Queens Judge to Lawmakers: ‘Raise the Age’ Sealing Law Needs More Work
DATE PUBLISHED: December 12, 2018
BY: ANDREW DENNEY
A Queens judge issued a ruling calling on state lawmakers to consider changes to laws enacted under the “Raise the Age” legislative package that would allow certain defendants who were convicted of felonies years ago prior to turning the age of 19 to seal their records.
It was the second time in recent months that state Supreme Court Justice Joseph Zayas, the administrative judge for the criminal term in Queens Supreme Court, has used a ruling to urge elected officials in Albany to consider amending the eligibility of the record-sealing provision enacted as part of Raise the Age to include cases where judges did not provide defendants with youthful offender treatment despite their eligibility to do so.
“Indeed, it would seem relatively uncontroversial to suggest that things people do as teenagers should not define them for the rest of their lives,” Zayas wrote.
Raise the Age, enacted in October 2017, is perhaps best known for gradually increasing the age of criminal responsibility from 16 years old to 18 by Oct. 1, 2019.
But the legislation also included a sealing statute under which individuals who are not required to be on the sex offender registry and who do not have open criminal cases may request to seal two eligible offenses, of which only one can be a felony, 10 years after sentencing or getting released from incarceration.
Certain offenses, which include violent felonies and those requiring registration as a sex offender, are not eligible to be sealed.
On Wednesday, Zayas denied a sealing request from a defendant identified in court papers as Jane Doe, who in 1984 was charged with second-degree robbery, and ultimately convicted of attempted second-degree robbery. The robbery took place at a Queens high school when Doe was 16 years old; she and two other assailants twisted another student’s arm and took the complainant’s pocketbook and jewelry.
Judge Thomas Demakos, then an acting State Supreme Court justice, sentenced Doe to five years’ probation and did not grant her youthful offender treatment though she was eligible to receive it. Her records would have been eligible to be sealed if she had been treated as a youthful offender.
Doe was not convicted of any other crimes after finishing probation early in 1988, Zayas said in his ruling.
Doe, now 50 years old and appearing pro se, moved to seal the attempted robbery conviction after she applied for a job and found that the 34-year-old conviction cast a long shadow.
The Queens District Attorney’s Office opposed the motion, arguing that violent felonies like attempted second-degree robbery are not eligible to be sealed.
Zayas said that, “regrettably,” he must agree with the prosecution that he is constrained by statute to deny Doe’s motion.
Zayas said that there are reasons to question the “categorical approach” to sealing eligibility contained in the law, including that it can lead to inequitable outcomes. The judge said he recently granted a sealing application in another case in which the defendant was 19 when he and an accomplice allegedly committed a robbery in which they assaulted the victim, but who later pleaded guilty to third-degree robbery, an eligible offense under the sealing statute.
Zayas said that the state legislature should consider revising the law to allow the sealing of convictions in cases where the offender was eligible for youthful offender treatment but did not receive it. Given the case law that has developed around young offenders over the last three decades, the judge said, he is confident that someone like Doe would have received youthful offender treatment.
But, “since the court must, of course, decide the motion within the parameters of the current statute, it must, unfortunately, deny it,” the judge said.
Zayas, who said he has been taking on cases such as Doe’s if the judge who presided is no longer on the bench, issued a similar call to the state legislature in October. At the time, he declined to seal records for a man identified in court papers as John Doe who was twice convicted in the mid-1980s of selling cocaine to undercover police officers.
That defendant, who served time in prison, went on to work for the city’s Sanitation Department, worked on the clean-up efforts following the Sept. 11, 2001, terrorist attacks and stayed out of trouble.
Assistant District Attorney Anastasia Spanakos appeared for the Queens District Attorney’s Office in both cases. The office did not respond to a request for comment.
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