Brooklyn Boro

A criminal justice reform would give thousands a clean slate — if only they would apply

November 25, 2019 David Brand
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A 2-year-old state measure designed to help people with certain criminal convictions seal their records has so far failed to live up to its potential in Queens and Brooklyn — even though district attorneys there have challenged just a handful of applications.

The law enables New Yorkers with no more than two misdemeanor convictions or one nonviolent felony and one misdemeanor conviction to apply to have their convictions sealed if they have not been convicted of a crime for at least 10 years. State officials said hundreds of thousands of New Yorkers would qualify when the law was enacted in October 2017. But so far, only 1,819 people statewide, including 930 in New York City, have benefited.

Two problems erode the measure’s impact, advocates say: Too few people know about the measure, and many who do apply do not actually qualify. “We need to bring this to the public’s attention,” said Manhattan Assemblymember Dan Quart, a candidate for Manhattan district attorney. “Waiting for people to come forward is not going to work.”

People who qualify have generally succeeded in getting their convictions sealed in Queens and Brooklyn, according to information provided by the District Attorneys’ Offices in those boroughs.

Brooklyn District Attorney Eric Gonzalez has challenged 16 applications because of public safety concerns, spokesperson Oren Yaniv said. A total of 95 people had their convictions sealed in Brooklyn, while four cases are pending.

Yaniv described three examples of why the Brooklyn district attorney challenged conviction sealing for public safety reasons. In one case, he said, a woman had been indicted for beating her children and pleaded guilty to endangering the welfare of child. She applied for conviction sealing because she wanted to open a daycare, he said.

In another case, a person convicted of a nonviolent offense in a domestic violence case was seeking a job as a nurse. The District Attorney’s Office contended that the person’s conduct was in fact violent, even though the conviction did not reflect that.

In a third case, the defendant lured a teenage boy for sex, but was not convicted of a sex offense.

The Queens District Attorney’s Office has only challenged four qualifying applications, a spokesperson told the Eagle. A total of 115 people had their convictions sealed — including two who the district attorney opposed — while another 31 did not qualify under the statute.

FOIL and Document Production Chief Anastasia Spanakos handles the sealing applications and tracks down old court documents, witnesses and even victims’ family members to determine whether the office will challenge sealing. In August 2018, Spanakos said the Queens District Attorney’s Office challenged an application to seal a grand larceny conviction because the defendant had reached a plea deal after prosecutors sought armed robbery charges.

“The facts of the crime, I felt, were incredibly violent and I was not comfortable with wiping that off his slate,” Spanakos said last year.

But in the majority of instances, the two offices have not challenged applications from people whose decades-old criminal convictions have prevented them from obtaining jobs or housing.

Legal Aid Society attorney Emma Goodman, who leads the agency’s conviction-sealing initiative, told the Eagle last year that she disagrees with the district attorneys’ approach to challenging eligible applications.

“The statute does allow for consideration of the underlying circumstances of the originally charged crime, but the judge will make the ultimate decision,” Goodman said. “In my experience, a crime that started as a violent felony but resulted in a conviction for something so much less serious had a problem with it from the beginning.”

Expanding existing law

Ahead of the upcoming legislative session, Quart called on state lawmakers to expand the law so that it includes additional offenses or allow people to automatically get certain convictions sealed or expunged from their records — especially offenses, like gravity knife possession, that are no longer regarded as crimes, Quart said.

“The whole goal is to expand the number of individuals whose records we seal or expunge,” Quart said. “That’s the goal here: to help people get on with their lives.”

Prosecutors across the five boroughs have participated in events to spread awareness about conviction sealing, and lawmakers have hosted workshops to help people complete their applications. But the efforts haven’t reached many people. “Fewer than 1 percent of the expected pool of eligible people have accessed the law,” said Kate Wagner-Goldstein, senior staff attorney at the Legal Action Center, in a statement.

The Brooklyn District Attorney’s Office has also advocated for state lawmakers to update the statute to ensure that more people qualify.

“We believe the eligibility requirements are narrowly drafted and we feel they fail to give prosecutors or the courts discretion,” Yaniv said.

Though several criminal justice measures passed the state legislature and will take effect on Jan. 1, 2020, an expansion of the existing record-sealing law slipped through the cracks, Goodman said.

She said she is optimistic that the state will take up the issue in 2020. A better statue would include additional types of convictions while providing automatic sealing or expungement so that people don’t have to apply, she said.

“When it comes down to it, even if it’s a violent felony from 20 years ago, some people are completely rehabilitated,” she said. “A judge should make the ultimate decision.”

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