automatic disability on you because of your conviction, having a Certificate will help you get licensed or employed because it shows that the Court or DOCCS believes you to be “rehabilitated.”
OBTAINING CERTIFICATES OF REHABILITATION UNDER ARTICLE 700 OF THE CORRECTIONS LAW
The two certificates that we are discussing both do more or less the same thing. They eliminate the automatic nature of some disabilities. They also give you a better chance to get licensed or employed where an application requires you to disclose a prior conviction.
Whether you are applying for a COR or a COGC, you should present evidence that granting the certificate is consistent with your “rehabilitation” and also consistent with the “public interest.” This can include documents showing that you have held steady employment, pursued education, job training, and/or rehabilitation, and that you aspire to a better profession or better employment. At BDB LLP we can help you submit the best application or motion possible.
There are some important differences between the two Certificates as far as eligibility is concerned. The best way to determine if you are eligible and which Certificate fits your situation, is to have a free consultation with an experienced and knowledgeable attorney at BDB LLP. However, some guidelines are provided here:
Certificate of Relief from Civil Disabilities (COR)
Am I eligible for a COR?
A person is eligible for a COR if they have no more than one felony conviction in their background and/or any number of misdemeanours. If a person has more than one felony conviction, they will not be eligible for a COR, but they may be eligible for a Certificate of Good Conduct (COGC).
How do I apply for a COR?
If you were sentenced to probation or to a prison term under one year, you must apply to the Court that sentenced you. This can be done by written motion to the Court. It can also be done by completing the application for a COR and submitting it to the Clerk’s Office or to the Probation Department serving the Court that sentenced you.
If you were sentenced to a state prison term, which is generally a term longer that one year, then you must apply to the NYS Department of Corrections and Community Supervision (DOCCS). This is done by completing a much more involved application and submitting it to DOCCS.
If you apply to the Court, or to DOCCS, a probation or parole officer will be assigned to investigate your application. As part of the investigation, you will be interviewed and will be asked to provide documentation regarding your background, rehabilitation, residence history, earnings history and other information, as well as information about your past conviction record.
Certificate of Good Conduct (COGC)
Am I eligible for a COGC?
You are eligible to apply for a Certificate of Good Conduct if you have engaged in “good conduct” for a minimum period of time, as follows:
- If you were convicted in New York State of any Class C, D or E felony, you may apply for a COGC after three years of good conduct.
- If you were convicted in New York State of any Class A or B felony, you may apply for a COGC after five years of good conduct.
- If you were convicted in another state of a misdemeanour, you may apply for a COGC after one year of good conduct.
- If you were convicted in another state of a crime, you may also apply to DOCCS for a COGC. To determine how many years of good conduct must pass before you apply, it is strongly suggested that you consult an attorney, as the rules are complicated. When applying for relief from an out of state conviction, you must specify which provisions of NY law will have an adverse impact on you because of your conviction.
- If you were convicted in Federal Court of a Federal Crime, you may also apply to DOCCS for a COGC. To determine when you can apply, it is strongly suggested that you consult an attorney, as the rules are complicated. When applying for relief from an out of state conviction, you must specify which provisions of NY law will have an adverse impact on you because of your conviction.
How do I apply for a COGC?
The only way to apply for a COGC is to prepare and submit a complete application to the
Department of Corrections and Community supervision. Once it is submitted, a parole officer will be assigned to review and investigate your application. As with applying for a COR, you should present the same types of evidence regarding your background, rehabilitation, etc.
How can BDB LLP help you get a COGC or a COR?
At BDB LLP, we have a great deal of experience in pursuing Certificates of Rehabilitation for our clients. We can help you determine which Certificate you are eligible for, and then help you decide the best way to go about getting you a Certificate. Whether we are proceeding by written motion for a COR, or by application for either a COR or a COGC, we will take the time to learn the important details about your past, your present and where you want to go in the future. In a personal statement crafted to your situation, we will make sure to convey to either the Court, the Probation Department or Parole, why you are deserving of a Certificate and how granting it will benefit both you and the public.