Section 160.58. Conditional sealing of certain controlled substance, marihuana or specified offense convictions

1. A defendant convicted of any offense defined in article two hundred
  twenty or two hundred twenty-one of the penal law or a specified offense
  defined in subdivision five of section 410.91 of this  chapter  who  has
  successfully  completed  a  judicial diversion program under article two
  hundred sixteen of this chapter, or one of the programs heretofore known
  as drug treatment alternative to prison or another judicially sanctioned
  drug treatment program of similar duration, requirements  and  level  of
  supervision,  and  has completed the sentence imposed for the offense or
  offenses, is eligible to have such offense or offenses  sealed  pursuant
  to this section.
    2.  The  court that sentenced the defendant to a judicially sanctioned
  drug treatment program may on its own  motion,  or  on  the  defendant's
  motion,  order  that  all  official  records  and papers relating to the
  arrest, prosecution and conviction which  resulted  in  the  defendant's
  participation  in  the  judicially  sanctioned drug treatment program be
  conditionally sealed. In such case, the  court  may  also  conditionally
  seal  the  arrest,  prosecution  and conviction records for no more than
  three of the defendant's prior eligible misdemeanors, which for purposes
  of this subdivision shall be limited to misdemeanor offenses defined  in
  article  two  hundred twenty or two hundred twenty-one of the penal law.
  The court  may  only  seal  the  records  of  the  defendant's  arrests,
  prosecutions and convictions when:
    (a)  the sentencing court has requested and received from the division
  of criminal justice services or the Federal Bureau  of  Investigation  a
  fingerprint  based  criminal  history record of the defendant, including
  any sealed or suppressed information. The division of  criminal  justice
  services  shall also include a criminal history report, if any, from the
  Federal  Bureau  of  Investigation  regarding   any   criminal   history
  information that occurred in other jurisdictions. The division is hereby
  authorized  to  receive  such  information  from  the  Federal Bureau of
  Investigation for this  purpose.  The  parties  shall  be  permitted  to
  examine these records;
    (b)  the  defendant or court has identified the misdemeanor conviction
  or convictions for which relief may be granted;
    (c) the court has received documentation that the sentences imposed on
  the eligible misdemeanor convictions have been completed, or if no  such
  documentation  is  reasonably  available,  a  sworn  affidavit  that the
  sentences imposed on the prior misdemeanors have been completed; and
    (d) the court has notified the district attorney of each  jurisdiction
  in  which the defendant has been convicted of an offense with respect to
  which sealing is sought, and the court or  courts  of  record  for  such
  offenses,  that  the  court  is  considering  sealing the records of the
  defendant's eligible misdemeanor convictions. Both the district attorney
  and the court shall be given a reasonable opportunity, which  shall  not
  be  less  than  thirty days, in which to comment and submit materials to
  aid the court in making such a determination.
    3. At the request of the defendant  or  the  district  attorney  of  a
  county  in  which the defendant committed a crime that is the subject of
  the sealing application, the court may conduct a hearing to consider and
  review any relevant evidence offered by either party that would aid  the
  court  in  its  decision  whether to seal the records of the defendant's
  arrests, prosecutions and convictions. In making such  a  determination,
  the court shall consider any relevant factors, including but not limited
  to:  (i)  the  circumstances  and seriousness of the offense or offenses
  that resulted in the conviction or convictions; (ii)  the  character  of
  the  defendant,  including  his  or  her  completion  of  the judicially

  sanctioned treatment program as described in  subdivision  one  of  this
  section;  (iii) the defendant's criminal history; and (iv) the impact of
  sealing the defendant's records upon his or her rehabilitation  and  his
  or her successful and productive reentry and reintegration into society,
  and on public safety.
    4.  When a court orders sealing pursuant to this section, all official
  records  and  papers  relating  to  the   arrests,   prosecutions,   and
  convictions,  including  all duplicates and copies thereof, on file with
  the division of criminal justice services or any court shall  be  sealed
  and  not  made  available  to  any  person  or public or private agency;
  provided,  however,  the  division  shall   retain   any   fingerprints,
  palmprints and photographs, or digital images of the same.
    5.  When  the court orders sealing pursuant to this section, the clerk
  of such court shall immediately notify the commissioner of the  division
  of criminal justice services, and any court that sentenced the defendant
  for  an  offense  which  has  been  conditionally  sealed, regarding the
  records that shall be sealed pursuant to this section.
    6. Records sealed pursuant to this subdivision shall be made available
  to:
    (a) the defendant or the defendant's designated agent;
    (b) qualified agencies, as defined  in  subdivision  nine  of  section
  eight  hundred  thirty-five  of the executive law, and federal and state
  law enforcement agencies, when acting within  the  scope  of  their  law
  enforcement duties; or
    (c)  any  state or local officer or agency with responsibility for the
  issuance  of  licenses  to  possess  guns,  when  the  person  has  made
  application for such a license; or
    (d)  any  prospective employer of a police officer or peace officer as
  those terms are defined in subdivisions thirty-three and thirty-four  of
  section  1.20  of  this  chapter,  in  relation  to  an  application for
  employment as a police officer or peace officer; provided, however, that
  every person who is an applicant for the position of police  officer  or
  peace  officer  shall  be  furnished with a copy of all records obtained
  under this paragraph and afforded an opportunity to make an  explanation
  thereto.
    7.  The  court  shall not seal the defendant's record pursuant to this
  section while any charged offense is pending.
    8.  If,  subsequent  to  the  sealing  of  records  pursuant  to  this
  subdivision,  the  person who is the subject of such records is arrested
  for or formally charged with any misdemeanor  or  felony  offense,  such
  records  shall  be  unsealed  immediately and remain unsealed; provided,
  however, that if such new misdemeanor or  felony  arrest  results  in  a
  termination  in  favor of the accused as defined in subdivision three of
  section 160.50 of this article or  by  conviction  for  a  non  criminal
  offense  as  described  in section 160.55 of this article, such unsealed
  records shall be conditionally sealed pursuant to this section.