Certificates of Relief from Disability & Certificates of Good Conduct

Why They Are So Important and How to Get Them

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Copyright ©The Bronx Defenders March 2007

Underlying Themes

• More than 6 million people in New York State have criminal records – about 1 in 3 • In 2005, almost 70% of adult arrests were for misdemeanors or violations – Only 8% for violent felonies • 87% of all convictions were for misdemeanors or violations in 2004

Underlying Themes

• More than 1 in 3 people arrested are never convicted of any crime or offense, yet still can suffer drastic consequences: – Widespread availability of criminal history data – 80% of large corporations perform background checks- up from 51% 8 years ago – Landlords increasingly run background checks that turn up arrest records

Laws Prohibiting Discrimination

• Arrests – New York State and New York City Human Rights Laws prohibit public or private employers from denying an individual a job because of an arrest that did not result in a conviction.

(Executive Law § 296(16)); (NYC Admin. Code § 8-107(11)) • Convictions – New York State and City Human Rights and Correction Laws prohibit an employer from having a blanket policy against hiring anyone with a criminal record.

(Executive Law § 296 (15) & (16); (NYC Admin. Code § 8 107(11)) and Correction Law his or her conviction unless: §§ 750-755) – It is illegal to deny an ex-offender a job or license because of Conviction “directly related” to job in question or Hiring the person would create an “unreasonable risk” to safety of people or property.

Convictions & Dispositions

• Charges & Convictions Felony – serious crime; carries one year or more in prison, no maximum sentence. Class A-E Misdemeanor – Less serious crime; carries up to 1year in jail or 3 years probation; Class A, B, Unclassified Violation – Non-criminal offense, maximum15 days in jail • Favorable Dispositions Dismissal / Decline Prosecution No True Bill Acquittal Adjournment in Contemplation of Dismissal (ACD) Vacating or Setting Aside Conviction

Youth & Criminal Records

• Juvenile Delinquent – Family court (youths under 16) – NOT a conviction • Sealed for civil purposes; can sometimes be seals for criminal justice purposes • Youthful Offender Adjudications – Adult criminal court (Age 16-19) – NOT a conviction; Sealed except for criminal justice • Juvenile Offender – Criminal Court (youth aged 16-19) – Considered a conviction; Not sealed

Criminal History Data

Types of Rap Sheets

Division of Criminal Justice Services (DCJS)

• Official repository of NYS criminal records; Fingerprint-Based • Who Has Access?

– Every individual entitled to own copy with complete information, including sealed records – Criminal Justice agencies have access to complete information, including sealed records – Other Government agencies have access to rap sheets

but not to sealed records

• Public Employers; Occupational Licensing Agencies; Child Care Agencies; Hospitals; Museums; Home Health Aid Agencies; Financial Institutions; School Bus Driving Companies.

How to Get a DCJS Rap Sheet

• If possible, ask the defense attorney who represented the client • File “Request for Record Review” with DCJS: New York Division of Criminal Justice Services: Record Review Unit 4 Tower Place Albany, New York 12203 Ph: (518) 485-7675 (include fingerprint card with request) • $50.00 fee- free if incarcerated for more than 45 days or if proof of indigency (Medicaid for Food Stamp Card) • DCJS sends a copy of rap sheet along with “Statement of Challenge” form

Office of Court Administration (OCA)

• “Criminal History Background Search” is based on name and date of birth • Reports always show “underlying charges” when client pleads guilty or is acquitted of some charges • Who has access?

– Anyone – publicly available for a fee of $52 – No need to obtain permission or release – Individuals not entitled to own free copy • Recent Policy Change – OCA CHRS no longer reports sealed non-criminal offenses

Credit Reporting Agencies (CRA)

• Criminal history reports based on information purchased in bulk from the Office of Court Administration (OCA) • Records of criminal convictions can remain on the report indefinitely • Who Has Access?

– Anyone – hundreds of companies produce slightly different reports, slightly different pricing • Covered by FCRA – Individuals may see a copy of a CRA used by employer to make a decision – May not report on sealed violations (often do )

Police Agencies

• Maintains their own criminal histories of all NYC arrests (electronic & paperwork) • The NYPD sells a “Good Conduct Certificate,” a history of NYC arrests.  Fee is $30  Not the same as a Certificate of Good Conduct, and does not demonstrate rehabilitation or remove legal barriers

FBI Records

• All federal and some state convictions • No guarantee they will comply with a state’s sealing or expungement laws • Performed more fingerprint-based background checks for civil than criminal purposes for the first time in 2002 • Recent report – extensive errors – Of 174 million arrests on file, only 45% have dispositions

Additional Sources of Criminal History Information

• WebCrims – Also run by Office of Court Administration – Name-based search – Covers NYC, Nassau, Suffolk • DOCS & DOC Inmate Look-Ups – Links on Reentry Net • DCJS Sex Offender Registry – Search by name on website or phone hotline

Common Rap Sheet Errors

• Arrests with no disposition • Mistaken arrests or charges • Erroneous or incomplete sentencing information • Duplication of entries • Cases that should be sealed but aren’t • Open bench warrants

Certificates that Demonstrate Rehabilitation

Importance

• Can prevent evictions and preserve employment • Remove statutory bars to employment, licensing (including healthcare agency licensing), or public housing residency, imposed because of a criminal conviction • Provide a “presumption of rehabilitation,” meaning that you should not be rejected for employment or refused a license just because of your conviction, unless your conviction has a direct bearing on your ability to perform the job.

• Do not seal or expunge but appear on rap sheet beside conviction

What Certificates Can’t Do

• Does not completely protect against denial of a job or license because of a criminal record • It is not a pardon • It does not erase or seal the conviction record • Convictions must still be disclosed on job applications • Does not remove restrictions for certain government benefits or educational benefits • Jury Service – still left to Jury Commissioner’s discretion

Certificate of Relief from Disabilities

• Eligible: Individuals with one felony or fewer • Apply for one CRD for each conviction • Apply at Sentencing Court – At time of sentencing – Any time after sentencing • Federal or out of state convictions – apply through Division of Parole in Albany (same application as CGC)

How to Apply for a CRD

• From Court of Sentencing (submit application to Court Clerk) – One-page application form for each conviction (Form available on Reentry Net) – Cover letter and evidence of rehabilitation – Appointment for interview with Probation Officer – Probation Officer makes recommendation to Judge – If approved, Court mails the CRD(s) to the applicant – Wait time is approximately 3-9 months, depends on borough

How to Apply for a CRD

• From the Division of Parole – Longer application form (also available on Reentry Net and Parole websites) – Additional evidence of rehabilitation – Parole will perform an investigation – Process takes at least six months but can be expedited if letter with compelling reason is submitted

Certificate of Good Conduct

• Eligible: Individuals with multiple felony convictions • Waiting period (based on most serious conviction) – A & B Felonies: 5 years from completion of sentence – C,D, & E Felonies: 3 years – Misdemeanors: 1 year • Apply through Division of Parole in Albany

Public Office

• Some statutory bars to public office can only be overcome with a Certificate of Good Conduct – Examples: police, firefighter, court officer, notary public, some elected offices, other law enforcement jobs – Ask the employer or licensing agency whether a job is defined as “public office” • “Good Moral Character”