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A recent New York appellate court ruling will provide more people the opportunity to seal the drug offense convictions. The court recently reversed a lower court’s order denying the defendant’s motion to seal the record of his conviction. The court’s ruling increases the number of people, who have been convicted of a drug-related offense and completed a drug treatment program, that are eligible to seal the records of their case.

The appellate court’s decision states that the lower court must hold a hearing to examine several factors, including whether a voluntarily entered treatment program is a “judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as a judicially ordered program that would make the case eligible to be sealed. Previously, lower courts have narrowly interpreted the law to only seal cases in which the treatment program was part of the sentence, but this case and others are slowly starting to expand the number of people who can benefit from record sealing relief in New York.

In 2004, the defendant in the case before the court was convicted of criminal possession of a controlled substance in the seventh degree. Criminal Procedure Law §160.58(1) provides that when a defendant has completed his or her sentence and successfully completed a judicial diversion program “or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision,” he or she is eligible to have the conviction conditionally sealed. In 2010, the defendant moved, pursuant to CPL §160.58, to seal his 2004 conviction.

Defendant Voluntarily Completed Drug Treatment Programs

With his petition, the defendant submitted proof to the court that he had voluntarily enrolled in several alcohol and drug rehabilitation programs in Virginia, where he was residing following the conviction. The main issue before the court is whether these programs constitute “another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as the judicial diversion programs established by CPL article 216.

Defendant also provided a letter from a counselor from a drug rehabilitation program, who stated that in July of 2004, defendant enrolled himself into an alcohol program. The program consisted, among other things, of 60 group sessions. He successfully completed the program, and all of his alcohol, Breathalyzer, and urine tests were negative. In 2010, when he petitioned the court to seal his record, the defendant had been clean and sober for over five years.

The lower court denied the sealing on the basis that the petitioner did not complete “a judicial diversion program” authorized by CPL article 216, “a drug treatment alternative to prison or other judicially sanctioned drug treatment program.” The court did not hold a hearing prior to making this determination, but the reason for the denial was that his treatment was voluntary, was not ordered by the court and was not covered in the narrow definitions of CPL § 160.58.

The Appellate Court’s Decision and What It Means

The appellate court ruled that the lower court must schedule a hearing, at which time the judge must consider the relevant evidence provided by both sides and the factors set forth in CPL 160.58(3). Additionally, the trial court shall determine whether the program(s) that defendant completed constitute “another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as a judicially ordered diversion or drug treatment program that would make him eligible to have the record sealed.

There are several other factors that the lower court must consider. Theses factors, listed in the appellate court’s opinion, include: (1) defendant’s participation in the treatment programs and whether he completed them, (2) whether he failed any drug or alcohol tests or incurred any disciplinary penalties, (3) whether he participated in and completed any aftercare component of the treatment programs, and (4) whether he attended and/or currently attends meetings of organizations such as Alcoholics Anonymous and/or Narcotics Anonymous.

Under New York’s expungement and sealing laws, there are very limited circumstances in which a criminal record is eligible to be cleared. Drug convictions are eligible to be sealed, but courts in the past have interpreted the law in such a way to deny relief to those who completed drug programs not specifically ordered as part of their sentence. This case is a step in the right direction for New York, because judges will need to start considering other drug treatment programs. This will encourage people to seek the help they need following a drug conviction, and it allows those prior offenders, who have served their sentence and remained clean and sober, to get a fresh start.

Written by Record Clearing

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