STRATEGIES FOR AVOIDING OR AMELIORATING THE COLLATERAL CONSEQUENCES OF CRIMINAL CONDUCT
*My thanks to Glenn Murray and the New York State Bar Association for their input.
CERTIFICATE OF RELIEF FROM DISABILITIES
Introduction
A certificate of relief from civil disabilities (CRD) is a
means of avoiding various collateral consequences of conviction.
It may be obtained from the sentencing court or from the Board of Parole.
Eligibility
If a defendant is not eligible to apply for a court-granted CRD,
relief may be available by a CRD from the Parole Board. The Parole
Board also has the authority to issue a certificate of good conduct (CGC)
that will avoid various collateral consequences arising from conviction in
New York and other jurisdictions.
Relief
A CRD is designed to ameliorate various mandatory forfeitures, disabilities and bars to employment
resulting from a conviction. The term "forfeiture" refers to the loss of present rights. In contrast,
the terms "disabilities" and "bars to employment" refer to impediments to future rights. These
rights primarily concern employment and licensing.
A CRD avoids only automatic (as opposed to discretionary) forfeitures and disabilities.
The CRD will not preserve any right to retain or be eligible for public
service. A CRD will not eliminate bars to employment that are not imposed solely as a result
of the conviction, i.e., the bar must result by reason of the conviction alone.
The granting of a CRD pursuant to Correction Law section 702 is at the discretion of the sentencing
court. A CRD is not a pardon and does not vitiate the conviction.
A CRD is not necessarily a "certificate of rehabilitation, or other equivalent procedure based on a
finding of the rehabilitation of the person convicted" as defined in Federal Rule of Evidence section
609(c).
That section provides that a certificate of rehabilitation will make evidence of a conviction
inadmissible for impeachment purposes. Under New York laws, a CRD does not preclude impeachment
by conviction in a civil trial pursuant to Civil Practice Law & Rules section 4513.
Automatic Forfeitures and Disabilities
A variety of New York Statutes provide for mandatory forfeitures and disabilities
resulting from conviction. What follows is a summary of examples, not a definitive
list:
Gen. Bus. Law § 74(2). Security guards and private investigators are ineligible for licensure if they have been convicted of a felony or certain specified offenses.
Surr. Ct. Proc. Act Law § 707(1)(d). Fiduciaries are ineligible if convicted of a felony.
Gen. Bus. Law § 61. Junk dealers are ineligible for licensure if convicted of larceny, receiving stolen property or of violating Gen. Bus. Law Art. 6.
Jud. Law § 510(4). A prospective juror is ineligible for duty if convicted of a felony.
Alco. Bev. Cont. Law § 102(2). Certain liquor store employees are ineligible for employment if convicted of a felony or certain specified offenses.
Exec. Law § 130. Persons convicted of a felony or certain specified offenses are ineligible for licensure as a Notary Public.
Penal Law § 265.01. Persons convicted of a felony or serious offense (defined in Penal Law § 265.00(17)) are prohibited from possessing a rifle or shotgun.
Penal Law § 400.00(1). Persons convicted of a felony or a serious offense are ineligible to obtain a firearm license.
Real Prop. Law § 440-a. Felons are ineligible for license as real estate brokers or salesperson.
Elec. Law §§ 5-106(2)-(5). Felons are ineligible to register for or vote, unless and until pardoned, restored to citizenship rights by the Governor, maximum sentence of imprisonment has expired, or parole discharge.
Many New York statutes provide that a CRD can avoid the affect of a conviction.
For each client, then, the lawyer should determine what kind of licensure and employment the client has or anticipates seeking in the future. The laws governing such licensure and employment must be researched in order to identify restrictions that may have an impact on the client and which may possible be avoided by a post-conviction
CRD.
Discretionary Forfeitures and Disabilities
Although a CRD does not, by itself, avoid discretionary forfeitures and disabilities,
it does establish a presumption of rehabilitation that limits unfair discrimination arising
from conviction.
Correction Law Article 23-A does not apply to prospective employment as a member of a law
enforcement agency.
Redress Under Correction Law §§ 754 and 755
A person who has been denied a license or employment, who has been previously convicted,
is upon his or her request entitled to a written explanation setting forth the reasons for
the denial. Discrimination that is allegedly in violation of Correction Law § 752 by a public agency,
may be challenged by a CPLR Article 78
proceeding. Such discrimination alleged against a private employer may be challenged under the
Human Rights Law.
Driver's Licenses
Effective November 1, 1988, the New York State Legislature enacted amendments which rendered
a CRD ineffective against mandatory revocations of driver's licenses based on alcohol-related
convictions. However, these amendments expressly provide that a CRD, along with other
documentation, may avoid permanent disqualification from operating certain "special vehicles".
Weapons and Firearms
A CRD may relieve the offender of the statutory bar to application for or receipt of
a pistol license and the bar to possession of long or short weapons, arising from
the conviction of a felony or serious offense,
but it will not avoid the exercise of discretion in licensing. The unfair discrimination
statute does not apply to firearm licensing.
Nursing Home Operators
Public Health Law § 2806(5)
requires revocation of a nursing home operating certificate upon a controlling person's
industry-related felony conviction, despite a CRD.
Advocacy and Judicial Discretion
The optimum circumstances for obtaining a CRD is when the crime is perceived to have
been relatively minor (by classification or because of extenuating or mitigating
circumstances) and when the application is made upon proof of rehabilitation. The
statute does not require rehabilitation as a predicate to relief. Rather, it provides
a two-prong criteria: issuance of the CRD must be (1) consistent with rehabilitation,
and (2) consistent with public interest.
In seeking a CRD at sentencing, defense counsel should offer any evidence that
detracts from the perceived seriousness of the crime and any evidence reflecting
the client's post-offense rehabilitation. Counsel should also highlight forfeitures
or disabilities that impair the client's livelihood in order to show the beneficial
effect of a CRD.
For post-sentence applications, counsel may establish the potential for or attainment
of rehabilitation by a showing successful completion of probation or compliance with
conditions imposed on the client at sentencing.
In reaching its determination of whether to grant a CRD, the Court or agency will
consider the eight factors set forth in Correction Law § 753
along with the two-prong criteria in Correction Law § 702.
Vacancy or Reversal
Non-Elected officials may apply for a CRD upon reversal or vacancy of a conviction of a felony or
other crime involving a violation of oath of office. At the discretion of the appointing authority,
the official may be awarded full or partial salary for the period of the vacancy.
Pardon
A pardon is another means to ameliorate collateral consequences for a client.
It is the oldest method of relief from disabilities and is reserved for extraordinary
cases involving issues of innocence or manifestly unjust dispositions. An absolute pardon
restores civil rights but does not annul the conviction. Unless granted on the ground of
innocence, a pardon does not automatically discretionary prejudice to the client in cases
involving prospective employers or licensing authorities. A pardon does not preclude
inquiry into character and fitness, and does not preclude administrative discipline.
CONCLUSION
Almost every criminal case poses some kind of collateral consequence to the client.
Depending on the nature of the charge and the client's status, such consequences range
from the general odium associated with a criminal charge to more specific potential
consequences that may be certain, remotely possible, or somewhat in between these
likelihoods.
The attorney must identify and evaluate such collateral consequences so that he or
she may advise the client accordingly, avoid or ameliorate such consequences where
practicable, and possibly exploit them in conducting plea negotiations or at sentencing.
Civil Disabilities
If you or your business were convicted of a crime and need relief from the resulting legal disabilities, we can help. Please complete our simple and
secure forms to initiate the process.
