Governor Cuomo Pardons Undocumented Immigrants
New York’s governor pardoned seven undocumented immigrants so they could avoid deportation proceedings.
Most of the pardons involved drug-related offenses. Two stemmed from theft convictions. The move had distinct political overtones, as Gov. Cuomo repeatedly criticized the Trump administration in a press release announcing the pardons. So far, Gov. Cuomo has pardoned thirty-four offenders during his tenure in office.
Post-Conviction Relief in New York
Executive pardons are especially noteworthy in the Empire State, largely because the state has few avenues for post-conviction relief. Most other states have relatively generous “second-chance” laws which include items like record expungement or sealing. But these options are only available in limited situations in New York.
It’s impossible to expunge, or erase a criminal record, in New York without an executive pardon. However, the following criminal records can be sealed in many cases:
- Juvenile Offenses: If the defendant was at least 16, tried as a juvenile, and the offense was a nonserious violation, the record can be sealed.
- No Convictions: A 1991 law automatically sealed the court records in cases that did not involve an adjudication of guilt. For example, the prosecutor might have dropped the charges before trial or the defendant might have received some sort of deferred prosecution or disposition arrangement. More on that below.
- Violations: Loitering, trespassing, and other low-level matters are not technically criminal matters in New York, at least for records sealing purposes. Courts seal these records after a one-year waiting period. The waiting period is three years if the offense was possession of marijuana under ⅞ ounce.
- Conditional Sealings: Under a 2009 amendment to the New York Penal Law, a few drug-related felony and misdemeanor records can be sealed if the defendant successfully completed probation, took an additional class, and had no other pending charges.
If your record is sealed, it is invisible to employers and most other members of the public. That move may make it easier to find a job, find a place to live, and pursue other everyday activities.
Deferred Disposition in New York
It may be impossible to erase a criminal record in New York. However, it is possible to move through the system and not have a conviction. In many cases, but certainly not all of them, a deferred disposition resolution may be available.
Formal deferred prosecution programs are usually based on the offense. New York’s DTAP (Drug Treatment Alternative to Prison) program is a good example. It’s usually available in nonviolent drug-related felony cases to defendants who have no violent felony criminal record. In general, defendants who complete a 15 to 24-month treatment program avoid both prison and a felony conviction. However, courts have extremely broad discretion when it comes to setting program parameters.
Informal deferred adjudication may also be available. These arrangements are usually based on the strength of the evidence. If the prosecutor’s case is relatively weak, and the defendant has a relatively clean criminal record, the prosecutor may recommend deferred adjudication probation. Similar to DTAP, defendants who complete deferred adjudication probation do not have conviction records. And, as outlined above, the other judicial records are sealed.
However, there are some substantial risks. If the defendant violates deferred adjudication probation in any way, a New York judge may revoke the defendant’s probation and set any sentence up to the maximum. Moreover, deferred adjudication may still count as a conviction in certain immigration and deportation proceedings.