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Only in rare cases will an expungement be allowed in New York State Courts. One would have to be convicted of a drug offense and have finished a court sanctioned program under Article 216 of the Criminal Procedure Law. Also, see, CPL Section 410.91(5).  It should be noted that such expungements, if they occur after a plea of guilty, will not be effective in immigration court in cases involving deportation or when one applies for citizenship.Generally, the way to get rid of a conviction on one’s record is to vacate the convictions on legal grounds under Section 440.10 of the Criminal Procedure Law.  We discuss that in more detail in different sections of this site.

Non-criminal convictions are sealed in New York State and often that is done as a matter of law without action by the client or the attorney. However, sealing can be overlooked by the clerks and attorneys and litigants should take action to make sure that non-criminal convictions, acquittals or dismissals are sealed in the proper agencies.  My firm handles such matters on a routine basis and as part of our representation on criminal cases we always include efforts to make sure that a client gets all the sealing they are entitled to under the law.  It is particularly unnerving when a client thinks that something is sealed and then finds out that employers know about it. However, sealing statutes under New York Law are not binding on federal authorities.  If they honor the sealing (which they often do) such action is voluntary.  In other words, if a case is sealed in New York State, that does not mean that it is not listed on one’s FBI RAP sheet.

As to expungements of federal convictions, a new development occurred this year in Doe v. United States, where in an eloquent opinion, Judge Gleeson, expunged a federal conviction for a home care worker who had been rehabilitated and was unable to obtain employment. I particularly liked his statement that he sentenced her to probation not a lifetime of unemployment.  Gleeson’s action in this case was courageous and we do not know if it will be appealed by the government.  See, Doe v. US, 2015 WL 24552613 (EDNY).  It should be noted that Judge Gleeson denied the same relief in a previous case and a comparison of these two decisions will be helpful to lawyers and litigants as to whether their case has a chance of success. See, Oyebola v. United States, 2010 WL 2880167 (EDNY).

However, once again, it should be noted that Doe was a citizen and the expungement was done for employment reasons. If she had been doing it for immigration purposes, in almost all cases, it would not have been effective in immigration proceedings.  To be honored by ICE or CIS, the conviction must be vacated for reasons that undermine its legality on the day that the conviction was originally entered.  That is why immigrants should seek to vacate federal convictions by appeal, under Section 2255 or by a writ of error coram nobis and in state court by appeal or under Section 440.10.