An applicant moves to seal his conviction pursuant to C.P.L. § 160.59. The prosecution opposes.

Criminal Procedure Law § 160.59 allows a court to seal certain New York state criminal convictions. (C.P.L. § 160.59[1][a]). The conviction at issue here—a class A misdemeanor, endangering the welfare of a child, (P.L. § 260.10)—is eligible. (See id.).

When a person moves to seal an eligible conviction, the court must engage in a two-step analysis. First, the court must determine whether the application meets one of several listed criteria that requires summary denial. (C.P.L. § 160.59[3]). If it does not, then second, the court must "conduct a hearing on the application in order to consider any evidence offered by either party" that would "aid" in the court's decision of "whether to seal the records." (C.P.L. § 160.59[6]). The statute only dispenses with the hearing requirement if the prosecution does not oppose the application. (Id.).

Subdivision three of C.P.L. § 160.59 provides the criteria that require a court to summarily deny a sealing application, even if the offense is eligible for sealing. The court must deny an application when:

(a) the defendant is required to register as a sex offender pursuant to article six-C of the correction law; or

(b) the defendant has previously obtained sealing of the maximum number of convictions allowable under section 160.58 of the criminal procedure law; or

(c) the defendant has previously obtained sealing of the maximum number of convictions allowable under subdivision four of this section; or

(d) the time period specified in subdivision five of this section has not yet been satisfied; or

(e) the defendant has an undisposed arrest or charge pending; or

(f) the defendant was convicted of any crime after the date of the entry of judgment of the last conviction for which sealing is sought; or

(g) the defendant has failed to provide the court with the required sworn statement of the reasons why the court should grant the relief requested; or

(h) the defendant has been convicted of two or more felonies or more than two crimes.

(C.P.L. § 160.59[3]). The prosecution points to two of these criteria to argue that the application must be summarily denied. First, the prosecution argues that the applicant failed to provide the court with the required sworn statement of the reasons why it should grant relief. (C.P.L. § 160.59[3][g]). Second, the prosecution argues that the requisite time period since the applicant's conviction has not yet been satisfied. (C.P.L. § 160.59[3][d]). The court rejects both arguments.

First, the applicant provided a sworn statement of the reasons why the court should grant relief. Criminal Procedure Law § 160.59[2][b][v] requires that an application contain "a sworn statement of the reason or reasons why the court should, in its discretion, grant . . . sealing." On January 23, 2025, a couple of days after the prosecution's response, the applicant filed such an affidavit of reasons, which the court accepts. To reject the affidavit would be to "prematurely decide[] the motion and improperly den[y] defendant the opportunity to submit additional information." (See People v. Decker, 190 AD3d 1132 [3d Dep't 2021]). In any event, the applicant's attorney also provided his own statement of reasons, affirmed under penalty of perjury, alongside the initial filing.

Second, the requisite time period since the applicant's conviction has been satisfied. On November 18, 1998, the applicant pled guilty and was sentenced to a conditional discharge. He was ordered, as conditions of his sentence, to comply with an order of protection and complete a treatment program. According to the applicant, due to a miscommunication with his attorney at the time, he did not complete the program. On August 2, 1999, a judge issued an arrest warrant because of the applicant's non-compliance. However, the applicant had since moved to Canada. He did not learn of the warrant until recently, when he was stopped at the border between Canada and the United States. He retained another attorney, who on October 23, 2024, appeared in Queens Criminal Court and explained the situation. The presiding judge vacated the warrant and resentenced the applicant to "time served."

The sole question left at this first stage of the sealing application is what date constitutes the date of the applicant's "sentence." The sealing statute requires that the court summarily deny the application where "ten years" have not yet "passed since the imposition of the sentence on the defendant's latest conviction." (C.P.L. § 160.59[5], see also C.P.L. § 160.59[3][d]). The defense argues that the original sentence imposed on November 18, 1999, is the "sentence" relevant for this analysis. The prosecution argues that the "resentence" on October 23, 2024, is controlling. In their view, the applicant's original sentence was "never discharged," and so the resentence thereafter became the "sentence" when a judge "revoked [the] earlier conditional discharge[] and sentenced him to time served."

The court is persuaded that November 18, 1999, was the date of the "sentence" in this case. In any matter of statutory interpretation, "the starting point" must be "the language" of the statute itself, "giving effect to the plain meaning thereof." (People v. Thomas, 33 NY3d 1, 5-6 [2019] [internal quotation marks omitted]). "Critically, a statute must be construed as a whole and its various sections must be considered together and with reference to each other." (Id. at 6 [internal quotation marks omitted]). The criminal procedure law is no exception, and its [*2]provisions "expressly distinguish a 'sentence' from a 'resentence.'" (Id. at 7 [reviewing C.P.L. § 450.30[3] as an example]). "[H]ad the legislature intended a 'resentence' to be synonymous with a 'sentence' . . . , it was aware—as demonstrated by the text of CPL 450.30[3]—how to make this directive explicit." (See id. [making the same point about the predicate felony sentencing statute]). Nevertheless, the legislature did not do so in C.P.L. § 160.59.

Furthermore, the prosecution's argument—that revoking a conditional discharge imposes a new "sentence" as understood by the criminal procedure law—contradicts case law from the Court of Appeals. (See People v. Thompson, 26 NY3d 678 [2016]). In the parallel context of probation revocations, the High Court has concluded that "to revoke a penalty of probation does not equate to annulling a sentence." (Id. at 687). "[P]unishment imposed upon the revocation of a period of probation" is best characterized "as a resentence," and a "resentence" is not defined as a "sentence" anywhere in the criminal procedure law. (See id.). "The CPL . . . directs that the sentence imposed as part of the final judgment is the original sentence imposed on the conviction, not a resentence." (Thomas, 33 NY3d at 7; C.P.L. § 450.30[3] ["[T]he judgment consists of the conviction and the original sentence only."]). The prosecution's argument that the applicant's original sentence was ineffective because it was "never discharged" also contradicts the criminal procedure law's definitions. "'Sentence' means the imposition and entry of sentence upon a conviction"—not its completion. (C.P.L. § 1.20[14] [emphases added]; see also C.P.L. § 1.20[15] ["A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence."]).).

In both cases referenced here, Thompson and Thomas, the Court of Appeals appropriately construed the criminal procedure law and penal law each "as a whole," reading their "various sections together and with reference to each other." (Thomas, 33 NY3d at 5-6; see Thompson, 26 NY3d at 685). There is no reason to do anything differently now. There is no text in C.P.L. § 160.59 suggesting that the word "sentence" should mean anything different than its usage elsewhere in the criminal procedure law (or in the penal law, see Thomas, 33 NY3d at 7 [noting that the two statutes are "related"]). Therefore, just as with the predicate sentencing statutes at issue in those cases, "the original sentence controls for determining eligibility under the look-back period" in C.P.L. § 160.59. (See Thompson, 26 NY3d at 682).^[FN1]

In sum, there is no reason to summarily deny the application without a hearing. The court will "conduct a hearing on the application in order to consider any evidence offered by either party that would aid" the decision of "whether to seal the records of the defendant's conviction[]." (See C.P.L. § 160.59[6]).