One of the most commonly misunderstood consequences of having contact with the criminal justice system is the legal records that are created as a result. These records, often referred to as criminal records or “rap sheets”, can follow a person for the rest of their lives, and include more than just criminal charges you were found guilty of, or plead guilty to. In addition, in today’s society it is almost common practice for employers, licensing agencies, and colleges to ask questions about your criminal history. Some of these questions are permissible and some are not. The purpose of this article is to make sure that individuals in New York are informed about what criminal records are, what they contain, who can see them, and what information should not be included in them.
What Information Is Contained in a Criminal Record?
A criminal record is commonly thought to be a list of the crimes an individual has been convicted of, or plead guilty to. The reality is not so black and white. Criminal records contain more than just convictions they also contain arrests, and charges that were the subjects of the arrests and can contain even records of non-criminal offenses.
A “criminal record” begins when an individual is arrested by law enforcement and fingerprinted.[1] When an individual is arrested and fingerprinted in New York a record of the arrest along with the charges associated with the arrest is created and automatically sent to the New York State Division of Criminal Justice Services (“DCJS”) in Albany.[2] The result of the arrest will also be reported to DCJS. Possible results stemming from an arrest include, a conviction, a dismissal (meaning the judge dismissed the charges against you), an acquittal (meaning after a trial you were found not guilty), a plea (meaning the district attorney’s office offered a plea bargain which you accepted and pled guilty to), a youthful offender adjudication (explained in more detail below), or an ACD (the court agreed to adjourn your case for six months or a year in order to see if you could stay out of trouble).
Other information following an arrest that will be reported to DCJS includes:
- Date of arrest;
- Name under which you were arrested;
- Address given to police at the time of the arrest;
- Location of alleged crime;
- Sex offender designation;
- Any licenses held;
Different Types of Criminal Records
Another common misconception about criminal records is that there is one criminal record, this is not the case. In New York there are four types of criminal record, classified by where each comes from. Although the New York State Department of Criminal Justice Services is the agency responsible for compiling and storing information transmitted by law enforcement and courts, they are not the only agency that keeps a record of contact with the criminal justice system. Furthermore, it is important to understand that different types of criminal records show or omit certain information. This will be explained below.
Department of Criminal Justice Services Record “The Rap Sheet”
The DCJS record is what is commonly referred to as someone’s “Rap Sheet”. This is the most complete record of an individual’s contact with the criminal justice system. Every time an individual is arrested in New York the DCJS gets information from the arrest, and how the case was resolved. In New York it is not possible to have these types of records removed or “expunged” as in other states. However in New York certain records may be “sealed”, meaning that the records will only be available in limited situations that are explicitly authorized by law.
What makes the DCJS record infamous is that it is the only record that will contain records that have been “sealed”. There are some situations where the DCJS is authorized to release what is called an “unsuppressed” record (meaning it contains everything, including things that have been sealed) and other situations where DCJS is authorized to release what is called a “suppressed” record (meaning it only contains things that have not have not been sealed).[3]
An individual always has the right to request their own unsuppressed DCJS record. The DCJS is also authorized by law to release unsuppressed records in the following situations (meaning these are the only situations where your sealed records can be viewed)[4]:
- A Court Order or Subpoena showing the information is needed in the interests of justice;
- When an individual is applying for employment with a law enforcement agency;
- When an individual is applying for a pistol permit in New York State;
- To any Court where an individual is currently being charged with a crime
The DCJS is authorized by law to release suppressed records in the following situations[5]:
- To any Court where an individual is currently being charged with a crime;
- To public employers (meaning police, fire, transit, corrections, education, sanitation, and postal service);
- To employers that are child care agencies
- To employers that are hospitals and other health care agencies
- To employers that are financial institutions such as banks and brokerage houses
- To employers that are schools or those that contract to hire school bus drivers
One last thing to know about DCJS records is that the only way the DCJS can release your records to a court, agency, or employer is if you are fingerprinted.[6] Meaning you must be finger printed every time your DCJS records are requested. This allows an individual to always know when their records are being requested, and ensures that DCJS does not release the wrong record.
Courthouse Records
Whenever you are arrested you eventually end up in a court and your case is assigned a case number or docket number. Your case information is then filed at the courthouse, and is public information. Your court files will include information about your arrest, any legal documents submitted by you or your attorney, and information regarding how your case was resolved (by plea, conviction, acquittal, dismissal, or ACD). Anyone can access your court files after your case is resolved unless your case is sealed. Cases relating to records that are sealed can only be released by a judicial order or subpoena. In order for an individual or an agency to gain access to these types of court files that are not sealed they would need to know the court you appeared in for that particular case.
Office of Court Administration Criminal History Records
The New York Office of Court Administration provides public access to criminal records for convictions and arrests that occurred in New York State. For a fee an individual, agency, or private company can search convictions and open/pending criminal cases originating from County/Supreme, City, Town and Village courts of all 62 counties in New York. The only information that is needed to search someone’s criminal history under this method is their exact name and date of birth.[7]
An Office of Court Administration criminal history search will reveal pending charges, misdemeanor convictions, felony convictions, and arrests that resulted in a conviction. An Office of Court Administration criminal history search will never reveal records that have been sealed. Furthermore, if an individual has only one misdemeanor conviction on their record and nothing else, and the conviction is more than ten (10) years old, then the conviction and arrest will not show up.[8]
FBI Criminal Record
Anytime you are fingerprinted and arrested in New York or any other state/territory of the United States a record of your arrest, charges, and eventual resolution (whether it be conviction, plea of guilty, dismissal, or acquittal) is sent to the FBI which maintains a federal criminal history database. The FBI criminal history record in New York will be attached to your DCJS record. Thus any entity listed above that is authorized to receive your DCJS record will also see your FBI criminal record.[9] Records in New York that are sealed will not show up in an FBI criminal record.
What Does It Mean When Information Is “Sealed”?
As mentioned above, New York does not expunge or remove information from an individual’s criminal record and as a result there will always be an unsuppressed version of your criminal record that is held by the Department of Criminal Justice Services (“DCJS”). However, certain records can be “sealed”, meaning that they cannot be seen on your criminal history when it is requested by an agency or employer. Some records are automatically sealed, while others require judicial action to seal them.
First let’s begin with records that are automatically sealed. Any arrest that did not result in a plea of guilty to; or conviction of a crime will be automatically sealed. This includes cases where[10]:
- An individual was found not guilty at trial;
- The judge dismissed the charges;
- After the arrest the prosecutor or police decided not to file charges;
- An individual entered a plea of guilty to; or was convicted of a violation such as traffic tickets, unlawful possession of marijuana, or driving while ability impaired (“DWAI”);
- The charges were adjourned in contemplation of dismissal (“ACD”);
In New York there is also a legal mechanism available to individuals who are age 18 or younger, are accused of a crime (meaning a misdemeanor of felony), and enter a plea of guilty; or are found guilty. This mechanism is called a youthful offender adjudication or “Y/O”. A youthful offender adjudication is not a conviction, even though to receive a “Y/O” an individual needs to essentially be convicted or enter a plea of guilty. If a criminal charge has been designated a youthful offender adjudication it is sealed. For a first time misdemeanor conviction a youthful offender adjudication happens automatically, but for any criminal charge after that it is left up to a judge to decide.[11]
Under New York State’s Criminal Procedure Law and Human Rights Law, it is illegal for government agencies or employers to ask individuals to disclose sealed records, or events related to sealed records. The only exception to this is if an individual is applying for a pistol permit, or to be a member of law enforcement such as a police officer. Therefore, should you encounter an application asking if you were arrested, or asking you to disclose sealed records, you need not disclose any facts surrounding either sealed records, or arrests that did not result in a conviction.
Can a DWAI Be “Sealed”?
If a current or prospective employer is a law enforcement agency, it will not be sealed. Any other employer will not see it when they run a background criminal history check.
However, if any employer runs the person’s drivers abstract (DMV history) the suspension for the DWAI will show up so the employer will know about it.
So if the person is asked on employment application “have you been convicted of crime,” they can answer no, and if employer does background check (as long as not law enforcement agency) the DWAI won’t show up. But, if the employer asks for drivers license to run drivers abstract, a record of the DWAI will show because of the license suspension history.
The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for DWI Team Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.
[1] http://www2.nycbar.org/pdf/report/Labor_reentry_pamphlet_employees09.pdf
[2] http://www.bronxdefenders.org/records-of-arrest-and-prosecution/
[3] http://www.criminaljustice.ny.gov/ojis/documents/FAQs-CHRI-Access.pdf
[4] Id.; See also New York Human Rights Law §296
[5] http://lac.org/wp-content/uploads/2014/12/Your_New_York_State_Rap_Sheet_2013.pdf
[6] http://www.bronxdefenders.org/records-of-arrest-and-prosecution/
[7] https://www.nycourts.gov/apps/chrs/
[8] https://www.nycourts.gov/apps/chrs/
[9]http://www.bronxdefenders.org/records-of-arrest-and-prosecution/
[10] See New York Criminal Procedure Law Sections 160.50, 160.55, and 160.58
[11] http://www.bronxdefenders.org/records-of-arrest-and-prosecution/
