Restoration of Rights/North Carolina

I.  Restoration of Civil/Firearms Rights

A.  Civil rights

Civil rights are lost upon conviction of a felony. N.C. Const. art. VI, § 2(3) (vote); id. § 8 (office); N.C. Gen. Stat. § 9-3 (jury).  All rights are automatically restored upon unconditional discharge of sentence or unconditional pardon.  N.C. Gen. Stat. § 13-1.  The agency releasing the prisoner (or probationer) must file a certificate evidencing unconditional discharge and restoration of the rights of citizenship with the court in the county of conviction (North Carolina state offenses) or the county of residence (for offenses under federal law or the law of another state).  § 13-2.

B.  Firearms

People convicted of a felony may not possess firearms.  N.C. Gen. Stat. § 14-415.1(a).  Those convicted of antitrust violations, unfair trade practices, or restraints of trade exempted from this prohibition.  § 14-415.1(e).  Firearms rights may be restored by a pardon.  § 14-415.1(d).  In addition, individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, may petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights under North Carolina state law.  § 14-415.4.1  Persons with qualifying out-of-state or federal convictions may petition the court in the district where they reside “only if the person’s civil rights, including the right to possess a firearm, have been restored, pursuant to the law of the jurisdiction where the conviction occurred, for a period of at least 20 years.” Id.

C.  Guides to State Relief and Collateral consequences

Professor John Rubin of the School of Government at the University of North Carolina has compiled a comprehensive guide to judicial and other relief mechanisms under state law.  It includes specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.  See Relief from a Criminal Conviction:  A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina (2017 edition), https://nccriminallaw.sog.unc.edu/relief-guide-2017/.   Professor Rubin is also principally responsible for North Carolina’s on-line compilation of collateral consequences, which like his Relief guide is available at no cost to the public.  See Collateral Consequences Assessment Tool (C-CAT), http://ccat.sog.unc.edu/.

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The governor’s power is unlimited, subject only to regulations in the manner of applying.  N.C. Const. art. III, § 5(6).  The Post Release Supervision and Parole Commission has authority to assist the governor in exercising his pardon power and in his responsibility to perform such services as he requires in connection therewith.  N.C. Gen. Stat. § 143B-720(a).

Eligibility

There is a five-year waiting period from the date of release from supervision, which may be reduced if a specific need is shown.  Persons convicted under federal law or another state’s laws are not eligible to apply for a gubernatorial pardon.  There is a three-year wait to reapply after denial.

Effect

According to the website of the Governor’s Clemency Office (Office of Executive Clemency or “OEC”), there are three types of pardon in North Carolina: pardon of forgiveness (“granted with certain conditions,” but useful in seeking employment); pardon of innocence (“granted when an individual has been convicted and the criminal charges are subsequently dismissed”); and unconditional pardon (“granted primarily to restore an individual’s right to own or possess a firearm”).  See http://www.doc.state.nc.us/clemency/glossary.htm.  A pardon does not expunge or erase a criminal record; however, a person who receives a pardon of innocence may petition the court in which he was convicted for an expunction of records pursuant to N.C. Gen. Stat. § 15A-149.

Process

N.C. Gen. Stat. § 147-21 provides that all applications must be submitted to the governor in writing, and accompanied by a statement of reasons and a copy of the indictment, verdict, and judgment.  The OEC processes the requests, oversees and coordinates investigations by the Parole Commission, and prepares reports.  All applicants for clemency, with details of their offense, are listed on OEC’s website: http://www.doc.state.nc.us/clemency/pardons.htm.  By statute OEC must notify the victim that it is considering a grant of clemency; that the victim has the right to present a written statement that OEC will consider before clemency is granted; and of the decision that is made.  N.C. Gen. Stat. § 15A-838.  By executive order the DA in the county of conviction also must be notified of, and given the opportunity to comment upon, an application for clemency.  For a further description of the process see http://www.cga.ct.gov/2009/rpt/2009-R-0201.htm.

Frequency of grants

Pardons in recent years have been rare – only sixteen pardons have been granted since 2001, all of which were granted for innocence.2  Pardon applications average about 150 annually.  Recommendations are submitted by governor’s clemency staff to the governor’s legal counsel.  In the past, governors granted pardons fairly regularly, but there have been no “forgiveness” pardons since 2001.  Source: Governor’s Office of Executive Clemency.

Contact

Pat Hansen
Governor’s Clemency Office
919-715-1695
Pat.Hansen@nc.gov

B.  Judicial sealing or expunction

NOTE:  Professor John Rubin’s Guide to Relief Mechanisms, noted in Part I above, contains a wealth of current information about state expungement and sealing authorities.  https://nccriminallaw.sog.unc.edu/relief-guide-2017/ This indispensable Guide catalogues and analyzes state expungement provisions, including specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.

Nonviolent first offender felonies and misdemeanors

Minor nonviolent felony convictions and nonviolent misdemeanor convictions are eligible for “expunction,” as long as the person has no other convictions other than traffic violations.  The eligibility waiting period is 10 years after completion of sentence for felonies, and five years after completion of sentence for misdemeanors.  See N.C. Gen. Stat. § 15A-145.5(a), (b).   (These eligibility waiting periods were reduced from 15 years for both categories effective December 1, 2017.)  Class A through G felonies and Class A-1 misdemeanors are not eligible, nor are DWI’s and a number of drug offenses.  An applicant must have paid all restitution; have no pending charges; and must demonstrate that his or her “character and reputation are good” by filing two character affidavits by non-relatives.  § 15A-145.5(c).  A petition must be filed in the court of conviction, and the district attorney must be given an opportunity to object.  Id.   The court must find that the applicant has had no prior expunctions under this authority or under § 15A-145.1 through 145.4 (deferred adjudication or youthful offender, see infra).  Id.

Effect of expunction

If granted, the effect of expunction is that the person is “restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.”  N.C. Gen. Stat. § 15A-145.5(c).  However, a conviction expunged on or after July 1,  2018, may be treated as a predicate offense for the purpose of calculating “prior record level” in subsequent prosecutions and sentencing.  See § 15A‑151.5 (enacted by SB-445 (2017)).

No person as to whom an order has been entered pursuant to subsection (c) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense. 

§ 15A-145.5(d).  The “non-acknowledgement” provision above does not apply when an individual is seeking certification for law enforcement employment.  § 15A-145.5(d1).

After granting expunction, the court will order that the conviction be removed (“expunged”) from the records of the court, law enforcement agencies, and other state and local government agencies.  §§ 15A-145.5(e), (f).3  “A private entity that holds itself out as being in the business of compiling and disseminating criminal history record information for compensation shall destroy and shall not disseminate any information” about a record that has been expunged if the entity has received notice of the expunction. § 15A-152(a).   In addition, “persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.” § 15A-152(d).

Deferred adjudication in first-offender drug cases

A first offender with no previous felony or drug-related convictions who pleads or is found guilty on a charge of drug possession may be placed on probation.  If probation is successfully completed (including any treatment ordered), the court will discharge the person and dismiss the proceedings without an adjudication of guilt.  No conviction results, including for predicate offense purposes.  N.C. Gen. Stat §§ 90-96(a); 90-113.14(a) (relating to toxic vapors offenses).  If the offense is committed under age 22, the person may apply for expunction of records under N.C. Gen Stat. §§ 15A-145.2(a) or 15A-145.3(a) (relating to toxic vapors offenses).  Sections 15A-145.2 and 15A-145.3 also provide for the expunction of certain first-time drug convictions.

Youthful offenses

First offenders who committed certain specified nonviolent felonies when under 18 may petition for expunction after four years. See N.C. Gen. Stat. § 15A-145.4.  Misdemeanors committed under age 18 (except for traffic violations) and first offender alcohol-possession misdemeanors committed under age 21 are eligible for expunction two years after the date of conviction or after completion of any period of probation, whichever is later.  See § 15A-145.  The petition must be filed in the court of conviction, and must include affidavits of good character. The petitioner must agree to perform a minimum of 100 hours of community service and complete high school or earn a GED. If the court grants the expunction petition, the individual is not required to acknowledge the criminal records on any application, except for certain state certifications.

Note on “first offender” status under § 15A-145.1 through 145.4: Based on the requirement in § 15A-145.5(c) that an applicant show no previous expunctions under §§ 15A-145.1 through 15A-145.5, the courts have interpreted the term “first offender” to extend to someone previously granted relief under § 15A-145.5.

Non-conviction records

When charges against a person are dismissed or he is found not guilty, the person may apply to the court for an expunction of records relating to his apprehension or trial.  If the court finds that he has no prior felony convictions, the court “shall order” expunction.  An additional requirement that the person have no prior expunctions – including of non-conviction records –  was repealed effective December 1, 2017.  N.C. Gen. Stat. § 15A-146(a) – (a2) (as amended by SB-445 (2017)).  Section 15A-146(a3) provides that

[n]o person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial.

See also §§ 15A-147(a)-(b) (expunction in case of identity theft); § 15A-149 (expunction where pardon of innocence granted).

Partial expunction

Effective December 1, 2017, courts in N.C. are specifically authorized to redact conviction records to expunge dismissed charges, as long as the person has no prior felony convictions. § 15A-146(a1) (as amended by SB-445 (2017)). Previously, some judges took the position that expunction was unavailable unless all charges were dismissed.

Juvenile adjudication sealing 

The court may order the sealing of a juvenile court record. N.C. Gen. Stat. § 7B-3000(c).  Sealed court records may only be viewed with a court order.  Id.

A juvenile adjudicated undisciplined may petition the court for expunction upon turning age 18.  N.C. Gen. Stat. § 7B-3200(a).  A juvenile adjudication, with exceptions for certain classes of felonies, is eligible for expunction if the petitioner is at least age 18 and at least 18 months has elapsed since the adjudication.  § 7B-3200(b).  The petitioner must demonstrate good behavior and no subsequent adjudications or convictions.  § 7B-3200(c).  Juveniles do not need to report expunged proceedings.  § 7B-3201(a).  Certain gang crimes and cyber-bullying offenses committed under age 18 may be expunged as provided in N.C. Gen. Stat. §§ 15A-145.1 and 14-458.1(c).

C.  Certificate of Relief

Eligibility

Effective December 1, 2011, individuals with misdemeanor and minor felony conviction records were authorized to “petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences[.]”4  N.C. Gen. Stat. § 15A‑173.2(a).  As originally enacted, Certificates were available only to individuals convicted of “no more than two Class G, H, or I felonies or misdemeanors in one session of court,” and who have no other convictions for a felony or misdemeanor other than a traffic violation.  In 2018, eligibility was expanded to include multiple misdemeanors, but contracted to remove Class G felonies from eligibility.  Petitions are heard by “the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court.”  Id.  The court may issue the certificate one year after the individual has completed his sentence (including any period of probation, post-release supervision, and parole), if he has complied with all requirements of his sentence, if he “is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or . . . otherwise has a lawful source of support,” if no criminal charges are pending against him, and if granting the petition “would not pose an unreasonable risk to the safety or welfare of the public or any individual.”  § 15A-173.2(b)(1) through (6).

Effect

A Certificate of Relief “relieves all collateral sanctions, except those listed in [N.C. Gen. Stat.] § 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate.  A Certificate of Relief does not automatically relieve a disqualification; however, an administrative agency, governmental official, or court in a civil proceeding may consider a Certificate of Relief favorably in determining whether a conviction should result in disqualification.”  § 15A-173.2(d).  A Certificate of Relief does not result in “the expunction of any criminal history record information, nor does it constitute a pardon.”  § 15A-173.2(e).

Exceptions

A Certificate of Relief “shall not be issued to relieve” the collateral sanctions relating to: sex offender registration; prohibition on firearm possession; driver’s license suspension, revocation, limitation or ineligibility; ineligibility for certification as a criminal justice officer or justice officer; and ineligibility for employment as a corrections or probation officer, or a prosecutor or investigator in either the Department of Justice or in the office of a district attorney.  N.C. Gen. Stat. § 15A-173.3(1) – (5).

Procedures

Procedures for issuance, modification and revocation are set forth in N.C. Gen. Stat. § 15A‑173.4 and include the following provisions:

  • The court must provide notice of the petition to the District Attorney, who may appear and be heard at any proceeding relating to the issuance, modification, or revocation of a Certificate of Relief. § 15A‑173.4(a), (c).  Victims may also be heard.  § 15A‑173.6.
  • The issuance, modification, and revocation of Certificates of Relief shall be a public record. § 15A‑173.4(e).
  • The court may modify or revoke a Certificate of Relief for just cause, which includes subsequent conviction of a felony or misdemeanor other than a traffic violation or a material misrepresentation in the petition. § 15A‑173.4(b).

In addition, N.C. Gen. Stat. § 15A-173.2(g) provides that the denial of a petition for a Certificate of Relief “shall state the reasons for the denial, and the petitioner may file a subsequent petition 12 months from the denial and shall demonstrate that the petitioner has remedied the defects in the previous petition and has complied with any conditions for reapplication set by the court . . . in order to have the petition granted.”

Certificate as evidence of due care

N.C. Gen. Stat. § 15A-173.5 provides:

“In a judicial or administrative proceeding alleging negligence, a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceeding is brought knew of the Certificate of Relief at the time of the alleged negligence.”

 

III.  Nondiscrimination in Licensing and Employment 

North Carolina’s general licensing non-discrimination law, enacted in 2013,  prohibits occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so:

Unless the law governing a particular occupational licensing board provides otherwise, a board shall not automatically deny licensure on the basis of an applicant’s criminal history. If the board is authorized to deny a license to an applicant on the basis of conviction of any crime or for commission of a crime involving fraud or moral turpitude, and the applicant’s verified criminal history record reveals one or more convictions of any crime, the board may deny the license if it finds that denial is warranted after consideration of the following factors:

(1) The level and seriousness of the crime.

(2) The date of the crime.

(3) The age of the person at the time of the crime.

(4) The circumstances surrounding the commission of the crime, if known.

(5) The nexus between the criminal conduct and the prospective duties of the applicant as a licensee.

(6) The prison, jail, probation, parole, rehabilitation, and employment records of the applicant since the date the crime was committed.

(7) The subsequent commission of a crime by the applicant.

(8) Any affidavits or other written documents, including character references.

N.C. Gen. Stat. § 93B-8.1(b).  The law does not apply to licenses issued by The North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriffs’ Education and Training Standards Commission.

 


  1. This exception, enacted in July 2010, is responsive to the North Carolina Supreme Court’s decision in Britt v. State, 681 S.E.2d 320 (N.C. 2009), which held that the right to bear arms in the state constitution precluded applying to the plaintiff, who had been convicted in 1979, had his rights restored in 1987 and whose rehabilitation was well established, the 2004 amendment to N.C. Gen. Stat. § 14-415.1 by which its ban on the possession of firearms by a convicted felon first became absolute, thereby requiring the plaintiff to relinquish firearms of which his ownership had been lawful under the previous version of the statute.
  2. Ten of the sixteen pardons were granted by Governor Beverly Perdue (2009-2013) to the so-called “Wilmington 10” based on convictions stemming from the same incident.  See Anne Blythe, Perdue pardons Wilmington 10, News and Observer (Jan. 1, 2013)  http://www.newsobserver.com/2013/01/01/2576074/governor-pardons-wilmington-10.html.
  3. Pursuant to N.C. Gen. Stat. § 15A-151(a), the Administrative Office of the Courts maintains a confidential file relating to expunged records, the contents of which may be disclosed to state court judges and other specified state agencies only for certain specified purposes: e.g., to a judge “for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction,” and to law enforcement agencies for employment and certification purposes.
  4. “Collateral consequence” is defined in N.C. Gen. Stat. § 15A‑173.1(1) as a “collateral sanction or a disqualification.”  “Collateral sanction” is defined as a “penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law, whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.”  Id. § 15A‑173.1(2).  “Disqualification” is defined as a “penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding may impose on an individual on grounds relating to the individual’s conviction of an offense.”  Id. § 15A‑173.1(3).

 

Restoration of Rights Series/New York

I.  Restoration of Civil/Firearms Rights

A.  Voting

In New York, the right to vote is lost upon conviction of a felony if sentenced to a term of actual imprisonment, and restored upon expiration of sentence of imprisonment, including parole.  See N.Y. Elec. Law § 5-106(2) (“No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.”); § 5-106(3) (federal convictions); § 5-106(4) (out-of-state convictions).  These provisions “shall not apply if the person so convicted is not sentenced to either death or imprisonment, or if the execution of a sentence of imprisonment is suspended.”  § 5-106(5).  The right to vote is automatically restored upon expiration of sentence or discharge from parole, and can be restored during parole if the individual is issued a Certificate of Relief from Disabilities or Certificate of Good Conduct.1 .  The Administrative Office for U.S. Courts has taken the position that persons convicted of federal offenses who are on supervised release are entitled to register and vote.2  

Pardon of those on parole: On April 18, 2018, Governor Cuomo issued an executive order directing that all those being released from prison onto parole and those currently on parole “will be given consideration for a conditional pardon that will restore voting rights without undue delay.” The order directed the Department of Correction and Community Supervision to submit a list of all those then on parole, and a similar list each month thereafter.  “Each individual on the eligible list will be reviewed to determine whether he or she will be granted a pardon that will restore voting rights.”  The order made clear the limited nature of pardon, and noted that pardoned individuals could still apply for a Certificate of Relief from Disabilities (see below). The statement accompanying the order noted that

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers.

 

B.  Jury/Office

A person convicted of a felony may not serve on a jury, N.Y. Jud. Law § 510(3), and forfeits any public office they hold.  N.Y. Pub. Off. Law § 30(1)(e).  Additionally, a public official forfeits their office if convicted of a crime involving violation of the oath of office, defined as a crime an element of which is “knowing or intentional conduct indicative of a lack of moral integrity.”  See Feola v. Carroll, 10 N.Y.3d 569, 572-73, 890 N.E.2d 219, 860 N.Y.S.2d 457 (2008) (citing Duffy v. Ward, 81 N.Y.2d 127, 134-35, 612 N.E.2d 1213, 596 N.Y.S.2d 746 (1993)).  New York does not disqualify all convicted persons from holding future public office as a general matter, though specific professions may be restricted.  See Op. Att’y Gen. 83-60 (1983) (conviction of felony resulting in sentence of probation and fine does not render the individual ineligible to run for public office).  But see N.Y. Const. art. VI, § 22(h) (judges removed from office disqualified from future judicial office); In re Alamo v. Strohm, 544 N.E.2d 608 (N.Y. 1989) (officeholder who forfeits office is ineligible to stand for election to the remainder of the unexpired term).  While it is not clear whether a convicted individual may stand for a new elective office, those seeking public employment as a police officer, firefighter, or notary, for example, must obtain a Certificate of Good Conduct.  See N.Y. Exec. Law § 130 (executive pardon or CGC sufficient to overcome bar to notary public position for person with conviction).   Civil rights lost may be restored either by a governor’s pardon (rarely granted, see IIA below), or by a Certificate of Relief from Disabilities or Certificate of Good Conduct (available from sentencing court or Department of Corrections and Community Supervision (formerly the Parole Board), see IIC below).

C.  Firearms

Firearms rights are lost upon conviction of a felony or “serious offense.”  N.Y. Penal Law §§ 400.00(1)(c), 265.01(4) (rifles, shotguns, antique firearms, black powder shotguns, black powder rifles, or any muzzle loading firearm).  Rights may be regained by a pardon, or by a Certificate of Relief from Disabilities or Good Conduct.  See N.Y. Correct. Law §§ 701(2), 703-a (2); see also 1975 NY Ops Atty Gen Nov 24.  Restoration must be specified in the document, and Class A-1 and violent felonies are ineligible.  

D.  Information about sealing, rights restoration, and employment discrimination

The Legal Action Center has prepared a very helpful booklet that explains in laymen’s terms how to get a record sealed and how to obtain certificates relieving disabilities (see Part IIB) and the effect of these forms of relief.  It includes a step-by-step guide to how a private individual can go about having their record sealed, including model letters and forms.  See Legal Action Center, Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing (2013), available at http://www.lac.org/doc_library/lac/publications/LoweringCriminalRecordBarriers_rev3.pdf.   LAC also has a booklet explaining what New York employers may and may not ask about a person’s criminal record, how a person should describe their record, and what rights people with a criminal record have to be free of job discrimination.  See Legal Action Center, Criminal Records and Employment: Protecting Yourself From Discrimination (2013), available at  http://lac.org/wp-content/uploads/2014/11/Criminal_Records_Employment_2013.pdf.

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The pardon power is vested in the governor (except in cases of treason or impeachment).  N.Y. Const. art 4, § 4.  It may be regulated only as to the manner of applying.  The governor must report annually on the number of pardons and his reasons for granting them.

Administration

The New York State Department of Corrections and Community Supervision (DOCCS) (formerly the Board of Parole) advises the governor on clemency cases if requested.  N.Y. Exec. Law § 259-c.  Absent exceptional or compelling circumstances, a pardon will not be considered if there is an adequate administrative remedy available.  Pardon is considered only if there is no other legal remedy in three cases:  1) to set aside a conviction in cases of innocence; 2) to relieve collateral disability (“This is rarely used since relief may generally be obtained by means of a Certificate of Good Conduct or Relief from Disabilities.”); and 3) to prevent deportation or permit reentry.  http://www.ny.gov/services/apply-clemency.  The Executive Clemency Bureau within the DOCCS screens candidates for eligibility requirements, gathers materials concerning clemency applications, and responds to letters from applicants and others regarding clemency applications.  Id.   Ordinarily a pardon is not a basis for sealing or expungement (but see the new pardon initiative applicable to 16- and 17-years-olds, infra.)  See http://www.ny.gov/services/apply-clemency#overview.

On January 1, 2015 Governor Cuomo announced the establishment of a dedicated website administered by his office to serve as a resource for pardon applicants.  http://www.ny.gov/services/apply-clemency.  The website includes procedural and substantive standards for considering pardon (e.g., “Pardon applicants must demonstrate a specific and compelling need for relief and a substantial period of good citizenship” and “Unless there are exceptional and compelling circumstances, a pardon is not considered if the applicant has other administrative remedies available to them, such as a certificate of good conduct or a certificate of relief from disabilities, pursuant to provisions of Article 23 of the Corrections Law.”)

Statistics on the website reveal that the number of applications for full pardon have plummeted during Governor Cuomo’s term, down from 496 in 2011 to 21 in 2014. Guidelines for prisoner petitions for commutation are available at http://www.doccs.ny.gov/Directives/6901.pdf

Conditional pardons for youthful offenders: At the end of 2015, Governor Cuomo announced a special pardon program that would apply to approximately 10,000 people convicted of misdemeanors or non-violent felonies that were committed at age 16 or 17. See Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17, https://www.governor.ny.gov/news/governor-cuomo-offers-executive-pardons-new-yorkers-convicted-crimes-ages-16-and-17. Pardons under this program are not based on specific need or the availability of other administrative relief, and will be recommended so long as the applicant meets certain screening requirements, including being crime-free for at least 10 years. See Pardons, New York State, http://www.ny.gov/services/apply-clemency. According to the state’s clemency website, “If you receive this pardon, the New York State Office of Court Administration has stated that it will restrict public access to your criminal history, meaning that it will not be available to private employers, landlords or other companies that seek this information.” Id.
In December 2016 Governor Cuomo issued 101 conditional pardons through the youthful offender program described above. His office has estimated that as many as 10,000 individuals may be eligible for relief.

Frequency of grants

In recent years, gubernatorial pardons have been rare, and usually in immigration cases where certificates provide no remedy.3  As of July 1, 2017, Governor Andrew Cuomo had granted only seven pardons, most of them to help their recipients avoid deportation and/or become citizens.  4  He also granted more than 100 “conditional” pardons through the youthful offender program described above.

Prior to his establishment of an immigration pardon panel in May 2010, infra, Governor Paterson had granted only three pardons, one in 2008 to rapper Ricky Walters (to avoid deportation);5 one in 2009 to Osvaldo Hernandez (to assist him in his effort to join the New York Police Department);6 and one in 2010 to Qing Hong Wu, to avoid deportation.7  The last-mentioned case provided the impetus for the immigration pardon panel.  Governor Spitzer pardoned one individual, also to avoid deportation.8  In 2003 Governor Pataki issued a posthumous pardon to satirist Lenny Bruce for his 1964 obscenity conviction based on his use of “bad words in a Greenwich Village nightclub act.”9

Paterson immigration pardons: Governor Paterson was the only New York governor in many years to have used his pardon power on anything approaching a regular basis.  On May 3, 2010, Governor Paterson announced the establishment of a special panel of state officials to review cases of noncitizens lawfully resident in New York who were seeking pardon to avoid deportation.  See Danny Hakim & Nina Bernstein, New Paterson Policy May Reduce Deportations, N.Y. Times (May 3, 2010), http://www.nytimes.com/2010/05/04/nyregion/04deport.html.10 In December 2010 he pardoned 33 such individuals, many of whom had come to this country as children.  See, e.g., Press Release, New York State Office of the Governor, Governor Paterson Announces Pardons (Dec. 6, 2010), available at http://readme.readmedia.com/Governor-Paterson-Announces-Pardons/1791096.

B.  Judicial sealing or expungement

General conviction sealing authority

Effective October 1, 2017, the state’s first general adult conviction sealing authority went into effect, allowing individuals with up to two convictions and only one felony to seal the records of conviction for all crimes other than sex offenses and class A and violent felonies after a 10-year waiting period.  See N.Y. Law  59, Part VVV, § 48 (2017) (to be codified at N.Y. Crim. Proc. Law § 160.59).

Eligibility

Individuals may seek sealing for up to two eligible convictions, only one of which may be a felony. N.Y. Crim. Proc. Law § 160.59(2)(a).  Multiple eligible convictions “committed as part of the same criminal transaction” are considered a single conviction. § 160.59(1)(a). Ineligible offenses include most sex offenses, all “violent felonies,” and all Class A felonies. § 160.59(1)(a).  Sealing is not available to individuals convicted of more than two crimes or more than one felony.  § 160.59(3)(h).  A 10-year waiting period applies, counted from the date of imposition of sentence, or the date of release from the latest period of incarceration (if applicable). § 160.59(5).  Individuals required to register as sex offenders and individuals who have exceeded the maximum allowable number of sealings under this section or the conditional sealing authority at N.Y. Crim. Proc. Law § 160.58 (applicable to diversion/drug treatment dispositions) are ineligible, as are those with pending charges or who have been convicted subsequent to the last conviction for which sealing is sought. § 160.59(3).

Procedure

Application is made to the court where the conviction for the most serious offense sought to be sealed occurred, or to the court where the individual was last convicted if all offenses for which sealing is sought are of the same class. N.Y. Crim. Proc. Law § 160.59(2)(a).  Among other requirements, the application must contain a sworn statement of reasons why sealing should be granted. § 160.59(2)(b)(v).  The application is assigned to sentencing judge if sealing is sought for a single conviction, and to the county/supreme court otherwise. § 160.59(2)(d).  The District Attorney must be served, and has 45 days to object to the application.  If there is no objection, the court may decide the application without a hearing. § 160.59(6).

Standard

N.Y. Crim. Proc. sec. 160.59(7):

In considering any such application, the sentencing judge or county or supreme court shall consider any relevant factors, including but not limited to:

(a)  the amount of time that has elapsed since the defendant’s last conviction;

(b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;

(c)  the circumstances and seriousness of any other offenses for which the defendant stands convicted;

(d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;

 (e)  any statements made by the victim of the offense for which the defendant is seeking relief;

 (f) the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and

 (g)  the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.

Effect

If sealing is granted, all “official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency.” N.Y. Crim. Proc. Law § 160.59(8).  Exceptions apply:  The records remain available to enumerated “qualified agencies,” including courts, corrections agencies, and the office of professional medical conduct;11 to federal and state law enforcement for law enforcement purposes; to state entities responsible for issuing firearm licenses; to employers for screening applicants for police officer/peace officer employment; and to the FBI for firearm background checks. § 160.59(9).  Additionally, law enforcement fingerprint records are not affected by the sealing order. § 160.59(8). Sealed convictions remain “convictions” for the purpose of sentence enhancement or establishing the elements of crime. § 160.59(10).

The New York State Human Rights Law, N.Y. Exec. Law § 296(16) was amended concurrent with the enactment of the sealing authority, prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action (i.e., denying employment or licensure) because of, a sealed conviction.  See also Part III-A, below.

Judicial diversion and conditional sealing of drug and other convictions 

N.Y. Crim. Proc. Law § 160.58 (2010) provides for conditional sealing of certain felony drug and other specified convictions, as defined in § 220 of the penal law (sale of controlled substances in the first degree, Class B felony), § 221 (criminal sale of marijuana, Class C felony), and certain offenses listed in N.Y. Crim. Proc. Law § 410.91(5) (burglary, possession of stolen property, criminal mischief) upon completion of a judicial diversion program or a drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision.   Sealing may also extend to up to three prior misdemeanors.  The procedure is set forth in N.Y. Crim. Proc. Law § 160.58(3):

At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is the subject of the sealing application, the court may conduct a hearing to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant’s arrests, prosecutions and convictions. In making such a determination, the court shall consider any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant’s criminal history; and (iv) the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.  

Pre-plea diversion options

Authority for pre-plea judicial diversion is found in N.Y. Crim. Proc. Law §§ 216.00, .05, for persons charged with Class B and lesser felonies who have not been convicted of a violent offense in the past ten years, and no more than one violent felony.

“Adjournment in Contemplation of Dismissal” (ACD) is available for those charged with a misdemeanor. § 170.55.  Upon successful completion of a period of probation, the record is may be sealed under § 160.50 (see below).  An ACD disposition is not a conviction or admission of guilt and restores status lost:

The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

Deferred adjudication (DTAP)

Prior to the enactment of N.Y. Crim. Proc. Law § 160.58 in 2010, some New York district attorneys accomplished the same end through informal means.  For example, in Brooklyn, an individual was permitted to plead guilty and have sentencing deferred upon agreement to participate in an in-patient drug treatment under the Drug Treatment Alternative to Prison (DTAP) program. The program targets drug-addicted defendants arrested for nonviolent felony offenses who have previously been convicted of one or more nonviolent felonies.  Eligibility for this program is controlled by the prosecutor.  Qualified defendants enter a felony guilty plea and receive a deferred sentence that allows them to participate in a residential therapeutic community drug treatment program for a period of 15 to 24 months.  Those who successfully complete the program have charges dismissed, and the record sealed.  Those who fail are brought back to court by a special warrant enforcement team and sentenced to prison.  The program, including the respective roles of the court and prosecutor, is described in People v. Fiammegta, 14 N.Y.3d 90; 923 N.E.2d 1123 (2010) (in its supervision of the DTAP plea and as a measure of the due process owed defendant, the trial court was obligated to make the requisite inquiry into the merits of defendant’s discharge).  See also People v. Jenkins, 11 N.Y.3d 282; 898 N.E.2d 553 (2008) (court has broad discretion when supervising a defendant subject to DTAP, and in deciding whether the conditions of a DTAP plea agreement have been met).

Other deferred adjudication or deferred sentencing programs may also be available for people charged with minor offenses and people with mental illness, which may result in dismissal of charges and no record.

Juvenile records

If a delinquency procedure terminates in favor of the juvenile, the court must immediately order the sealing of records, unless the interests of justice require otherwise.  N.Y. Fam. Ct. Act § 375.1(1).  A juvenile may also move in writing to seal a record, except for felony acts; the court will grant the motion if “in the interest of justice.”  § 375.2(1).  All records for adjudicated youthful offenders are sealed automatically.  N.Y. Crim. Proc. Law § 720.35(2).

Sealing of non-conviction records

Sealing is automatic upon termination of the action in favor of a person (e.g. acquittal, dismissal, declined prosecution), unless the district attorney demonstrates to the satisfaction of the court or the court determines on its own motion “that the interests of justice require otherwise, and states the reasons for such determination on the record . . . .” § 160.50.

Upon the termination of a criminal action or proceeding against a person in favor of such person . . . the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.

N.Y. Crim. Proc. Law §160.60.   In addition, sealing is mandatory for non-criminal infractions/violations (except DWI and prostitution) unless a court directs that these records not be sealed.  See N.Y. Crim. Proc. Law § 160.55.  Additional confidentiality and suppression provisions apply to Youthful Offender adjudications and juvenile delinquency proceedings. N.Y. Crim. Proc. Law § 720.35; N.Y. Fam. Ct. Act §§ 375.2, 380.1.

These provisions are part of a broad public policy of protecting those who have been charged but not convicted, or convicted of minor offenses, from the collateral consequences arising from any criminal record.  In response to a lawsuit, in August 2007 the Office of Court Administration ceased providing information on minor violation convictions.  See N.Y.L.J. at 1, col. 5 (Aug. 10, 2007); OCA website:  https://www.nycourts.gov/apps/chrs/faqs.shtml#faqfunction.

C.  Judicial and administrative certificates

A Certificate of Relief from Disabilities (CRD), N.Y. Correct. Law §§ 701-703, or a Certificate of Good Conduct (CGC), §§ 703-a, 703-b, may be obtained to restore certain rights, and may be limited to one or more specific rights.  Their purpose is to effectuate the public policy of encouraging the licensure and employment of convicted individuals.  See People v. Adams, 747 N.Y.S.2d 909 (2002).  The Certificate of Good Conduct dates from the 1940s, and the Certificate of Relief from Disabilities was added in 1966 with the support of Governor Rockefeller as an aid to rehabilitation as opposed to recognition of it.12   A 2011 amendment to the law authorizing certificates of relief from disabilities is intended to require courts to consider this relief for eligible individuals at sentencing.  See infra.  New York practitioners claim that the certificate program is of limited value, in part because some courts are disinclined to certify rehabilitation as early as sentencing, and in part because employers and others are unwilling to rely on them.  See scholarly articles, discussed elsewhere on this site, describing certificates as “frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect.”  New York certificates fall short in practice, http://ccresourcecenter.org/2016/02/29/new-york-certificates-of-relief-fall-short-in-practice/.

Both types of certificate are given effect under Article 23-A of the Corrections Law as evidence of rehabilitation.  See discussion below.

Eligibility 

1.  Certificate of Relief from Disabilities

A CRD is available to people with no more than one felony conviction and any number of misdemeanor convictions, either from the sentencing court (for misdemeanor convictions and for felony convictions if no prison term is imposed), or from the Board of Parole (for persons sentenced to prison under New York law or who reside in New York but were convicted in another jurisdiction, including federal).  N.Y. Correct. Law §§ 700(1)(a), 703(1).  Under § 701(1) a CRD may be granted

to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein.  Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.

The court may issue a CRD at the time sentence is pronounced, in which case it may grant relief from forfeitures as well as from disabilities, or at any time thereafter.  § 702(1).  The Parole Board may issue a CRD at any time after release from prison.  § 703(1)(a).  A CRD is also available to people with federal convictions who reside in New York at sentencing, or at any time thereafter.  If issued prior to expiration of supervision, it is deemed temporary, and may be revoked.  § 703(4).  It is important to seek a CRD at sentencing in order to avoid public housing and employment bars.  The Court or Parole Board must find that the issuance of a CRD is “consistent with the rehabilitation of the eligible offender,” and “consistent with the public interest.”  §§ 702(2), 703(3).

2.  Certificate of Good Conduct

A CGC is available to people with multiple felony convictions from the Board of Parole, “or any three members thereof by unanimous vote,” after a waiting period of one to five years, depending on the seriousness of the offense(s).  N.Y. Correct. Law §§ 703-b(1), (3).  A Certificate of Good Conduct is also available to persons convicted outside New York, including federal offenders.  § 703-b(2).  It is granted only if the person has demonstrated “good conduct” for the requisite period and if (like the CRD) granting relief would be “consistent with the rehabilitation of the eligible offender” and “consistent with the public interest.”  § 703-b(1).  If granted during a period of parole, the CRD is temporary, and it may be revoked at any time until the Board’s jurisdiction is ended. If not revoked, it becomes permanent at the conclusion of parole supervision.

Persons convicted in jurisdictions outside New York State must in addition demonstrate “that there exist specific facts and circumstances, and specific sections of New York state law that have an adverse impact on the applicant and warrant the application for relief to be made in New York.”  § 703-b(2).

Effect

Certificates issued under either N.Y. Correct. Law § 703 (CRD) or § 703-b (CGC) have essentially the same effect:  they relieve an eligible person of “any forfeiture or disability,” and “remove any barrier to . . . employment that is automatically imposed by law by reason of conviction of the crime or the offense.” §§ 701(1), 703-a.  (The CRD statute contains certain exceptions that apparently do not apply to CGCs, as described in the section on “public office,” below.)  A certificate may be limited to particular disabilities, and the relief may be enlarged by the court or Board of Parole at any time, to include firearms permits.

Neither type of certificate voids the conviction as if it were a pardon.  § 706.  (As noted above in IIA, gubernatorial pardons are not generally available in New York State.)  A CRD does not authorize a job applicant with a criminal record to deny on an employment application that he has ever been convicted of a crime. Nor does a certificate preclude employers or licensing agencies from relying on the conviction as a factor in denying or revoking a license or making other discretionary decisions, §§ 701(3), 703-a(3), but a certificate does create a “presumption of rehabilitation” that must be given some effect in deciding whether there is a disqualifying “direct relationship” between a crime and a job or license under Article 23-A of the New York Corrections Law discussed in Part III below.  See  §§ 752, 753(2) (Part III infra); see also, e.g., Adams, 747 N.Y.S.2d at 916 (CRD creates a “presumption of rehabilitation” and removes the automatic bar from obtaining a license, but does not establish a prima facie entitlement to the license; the licensing agency still maintains the ultimate control whether to grant the license.); Op. N.Y. Att’y Gen. (Inf.) 81-124 (1981).

These certificates, with certain exceptions, preclude reliance on the conviction as an automatic bar or disability, but they do not preclude agencies from considering the conviction as a factor in licensing or other decisions.  N.Y. Correct. Law §§ 701(3), 703-a(3)Compare Meth v. Manhattan & Bronx Surface Transit Operating Auth., 521 N.Y.S.2d 54 (N.Y. App. Div. 1987) (transit authority improperly denied employment as a bus driver to man convicted of bribery, who had been granted certificate of relief from disabilities; authority presented no evidence of consideration of the eight factors to rebut the presumption of rehabilitation that the certificate of relief from disabilities creates) with Soto-Lopez v. N.Y. City Civil Serv. Comm’n, 713 F. Supp. 677 (S.D.N.Y. 1989) (dated manslaughter conviction alone was not directly related to a caretaker position nor did it pose an unreasonable risk to persons or property; however, unreasonable risk test met when combined with more recent conviction for sale of narcotics).

Public office: A CRD does not apply to “the right of such person to retain or to be eligible for public office.”  N.Y. Correct. Law § 701(1).  Nor does a CRD overcome automatic forfeiture resulting from convictions for violations of N.Y. Pub. Health Law § 2806(5) (nursing home operator’s license) or N.Y. Veh. & Traf. Law § 1193(f)(2) (driver’s license suspension).  However, these exceptions do not appear in the statute authorizing issuance of CGCs.  Therefore, a CGC would appear to be sufficient to overcome bars to public employment.  Compare People v. Olensky, 91 Misc. 2d 225, 397 N.Y.S.2d 565 (N.Y. Sup. Ct. 1977) (Notary Public was a “public officer” so that CRD not sufficient to enable defendant to obtain a notary public commission and work as a court reporter) with N.Y. Exec. Law § 130 (executive pardon or CGC sufficient to overcome bar to notary public position for person with conviction).  Accordingly, a first offender who is eligible for a CRD must in addition obtain a CGC if he wishes to obtain certain kinds of public employment deemed to be a “public office,” or overcome the specific disabilities in the public health and vehicle codes.   But see People v. Flook, 164 Misc. 2d 284, 285 (N.Y. Cnty. Ct. 1995) (noting that some licensing statutes require persons convicted of the designated crimes to obtain a CGC and others permit them to obtain either a CGC or a CRD, and finding no relevant distinction between the two statutes for purposes of restoration of firearms rights).

Firearms: Either type of certificate may restore firearm rights, except to those convicted of Class A-1 felonies or violent felonies, and this relief must be specified in the certificate. N. Y. Correct. Law §§ 701(2), 703-a (2).

Process

The application for a CRD from the New York courts is explained at http://www.nycourts.gov/courts/6jd/forms/dmv/DP-53.pdf, and from the Department of Corrections and Community Supervision (DOCCS) (formerly the Parole Board) at http://www.doccs.ny.gov/certrelief.html.   The court may request an investigation from the probation service and a written report.  N.Y. Correct. Law § 702(3).  If a CRD is sought from the DOCCS Board, the process may take several months.  See https://www.parole.ny.gov/pdf/parolecert.pdf.  The certificate is temporary during the period of parole supervision, and becomes permanent thereafter if not revoked.  “In granting or revoking a certificate of relief from disabilities the action of the board of parole shall be by unanimous vote of the members authorized to grant or revoke parole.  Such action shall be deemed a judicial function and shall not be reviewable if done according to law.”  § 703(5).

In August 2011 subsection (1) of N.Y. Correct. Law § 702 was amended to require a court, upon application, and prior to or at the time of imposing a sentence that does not involve commitment to state prison, to consider an individual’s fitness for a CRD.  The memorandum accompanying this change in the law states that certificates are a “powerful tool [to] promote and encourage reintegration after a conviction,” but notes that they are “underutilized” and that “only a tiny fraction” of those eligible actually hold them.  http://www.communityalternatives.org/pdf/2011-amend-Corr-L-702.pdf.  This memorandum notes that the purpose of CRDs is to “prevent eviction, loss of a job and loss of an occupational license,” and that they may accordingly be issued “prior to an individual’s demonstration of proper conduct.”  Id.   New York practitioners report that some courts are reluctant to issue certificates at the time of sentencing because of their legal effect in establishing “rehabilitation” under Article 23A.  See

The process for seeking a CGC is more demanding, since an applicant must satisfy the “good conduct” waiting period specified in § 703-b(3).  The waiting period “shall be measured either from the date of the payment of any fine imposed upon him or the suspension of sentence, or from the date of his unrevoked release from custody by parole, commutation or termination of his sentence.”  Id.  The board “shall have power and it shall be its duty to investigate all persons when such application is made and to grant or deny the same within a reasonable time after the making of the application.”  Vote is by the whole board, or of a unanimous three-member panel.  § 703-b(1).

Presumption based on federal recommendation.

Where a certificate of relief from disabilities is sought . . . on a judgment of conviction rendered by a federal district court in this state and the department is in receipt of a written recommendation in favor of the issuance of such certificate from the chief probation officer of the district, the department shall issue the requested certificate, unless it finds that the requirements of paragraphs (a), (b) and (c) of subdivision three of this section [regarding the rehabilitation of the applicant and the public interest] have not been satisfied; or that the interests of justice would not be advanced by the issuance of the certificate.

N.Y. Correct. Law § 703(7).

Additional guidance

Additional information about the process for applying for a CRD or CGC is in Judge Gleeson’s opinion in Doe v. United States, 2016 U.S. Dist. LEXIS 29162 (E.D.N.Y. 2016).   The Legal Action Center has prepared a very helpful booklet that explains in laymen’s terms how to get a record sealed and how to obtain certificates relieving disabilities, and the effect of these forms of relief.  It includes a step-by-step guide to how a private individual can go about having their record sealed, including model letters and forms.  See Legal Action Center, Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing (2013), available at http://www.lac.org/doc_library/lac/publications/LoweringCriminalRecordBarriers_rev3.pdf.

Frequency of grants

According to the Executive Clemency Bureau of the Division of Parole, 1,621 certificates of both kinds were issued in 2010; 1,857 granted in 2009; 3,046 granted in 2008; 1,637 granted in 2007; and 657 granted in 2006.  The percentage granted exceeds 95% each year.  There are no figures on grants made by the courts.  A 2006 report of a New York State Bar Association committee speculated that the relatively low number of certificates issued each year can be attributed to the fact that most people convicted of crimes are not informed about them.13

Contact

For information concerning certificates of relief and certificates of good conduct, applicants are directed to write to:

New York State Department of Corrections and Community Supervision
Executive Clemency Bureau
The Harriman State Campus – Building 2
1220 Washington Ave, Albany, NY
PardonsAndCommutations@doccs.ny.gov.

III.  Nondiscrimination in Licensing and Employment 

A.  Non-conviction records

The New York State Human Rights Law, N.Y. Exec. Law § 296(16), prohibits public and private employers and occupational licensing agencies from asking about, or acting adversely (i.e., denying employment or licensure) because of, any arrest that did not result in a conviction, or that terminated as a youthful offender adjudication; or that resulted in a sealed conviction, including violations, infractions, and misdemeanors and felonies sealed under the 2009 Drug Law Reform Act (for individuals who successfully completed a diversion program).  The Human Rights Law does not distinguish between current employees and applicants for employment, but insofar as its protections apply only to accusations that are “not then pending” it appears to provide limited protection to current employees who are accused of crime.14 In addition, it does not apply to police or law enforcement jobs.

B.  Human Rights Law – Violation of Article 23-A 

Article 23-A of the Corrections Law (“Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”) prohibits “unfair discrimination” against a convicted person by public and private employers and licensing entities, “except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.”  N.Y. Corr. L. § 750 et seq.   Article 23-A may be enforced through the courts or through the New York State Human Rights Law, which makes it an unlawful discriminatory practice to deny employment in violation of Article 23-A.  .

It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law.

N.Y. Exec. Law § 296(15).

Section 752 of Article 23-A makes it unlawful for public employers, occupational licensing authorities, and private employers with more than ten employees, to deny or terminate15 employment or licensure based on a previous conviction unless:

(1) there is a “direct relationship” between one or more of the previous criminal offenses and the specific license or employment sought; or

(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

N.Y. Correct. Law. § 752.  The term “direct relationship” is defined as follows:  “the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought.”  This prohibition does not apply if disqualification is mandated by law, and the person has not received a certificate of relief from disabilities or certificate of good conduct.  § 751.  Law enforcement positions are excluded from the definition of “employment” under this section.  Id.

Section 753(1) provides that in making a determination under § 752 a public agency or private employer “shall consider” the following factors:

(a) the public policy of this state . . . to encourage the licensure and employment of all persons previously convicted of one or more criminal offenses;

(b) the specific duties and responsibilities necessarily related to the license or employment sought;

(c) the relation of the conviction to the applicant’s ability to perform his responsibilities;

(d) the time elapsed since offense;

(e) the age of the person at the time of offense;

(f) the seriousness of the offense;

(g) any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) the interest of the employer of protecting property, and the safety and welfare of individuals or the general public.

An employer’s failure to consider each of these factors may violate § 753.  See Acosta v. Dep’t of Education of City of N.Y., 16 N.Y.3d 309, 320 (2011)(Department of Education acted arbitrarily when it failed to consider the documentation petitioner submitted which evidenced her education, rehabilitation and volunteer work over the 13 years since her teenage conviction for robbery, despite its policy of closely reviewing first time applicants; “it is difficult to conclude on this record that the ‘closer review’ purportedly applied here amounted to anything more than a pro forma denial of petitioner’s application on the basis of her prior criminal conviction,” without considering each of the eight factors set forth in § 753);  Boone v. New York City Department of Education, No. 2016 NY Slip Op 26240 (Sup. Ct. 2016) (denying petitioner a security clearance for a position as a School Bus Attendant, without due regard to the factors set forth in Article 23-A, or petitioner’s CRD, was arbitrary and capricious).  But see Arrocha v. Bd. of Educ. Of City of N.Y., 93 N.Y.2d 361 (1999) (Board of Education’s determination that teaching license applicant’s prior conviction for sale of cocaine came within statutory “unreasonable risk” exception to general rule that prior conviction should not place person under disability, was neither arbitrary nor capricious, where Board properly considered all statutory factors and determined that those weighing against granting license outweighed those in favor; age of conviction, applicant’s positive references and educational achievements, and presumption of rehabilitation were outweighed by teacher’s responsibility as role model and nature and seriousness of applicant’s offense.).

Section 753(2) provides that the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant,16 “which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.”  This provision has been interpreted by the courts to create a presumption of rehabilitation that must be given effect by the employing or licensing agency even where an applicant’s prior conviction is directly related to the license or employment sought.   See Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 612 (1988) (because presumption of rehabilitation applies even where there is a direct relationship, the agency or employer must consider statutory factors to determine whether that relationship is sufficiently attenuated to warrant issuance of license or employment).  The authority of an agency to refuse a license based on conviction alone is discussed in La Cloche v. Daniels, 2006 N.Y. Misc. LEXIS 9379; 235 N.Y.L.J. 118 (N.Y. Sup. Ct. 2006).17

Section 754 provides that if an individual who was previously convicted of at least one offense was denied employment or licensure, the employer or licensing agency must provide  a statement of reasons for the denial, if the individual so requests.  Section 755 specifies the mode of enforcement (in case of public employer through a civil action, and private employer through division of human rights and commission on human rights). The New York State Human Rights Law also authorizes filing a civil action in court against private employers.  N.Y. Exec. Law § 297(9).

Negligent hiring protections  

The Human Rights Law also extends protections against negligent hiring lawsuits to employers who have “made a reasonable good faith determination” pursuant to the factors set forth in Article 23-A:

Further, there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee’s past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.

N.Y. Exec. Law § 296(15).

C.  Ban the Box  

Public employment

In September 2015, Governor Andrew Cuomo announced plans to implement recommendations from the Council on Community Re-entry whereby applicants for competitive positions in state agencies will not be required to discuss or disclose prior convictions until an agency has interviewed the candidate and made an initial hiring decision. See Governor Cuomo Announces Executive Actions to Reduce Barriers for New Yorkers with Criminal Convictions, https://www.governor.ny.gov/news/governor-cuomo-announces-executive-actions-reduce-barriers-new-yorkers-criminal-convictions (Sept. 21, 2015).

New York City Fair Chance Act

The 2015 Act prohibits most entities that employ individuals in New York City from asking about a job applicant’s conviction record or running a background check (including a simple internet search) until after a job offer is made.  After making an offer, an employer may ask questions and conduct a background check, but may then only revoke that offer after determining that hiring the individual would pose a risk to persons or property, or that the conviction history is directly related to the job.  This determination must be made after evaluating the conviction history pursuant to Correction Law Art. 23-A.  Should the employer seek to revoke the job offer, it must provide the applicant with an explanation of the decision together with a copy of any background check report used in the decision, and give the applicant three business days to respond.  The 2015 Act is enforced by the NYC Human Rights Commission, whose website includes helpful information on bringing complaints.  It may also be enforced in New York State court.  See Fair Chance Act, NYC Human Rights Comm’n,  http://www1.nyc.gov/site/cchr/law/fair-chance-act.page.

D.  Additional guidance

The Legal Action Center has prepared a helpful booklet explaining in laymen’s terms what New York employers may and may not ask about a person’s criminal record, how a person should describe their record, and what rights people have to be free of job discrimination because of their criminal record.  See Legal Action Center, Criminal Records and Employment: Protecting Yourself From Discrimination (2013), available at  http://lac.org/wp-content/uploads/2014/11/Criminal_Records_Employment_2013.pdf.

 

 

 


  1. See NYS DOCCS website, https://www.parole.ny.gov/certrelief.html.
  2. In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole.
  3. See A.G. Sulzberger, The Tradition of Granting Clemency and Second-Guessing it, N.Y. Times (Dec. 2, 2009), available at http://cityroom.blogs.nytimes.com/2009/12/02/clemency:[I]n recent decades each successive governor, Democrat or Republican, has granted clemency to fewer inmates even as the prison population continued to rise to the current level of approximately 60,000, according to information provided by the Division of Parole.  According to that information, Gov. Hugh L. Carey commuted the sentences of 155 people in eight years in office, Mr. Cuomo commuted the sentences of 37 people in 12 years, and Mr. Pataki commuted the sentences of 33 people and pardoned one – the deceased comedian Lenny Bruce — in 12 years.  During his aborted term Gov. Eliot Spitzer pardoned one man, already out of prison, to prevent him from being deported.

     

  4.  See, e.g., Sarah Maslin Nir, To Stave Off a Deportation, Cuomo Pardons a 9/11 Volunteer, N.Y. Times, June 21, 2017, https://www.nytimes.com/2017/06/21/nyregion/cuomo-pardon-deportation-carlos-cardona.html?_r=0.
  5. See Kirk Semple, Hip-Hopper Is Pardoned by Governor, N.Y. Times (May 24, 2008), available at    http://www.nytimes.com/2008/05/24/nyregion/24pardon.html?_r=1&em&ex=1211774400&en=1501eee6aa64326d&ei=5087%0A&oref=slogin.
  6. See Al Baker, Soldier Says Pardon Buoys His Hopes for Police Career, N.Y. Times (Jan. 2, 2010); C.J. Chivers & William Rashbaum, Army Lets a Felon Join Up, but N.Y.P.D. Will Not, N.Y. Times (Jan. 6, 2008), available at http://www.nytimes.com/2010/01/03/nyregion/03soldier.html.
  7. Nina Bernstein, Paterson Rewards Redemption With a Pardon, N.Y. Times (Mar. 6, 2010), available at http://www.nytimes.com/2010/03/07/nyregion/07pardon.html?scp=1&sq=wu%20pardon&st=cse;  Nina Bernstein, Judge Keeps His Word to Immigrant Who Kept His, N.Y. Times (Feb. 19, 2010), available at  http://www.nytimes.com/2010/02/19/nyregion/19judge.html.
  8. See Anahad O’Connor, Spitzer Pardons Ex-Convict to Spare Him Deportation, N.Y. Times (Dec. 22, 2007), available at http://www.nytimes.com/2007/12/22/nyregion/22pardon.html?scp=2&sq=frederick%20Lake%20pardon&st=cse.
  9. See John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003), http://www.nytimes.com/2003/12/24/nyregion/no-joke-37-years-after-death-lenny-bruce-receives-pardon.html.
  10. See Margaret Colgate Love, The Quality of Mercy in New York: A Different Kind of State Challenge to Federal Immigration Policy, ACSBlog, http://www.acslaw.org/acsblog/the-quality-of-mercy-in-new-york-a-different-kind-of-state-challenge-to-federal-immigration.
  11. NY CLS Exec § 835(9) defines “qualified agencies” as,courts in the unified court system, the administrative board of the judicial conference, probation departments, sheriffs’ offices, district attorneys’ offices, the state department of corrections and community supervision, the department of correction of any municipality, the financial frauds and consumer protection unit of the state department of financial services, the office of professional medical conduct of the state department of health for the purposes of section two hundred thirty of the public health law, the child protective services unit of a local social services district when conducting an investigation pursuant to subdivision six of section four hundred twenty-four of the social services law, the office of Medicaid inspector general, the temporary state commission of investigation, police forces and departments having responsibility for enforcement of the general criminal laws of the state, the Onondaga County Center for Forensic Sciences Laboratory when acting within the scope of its law enforcement duties and the division of forensic services of the Nassau county medical examiner’s office when acting within the scope of its law enforcement duties. 
  12. Legislative History of Certificate Statutes, Memorandum to Alan Rothstein, Corporate Counsel for the New York City Bar Association, from Danielle D’Abate, Summer Intern for the Legal Clinic for the Homeless, August 11, 2006 (on file with authors).  See generally Joy Radice, Administering Justice: Removing Statutory Barriers to Reentry, 83 U. Colo. L. Rev. 715 (2012) (describing history and operation of the New York’s certificate statute).
  13. See Reentry and Reintegration: The Road to Public Safety, Report and Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings at 99-106 (May 2006), available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=26857.
  14. Respecting current employees accused of crime, the New York Legal Aid Society reports that

    We generally advise that current employees whose cases are sealed prior to any adverse action being taken, based on the arrest, are entitled to the statute’s protection. But there is no clear authority as to whether the statute entitles persons who have been suspended to be restored to the “status quo ante” once the criminal case has been sealed.  This is a major issue because many government employers and licensing agencies are electronically notified of their employees’ and licensees’ arrests, and frequently issue suspensions pending the outcome of the criminal case.

  15. Until 2007, current employees were not covered by Article 23A.  S.1602/A.3208 extended the anti-discrimination protections to current employees and license holders but only if their convictions predate employment or licensure.  The law does not protect individuals who lie on an employment application, or who are accused of committing a crime while employed.
  16. Certificate of Relief from Disabilities, N.Y. Correct. Law §§ 700-703, or a Certificate of Good Conduct, §§ 703-a, 703-b, may be obtained to restore certain rights, and may be limited to one or more specific rights.  See discussion in Part IIC above.
  17. The La Cloche case gained notoriety as an example of arbitrary and unreasonable agency action against a convicted person.  See Clyde Haberman, He Did Time, So He’s Unfit to Do Hair, N.Y. Times, at B1 (Mar. 4, 2005); Jennifer Gonnerman, Banned From the Barbershop: The quiet death of a fighter for civil rights, The Village Voice (Nov. 9-15, 2005).