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Photo by Jane Smith
Photo by Jane Smith
A new law passed in New York allows some to have their criminal records sealed.

Queens resident Jane Smith* got in trouble with the law while in high school, and the episode ultimately altered the course of her life. Now, she’s hoping a new state law will help set her back on track.

Approximately 15 years ago, Smith was at a local bar when she attempted to sell drugs as “a favor for a friend.” She was charged with a felony and served a 30-day jail sentence. (* Editor’s note: The woman’s real name has been changed to protect her identity.)

“I was young,” she said. “I wasn’t really hanging out with the right people and I certainly made a mistake, which backfired pretty seriously on me.”

Soon after, Smith attended college and was deciding between becoming a nurse or a teacher. But she quickly found out that her felony charge would bar her from pursuing those careers.

“At that juncture I started to think about what I really want to be,” she said. “I started to disclose the fact that I had a felony and everyone in the teaching department said, ‘I really don’t think this is an appropriate field for you.’ Every single person with authority that I asked if teaching or nursing was for me, they said, ‘Don’t even bother.’”

Unlike other states, New York made it impossible for those convicted of a felony to seal or expunge their records. A criminal conviction would remained on a person’s record for life and would appear on civil background checks.

Rick Collins, a founding partner at Collins Gann McCloskey & Barry, has worked for more than a decade to change New York state law to enable “people to have a shot at redemption.”

Collins worked as both an assistant district attorney in the Nassau County’s District Attorney’s office and criminal defense before opening a private firm.

Working in both sides of the courtroom gave Collins a different perspective, he said.

“Particularly working as a criminal defense lawyer, I began to see that the justice system really has eternal effects on people’s lives and the absence of some mechanism to expunge or seal something that happened many years before,” Collins said. “In addition to potential prison or jail fines, restitution, probation, forfeiture of assets, there are collateral consequences involving the ability to get employment, housing, education, loans and all the other things that so many of us take for granted in our lives.”

Smith, who ultimately graduated with a degree in psychology and sociology, organizes children’s parties. She said every aspect of her life was affected by the sentence.

“The judgement was immediate,” she said. “Getting a career, self-esteem was affected. I had trouble for a little while getting in relationships. I was petty, numb. I was an emotional wreck. I couldn’t really get it together and see a serious future for myself from that point on.”

Smith said she missed out on job opportunities offered by friends because she feared disclosing her record and being treated differently because of it. Just walking into a job interview made her nervous because Smith knew she had to eventually disclose her felony.

“You’re worth as much as your felony is,” she said. “You sold drugs? That means you’re forever a drug dealer and a loser. The worst part is your self-esteem is destroyed, the way you are speaking [in the interview] is affected, the way you’re thinking is affected.”

Collins said cases like this are what made him fight for so long to pass Criminal Procedural Law Section 160.59, a “groundbreaking change” that allows certain people convicted of non-violent crimes 10 or more years ago to seal their records.

He was appointed by the chair of the New York State Bar Association’s Criminal Justice section to co-chair a committee to look into New York’s position on sealing criminal records. The committee found that New York was “behind the times” and that many states in the country had passed legislation to either seal or expunge their records.

Though the committee recommended changes to New York state law in 2011, the change in criminal procedure law was not put into effect until October 2017.

“Changing a law or getting a law passed is not easy these days,” Collins said. “Politics has become very partisan and in some ways dysfunctional and it’s hard to get things done. It took a lot of effort on the part of many people involved in this issue.”

The law has the potential to help thousands of New Yorkers, Collins said, though some people believe it does not go far enough and others think it goes too far.

“For those people, nobody ever deserves a second chance in life,” he said. “I disagree with that and I think that our system of justice and our country embraces the possibility of redemption and that people should have a chance at being part of the social fabric even if they made a mistake.”

The law outlines specifically who can benefit from it predatory criminals, sex offenders, violent criminals or career criminals are not eligible to have their records sealed. The law also requires a 10-year waiting period from the time of the last conviction and the person cannot have a criminal conviction during those 10 years.

It is also limited to a person with one felony conviction, a felony and one misdemeanor conviction or two misdemeanors.

“This isn’t a situation where a person gets convicted on Monday and tries to get their record cleared on Tuesday,” he said.

It’s not a perfect law, Collins argued, as certain crimes can still show up on Google searches and in local papers. But he said when he looks back on the high points of his career, this is “one of the most gratifying things for me as a lawyer.”

Since the law has passed, Collins has received calls from people all across the state who want to take advantage of it. A man had a conviction dating back to the 1970s and although he was retired, wanted to seal his record “for his own piece of mind.”

“He had no contact with the criminal justice system for all the decades since but he told me that that conviction has been a weight around his neck for all these years … it was something he needed to do before he died,” Collins said.

Another woman who had a drunk driving conviction in 2005 “broke down on the phone and cried” as she told Collins her story.

Smith’s mother read about the new law in a newspaper article and when she told her daughter, Smith said she didn’t believe her.

“When she told me that there was a process for a sealing, I looked at her like she had 10 heads [and said] the state of New York is never going to do that,” Smith said. “I lost hope. I didn’t think New York was ever going to allow this as a possibility.”

Smith provided a judge with an application, which included several letters from community members, friends and family to prove that she has been an asset to society since her conviction.

The Queens District Attorney’s office will then make a determination and send it to a sentencing judge, who will make the final verdict. The judge can then hold another hearing on whether her conviction should be sealed or not, as a safeguard.

“There’s something that needs to be said about this whole situation,” Smith said. “The aspect of hope. When you’re young and hopeful and make some kind of error in judgement and then you discover that it changed the rest of your life, you become hopeless and there’s not a lot of resolve when things are so much more black and white. It’s going to be one of every million people [with a conviction] who are going to be successful. We have to fight harder than every person to get mediocre [success].”

But Smith said the passage of the law has provided her with hope and a reason to pursue her first passion: teaching elementary school.

“I want a career. I want a life and acknowledge that what happened happened and it’s time to accept it and move forward,” she said. “We served our time, cried the tears, apologized as many times as one person can apologize and acknowledged the mistake. I got to believe that other people don’t want us to apologize anymore either.”

Collins said Smith’s particular case can take four to eight months to process and that his firm has taken on 50 or more cases like this since the law passed. He expects the waiting period to become longer as more New Yorkers find out about this opportunity.

“I think it’s time for the courts to kind of catch up,” Smith said. “I understand that there are serious issues murder, rape, big, serious problems. Getting in trouble when you’re a kid or adult should not allow for an entire life of misery and torture.”


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