Gotham Gazette

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When Conviction Records Can Be Sealed

When Andrew Alexander turned 17 on January 3, 2006, the Queens high school senior did not expect that he would be arrested later that day. And he definitely did not expect that his arrest would ultimately bring about a change in New York's procedures for making information about convictions public. But a policy change resulting from Andrew Alexander's birthday arrest, conviction and subsequent lawsuit will affect thousands of defendants in New York City Criminal Court every year.

Alexander was charged with criminal mischief, creating graffiti and possessing graffiti instruments (paint), all misdemeanors. After negotiations, he pled guilty in Queens Criminal Court to disorderly conduct. This was a typical "plea bargain," where a defendant, who has committed a simple misdemeanor and has had little or no prior contact with the criminal justice system, admits guilt and does not go to trial. Alexander’s sentence, a conditional discharge, required him to do community service and avoid being arrested for at least one year.

Disorderly conduct, or "discon," which is used to cover a multitude of acts, is a violation, or an offense, rather than a crime and does not result in a criminal record.

One year later, Alexander applied for a job as a cashier at Sears. The application asked, "Have you been convicted of a crime within the last seven (7) years?"

Alexander answered, "No." He believed that was truthful. When he pled guilty to disorderly conduct, he was advised that the offense was a violation, not a crime, and that he would not have a record of a criminal conviction.

Sears retained USIS, a private screening and background search company, to investigate applicants. As part of its investigation of Alexander, USIS contacted the New York State Office of Court Administration and, providing Alexander's name and date of birth, requested his criminal history, if any.

The next day, for a fee of $52.00, the office emailed USIS "Criminal History Search Results," and disclosed that Alexander had been charged with the three graffiti-related misdemeanors and pled guilty to the violation of disorderly conduct.

Based upon this information, Sears rejected Alexander's job application.

Alexander sued the Office of Court Administration and Jonathan Lippman, who was then chief administrative judge, claiming that his rights had been violated since findings or pleas of guilt to violations are supposed to remain sealed. The lawsuit was brought by Stuart Lichten of the Manhattan firm of Schwartz, Lichten and Bright. The suit was based on criminal procedure law, which provides that, when someone is convicted of disorderly conduct or another violation, no statewide search by the Office of Court Administration of electronic records can be disseminated to the public. A person who is convicted, by plea or trial, of a violation is entitled to have the record sealed and fingerprints and any photographs returned. Disorderly conduct is a "non-printable" charge for which fingerprints are not required.

The state took the position that, while Alexander was entitled to the return of fingerprints and "mug shots," sealing did not apply. The counsel for the Office of Court Administration, Michael Colodner, argued that the sealing does not apply to court records, but only to records of arrest and prosecution in the files of the Division of Criminal Justice, police agencies and prosecutors' offices. He further argued that paper (i.e. non-electronic) records kept in the courts also did not have to be sealed.

The dispute arose at least partly because the original charges against Alexander were misdemeanors. As a result, the records of the violation also went along into the state system. But according to Lichten, the release of the information violated his client's rights to sealing. That is, the search made available to USIS should not have included anything about the violation; any reference should have been deleted.

Under the Criminal Procedure Law that governs the confidentiality of records, where the criminal action ends in a violation conviction, the Office of Court Administration is not permitted to disseminate to the public, statewide records kept electronically. A person who is convicted is entitled to have that statewide record kept confidential. However, the actual paper records kept in New York City Criminal Court are not sealed, and the public does have access to the physical record in the clerk's office. The intended balance is that there is a public record in the office of the Clerk of the Criminal Court, but not in the statewide database made available to investigators for a fee.

As a result of the suit, the Office of Court Administration agreed to change its policy on disseminating information. If that agreement -- which is not formally written -- is violated, the lawsuit can be reopened. Justice Joan A. Madden of New York State Supreme Court issued an order discontinuing the lawsuit "based on the office’s agreement to change its policy."

A separate lawsuit brought against Sears has also been settled, but due to a confidentiality agreement the terms are not known.

Emily Jane Goodman is a New York State Supreme Court Justice 

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