Will this go on my permanent record?

One of the biggest questions clients have about their case is, “Will this go on my permanent record?”

Short Answer:

  • Unless your case resolves in a criminal conviction, the records of your arrest should be sealed;
  • Make sure to obtain a certificate of disposition at the end of your case so that you are certain to know how your case will be recorded;
  • Make sure that you understand how your case will be recorded before you agree to any plea agreement or other disposition in your case.

Longer Answer full of exceptions and technicalities:

When an individual is charged with a crime in New York State, the arresting agency will enter the data from that arrest into the New York State Division of Criminal Justice Services (DCJS) Database.  In turn, DCJS will share those records with the Federal Bureau of Investigation who will retain those records in their own Criminal History databank.  Finally, once the charges are filed with a Court, a record of that case will remain public while the case is pending.

As a result, there are multiple sources from which your criminal history can be obtained: The Police Department, The State, The FBI, and the Local Court.  A recent study revealed that over 70% of employers conduct criminal history background checks.  Another study estimates however, that over 70% of all criminal history reports contain incorrect or improper records.
Your record is important, in New York State in particular, where criminal convictions cannot be expunged after the fact, to be careful about your “permanent record”.   Employment applications, professional license applications, even rental applications often ask if we have ever been convicted of a crime.  If you answer “yes,” your application may be denied, or at the very least a further inquiry may be necessary.
This is particularly important for young people who are still in the process of figuring out what they want to be when they grow up.  A criminal conviction may limit their choices.  From Police Officer and Bank Tellers to Nurses and Engineers, a criminal conviction may preclude a number of career paths.
Here’s the good news: most first arrests do not result in a criminal conviction. That means there should be nothing on your record from your arrest.  The bad news: a recent study shows that many Courts and law enforcement agencies do not follow the proper procedures for sealing records, and no one can seal news accounts of your arrest on the internet.
The law provides for the sealing of any criminal case which was resolved in favor of the defendant.  In general, if you are acquitted of all charges, the police records and court file from your case should be sealed under Criminal Procedure Law §160.50.  As a result, there will be no “official record” of the case.
The Criminal Procedure Law goes a step further, making it clear that any time a case is disposed of in favor of the defendant, the arrest and prosecution of that individual is considered a “legal nullity”.  In other words, in the eyes of the law, it never happened.  This protection also applies to cases dismissed following an Adjournment in Contemplation of Dismissal pursuant to Criminal Procedure Law §170.55.
Curiously, a normally liberal United States District Court Judge in New York City recently issued a decision which justified an employer’s denial of employment upon an applicant’s voluntary disclosure of an Adjournment in Contemplation of Dismissal.  The Court in that case compared an ACD to a Judicial Diversion program and determined that under the applicable federal regulations, the employer maintained a right to deny employment.  The defendant in that case was barred from employment by a bank after she disclosed her ACD.
Ironically, had the applicant in that case chosen not to disclose her ACD, it seems quite likely that she would have had not difficulty from her record.  She disclosed this ACD despite the fact that it was deemed a legal nullity under the law, and suffered for her honesty.  Then again, she should have known that she had no obligation to disclose her prior case, and perhaps you could call her foolish to have disclosed it.
There are also provisions that require destruction of police records, booking photos and fingerprints even when the case did not result in an acquittal. For reasons explained later, this protection is not airtight, because it does not apply to the Court’s file.

Criminal Procedure Law 160.55.

Many cases we handle are resolved with a “non-criminal” disposition.  In those cases, we obtain a reduction of the criminal charges to a violation or infraction, which in most cases will mean that the records of our client’s arrest and case will be sealed.  While this means that the client was found guilty of a violation or infraction of the law, the record of it will not be public information and under the law.

The New York Criminal Procedure Law § 160.55 requires that records related to cases which result in a convictions of a violation, like Disorderly Conduct,  or traffic infractions, are either returned to the person, destroyed, or sealed.  As always, this article is meant to be informative, but not a substitute for the advice of experienced attorney.

This sealing provision does not apply to loitering violations under Penal Law (PL) §240.35,  loitering for prostitution violations under PL §240.37, or DWAI violations under Vehicle and Traffic Law (VTL) §1192(1).  A Prosecutor may also require that the defendant agree to “waive” the sealing of the case and his conviction as a part of a plea bargain. CPL §160.55(1).

When a case is resolved by a conviction for nearly any other violation or infraction, the clerk of the is required to send a notice to the Commissioner of the Division of Criminal Justice Services and the arresting agency or police department.  That notice requires those agencies to destroy any record of your arrest or the resulting conviction.
More specifically, the agencies are required to destroy:
“every photograph of such person .  .  .  and palmprints and fingerprints taken or made of such person  .  .  .  in regard to the proceeding terminated, and all duplicates and copies thereof [with certain exceptions discussed below]  .  .  .  shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination  .  .  .  .”  CPL 160.55(1)(a).

A Loophole, Closed.
Keep mind that this sealing provision applies to law enforcement and the Division of Criminal Justice Services, not the Court.  The Court file itself will remain a public record under Judiciary Law §255.  That means that the Court’s records, which may only contain limited information, will remain subject to public disclosure.  Because the Office of Court Administration also maintains digital records for some but not all of the Courts in New York State, those records may be accessible through a request submitted to the Office of Court Administration.
It has been reported that the Office of Court Administration sells access to its data to private search companies.  It is not clear what the source of this report was, and a general internet search yielded no clear answers.  The significance of this? If the Courts sell data of a pending case that is subsequently resolved in favor of the defendant, what would prevent a private data access vendor from retaining the records it has of the case in its system.
Recently, the Office of Court Administration changed its policies and will no longer report any cases that were resolved by a violation. The Court Offices have determined that because these matters are not criminal convictions, OCA will not disclose them.  This appears to be related to a recent decision in which a defendant whose prior arrest records had been retained by a Police Department despite the fact that those prior arrests were resolved with non-criminal disposition.  An Appellate Court found that the defendant has a private right of action against the Police agency as a result of its failure to seal and/or destroy records in compliance with the law.
It should be noted that the Office of Court Administration does not retain criminal case records for many Town and Village Courts, so if your case was resolved in one of those courts, OCA will not have any record of the case to begin with.  Records from those Courts will normally remain accessible by making a request directly to the Court.
For more thorough background investigations, such as those performed by Federal Agencies, inquiries are often submitted directly to the Town Court and Police Agency around your current and past residences.  This process is far more time consuming and is uncommon unless the investigation is being completed to provide some level of security clearance.
In any event, if a defendant recieved a disposition in his favor, or the case is resolved by a plea to a violation, then it is clear that the client does not have to disclose his or her arrest (or conviction) as a conviction on a job application. Employers are prohibited, with some notable exceptions, from making a decision based upon an arrest in an applicant’s background.

Human Rights Law §296(16).
While New York State Law prohibits employers state agencies or companies   to use such records in connection with any application for employment, credit, licensing or insurance, it is common for court clerks to receive inquiries from companies conducting background investigations.  The Federal Government is exempt from this provision, by virtue of the Supremacy Clause of the United States Constitution.  As a result, if you apply for a position for which a security clearance of any kind is required, it is quite possible that the hiring agency will recover some records of your arrest.
Vehicle and Traffic Law
As stated above, the sealing provisions for a violation of 1192(1) is not subject to sealing and a conviction for Driving While Ability Impaired will remain on a defendant’s criminal history.   The DMV will also retain a record of such a conviction, and it is worth noting that the sealing provisions referenced above do not apply to DMV records.  That means that even if a case does not appear on your Criminal History, it may still appear on your Driving Record.
Regional and Local Databases
In the spirit of collaboration and efficiency, many local law enforcement agencies participate in a collective effort to maintain and preserve arrest records in Regional and Local Databases.  For example, in Erie County, Central Police Services maintains a Repository for Integrated Criminalistic Imaging (RICI) that serves as a communal repository for all arrests in Erie County.  While the main purpose of this system is to facilitate the filing of records with DCJS, this Database may not be updated once the case is disposed of, in part because the Courts and District Attorney’s Office do not participate in data entry in this system.
Some agencies have made it a practice to disclose the information contained in this repository to Courts and Prosecutors.  In many local courts, the arresting officer may place a number of documents in the Court file, including the results of a query with RICI.  If those records reflect arrests resolved in favor of the defendant or with a plea to a violation, this practice may violate State Law.  In light of recent case law, a law enforcement agency may be held liable for such a disclosure.
To be clear, you should focus on the defense of your case before pursuing any civil remedies against the Police or Prosecutor.
For that reason, your attorney may request a copy of all the documents in the Court’s file.  Under Judiciary Law §255, the file is public information, and your attorney (or anyone) is entitled to review its contents.
Local agencies also utilize Computerized History and Records Management System (CHARMS) to manage and record 911 calls and dispatch records.  Its primary use is to coordinate response by local agencies, however the system maintains records of these calls and radio dispatch records. Once again, it is not clear what steps are taken to seal records in this system after a case is disposed.

Best Practices

If you are in the process of obtaining employment or completing an application that inquires about your criminal record, and you have had prior cases in Courts in New York State, you may want to obtain a copy of your criminal record from New York State before completing the application.  In some cases, the results of your prior cases may not have been properly recorded, and by taking the pro active step to review your record before submitting that application may be worth it.

After you obtain a copy of your record, if there are arrests or convictions on your history that you question, you may want to consult an attorney to see if any steps can be taken to clean your record up.

To obtain a copy of your criminal history from the New York State Division of Criminal Justice Services: http://www.criminaljustice.ny.gov/ojis/recordreview.htm.

To obtain a copy of your Court cases from the Office of Court Administration: https://www.nycourts.gov/apps/chrs/faqs.shtml#faqfunction.

To obtain a copy of your FBI criminal history summary:  http://www.fbi.gov/about-us/cjis/criminal-history-summary-checks
Finally, before you close the book on any case where you were charged with a crime, follow up with your attorney after your final Court appearance to make sure that you understand what records will remain public.  In some cases, your attorney may send a letter to the Court asking for verification that the Clerk issued the notices referenced above. This will ensure that your records are sealed in accordance with the law.

In any event, it is a good idea to obtain a certificate of disposition from a Court any time you are charged with an offense in a State Court.  This certificate should show the recorded results of your case and will serve as proof that the matter is resolved.  Some employers, such as health care providers and the military, may overlook past convictions, but may still want verification that any cases against you have been resolved.
The Internet
Law Enforcement agencies frequently issue press releases or provide access of their records to the media.  As a result, your arrest may be reported by the media.   These reports are often preserved on the internet and a simple search engine query may yield results which include these reports.  While the media is under no obligation to delete or redact these reports, if your case is resolved in your favor, your attorney may send the media a request to remove the information from its website.
That request will likely make it clear that the information at issue will have a detrimental impact on your ability to obtain employment in the future and will further cause you unwarranted embarrassment, in light of the disposition of your case.  Unfortunately, unless there is some indication that the information at issue is just plain false, there is little recourse available if the media outlet refuses to comply.

Bottom Line:

You have no obligation to disclose anything other than a Criminal Conviction.   You are entitled to deny any conviction for a violation or infraction. You should not be asked, nor should you disclose any arrests in your past.  You are only legally obligated to disclose a Criminal Conviction.

As with anything you read on the internet, the information contained in this article is not a substitute for the advise of an experienced attorney.

James Quinn Auricchio, Esq., is an Attorney with Offices in Western New York.  He is a former Assistant United States Attorney and Assistant District attorney. His practice focuses on the defense of people and business accused of criminal conduct in Local, State and Federal Court.

Please call (716)941-4336 to see if he can help you.