Legal Question in Criminal Law in New York

"2. Will this appear on my record? How can I expunge it?"

This will not appear on your record. Patronizing a prostitute in the third degree (PL � 230.04) is a fingerprintable misdemeanor criminal offense; it is a registrable sex offense only then the alleged prostitute is actually under a certain age (17y).

Your plea to the offense of Disorderly Conduct ("Dis Con") has a number of significant positive consequences. Unlike Patronizing, Disorderly Conduct is a "violation," a kind of "petty offense" akin to a traffic infraction in seriousness. Thus, you were not convicted of any crime. You therefore benefit from the provisions of Criminal Procedure Law � 160.55. This statute provides for sealing of the law enforcement records connected with your case and the destruction or return of your fingerprints and pictures. The seal extends to prosecutors and the Commissioner of Criminal Justice Services. Thus, the conviction and arrest should not show on your criminal record.

However, � 160.55 does not seal the court files themselves. Therefore, they remain hypothetically available at the courthouse should a person actually go to that court looking for a case with you as a defendant. That file will have a copy of the original accusatory instrument (complaint/information) and a note that you plead to Dis Con and received a sentence (a fine and CD?). The accusatory instrument is likely to be the only detailed item of consequence. Unless someone has a reason to go looking, it is just one more file among millions. So, if your arrest didn't hit the papers, there is probably no reason for anyone to know to look.

As it is, there is no further "expungement" available in NY beyond the statutory seal.

"1. Can I appeal this case, because on that day, I was so exhausted and dysfunctional, the only things I said, was Yes,Yes, Yes, 'Guilty'."

You have a right to appeal. You would have to file (at the court where you plead) a notice of appeal with proof of service of same on the District Attorney within 30 days of your sentencing day. Your attorney should do this on your request, but time is obviously running short.

That being said, you can only appeal errors that appear in the "face of the record"--mainly what was filed on paper and what was said in open court. If someone had a gun to your head when you plead guilty, but no one said anything, you can't appeal on that ground. Now if you said "Judge, I'm drunk!" or "Judge, I'm so sick I'm unable to understand the proceedings against me," etc., you may be able to appeal with that being on the record. Otherwise, there is nothing there for the appellate court to review.

However, if your rights were violated (including your right to a voluntary plea) and the facts showing it do not appear on the record, then you may be able to bring a motion to set aside the judgment pursuant to CPL Article 440. (Note that one factor that the court could use against you is your failure to say anything at the time.) The motion is not on a 30 day clock, but you should not delay making it if you decide you need to.

Please note that winning either the appeal or the 440 motion only reopens the case and restores the original sex misdemeanor charge, giving you back your right to a jury trial on that charge. In the nightmare scenario, you could then somehow later find yourself convicted of the misdemeanor after a trial (and if the DA reduces to Attempted Patronizing [a class B misd.], you would even lose your right to a jury and the judge would decide your guilt or innocence at trial).

More to the point, the deal that was offered and which the you, at least nominally, accepted, resolved the case without exposing you to the risk of a criminal conviction (and an unpleasant sounding conviction, at that). A plea down to a Dis Con is a rather popular disposition among defense counsel and defendants alike, because it is an innocuous plea to a violation which weighs quite favorably against the risks of trial on a misdemeanor crime, even where the prospects of conviction thereon might be rather slight.

Whether you want to accept what you have already or attempt to reopen the case, is an important choice for you. You may want to talk to an attorney about your options in detail. Your appeal window is closing very fast, so if you want to appeal you must act forthwith. (Considering the timeline for appeal, bear in mind that if you put in a notice of appeal, you can still change you mind later and withdraw it.)

Good Luck.