IN THE
MATTER OF THE APPLICATION OF THE Police Commissioner of the City of New
York for an Order Unsealing and Making Available the Official Records and Minutes of
the Trial Testimony in the Proceedings entitled THE PEOPLE OF THE STATE OF
NEW YORK ANDY E., Defendant.
The People of the State of New York
against
Andy E., Defendant.
|
1797-2009
For Petitioner:
Police Commissioner of the City of New York
Vivian Y. Joo, Esq.
Department Advocate
NYC Police Department
1 Police Plaza
New York, NY 10038
For Respondent:
Andres M. Aranda, Esq.
930 Grand Concourse, Suite 1A
Bronx, New York 10451
Dominic R. Massaro, J.
Following trial, on November 26, 2013, Respondent was acquitted of all criminal
charges against him. The record relating to the criminal action was sealed pursuant to
CPL §160.50. Now, in a motion dated February 10, 2014, on notice to defense
counsel, Petitioner, the Police Commissioner of the City of New York, moves, pursuant
to CPL §160.50(1)(d)(ii), for an order unsealing the Grand Jury minutes, criminal
trial minutes, audiotapes, videotapes, photographs, prosecutor's files and other exhibits
related to the trial for the purpose of a departmental disciplinary proceedings against
Respondent, a New York City Police Officer. Petitioner has attached a copy of the
disciplinary proceeding's "Charges and Specifications," which are based upon the earlier
criminal charges, wherein Respondent is alleged to have sexually assaulted his [*2]former girlfriend, who also is employed by the
Department.
The Petitioner submits that he is responsible for ensuring the public's safety and
welfare and that the Police Commissioner is empowered to have cognizance and control
of the discipline of the police force pursuant to the New York City Charter, §434. It
is argued that access to the sealed record, inclusive of contemporaneous witness
statements and Grand Jury minutes, is necessary, in order to evaluate the facts of the case
for use during any disciplinary hearings which may be held pursuant to New York City
Administrative Code, §14, and the New York State Civil Service Law,
§75.
In a letter, dated April 9, 2014, Respondent's counsel in the criminal matter opposes
the Petitioner's application for unsealing. In a reply letter, dated April 29, 2014,
Petitioner explains that at the request of the Office of the Bronx District Attorney and to
maintain the integrity of the criminal matter, the Department suspended its own internal
investigation and did not collect further evidence or seek out potential
witnesses.[FN1]
Petitioner expresses concern that although aware of the identity and whereabouts of some
of the individuals who testified in the Grand Jury and at trial, the witnesses now may not
cooperate and, even if they should, with the passage of time may not provide as reliable
information. Moreover, it is submitted that in contrast to most other public employers,
police officers are authorized to carry a firearm and that by not unsealing the court
records in this case, the Department's disciplinary process will be frustrated and thus
public safety could be compromised.
CONCLUSIONS OF LAW
CPL §160.50(1) provides, in pertinent part:
1. Upon the termination of a criminal action or proceeding against a person in
favor of such person . . . the court wherein such criminal action or proceeding was
terminated shall immediately notify the commissioner of the division of criminal justice
services and the heads of all appropriate police departments and other law enforcement
agencies that the action has been terminated in favor of the accused, and unless the court
has directed otherwise, that the record of such action or proceeding shall be sealed.
...
(d) such records shall be made available to the person accused or to such
person's designated agent, and shall be made available to ... (ii) a law enforcement
agency upon ex parte motion in any superior court, if such agency demonstrates to the
satisfaction of the court that justice requires that such records be made available to
it....As explained by the Court of Appeals in Matter of Joseph M., 82 NY2d 128,
131 (1993), "CPL §160.50 was enacted in 1976 in the same reform legislation that
added a provision to the Human Rights Law (now Executive Law §296[16])
making it an unlawful discriminatory practice for an employer, in connection with the
employment of an individual, to inquire about or act adversely on any prior criminal
accusation which had terminated in the employee's favor." [*3]This same purpose was restated by the Court in Matter of Katherine B. v. Cataldo,
5 NY3d 196, 202 [2005], "[t]he sealing requirement was designed to lessen the
adverse consequences of unsuccessful criminal prosecutions by limiting access to official
records and papers in criminal proceedings which terminate in favor of the accused. That
detriment to one's reputation and employment prospects often flows from merely having
been subjected to criminal process has long been recognized as a serious and unfortunate
by-product of even unsuccessful criminal prosecutions. The statute's design is to lessen
such consequences."
The language of CPL §160.50 is mandatory, subject to a few narrowly
drawn exceptions. Here, Petitioner seeks to unseal the records under CPL
§160.50(1)(d)(ii), the "law enforcement agency" exception. However, case law
interpreting the "law enforcement agency" exception does not support this position.
When a police department conducts a disciplinary proceeding concerning one of its own
employees, it acts as a public employer, rather than a "law enforcement agency," and the
exception for access by law enforcement agencies is inapplicable. (see Matter of
Charles Q. v. New York State Police, 85 NY2d 571 [1995] [by implication];
Matter of City of Elmira v. John Doe, 39 AD3d 942 [3d Dept 2007],
opinion amended on other grounds on reargument, 2007 WL 2080918; Matter
of New York State Police v. Q, 192 AD2d 142 [3d Dept 1993]; Matter of
Sheriff Officers Association, Inc. ex rel Jackson v. County of Nassau, 2012
WL 7964117 [Sup Ct Nassau County] ; cf. Matter of Katherine B., supra
[holding that the law enforcement exception to sealing requirements applies only where
unsealing is sought for investigatory purposes and does not extend to use of unsealed
records by a prosecutor for purposes of making sentencing recommendations]; Matter
of Joseph M., supra [declining to enlarge statutory exceptions to include unsealing of
records for use by a Board of Education in disciplinary proceedings of a teacher];
Hynes v. Karassik, 63 AD2d 597 [1st Dept. 1978] [holding that none of the
statutory exceptions justify making sealed records available to a grievance committee to
assist in determining whether to bring professional disciplinary charges against a lawyer];
Matter of Central Screening Committee of the Appellate Division, First Department,
for an Unsealing Order, 28 Misc 3d 726 [Sup Ct, Bronx County (2010)] [holding
that Assigned Counsel Plan demonstrated that sealed trial transcript was critical in
making determination of whether attorney engaged in misconduct during trial]).
Moreover, if the law enforcement agency exception under CPL
§160.50(1)(d)(ii) authorized the Department to move for unsealing while acting in
all capacities, the other exceptions specified in CPL §160.50(1)(d) would be
superfluous. For example, CPL §160.50(1)(d)(v) makes sealed records available to
the prospective employer of a police officer, so long as the applicant is provided with a
copy of all records and given an opportunity to explain. Also, the law enforcement
exception under CPL §160.50 (1)(d)(ii) is to be made upon an ex parte motion
which suggests that it is appropriate for a criminal investigation rather than a disciplinary
proceeding (see Matter of Police Commr. of the City of NY v. Patrick M.,
131 Misc 2d 695 [Sup Ct , NY County (1986)].
The Court of Appeals has recognized that under "extraordinary
circumstances" and upon compelling demonstration the Appellate Division may be
permitted access to sealed records in order to pursue disciplinary charges against an
attorney (see Matter of Dondi, 63 NY2d 331 [1984]). "What Matter of Dondi
and our other cases make clear is that absent extraordinary circumstances,' a specific
grant of power or the existence of a legal mandate the nature of which [*4]would be impossible to fulfill without unsealing criminal
records, sealed criminal records may only be accessed by individuals and agencies
specifically enumerated and narrowly defined in CPL §160.50(1)(d)" (Matter of
New York State Commission on Judicial Conduct v. Rubenstein, __NY3d __, 2014
WL 2573391[citations omitted]). In Rubenstein, the Court of Appeals concluded
that the New York State Commission on Judicial Conduct is authorized pursuant to the
Judiciary Law §42 [FN2]
and its constitutional mandate to investigate judicial misconduct, to request and receive
records sealed under CPL §160.50 for use in its investigations. In contrast, although
New York City Charter §434, in describing the power and duties of the
Commissioner authorizes the Commissioner to "have ... disposition and discipline of the
department, and of the police force of the department, " it does not specifically authorize
the Commissioner to request and receive court records.
In any event, any exercise of the court's inherent authority to unseal records
is limited to "extraordinary circumstances" in which the moving party demonstrates that
the information sought cannot be obtained from any other source (Matter of New
York State Police v. Q, 192 AD2d 142 [3d Dept 1993]; see also People v.
Patrick M., 131 Misc 2d 695 [Sup Ct, NY County (1986)] [although police
department was not law enforcement agency when it sought access to sealed records for
use in disciplinary hearing, courts have inherent power to unseal their records when
justice demands, whether or not there is specific authority]).
Although there is no dispute with Petitioner's position that it is the duty of
the Department to discipline its members and to protect the public from unfit officers,
Petitioner has not made a compelling demonstration in this case, that without an
unsealing order a disciplinary investigation cannot be accomplished. There is no
indication that there have been attempts to retrieve the information needed for the
disciplinary proceeding by other means. Nor is there a showing that the victim or any
other witness is unavailable or unwilling to testify at the disciplinary hearing. Rather,
Petitioner speculates that some of the witnesses who testified in the Grand Jury or during
trial may not cooperate with the Department. Petitioner further speculates that even if
they could interview the same witnesses from the criminal proceeding, with the passage
of time their memories would be stale and the information less reliable. Here, the
Department has not put forth " facts indicating that other avenues of investigation have
been exhausted or thwarted or that it was probable that the record contained information
that was both relevant to the investigation and not otherwise available by conventional
investigative means. Convenience alone will not justify an unsealing." (Matter of
Dondi, supra at 339).
Accordingly, the application for unsealing is denied. This constitutes the
decision and order of this Court.
June 26, 2014________________________Dominic R. Massaro, JSC
Footnotes
Footnote 1:Petitioner does not state
when the Department suspended its investigation. The charges stemmed from an incident
which allegedly occurred on February 15, 2009. Respondent was arrested on these
charges on February 16, 2009.
Footnote 2:Judiciary Law
§42(3) provides that the Commission may "request and receive from any court,
department, division, board, commission, or other agency of the state or political
subdivision thereof or any public authority such assistance, information and data as will
enable it properly to carry out its functions, power, duties."