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§ 700. Definitions and rules of construction
(a) “Eligible offender” shall mean a person who has been convicted of a crime or of an offense, but who has not been convicted more than once of a felony.
(b) “Felony” means a conviction of a felony in this state, or of an offense in any other jurisdiction for which a sentence to a term of imprisonment in excess of one year, or a sentence of death, was authorized.
(c) “Revocable sentence” means a suspended sentence or a sentence upon which execution was suspended pursuant to the penal law in effect prior to September first, nineteen hundred sixty-seven; or a sentence of probation or of conditional discharge imposed pursuant to the penal law in effect after September first, nineteen hundred sixty-seven.
(a) Two or more convictions of felonies charged in separate counts of one indictment or information shall be deemed to be one conviction;
(b) Two or more convictions of felonies charged in two or more indictments or informations, filed in the same court prior to entry of judgment under any of them, shall be deemed to be one conviction; and
(c) A plea or a verdict of guilty upon which sentence or the execution of sentence has been suspended or upon which a sentence of probation, conditional discharge, or unconditional discharge has been imposed shall be deemed to be a conviction.
eff. 1972
§ 701. Certificate of relief from disabilities
A certificate of relief from disabilities may be granted as provided in this article to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein. Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.
Notwithstanding any other provision of law, except subdivision five of section twenty-eight hundred six of the public health law or paragraph (b) of subdivision two of section eleven hundred ninety-three of the vehicle and traffic law, a conviction of a crime or of an offense specified in a certificate of relief from disabilities shall not cause automatic forfeiture of any license, other than a license issued pursuant to section 400.00 of the penal law to a person convicted of a class A-I felony or a violent felony offense, as defined in subdivision one of section 70.02 of the penal law, permit, employment, or franchise, including the right to register for or vote at an election, or automatic forfeiture of any other right or privilege, held by the eligible offender and covered by the certificate. Nor shall such conviction be deemed to be a conviction within the meaning of any provision of law that imposes, by reason of a conviction, a bar to any employment, a disability to exercise any right, or a disability to apply for or to receive any license, permit, or other authority or privilege covered by the certificate; provided, however, that a conviction for a second or subsequent violation of any subdivision of section eleven hundred ninety-two of the vehicle and traffic law committed within the preceding ten years shall impose a disability to apply for or receive an operator's license during the period provided in such law; and provided further, however, that a conviction for a class A-I felony or a violent felony offense, as defined in subdivision one of section 70.02 of the penal law, shall impose a disability to apply for or receive a license or permit issued pursuant to section 400.00 of the penal law. A certificate of relief from a disability imposed pursuant to subparagraph (v) of paragraph b of subdivision two and paragraphs i and j of subdivision six of section five hundred ten of the vehicle and traffic law may only be issued upon a determination that compelling circumstances warrant such relief.
A certificate of relief from disabilities shall not, however, in any way prevent any judicial, administrative, licensing or other body, board or authority from relying upon the conviction specified therein as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege.
eff. Oct. 16, 2007
§ 702. Certificates of relief from disabilities issued by courts
Any court of this state may, in its discretion, issue a certificate of relief from disabilities to an eligible offender for a conviction that occurred in such court, if the court either (a) imposed a revocable sentence or (b) imposed a sentence other than one executed by commitment to an institution under the jurisdiction of the state department of corrections and community supervision. Such certificate may be issued (i) at the time sentence is pronounced, in which case it may grant relief from forfeitures, as well as from disabilities, or (ii) at any time thereafter, in which case it shall apply only to disabilities. Where such court either imposes a revocable sentence or imposes a sentence other than one executed by commitment to an institution under the jurisdiction of the state department of corrections and community supervision, the court, upon application and in accordance with subdivision two of this section, shall initially determine the fitness of an eligible offender for such certificate prior to or at the time sentence is pronounced.
Such certificate shall not be issued by the court unless the court is satisfied that:
(a) The person to whom it is to be granted is an eligible offender, as defined in section seven hundred;
(b) The relief to be granted by the certificate is consistent with the rehabilitation of the eligible offender; and
(c) The relief to be granted by the certificate is consistent with the public interest.
Where a certificate of relief from disabilities is not issued at the time sentence is pronounced it shall only be issued thereafter upon verified application to the court. The court may, for the purpose of determining whether such certificate shall be issued, request its probation service to conduct an investigation of the applicant, or if the court has no probation service it may request the probation service of the county court for the county in which the court is located to conduct such investigation. Any probation officer requested to make an investigation pursuant to this section shall prepare and submit to the court a written report in accordance with such request.
Where the court has imposed a revocable sentence and the certificate of relief from disabilities is issued prior to the expiration or termination of the time which the court may revoke such sentence, the certificate shall be deemed to be a temporary certificate until such time as the court's authority to revoke the sentence has expired or is terminated. While temporary, such certificate (a) may be revoked by the court for violation of the conditions of the sentence, and (b) shall be revoked by the court if it revokes the sentence and commits the person to an institution under the jurisdiction of the state department of corrections and community supervision. Any such revocation shall be upon notice and after an opportunity to be heard. If the certificate is not so revoked, it shall become a permanent certificate upon expiration or termination of the court's authority to revoke the sentence.
Any court that has issued a certificate of relief from disabilities may at any time issue a new certificate to enlarge the relief previously granted, provided, however, that the provisions of subdivisions one through four of this section shall apply to the issuance of any such new certificate.
Any written report submitted to the court pursuant to this section is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court. However, upon the court's receipt of such report, the court shall provide a copy of such report, or direct that such report be provided to the applicant's attorney, or the applicant himself, if he or she has no attorney. In its discretion, the court may except from disclosure a part or parts of the report which are not relevant to the granting of a certificate, or sources of information which have been obtained on a promise of confidentiality, or any other portion thereof, disclosure of which would not be in the interest of justice. The action of the court excepting information from disclosure shall be subject to appellate review. The court, in its discretion, may hold a conference in open court or in chambers to afford an applicant an opportunity to controvert or to comment upon any portions of the report. The court may also conduct a summary hearing at the conference on any matter relevant to the granting of the application and may take testimony under oath.
eff. Aug. 17, 2011.
§ 703. Certificates of relief from disabilities issued by the department of corrections and community supervision
(a) any eligible offender who has been committed to an institution under the jurisdiction of the state department of corrections and community supervision. Such certificate may be issued by the department at the time the offender is released from such institution under the department's supervision or otherwise or at any time thereafter;
(b) any eligible offender who resides within this state and whose judgment of conviction was rendered by a court in any other jurisdiction.
Where the department has issued a certificate of relief from disabilities, the department may at any time issue a new certificate enlarging the relief previously granted.
The department shall not issue any certificate of relief from disabilities pursuant to subdivisions one or two, unless the department is satisfied that:
(a) The person to whom it is to be granted is an eligible offender, as defined in section seven hundred;
(b) The relief to be granted by the certificate is consistent with the rehabilitation of the eligible offender; and
(c) The relief to be granted by the certificate is consistent with the public interest.
Any certificate of relief from disabilities issued by the department to an eligible offender who at time of the issuance of the certificate is under the department's supervision, shall be deemed to be a temporary certificate until such time as the eligible offender is discharged from the department's supervision, and, while temporary, such certificate may be revoked by the department for violation of the conditions of community supervision. Revocation shall be upon notice to the releasee, who shall be accorded an opportunity to explain the violation prior to decision thereon. If the certificate is not so revoked, it shall become a permanent certificate upon expiration or termination of the department's jurisdiction over the individual.
In granting or revoking a certificate of relief from disabilities the action of the department shall be deemed a judicial function and shall not be reviewable if done according to law.
For the purpose of determining whether such certificate shall be issued, the department may conduct an investigation of the applicant.
Presumption based on federal recommendation. Where a certificate of relief from disabilities is sought pursuant to paragraph (b) of subdivision one of this section on a judgment of conviction rendered by a federal district court in this state and the department is in receipt of a written recommendation in favor of the issuance of such certificate from the chief probation officer of the district, the department shall issue the requested certificate, unless it finds that the requirements of paragraphs (a), (b) and (c) of subdivision three of this section have not been satisfied; or that the interests of justice would not be advanced by the issuance of the certificate.
eff. March 31, 2011.
