Legal Question in Criminal Law in New York

The law is on your side. First, it is ILLEGAL in the State of New York for any private or public employer, to deny any employment or license application solely because the applicant has been previously convicted of one or more criminal offenses. Second, you have obtained a certificate of relief, you are presumed to be rehabilitated.

Section 701 of the New York State Correction Law provides that a certificate of relief from disabilities may be granted to relieve an eligible offender of any forfeiture or disability, or to remove any bar to such eligible offender's employment, that was automatically imposed as the result of a prior conviction of a crime or an offense. [NY Cor. Law 701(1)].

If a certificate of relief is obtained, the conviction is then not deemed to be a conviction within the meaning of any provision of law that imposes a disability to apply for or receive any license or permit. [NY Cor. Law 701(2)]. However, a Certificate Of Relief From Disabilities 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.

Furthermore, pursuant to Article 23-A of the New York State Correction Law, it is ILLEGAL in the State of New York for any private or public employer, to deny any employment or license application solely because the applicant has been previously convicted of one or more criminal offenses. [See NY Cor. Law � 752]. A violation of Article 23-A is considered an unlawful discriminatory practice under the New York State Human Rights Law. [See NY Exec. Law � 296(15)].

There are two exceptions to this general prohibition against discrimination against those individuals with prior convictions. If either exception applies, the employer or licensing agency may deny the license or employment application based solely upon the applicant's prior conviction:

1. DIRECT RELATIONSHIP: The first exception applies when there is a �direct

relationship� between one or more of the previous criminal offenses for which the

applicant was convicted and the specific employment or license sought or held by the

individual. [Cor. Law � 752(1)].

2. UNREASONABLE RISK: The second exception applies when the granting or

continuation of the employment or the issuance or continuation of a license would

involve an �unreasonable risk� to property or to the safety or welfare of specific

individuals or the general public. [Cor. Law � 752(2)].

The Legislature defined a �direct relationship� as one in which the �nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought.� [Cor. Law � 750(3)]. The Legislature did not however, define "unreasonable risk" because the existence or lack thereof of an �unreasonable risk� depends upon a subjective analysis. Matter of Acosta v New York City Dept. of Educ., 16 N.Y.3d 309, 315 (2011).

Correction Law � 753(1) provides that, when making a determination as to whether either the �direct relationship� exception or the �unreasonable risk� exception applies, the private or public employer or licensing body must consider the following factors:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and

employment of persons previously convicted of one or more criminal offenses;

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

(d) The time which has elapsed since the occurrence of the criminal offense or offenses;

(e) The age of the person at the time of occurrence of the criminal offense or offenses;

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

However, Article 23-A does not apply to private employers who employ nine or less individuals. Section 750(2) defines a �Private employer� as �any person, company, corporation, labor organization or association which employs ten or more persons.�

I have noticed that many employers do not know the law in New York on this issue. I have had several people tell me they were rejected for jobs solely because of a criminal history. I suggest you consult with an attorney knowledgeable in this area of law. You will want to document everything and maybe even electronically record your conversations provided the law allows you to do so. There are strict legal limitations on recording conversations. You must consult with an attorney on this issue as well.

John Campbell, Esq.

188 E. Post Road - Suite 300

White Plains, NY 10601

914-837-1800

www.whiteplainscriminalattorneyblog.com/