Posts tagged with "expungement"

Pretrial Diversionary Programs in Connecticut

If you are a first-time offender in Connecticut, you may be eligible for pretrial diversionary programs, which consists of several programs designed to rehabilitate the offender, rather than punish them.  The objective, of course, is also to reduce recidivism and, effectively, state costs.  The public interest in minimizing repeat offenders is significant, which is why Connecticut continues to offer many offenders the benefit of these programs.    

Each diversionary program, while serving similar objectives, has different eligibility criteria, program objectives, time limitations, and requirements for successful completion.  Here is what you need to know about Connecticut’s most common diversionary programs:  

Accelerated Rehabilitation

To be eligible for Accelerated Rehabilitation (“AR”) in Connecticut, the defendant must be charged with a crime or, in some instances, a motor vehicle violation, not of serious nature.  The law expressly prohibits the use of AR for certain crimes including any class A or class B felony, operating under the influence, 2nd degree manslaughter, 2nd degree assault with a motor vehicle, 2nd degree sexual assault, 3rd degree sexual assault, 3rd degree sexual assault with a firearm, enticing a minor, 2nd or 3rd degree possession of child pornography, a crime or motor vehicle violation resulting in the death of another, family violence crimes, and others.  Prior convictions may also result in ineligibility for this program.  

If you are deemed eligible for this program, you will be supervised by the Court Support Services Division (“CSSD”).  While under CSSD supervision, the prosecution may be stayed for up to two (2) years enabling you time to successfully complete the program.    

Pretrial Alcohol Education Program

To be eligible for the Alcohol Education Program (“AEP”) in Connecticut, the defendant must be charged with operating under the influence, violating safe boating rules, or 2nd degree reckless vessel operation while under the influence, with some exceptions.  Like AR, prior convictions may also result in ineligibility for this program.  

If you are deemed eligible, you will be allocated one (1) year to complete this program consisting of between ten (10) to fifteen (15) sessions of an alcohol intervention or substance abuse program.  

Pretrial Drug Education and Community Service

To be eligible for the Drug Education and Community Service program, the defendant must be charged with a drug paraphernalia or possession crime or possession of less than .5 ounce of marijuana punishable by fine.  

Under this program, the defendant must submit to a Department of Mental Health and Addiction Services (“DMHAS”) for evaluation.  The defendant is allocated one (1) year to complete this program consisting of a fifteen (15) session drug education or substance abuse treatment program.  

Pretrial Family Violence Education Program

To be eligible for the Family Violence Education Program (“FVEP”) in Connecticut, the defendant must be charged with a family violence crime, with some exceptions.  A family violence crime, in Connecticut, is defined as a crime that includes an element of family violence to a family or household member.  The law expressly prohibits the use of FVEP for class A, B, C, or unclassified felonies with possible prison sentences greater than ten (10) years, and class D or unclassified felonies with possible prison sentences greater than five (5) years.  Any offenders that were involved in a family violence crime that involved inflicting serious physical injury are also ineligible without good cause.  Prior family violence convictions may also result in ineligibility for this program. 

If you are deemed eligible for this program, the Court Support Services Division (“CSSD”) will supervise you to ensure successful completion.  While under CSSD supervision, the prosecution may be stayed for up to two (2) years.

Pretrial Supervised Diversionary Program

To be eligible for the Pretrial Supervised Diversionary Program in Connecticut, the defendant must be charged with a crime or motor vehicle violation that is not of serious nature and must have a mental or emotional condition that has substantial adverse effects on the defendant’s ability to function.  This condition must require care and treatment.  Alternatively, the defendant may be eligible if they are a veteran with a mental health condition that is amenable to treatment if not dishonorably discharged from the military.  

If deemed eligible for this program, CSSD will develop a tailored treatment plan, even collaborating with state and federal agencies including DMHAS and the state and federal veteran’s departments.  Unlike the other diversionary programs, specially trained probation officers will supervise the defendant ensuring successful completion.  

With all of these programs, eligibility and admission into the program will not always result in your charges being dismissed.  It is imperative that you are wholly compliant with the court’s directives to ensure successful completion.  

If you have any further questions about criminal diversionary programs in Connecticut or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

What You Need to Know About Expungement in Connecticut

Is Your Criminal Record Haunting You Years Later?  What You Need to Know About Expungement in Connecticut…

If you live in Connecticut, the Connecticut Board of Pardons and Paroles (“BOPP”) Pardon Division has the power to grant a criminal expungement, also known as an Absolute Pardon.  Alternatively, for those not yet eligible for an absolute pardon, the BOPP has the power to issue a Certificate of Employability (“COE”) which can help you to secure employment while you get back on your feet.  

Absolute Pardon

An Absolute Pardon is an absolute erasure of your Connecticut criminal record.  To be eligible, certain requirements must be met:

  1. You must be a resident of the state of Connecticut.
  2. You must have one (1) or more criminal conviction(s) in any state of jurisdiction.
  3. Three (3) years must have passed since your most recent misdemeanor conviction.
  4. Five (5) years must have passed since your most recent felony conviction.
  5. Thirteen (13) months must have passed since the court nolled any charges against you.  
  6. You must have no pending charges, open cases, or be on any form of supervision in any jurisdiction, state of federal.

Assuming you have met all of these eligibility requirements, you may apply for an absolute pardon.  Once the application is started, you or your attorney will have six (6) months to complete the process, and it can be quite involved.  An Absolute Pardon in Connecticut requires a comprehensive background check that includes gathering imperative documents including your driver’s license, a criminal history report; fingerprints; incident reports; and court, probation, and police records.  In addition to these documents, you are required to submit at least three (3) character reference questionnaires.   Once your file has been complete, a pre-screen telephone interview will be scheduled and finally, you will be required to attend a hearing on the issue.

We get it – it sounds involved.  There is good news if your offenses are considered “non-violent” and do not involved a listed victim.  Non-violent offenders may be considered for expedited review, and it is possible for your expungement to be processed without the need for a pre-screen telephone interview or hearing.  However, this process is discretionary with the Pardons Board so do not hang your hat on it.

Like just about every other area of law, every case is different.  It is impossible to determine whether or not you will or will not succeed in the process, though some factors may help (or hurt) you.  The BOPP will look at a variety of factors, including but not limited to, the severity of the offense, the extent of your criminal record, how long it has been since your last conviction, whether the crime had any impact on the community, whether there were any listed victims and what input they might have had, and what you have been doing since the conviction are just some considerations that will go into assessing the application.  Have you been very active in your community?  Have you completely turned your life around?  Have you been able to hold steady employment?  The list can go on.

Certificate of Employability

Even if you are not eligible for an Absolute Pardon at this time, the BOPP offers an alternative; a Certificate of Employability.  A COE is also known as a Provisional Pardon or Certificate of Rehabilitation.  Unlike an Absolute Parson, the process of obtaining this certificate does not erase your criminal record.  A COE is intended for employment and licensure purposes only.  

To be eligible for a COE, certain requirements must be met:

  1. You must be a resident of the state of Connecticut.
  2. You must have one (1) or more criminal conviction(s) in any state of jurisdiction.
  3. If you have recently completed a sentence or are on parole or special parole:
    1. You must have been in the community for ninety (90) days and have no new arrest(s) if you have recently completed your sentence and are not currently under supervision.
    2. You must have completed ninety (90) days of supervision if you are under the supervision of the Department of Corrections Parole and Community Services Division.
  4. Thirteen (13) months must have passed since the court nolled any charges against you.  

If you are currently on probation and have more than ninety (90) days of supervision left, you must apply through the Court Support Services Division (“CSSD”).  Contact your probation officer for further information.

Assuming you have met all of these eligibility requirements, you may apply for a COE.  The BOPP requires you to submit a Background Investigation Authorization Form, a copy of your valid Driver’s License or State ID, and a Supervising Officer Questionnaire for those currently under any form of supervision.  

Like Absolute Pardon applications, once submitted, your application for a COE will be reviewed and investigated.  Once the investigation and administrative review are complete, the Board will either deny or grant the issuance of the Certificate.  Unlike an Absolute Pardon, a hearing is not necessary for your application for a COE.    

If you have any further questions about expungement in Connecticut, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

State Court Cannot Vacate a FINRA Arbitration Award FINRA to Expunge Negative Information from a Broker’s Complaint History

State Court Cannot Vacate a FINRA Arbitration Award FINRA to Expunge Negative Information from a Broker’s Complaint History

Thomas F. Nee, Jr. v. Financial Industry Regulatory Authority, Inc., 29 Mass.L.Rptr. 437 (2012).

In a recent case before Massachusetts state court, Thomas F. Nee, Jr., (“Nee”) filed a complaint against the Financial Industry Regulatory Authority (“FINRA”) seeking an order that all references to a claim lodged against him by customers of the brokerage firm where he worked and the FINRA arbitration award in favor of these customers be expunged from the FINRA Central Registration Depository (“CRD”) database. FINRA filed a motion to dismiss Nee’s complaint on failure to state a claim upon which the court can grant relief. The court allowed FINRA’s motion.

The underlying dispute in this case arose in 2003 when customers of the brokerage firm that employed Nee asserted claims against him, two other employees and the brokerage firm. The customers alleged that their investments had been mismanaged and sought compensatory damages. Nee and the other respondents contested the customers’ claims, requested that these claims be dismissed, and also requested that the claims be expunged from their regulatory records. The National Association of Securities Dealers (“NASD”), the predecessor of FINRA, convened an evidentiary hearing before a panel of three arbitrators. In January 2005, the panel issued its decision, holding that Nee, one of his colleagues and the brokerage firm were jointly and severally liable to the claimants for compensatory damages in the amount of $187,628. With respect to Nee’s other colleague, the arbitration panel recommended expungement of all references to the claim and the arbitration from his CRD, but noted that he must obtain confirmation of the expungement from a court of competent jurisdiction. Nee took no action to challenge the arbitration award until he filed the instant complaint in July 2011.

In his complaint, Nee asked the court to order FINRA to expunge any reference to the customers’ claim and the arbitration award from his CRD. He complained that the arbitration award did not explain the reasons for the panel’s decision and that the arbitration panel erred in finding him liable to the claimants because, among other things, he had no direct dealings with them.

FINRA Rule 2080 addresses expungement of negative information from the CRD, which is the FINRA database used by brokerage firms, investors, and regulators to assess the complaint history concerning a broker or investment advisor. According to this rule, “persons seeking to expunge information from the CRD system arising from disputes with customers must obtain an order from a court of competent jurisdiction directing such expungement or confirming an arbitration award containing expungement relief.” The court disagreed that FINRA Rule 2080 gave it jurisdiction over FINRA and the authority to vacate the 2005 arbitration award. Construing the rule as such would conflict with the statutory requirement that arbitration awards be confirmed unless a prompt motion to vacate is filed with the court. Previous Massachusetts state court decisions granting expungement orders to brokers were based on actions filed under the section of Massachusetts general laws, G.L. c. 251, § 11 to confirm an arbitration award recommending expungement. The Massachusetts statute is analogous to the Federal Arbitration Act (“FAA”) provision, 9 U.S.C. § 9; therefore, precedents in federal district court and other states have reached the same conclusion.

FINRA Rule 2080 does not provide claimants with a substantive right to override the finality of arbitration decisions. Matters fully litigated in arbitration are subject to the same res judicata effect as if they had been litigated in a court of competent jurisdiction or before an administrative agency. When arbitration affords opportunity for presentation of evidence and argument substantially similar in form and scope to judicial proceedings, the arbitration award should have the same effect as a court judgment. Bailey v. Metropolitan Property & Liab. Ins. Co., 24 Mass.App.Ct. at 36–37, quoting from Restatement (Second) of Judgments § 84 comment c. Nee asked the arbitration panel to find that he was not liable to the claimants and to order expungement, but the panel ruled against him on both requests. His current complaint asks the court to reconsider the expungement issue that was expressly resolved by the panel. Because that matter was “deemed arbitrable and [was] in fact arbitrated,” it cannot be collaterally attacked in a new complaint. TLC Construction Corp. v. A. Anthony Tappe & Associates, Inc., 48 Mass.App.Ct. 1, 4 (1999).

Massachusetts state law establishes a short 30-day window for filing a petition to vacate an arbitration award in order to accord such awards finality in a timely fashion, G.L. c. 251, § 12(b). Nee filed his complaint over six years after the arbitration award that denied his request for expungement. Therefore, the complaint was not properly before the court.

The court allowed FINRA’s motion to dismiss Nee’s complaint seeking an expungement order on the basis that the court has no authority to overrule the arbitration panel award denying expungement and that a motion to vacate the award was not filed in a timely fashion.

Should you have any questions relating to FINRA or arbitration issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

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