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How to Restore Firearm Rights in New York

October 19, 2020

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  • The collateral consequences of a criminal conviction can be devastating and enduring. A felony conviction affects civil rights, firearm rights, and can be a huge barrier to employment opportunities. Fortunately, New York offers multiple forms of relief for individuals with criminal convictions. The benefits that come with these various forms of relief are immense, particularly with regard to employment opportunities and firearm rights. The laws in New York are also quite expansive, providing relief for first time offenders as well as those with multiple convictions.

    New York has two types of expungement options; one is a record seal, and the other is a certificate which restores certain rights that were forfeited upon conviction. New York law does not allow for cases to be completely erased from your record; however, the record “seal” makes it so that most people do not have access to your record. The certificates restore certain rights and abilities that were lost upon conviction.

    What kind of cases can be sealed in New York?

    There are three categories of arrests and/or charges that can be sealed:

    • arrests that did not lead to conviction
    • arrests for minor, violation level offenses, and
    • arrests for certain types of misdemeanor and felony convictions

    The last category of offenses was made available as a part of the Rockefeller drug reform laws passed in 2009. The general types of convictions that may be sealed are drug possession offenses and various petty theft charges. The law includes felonies and misdemeanors, allowing for ANY misdemeanor drug or marijuana offenses to be sealed. When a Judge decides to seal a felony, he or she can also seal up to three prior misdemeanors at the same time

    Complete list of New York Sealable Drug Offenses:

    The following drug-related offenses, set forth in NY PL Article 220 and Article 221, are eligible to be sealed in the State of New York:

    • Criminal possession of a controlled substance in the seventh degree (A Misdemeanor)
    • Criminal possession of a controlled substance in the fifth degree (D Felony)
    • Criminal possession of a controlled substance in the fourth degree (C Felony)
    • Criminal possession of a controlled substance in the third degree (B Felony)
    • Criminal possession of a controlled substance in the second degree (A-II Felony)
    • Criminal possession of a controlled substance in the first degree (A-I Felony)
    • Criminal possession of a controlled substance; presumption.
    • Use of a child to commit a controlled substance offense (E Felony)
    • Criminal sale of a controlled substance in the fifth degree (D Felony)
    • Criminal sale of a controlled substance in the fourth degree (C Felony)
    • Criminal sale of a controlled substance in the third degree (B Felony)
    • Criminal sale of a controlled substance in the second degree (A-II Felony)
    • Criminal sale of a controlled substance in the first degree (A-I Felony)
    • Criminal sale of a controlled substance in or near school grounds (B Felony)
    • Criminally possessing a hypodermic instrument (A Misdemeanor)
    • Criminal injection of a narcotic drug (E Felony)
    • Criminal sale of a controlled substance to a child (B Felony)
    • Criminally using drug paraphernalia in the second degree (B Misdemeanor)
    • Criminally using drug paraphernalia in the first degree (D Felony)
    • Criminal possession of precursors of controlled substances (E Felony)
    • Criminal sale of a prescription for a controlled substance or of a controlled substance by a practitioner or pharmacist (C Felony)
    • Criminal possession of methamphetamine manufacturing material in second degree (A Misdemeanor)
    • Criminal possession of methamphetamine manufacturing material in first degree (E Felony)
    • Criminal possession of precursors of methamphetamine (E Felony)
    • Unlawful manufacture of methamphetamine in the third degree (D Felony)
    • Unlawful manufacture of methamphetamine in the second degree (C Felony)
    • Unlawful manufacture of methamphetamine in the first degree (B Felony)
    • Unlawful disposal of methamphetamine laboratory material (E Felony)
    • Operating as a major trafficker (A-I Felony)
    • Witness or victim of drug or alcohol overdose.
    • Unlawful possession of marijuana. (Criminal Violation)
    • Criminal possession of marijuana the fifth degree (B Misdemeanor)
    • Criminal possession of marijuana in the fourth degree (A Misdemeanor)
    • Criminal possession of marijuana in the third degree (E Felony)
    • Criminal possession of marijuana in the second degree (D Felony)
    • Criminal possession of marijuana in the first degree (C Felony)
    • Criminal sale of marijuana in the fifth degree (B Misdemeanor)
    • Criminal sale of marijuana in the fourth degree (A Misdemeanor)
    • Criminal sale of marijuana in the third degree (E Felony)
    • Criminal sale of marijuana in the second degree (D Felony)
    • Criminal sale of marijuana in the first degree (C Felony)

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    The first step in sealing your record is determining whether your charge qualifies under the law. Only specific theft charges are enumerated in the law, including grand larceny, burglary, criminal mischief, and possession of stolen property. However, ANY class B, C, D, or E drug offense felony qualifies under the law. This is an expansive aspect of the sealing law, and emphasizes the intent to relieve and assist those suffering from addiction. Drug charges shouldn’t be a permanent barrier to education and employment opportunities.

    If you have a qualifying felony or misdemeanor charge, you must also have fulfilled three additional requirements:

    • you completed a “court-sanctioned substance abuse treatment program”
    • you completed any other sentence imposed following completion of treatment, and
    • you have no pending charges.

    There is no specific definition of what is considered a “court-sanctioned” treatment program. The courts have been deciding which programs qualify on a case by case basis. If you are seeking to have your record sealed, be sure to consult an attorney who has experience with this area of the law. An attorney can ensure that your request to seal your record addresses all of the necessary qualifications.

    Sealing certain qualifying convictions makes it so that the arrest and the conviction are no longer available to certain employers and groups of people. A convicted person can apply to jobs with the peace of mind that their old record will not continue to affect their ability to earn a living.

    What is a Certificate of Relief from Disabilities and a Certificate of Good Conduct?

    New York offers two different types of certificates that restore rights that were lost as a result of a conviction. Upon conviction for a felony, an individual forfeits the right to vote, to be on a jury, to hold public office, to possess firearms, and multiple public employment and licensing opportunities. In order to have these rights restored, one must obtain either a Certificate of Relief from Disabilities or a Certificate of Good Conduct. Both of the certificates restore essentially the same rights, the difference between the two is who qualifies for each of them.

    A Certificate of Relief from Disabilities is available to individuals having only one felony conviction and any number of misdemeanor convictions. The Certificate applies to only one conviction, and you would have to obtain a certificate for each conviction. The Certificate of Good Conduct is available if you have two or more felony convictions, and any number of misdemeanor convictions. The Certificate of Good Conduct covers all of your convictions, and as such it is very useful. There is a waiting period to apply and it depends on the most serious felony conviction. The waiting period is three years for most felonies and five years for certain other serious felonies.

    The most significant different between the two certificates, is the Certificate of Relief from Disabilities does not restore the right to hold “public office”. New York does not automatically disqualify all convicted persons from holding future public office. Most of the disqualifications are very specific and only apply to those who were convicted while serving in a public office for offenses involving dishonesty. However, specific professions of public employment may be restricted. The Certificate of Good Conduct is required for those seeking employment as a fire fighter, police officer, or notary. The Certificate of Good Conduct does restore the right to hold public office.

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    The process of applying for these types of Certificates requires petitioning the correct agency. A Certificate of Relief from Disabilities must be obtained through the sentencing court if the defendant received a sentence other than commitment to the New York State Department of Corrections. An individual who received any sort of prison sentence must petition the State Board of Parole. A Certificate of Good Conduct is always obtained by petitioning the State Board of Parole. The Petition process can be complicated and it is essential that the petition contains all of the required information. If you wish to obtain either type of certificate in New York, it is best to consult an experienced attorney to assist you with the process.

    May I legally own a firearm after obtaining a Certificate of Relief from Disabilities or Certificate of Good Conduct?

    The general answer is YES. In New York firearm privileges are lost upon conviction of a felony or other “serious offense”. The only way to restore this right is by a pardon, or by a Certificate of Relief from Disabilities or Good Conduct. Firearm rights are effectively restored if restoration language is specifically included in the certificate. However, restoration is not available to those with convictions for Class A-1 and/or violent felonies. While restoration is effective if the language specifically restoring firearm rights is included in the certificate, the person would still have to secure a license to legally possess weapons. The restoration simply lifts the bar disqualifying convicted felons from securing a firearms license.

    To the extent that the Certificate of Relief from Disability or Good Conduct FULLY restores all rights under New York law, it also restores Federal gun rights. Federal law disqualifies any individual with a felony conviction under State or Federal law. According to the ATF (Bureau of Alcohol, Firearms, Tobacco, and Explosives) this right is not restored unless an individual has had his or her civil rights fully restored under State law. The ATF states that a person has not had his or her civil rights fully restored unless, under State law, that person is eligible to hold public office, register to vote at a general election, and serve on a jury.

    An issue presents itself when the Certificate of Relief from Disabilities does not restore the right to hold public office. This situation is complicated, because the right to hold public office is not always forfeited upon conviction. A Certificate of Good Conduct would be necessary to restore Federal firearm rights when the Certificate of Relief from Disabilities is insufficient. The best way to know for sure what type of certificate restores State and Federal firearm rights is to consult an attorney knowledgeable on the subject.

    It is important that New York law allows for those with criminal records to move beyond the conviction, and seek relief from the alienation and discrimination that can come with a criminal record. Any person who qualifies, should take advantage of the opportunity to move on with their life and not to let a criminal record forever hinder opportunities. To speak with a criminal records analyst, feel free to call 844-947-3732 or take our free online eligibility test.

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