Does an Expunged Case Still Show Up on a Background Check in New York?

Getting arrested or convicted of a crime can have lasting consequences that make it hard to get a job, rent an apartment, or go about your daily life. Many people hope that expunging or sealing their criminal record will give them a clean slate and let them move on with their lives. But does an expunged case really disappear from background checks in New York? Let’s take a closer look.

New York Doesn’t Allow Record Expungement

First, it’s important to understand that New York does not allow true criminal record expungement, except for some minor marijuana offenses [1]. Expungement is the process of completely erasing an arrest or conviction from someone’s record. New York state law does not provide any way for people to expunge felonies or misdemeanors, other than some marijuana convictions [1].

Instead, New York uses a process called “sealing” to limit access to criminal records. Sealing hides a case from public view but does not destroy the record. Law enforcement agencies can still access sealed records in some circumstances.

New York’s Sealing Process

New York has three main options for sealing criminal records [1]:

• Cases that result in acquittal, dismissal, or certain marijuana offenses can be sealed immediately.
• Cases resolved with an adjournment in contemplation of dismissal (ACD) can be sealed after 6 months or 1 year.
• Older convictions meeting certain criteria can be sealed after 10 years of staying crime-free.

To get a case sealed under any of these options, you must submit paperwork and a sealing application to the appropriate court. Sealing is not automatic.

What Sealing Means for Background Checks

Once a case is sealed in New York, it will no longer show up in background checks conducted by most private companies, which rely on public government records [4]. Sealed cases also won’t appear in most employment or tenant screening checks.

However, the records will still be available to certain government agencies, including [6]:

• The court system
• Law enforcement agencies
• District attorney offices
• Agencies reviewing applications for firearms licenses

So while sealing limits access to your criminal record, it does not make the case disappear completely. Sealed offenses can still be seen by some government entities and used against you in future criminal cases.

Should You Disclose a Sealed Offense?

Many job and housing applications ask if you have ever been convicted of a crime. Legally, you can answer “no” if the case has been sealed, since the sealed records are meant to be treated as confidential [6].

However, it’s wise to think carefully before deciding whether to disclose a sealed case. Lying on an application can backfire and cost you the job or housing if the sealed case later comes to light. Some experts recommend disclosing sealed offenses when asked on applications, especially if the offense is directly relevant to the position.

Seeking an Expungement in Another State

Some New Yorkers with criminal records try to get their cases expunged by applying to another state that does allow record expungement. For example, Pennsylvania allows expungement of some out-of-state convictions after 10 crime-free years .

While this strategy sometimes works, there are a few issues to keep in mind:

• The other state may only expunge convictions from that state, not other jurisdictions.
• You may need to meet residency requirements in the expunging state.
• Not all states with expungement allow out-of-state expungements.
• An out-of-state expungement may not be recognized by New York employers.

So getting an out-of-state expungement can provide some benefit, but does not guarantee your New York conviction will disappear from all records and background checks.

New York Is Expanding Sealing Access

The good news is that New York is starting to expand access to record sealing through new laws like the Clean Slate Act [2]. This law, which takes effect in 2024, will allow people to petition to seal up to two convictions after 3-7 crime-free years. The records will be automatically sealed if the person remains conviction-free.

So while full expungement is still not an option in New York, sealing laws are improving. With less serious and older offenses, you stand a good chance of keeping your record off most background checks through the sealing process. Consulting with a criminal defense lawyer can help you understand your options.