An Innovative and Experienced Trial Lawyer Defending Clients for Over a Decade
Attorney Charles Kee has been working with individuals accused of crimes for over a decade. He is a tough and experienced trial lawyer who has even taught trial advocacy courses at St. John’s. From his work in the Manhattan DA’s office to investigatory work on complex financial cases, Charles is equipped with the professional skills and intense training to deliver quality and competitive legal service.
Let’s map out your post-conviction options today. Call (607) 800-5356 or contact The Law Office of Charles H. Kee online.
There are several options you have after conviction. One is to file a motion for post-conviction relief, or a 440 motion, which allows a defendant to challenge the validity of the conviction. A 440 motion to vacate a criminal conviction can be made based on one of the following grounds:
- the court did not have jurisdiction of the case or of the defendant;
- the judgment was procured by duress, misrepresentation, or fraud on the part of the court or a prosecutor;
- the prosecutor knowingly presented false evidence at trial or engaged in prosecutorial misconduct;
- the prosecutor presented evidence at trial that violated the defendant’s constitutional rights;
- the defendant was mentally incompetent;
- improper and prejudicial conduct took place outside of the court that affected the court proceedings against the defendant;
- there is newly discovered evidence that shows the defendant is innocent or not guilty;
- the conviction was obtained in violation of the defendant’s constitutional rights;
- the defendant was convicted of a prostitution offense but was a victim of human trafficking.
Note that the main difference between a 440 motion and a direct appeal is that a 440 motion allows the admission of new evidence, while an appeal does not allow for new evidence. Additionally, unlike a direct appeal, a 440 motion may result in an evidentiary hearing, where the defendant can present witnesses to testify or any other evidence to support the claims made in the motion. The district attorney can also present witnesses or evidence to challenge the defendant’s claims or evidence, so the hearing is much like a trial.
If the 440 motion is granted, the court may vacate, or undo, the conviction against the defendant, dismiss their charges, or grant a new trial.
Sealing Your Criminal Record
Another post-conviction relief option is record-sealing. Some states allow individuals to expunge, or destroy, their criminal records, but New York only allows individuals to seal some criminal records under certain conditions. Only up to two criminal convictions may be sealed, and only one of them can be a felony. Not all criminal convictions are eligible for sealing, though. Convictions for crimes that demonstrate a significant danger to the public are not eligible for sealing, such as:
- most sex offenses, including those that require sex offender registration;
- certain violent crimes, even if no actual violence was involved;
- Class A felonies, the most serious crimes under New York law; and
- certain other felonies
To be eligible for petitioning for record sealing, a person must meet the following criteria:
- at least 10 years must have passed between their sentencing or release from prison – whichever is later – and their application to the court;
- they have no current or pending criminal charges;
- they have no recent criminal convictions;
- they have not already obtained sealing of the maximum number of convictions allowed; and
- they have 2 convictions or less on their criminal record.
Anyone who meets the above requirements may submit an application for record-sealing with the court in the county the conviction was obtained, as well as any requested supporting documents. In deciding whether to approve the record-sealing request, the court will consider the following:
- the time that has elapsed since the applicant’s last conviction;
- the circumstances and seriousness of the offense for which they are seeking relief;
- the circumstances and seriousness of any other offenses for which they were convicted;
- the applicant’s character, including any measures they have taken toward rehabilitation, such as participating in treatment programs, employment, schooling, or community service or volunteer programs;
- any statements made by the alleged victim of the offense for which the applicant is seeking relief;
- the impact that sealing their record will have upon their rehabilitation, and their successful and productive reentry and reintegration into society; and
- the impact of sealing their record on public safety and upon the public’s confidence in and respect for the law.
If the sentencing judge grants the application and seals the person’s record, all material related to the conviction will be destroyed, including fingerprints, palm cards, mugshots, arrest photos, and DNA samples. An individual’s sealed criminal records cannot be viewed by the public, police, or prosecutors, though the following people may have special access:
- anyone the individual designates;
- an employer if the person applies for a job that involves carrying a firearm;
- the person’s parole officer if they are arrested while on probation or parole; and
- law enforcement or a prosecutor by a court order signed by a judge (a rare occurrence that may be when the person is arrested for a new crime related to the sealed crime).
If you have been convicted for a crime, you have a couple of options to overturn or seal your criminal record. The Law Office of Charles H. Kee can help you evaluate your options based on your current situation. Let’s move on from your past and get you the fresh start you deserve.
Call (607) 800-5356 or contact The Law Office of Charles H. Kee online to get started.
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