Developments in Criminal Law Allow People to Rebuild Lives

Changes in Marijuana Law Allow Client’s Criminal History to Be Sealed

The punishment for a felony lasts far longer than the prison sentence imposed. Nassau Suffolk Law Services’ Re-entry client L had no criminal involvement after he was released from incarceration for a minor drug offense. Yet twenty years later, his status as a “convicted felon” continued to hold him back. 

L came to our Re-Entry Unit frustrated that he was turned down for jobs after prospective employers ran background checks. Staff Attorney Ray DeLeo helped L obtain his RAP sheet and review it. DeLeo quickly realized that L was eligible for relief. 

A person with a criminal history may be required to divulge this status on a job or license application and has a publicly searchable criminal history. But L is no longer considered a “Convicted Felon” thanks to DeLeo’s successful Motion to Seal under N.Y. Criminal Procedure Law 160.59. 

N.Y. Criminal Procedure Law, Section 160.59 allows criminal records to be sealed in limited circumstances. To be eligible for relief, an individual must have two or fewer convictions on their criminal record. Only one of these can be a felony. At least 10 years must have passed since the individual’s release from incarceration or supervision. 

L met every requirement for sealing in NY except one: L had a third minor conviction for marijuana possession. DeLeo and the Nassau Re-Entry team argued that the third conviction falls under a category of “Marijuana Convictions,” that NY Senate Bill No. 6579 (NY 242 Legislative Session 5(a) pg. 3) expunged in August 2019. As a result, DeLeo’s Motion to Seal was granted without opposition from the District Attorney. 

Without the stigma of a decades-old conviction, L is now able to find work and participate as a full member of the community. 

Sealed Criminal History

If a criminal record was sealed or expunged, ordinary employers can only view it with the consent of the subject of the report or by court order. While every situation is unique, it is therefore generally appropriate for applicants for private sector jobs whose prior offenses were entirely sealed or expunged to respond that they do not have a criminal record in these circumstances.  Job applicants who are not certain what their criminal record contains or who are not sure how to respond to inquiries about their criminal history should contact Nassau Suffolk Law Services Re-Entry Unit or seek other legal advice for guidance about their individual situation.

Military recruiters and government background checks have access to all records, including those that were sealed or expunged, as well as records of juvenile offenses. There can be serious consequences for misrepresenting a criminal history when enlisting in the military or completing a government background check. 

Ban the Box in Effect in Suffolk County

As of August 2020, Suffolk County employers may no longer ask job applicants about their criminal histories until after an initial interview. The “Fair Employment Screening Amendment,” which went into effect on August 25, 2020, applies to the County, private employers with at least 15 employees and vocational training programs. The amendment is known as “Ban the Box” because it prohibits including a criminal history check-box on a job application. Instead, applicants must be given an opportunity to demonstrate that they are qualified for the position and to explain the context of any criminal history.  The “Ban the Box” Amendment does not apply to law enforcement agencies, schools, or agencies that provide direct care of children, young adults, seniors, or people with physical or developmental disabilities. It also does not apply if other laws prohibit people with criminal histories from working in the position.  Under longstanding human rights law, New York employers also may not deny or terminate employment based on prior criminal convictions, unless there was a direct relationship between the offense and employment or employing the individual presents a risk to property, specific individuals or the public. N.Y. Correction Law Art. 23-A, Section 752. In determining whether criminal history warrants refusing to hire or terminating an employee, employers must consider factors including: 

• Public policy in favor of licensing or employing individuals with a criminal history; 
• The duties and responsibilities of the position; 
• Whether the offense has any bearing on the individual’s fitness or ability; 
• The passage of time and the individual’s age at the time of the offense; 
• The seriousness of the offense; 
• Rehabilitation and good conduct after the offense; and
• The safety and welfare of specific individuals and the general public.

In addition, a Certificate of Relief from Disabilities or of Good Conduct creates a presumption of rehabilitation.  People who believe they have been denied employment or terminated because of their criminal history can submit complaints to the Suffolk County Human Rights Commission or contact Nassau Suffolk Law Services’ Re-Entry Project.