Photo: DenisLarkin

As New York phases in a new law to raise the age at which someone is treated as an adult in the criminal justice system, a state lawmaker is planning legislation that would build on that program by expanding who would be eligible to have their records sealed under the statute.

The bill, set to be introduced by Assemblywoman Aravella Simotas, D-Queens, would broaden a provision of the so-called “Raise the Age” law by allowing people to apply for their records to be sealed if they were eligible to be treated as a youthful offender in the past, but were denied that status.

“Expanding eligibility for conviction sealing will give people who committed crimes in their youth the chance to become full members of society in adulthood,” Simotas said. “If someone has stayed out of trouble for ten years, I think they should be granted the chance to move beyond the burden of a criminal record.”

Youthful offender status has been available to defendants as young as 16 years old but younger than 19 years old in New York since 1971, when the Legislature passed a bill creating the classification. Certain violent or serious crimes may prevent that person from being classified as a youthful offender.

That status is determined at sentencing and carries certain benefits. If someone is classified as a youthful offender, their records are automatically sealed and the action isn’t included on their criminal record—meaning it isn’t considered a conviction and won’t show up on a background check.

But being classified as a youthful offender is not guaranteed and is largely left up to the judge presiding over the case. A defendant could request to be treated as such and be denied based on the court’s discretion.

That was the case for an unnamed defendant whose story inspired Simotas to introduce the legislation.

Jane Doe, as she’s called, was arrested and indicted on a robbery charge in 1984 when she was 16 years old. She pleaded guilty to a lesser robbery charge, but the court denied her youthful offender treatment at sentencing. She was sentenced to five years probation.

Now, more than thirty years later, Doe moved the court to have her records sealed after she applied for a job thinking her criminal record was clean. She has not been convicted of any crimes since the robbery charge, which was considered a violent felony.

The request to have those records sealed was rejected by state Supreme Court Justice Joseph Zayas, who said he was constrained by state law because Doe was not granted youthful offender status at her sentencing. There is no section of the state law that would have allowed him to grant her request, Zayas said in the decision.

“The Court, regrettably, is constrained to deny the motion because, as the People correctly contend, defendant’s conviction of a violent felony offense makes her ineligible for sealing under the statute,” wrote Zayas, who is the administrative judge for the criminal term in Queens Supreme Court.

He called on the Legislature to amend the Raise the Age law to allow people who were eligible to receive youthful offender treatment in the past, but were denied that status, to apply to have their records sealed. That wouldn’t mean their records would be sealed automatically, but they would at least have the chance to make their case to the court.

“If the statute were amended as proposed, the Court would grant defendant’s motion without reservation,” Zayas wrote. “But, since the Court must, of course, decide the motion within the parameters of the current statute, it must, unfortunately, deny it.”

Doe did not qualify to have her record sealed because she had a violent felony conviction, which is not eligible to be sealed under the statute. If she had been adjudicated as a youthful offender at the time, that conviction would not exist on her record. That option was available to the judge, Zayas said.

He argued that the same option should be made available to her now, though through a different avenue. Raise the Age allows individuals convicted of nonviolent and misdemeanor crimes to have their records sealed after spending a decade crime-free. Sex offenders are not eligible.

That part of the law is intended to give individuals convicted of those crimes in their youth the chance to have a fresh start at some point in the future. While children convicted today will have to wait a decade to make that request, older offenders who meet the qualifications can ask for their records to be sealed now.

Some lawmakers in Albany have also discussed shortening that gap to give younger defendants more opportunities in the job market at an earlier age. Those discussions are ongoing.

The bill to be introduced by Simotas is intended for the same purpose. It would allow defendants who could have been eligible for youthful offender status at the time of their sentencing—regardless of when that was—to ask for the same treatment years later. They would have to follow the same rules as adolescent offenders to be eligible, including a clean criminal record for at least 10 years after their sentence was finished or imposed.

“Expanding eligibility for conviction sealing will give individuals like Jane Doe, who have made every effort to turn their lives around, the opportunities they deserve to move beyond the barrier of a criminal record,” Simotas is expected to write in a memo with the bill.

Simotas is expected to introduce the legislation this week.

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