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DEFENDANT’S OUT-OF-STATE CONVICTION DID NOT REQUIRE SUMMARY DENIAL OF DEFENDANT’S MOTION TO SEAL THE RECORDS OF HIS NEW YORK CONVICTION; HOWEVER, THE OUT-OF-STATE CONVICTION MUST BE PART OF THE ANALYSIS OF THE APPROPRIATENESS OF SEALING THE NEW YORK RECORDS; SUPREME COURT GRANTED THE MOTION WITHOUT CONSIDERING THE OUT-OF-STATE CONVICTION; MATTER REMITTED FOR A HEARING (SECOND DEPT).

​The Second Department, In a full-fledged opinion by Justice Connolly, reversing Supreme Court, determined that an out-of-state conviction should be considered where defendant seeks to seal the records of a New York conviction. Here Supreme Court had granted the motion to seal, finding that only New York convictions need be considered. The matter was remitted for a hearing in which the out-of-state conviction would be part of the analysis:

This appeal presents the question of whether CPL 160.59(3)(f) requires a court to summarily deny a defendant’s motion to seal an eligible offense where the defendant subsequently has been convicted of a crime under the laws of another state. We hold that CPL 160.59(3)(f) does not require summary denial under these circumstances. Instead, a defendant’s subsequent conviction under the laws of another state is a factor that the motion court should consider in its discretionary determination as to whether to seal the eligible offense … . * * *

… [A] hearing is … appropriate in this case. Although the defendant’s 2018 Virginia misdemeanor conviction was not a ground to summarily deny the defendant’s motion to seal, at the hearing, the parties may provide additional evidence related to that conviction, as well as any other evidence relevant to the determination of the defendant’s motion. Further, assuming that the defendant was in fact convicted of a misdemeanor in Virginia, the Supreme Court should consider that conviction and the nature and circumstances of the underlying conduct in making its discretionary determination as to whether to grant the defendant’s motion to seal. The court should also consider how the conviction reflects upon the defendant’s character under CPL 160.59(7)(d). In particular, we note that the defendant’s affidavit failed to disclose the existence of the 2018 Virginia misdemeanor conviction or explain the circumstances surrounding the conviction. Further, the affirmation of the defendant’s attorney affirmatively stated that the defendant had no contact with the criminal justice system since his 1990 New York conviction, which does not appear to be accurate. Upon remittal, the court should consider all of these circumstances, as well as the nonexhaustive list of factors in CPL 160.59(7), in its new determination of the defendant’s motion to seal. …

Although the Supreme Court properly determined that it was not required to summarily deny the defendant’s motion to seal his 1990 conviction for attempted grand larceny in the third degree pursuant to CPL 160.59(3)(f), as the People opposed the defendant’s motion to seal, the court was required to hold a hearing pursuant to CPL 160.59(6). People v Witherspoon, 2022 NY Slip Op 05866, Second Dept 10-19-22

Practice Point: A motion to seal the records of a New York conviction need not be summarily denied because of an out-of-state conviction. However, the out-of-state conviction must be considered as a factor in the analysis of the appropriateness of sealing the New York records.

 

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