New York City Criminal Court Information

Presented by Shalley & Murray 718-268-2171

Information about the New York City Criminal Court System including New York City Criminal Defense Lawyers prepared by New York City Criminal Attorney Don Murray.

Can I Get a New York Criminal Conviction Sealed or Expunged?

Yes.  It is now possible (starting in October, 2017) to get New York criminal convictions sealed in New York thanks to a new conviction sealing law, Criminal Procedure Law Section 160.59.  This is a sealing law, not an expungement law.  People often use the term sealing and expungement as if they are the same thing, but they are not.  Expungement means erasing all information about the conviction from the universe.  The new conviction sealing law in New York does not do that.  In this case, sealing means hiding the information from the public and even the Government for most purposes, but law enforcement will be given access to the information under limited circumstances.  As a general rule this new sealing law in New York will provide exactly the relief people are looking for and allow them to move on from the conviction or convictions that have been haunting them.

The new law means that up to two convictions can be sealed, and one of them can be a felony.

There are some exceptions and rules, however.  Violent felony offenses (and most sex offenses) will not be eligible for sealing under the new sealing law.  Also, those with more than two convictions will not be eligible to take advantage of Section 160.59.  Further, ten years must have gone by since the conviction.  Anyone who has a criminal conviction should review his or her situation with a lawyer in order to carefully review eligibility.  We have developed a rough online New York eligibility for conviction sealing quiz for people to get an idea, but anyone using this quiz should verify the result (either way) with a real live human criminal defense lawyer.

The new sealing law in New York requires that a fairly complex motion be prepared, filed, and argued to the Court that sentenced the person convicted.  There is the possibility of a hearing.  Therefore, this is not the sort of thing that can be done in a casual way, like filling out some form at the DMV.  The level of complexity and depth of the motion will demand that a lawyer be engaged to make it in order to have the best chance of success.  The motion is more than simply a place to review the good things the person has done.  The motion to seal requires an analysis of the underlying charges as well as an analysis of any other criminal history (including cases that did not result in convictions).  Therefore it will involve reviewing case files and it will require understanding of the negotiation process in the court where the case is being argued.  Sentencing transcripts will likely need to be ordered and reviewed in order to be best prepared to address the factors required to be addressed by the sealing statute.

A person wishing to have the greatest likelihood of success with a motion to seal a conviction under Section 160.59 will be well advised to obtain the services of an attorney to make a motion to seal a conviction.

I have a desk appearance ticket for shoplifting. What is going to happen at this appearance? Also, I think I need a public defender.

This answer was selected as the best answer by the person who asked the question.

Hello. Sorry to hear that you got into this situation. A "desk appearance" is simply another term for an arraignment, or first appearance in court after a person is arrested.

In New York, when a person is arrested for a misdemeanor or even technically E felony, there are two possible paths to this first appearance. The more traditional or common path is to languish "in the system" for approximately 24 hours as your case is prepared for Court and then to have your arraignment. The desk appearance is a less common alternative where, instead of being held for about 24 hours, you are told to return at some later date for your first appearance. The processing time for this alternative is about 4 hours.

Once you are in Court, the "desk appearance" is indistinguishable from a "regular" arraignment that happens after about 24 hours. It happens in the same Courthouse and is no longer any different from any other case.

So what happens at the arraignment? The arraignment, or first appearance, is an important, but simple and often brief appearance before a judge. Essentially two primary purposes exist for this brief appearance.

The first primary purpose is to make sure that you are formally aware of exactly what the charges are. Right now, you have a document generated by the police with a statement of what one of the charges against you is. Realize that in any criminal case there are often multiple charges associated with a single arrest. For example, your DAT may indicate that you are charged with Petit larceny or it may indicate that you are charged with Criminal Possession of Stolen Property. Ultimately you may be charged with both, but you won't find out precisely until your arraignment. That's where your lawyer will be handed the criminal court complaint, which is the official charging document from the prosecutor. You should realize that when the police make an arrest, they are essentially RECOMMENDING to the prosecutor's office that you be charged with something. Now often the police are dead on right about what the appropriate charges should be, but not always. Sometimes, prosecutors decide to charge less serious offenses, and sometimes, they decide to charge more serious offenses. More often than not, they follow the police recommendations, however, but it is technically the job of the prosecutor's office to make the charging decision. That final charging decision takes the form of the criminal court complaint. Your lawyer will get this document at the arraignment and review it with you.

The second primary purpose at the arraignment is the bail decision by the judge. A judge at an arraignment, even a DAT arraignment, must decide whether you are likely to return to court simply on your promise that you will, or whether he or she thinks that bail must be set on you in order to convince you to return as required.

Now before you start to get too worried, you should know that the simple fact that you appeared on the date required by your desk appearance ticket, is probably all that will be required to all but guarantee that bail will not be an issue for you. This is not so much true in Nassau County where I have watched judges on a shockingly frequent basis actually set bail on people who have provided firm evidence of their ability to return to court as required...by returning to Court. But the vast likelihood is that bail on a desk appearance ticket is pretty close to a non-issue.

Since you say you need a public defender you should also be prepared to document the fact that you meet Federal poverty guidelines in order to be assigned one of their lawyers. Public defenders have a mandate to represent only those who meet those guidelines and they are vigilant about ensuring that their services are used only by those in need.

It is also possible that some limited negotiations may take place.

Good luck.

I'm applying to colleges and I am worried about how to respond to questions about prior criminal charges. I got an ACD.

This answer was rated "Best Answer" by the person who submitted the question.

One of the trickier aspects of this issue is how to deal with the question, "Do you have any pending criminal charges against you at the moment?" Various clients have shown me this question on various sorts of applications for various situations. Not sure whether such a question is routinely asked in college applications these days. If that question is asked of you and you are in the ACD period, a credible argument could be made for answering it either way in my opinion.

The answer is "yes" because the case is not formally concluded and the theoretical (though statistically highly unlikely) possibility exists that the matter could be restored to the regular criminal calendar and prosecuted. In fact, this argument has apparently been adopted by various entities of the Federal Government, including the military and the folks who deal with Immigration. It is also likely to be the argument that most entities asking the question would agree with.

On the other hand, if I were grading a law school exam and some enterprising student chose to make and defend the argument that the ACD is not "pending" because it is not on the regular court calendar, does not require further court appearances, and is essentially in a sort of limbo "presumptively to be dismissed" state, I would probably give this answer a good grade for its sort of sneaky ingenuity.

In truth it is probably safer, however, to answer the question as if it were a pending case, because having a cute legal argument, while perhaps impressive in an intellectual sort of way, may not be so impressive to an admissions officer who takes the view that you simply lied about it. Typically, as I understand it, and as experience has shown me, your case in the limbo period is available to look up on the webcrims database available to the public on the web. So if someone has the energy to run a specific check on your name in webcrims in hopes of finding an open ACD, that someone could in theory be successful. If that happened, and you had answered "no" to the pending case question, that would be the moment to launch into your clever legal argument based on the arguments mentioned above and perhaps a little legislative intent thrown in there based on a reading of the ACD statue. The question is whether there would be any sympathy or receptivity to such an argument regardless of its merit.

I'm not sure where you lawyer would come out on this issue, and since there are multiple ways of handling it, I would recommend that you speak with your lawyer who is fully familiar with your case instead of relying on anyone else. You paid for his or her services, so take advantage of them.

An open ACD, as I understand it, could influence Federal financial aid determinations, although I believe that may only be or primarily be in the context of situations where the underlying charges are drug related (say a charge that begins with 220 or 221 in the New York Penal Code.).

In the end, I agree that you probably have little to worry about here, but some further discussions with the lawyer who is actually representing you are clearly in order. Please contact that lawyer and get advice from him or her. That is the person who has a notice of appearance in your case, and who is formally and professionally responsible for the advice you get about the case.

Good luck.

Can a job I currently have find out about dismissed and sealed cases I have had?

This answer was selected by the person who asked the question as the Best Answer.

I'm not an employment lawyer, which is probably the sort of lawyer who should be able to answer this question more precisely. Nevertheless, my general understanding is that in New York, the default situation is that employers are not generally permitted to ask about non-criminal convictions or cases that did not result in criminal convictions.

That general, default situation does not apply to any number of mostly Governmental and law enforcement jobs as well as background checks required for government regulated positions. If the job is spy for the CIA, FBI agent, or NYPD officer, more than simply convictions are available for consideration. If you want to become a lawyer, you will be expected to reveal all arrests and encounters with the police except those related to parking tickets. I imagine that school teachers, day care operators, and other jobs regulated by the Government have similar access.

The reason there are exceptions in these sorts of categories is that the outcome that occurs in Criminal Court doesn't always reflect the underlying truth of the situation. For example, a person who goes to trial and wins, who is found not guilty, gets his case dismissed. Great. But the only conclusion that can be drawn from this result is that Government failed to meet an artificially high burden of proof called beyond a reasonable doubt. When the Government wants to put you in a cage, we impose this artificially high burden of proof on the Government for various political and philosophical reasons rooted in a deep mistrust of the Government. But outside a Criminal Courtroom when the Government isn't looking to put you into a cage, the Government isn't required to use this "beyond a reasonable doubt standard". If all the Government wants to do is vet the people who want to be allowed to be lawyers or FBI agents, for example, then the Government doesn't have to abide by the beyond a reasonable doubt ruling in a criminal court.

Imagine I am applying for a job with the FBI. Now imagine that all the Government can ask me is whether I have been convicted of a crime. So I answer NO.

But what if the Government were allowed to ask a deeper question about arrests or dismissed cases and my answer then transformed into "Well a few years back I got pinched for a series of armed robberies and murders out in Oklahoma, but I went to trial and no witnesses stepped forward to identify me so I beat the raps."

This should illustrate why the FBI and some others get to ask the deeper questions.

Most of the time, by the way, you should probably assume that anyone who is legally asking you deep questions about arrests and dismissed cases and such already knows the answer. FBI is not going to rely on your answer as gospel. They will check and have the access to check.

I have been going back and forth to court on my misdemeanor case for a long time (200 days). I thought speedy trial required dismissal after 90 days.

The speedy trial rules are trickier than they initially appear for the defense. Speedy trial is not a simple calculation of 90 days after the date of arrest. 

So when you are are arraigned on a misdemeanor case, the government's "clock" is set to 90 days. From that moment on, each adjournment of the case requires that a question be answered. That question is "Whose fault is this adjournment?" If the answer to that question is that it is the Government's fault, then the time to the next court date is charged against the Government's clock and days are ticked off. If the answer to the question is that the adjournment is the defendant's fault, then the time is NOT charged against the Government's clock. This question gets asked after each adjournment and the Government's clock is either docked time or not depending on the answer. Under the rules, if the Government's clock ever reaches 0, then the case must be dismissed. 

Now for a little dose of reality. 

The rules for who is responsible for adjournments are written so that one thing is almost always true. That is that it is usually the defendant's fault. Realize that "fault" here is a relative term. If the defendant wants to file pretrial motions, the time taken to do that is the defendant's fault, even though it would likely be malpractice not to file motions in most cases. While people go on and on about who should be blamed for adjournments, and the debates about this rage endlessly in criminal court, the truth of the matter is that it will nearly always be the defendant's fault unless the prosecutor specifically says the magic words "We are not ready." That is about the only time that the Government can be clearly said to take the blame for the adjournment. This is an approximation of course because the rules of speedy trial are a vast and incomprehensible soup of seemingly conflicting statements. So a simple way to sum them up in a "rule of thumb" for purposes of this sort of a forum, is to say that unless the Government says "We are not ready" on the record, then the adjournment is charged to the defense. 

Therefore, in this way, cases can linger for a year or longer before going to trial even though the "speedy" trial statute says that trials of misdemeanors must happen in 90 days. In theory, in fact, your case could linger for an infinite period of time as long as the adjournments are not "charged to the Government". 

Eventually, the case will become so old that it will attract the attention of an Administrative Judge whose head will explode when your case ages beyond some arbitrary red line of "too oldness". At that point, it won't matter what either lawyer says in terms of readiness and the case will be "sent out" regardless of whether the lawyer is suffering from bubonic plague or whether the Government witness is in combat in a foreign land. Your case will become the most important case in the Courthouse and it will be tried or settled that day at all costs, do not pass Go do not collect $200. 

Of course these are all things for your lawyer to discuss with you at greater length. 

 

I Don't Get Along with my Public Defender. What Should I Do?

This is a common sort of question that comes up now and again.  Without more information, it is hard to know whether your concerns are grounded in some serious fundamental problem between you and the court appointed lawyer or whether it is more a transitory misunderstanding or series of miscommunications. 

The set of all court appointed lawyers, like the set of all private lawyers contains a wide variety of lawyers with a wide variety of experience, skill, compassion, understanding, and workloads. Each set of lawyers contains, especially in New York City, a wonderful variety of backgrounds, including tremendous lawyers with upscale ivy league backgrounds and tremendous lawyers who have less fancy backgrounds. One of the most fascinating things about the criminal defense bar (public and private) is the amazing variety of people that end up part of it. There is not one single path to the goal of being a wonderful lawyer and the defense bar in New York City is a shining example of that. 

To this end, there are lawyers working for the public defense organizations who I believe to be amazing, top of the line lawyers who I would be delighted to have represent me if, God forbid, I ever needed help. 

At the same time, the fact that a person is private lawyer is not a guarantee of significantly greater skill or competence than a lawyer who chooses to work as a court appointed lawyer. You know how to become a private criminal defense lawyer? You pass the Bar Exam. The person who gets the lowest passing score on the Bar Exam and is admitted the next day is a private criminal defense lawyer if he wants to be. He has no experience, and maybe little in the way of courtroom skill. He could be your lawyer or you could have a court appointed lawyer with 15 years experience doing nothing but criminal cases in the very courtroom where you are being prosecuted. 

So the issue doesn't boil down to whether or not the lawyer is paid by the Government (directly or indirectly) or by you. The issue is who is the lawyer, what sorts of experience does the lawyer have, and what sort of confidence do you have that the lawyer knows what to do or has the imagination to figure it out. 

Now with this understood, sometimes people get upset with court appointed lawyers because their "bedside manner" may not be what they hope for in their lawyer. Maybe the lawyer is difficult to reach or maybe the lawyer is not terribly communicative during a particular court appearance. This is not necessarily proof that the lawyer is bad or not doing his job. Sometimes, this can be a function of the lawyer knowing that nothing of particular substance is happening at this particular stage of the case so there really isn't a lot to talk to about in a mathematical sense. The person might wish to engage the lawyer in a lengthy discussion, but in the context of a day in Court, as opposed to an office meeting, the lawyer may not give a great deal of time, when there are other cases to handle in court the same day. 

Another problem in this area is that often people misunderstand what is possible in an individual court appearance. Toward the beginning of a criminal case, appearances are mostly bureaucratic, related to the filing of motions and such - not exciting stuff. They expect their lawyer to scream bloody murder and shout "This whole courtroom is out of order" when in reality, theatrics like that, if they ever happen, won't happen until a hearing or more likely a trial. These are things that happen at the end of a case. 

My suggestion is to be persistent. Make an appointment to sit down with your court appointed lawyer in his or her office, when there will be no pressure on the lawyer to run to other courtrooms. You may find that your impressions of your lawyer will change. If not, speak to lawyer's supervisor.

What can be done to get domestic violence charges dismissed after an arrest has been made?

Once the government is injected into your life it is the government who decides when to leave you alone. I am a little unclear about who is who here but generally, there isn't a quick or simple way in most cases to "get" the government to just forget about the whole thing. They will ask whether you want charges dismissed because you feel sorry for defendant or because you made up the charges. If you say because you feel sorry then they will approach you as if you are simply behaving like a typical abused person trying to save your abuser. If you say you made up charges you will be threatened with arrest for filing a false report. Obviously a conversation with the prosecutor expressing your desire to have charges dismissed could in theory work, but be prepared for a fight about it. Ultimately in a longer term your lack of cooperation could possibly end up resulting in a dismissal, but the government often has significant leverage in the short term because of the order of protection.

Good luck.

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