Justice Court of the Town of Penfield, Monroe County, February 13, 2018

A.A., defendant pro se.

On November 13, 2017, the defendant filed six motions with this court in which he requests that an order be issued (a) requiring all official records and papers relating to various charges filed on a number of dates during the years 2005 and 2006 be sealed, (b) directing that all photographs and fingerprints be destroyed, and (c) granting additional relief provided for in CPL 160.50 and 160.55. The defendant provided proof of service of his motion papers on the People who have chosen not to file answering papers. This court made an inquiry of the defendant whether he desired to present oral argument and he indicated that he did not.

This decision covers all six applications. The individual cases are addressed in chronological order and are identified below by the court's docket numbers. All alleged offenses occurred in the Town of Penfield.

The statutes governing sealing aspects of these cases read in relevant part as follows:

"CPL 160.50 Order upon termination of criminal action in favor of the accused.

"1. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section . . . {**59 Misc 3d at 994}the record of such action or proceeding shall be sealed and the clerk of 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 . . . that the record of such action or proceeding shall be sealed . . .

"(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency."

"CPL 160.55 Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings.

"1. Upon the termination of a criminal action or proceeding against a person by the conviction of such person of a traffic infraction or a violation, . . . the clerk of the court wherein such criminal action or proceeding was terminated shall immediately [*2]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 by such conviction . . .

"(c) all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency."

On July 4, 2005, the defendant was arrested and charged in an information with harassment in the second degree and disorderly conduct, both violation grade offenses (docket No. 05070150). He was also charged in a separate information with obstructing governmental administration, a class A misdemeanor (docket No. 05090114). The allegations were that during{**59 Misc 3d at 995} a physical altercation with another individual in the presence of a large crowd during the evening of the Independence Day fireworks display in a local park, the defendant became physically violent with a deputy sheriff who was trying to remove him from the altercation. The defendant pleaded guilty to disorderly conduct on October 26, 2005, in satisfaction of both violations. He was sentenced to a one-year conditional discharge, eight hours of community service and a surcharge of $100. The defendant completed his sentence. On the same date the obstructing charge was dismissed.

On February 9, 2016, and on December 20, 2017, the clerk of the court issued certificates of disposition at the request of the defendant, which indicated that the harassment charge was "covered" and that the disorderly conduct charge resulted in the sentence indicated above.

On February 9, 2016, and on December 20, 2017, the clerk of the court issued a certificate of disposition at the request of the defendant which indicated that case No. 05090114 (obstructing governmental administration) was sealed.

Disposition reporting of the charges under docket No. 05070150 (harassment second and disorderly conduct): Under CPL 160.55 (1) and (1) (c), the court's records were not sealed. In accordance with subdivision (1), the clerk notified the Monroe County Sheriff's Office, as the arresting agency that generated the charges, that the case was terminated by the conviction of a violation. Upon such notification, the sheriff was required to comply with the provisions of CPL 160.55 (1) (c) by sealing its file. None of the documents referred to in CPL 160.55 (1) (a), such as fingerprints and photographs, existed because the charges did not involve fingerprintable offenses. Also, with only non-fingerprintable offenses, the case was not reportable to the Division of Criminal Justice Services (DCJS) and thus it was not notified of the disposition.

Disposition reporting of the charge under docket No. 05090114 (obstructing governmental administration): In accordance with CPL 160.50 (1), the court notified the sheriff and DCJS that the matter had been terminated in favor of the defendant and that the record should be sealed. The clerk also sealed the court's record. Upon receipt of such notice, DCJS and the sheriff were required to comply with CPL 160.50 by sealing their files and returning the documents enumerated in said section.

It appears from defendant's rap sheet, dated January 12, 2018, which this court obtained in connection with deciding the{**59 Misc 3d at 996} pending motion, that full compliance by this court was done because there is no reference to any of the foregoing charges therein.

The certificates of disposition, above noted, are further evidence that this court properly [*3]recorded the dispositions in its own records.

[1] Other than issuing the notifications as specified above, this court has no responsibility to insure that the criminal justice agencies that were involved in these cases comply with the sealing statutes. Prior to 1991, CPL 160.50 required that a court issue a sealing order. The statute was amended in 1991 eliminating this requirement so that all the clerk has to do is notify the necessary agencies. (See Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 160.50 at 606 [2004 ed].)

On August 7, 2005, the defendant was arrested and charged in an information with harassment in the second degree, a violation. On October 26, 2005, the matter was adjourned in contemplation of dismissal for a period of one year. On the same date this court issued an order of protection which expired on October 26, 2006. In accordance with CPL 160.50 the case was sealed and the Monroe County Sheriff's Office was notified that the action had been terminated in favor of the defendant and that the record of such action was to be sealed. On February 9, 2016, and on December 20, 2017, the clerk of this court, at the defendant's request, issued a certificate of disposition which indicated that the case had been sealed. Again, there is no reference in defendant's rap sheet to this charge.

On October 17, 2005, the defendant was charged by way of an information with violating Alcoholic Beverage Control Law § 65-c, by being in possession of a bottle of beer with intent to consume. No other charges were leveled against him on that date. On November 23, 2005, the defendant pleaded guilty as charged and was sentenced to a fine of $50 which he paid. On February 9, 2016, and on December 20, 2017, the clerk of the court issued a certificate of disposition which summarized the above facts and she provided the defendant with a copy of same.{**59 Misc 3d at 997}

CPL 160.50, as cited above, does not apply in this case because the matter was not terminated in favor of the defendant: he was convicted.

In order for the defendant to be accorded relief under CPL 160.55, two elements must be present: the matter must have involved a criminal action and it must have terminated in a conviction of a violation.

A. Criminal Action

The definition of "criminal action" is contained in CPL 1.20 (16):

"A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument . . . and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case."

The first element included in the definition of a criminal action is the filing of an "accusatory instrument" which is defined in CPL 1.20 (1). That definition includes an "information."

The charge leveled against the defendant was contained in an "information," which is defined in CPL 1.20 (4):

" 'Information' means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or [*4]more defendants with the commission of one or more offenses, none of which is a felony, and which may serve both to commence a criminal action and as a basis for prosecution thereof" (emphasis added).

In this case, the document charging the defendant with a violation of Alcoholic Beverage Control Law § 65-c is entitled "Information." It is in fact an "information" because, as more specifically provided for in CPL 100.15, it (a) identified Penfield Justice Court as the name of the court; (b) contained an accusatory part, specifying the law allegedly violated; (c) contained factual allegations including the date, time and location of the offense and a brief description of the offense; (d) was based upon the personal observations of the complainant who{**59 Misc 3d at 998} was a Monroe County Deputy Sheriff; and (e) was properly verified.

B. Conviction of a Violation

An information must charge the commission of one or more "offenses." (CPL 1.20 [4].) Now the question becomes whether violation of Alcoholic Beverage Control Law § 65-c constitutes an "offense." An offense is defined in Penal Law § 10.00 (1) as

"conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same."

Classification of offenses is found in Penal Law § 55.10. Subdivision (3) in relevant part defines a violation as follows:

"3. Violations. Every violation defined in this chapter is expressly designated as such. Any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if:

"(a) Notwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine."

Alcoholic Beverage Control Law § 65-c (3) authorizes a court to impose a fine not to exceed $50 for a violation of the statute. Thus, possession of an alcoholic beverage contrary to section 65-c would seem to constitute a "violation" under the Penal Law definition. However, the analysis is quite a bit more complex. See 2005 Opinions of the Attorney General No. 2005-14 (2005 WL 1304445), an informal opinion of the Attorney General which concluded that a violation of Alcoholic Beverage Control Law § 65-c constitutes a criminal offense subject to prosecution by the district attorney. This court agrees with that opinion.

[2] This court concludes that the defendant's conviction under Alcoholic Beverage Control Law § 65-c is subject to the provisions of CPL 160.55. The charge was prosecuted in a criminal action and terminated in a conviction of a violation under the Penal Law and well as the Alcoholic Beverage Control Law. However, as the defendant was not fingerprinted or photographed and no agency or entity of any kind other than the{**59 Misc 3d at 999} sheriff which generated the accusatory instrument was notified by this court of the prosecution and/or conviction, there is no basis for ordering the destruction or return of any such items. Furthermore, CPL 160.55 (1) (c) exempts sealing of this court's records. That is apparent from a comparison of the parallel subdivision (1) (c) in CPL 160.50. The latter includes references to court records while the former does not. Lastly, although this court has no record whether or not the sheriff was notified of the outcome of this case, it would seem to be pointless at this late juncture to notify that the prosecution terminated in a conviction.

On December 10, 2005, the defendant was arrested and charged in an information with obstructing governmental administration, a class A misdemeanor. The allegations were that [*5]the defendant shouted, swore at and took an offensive fighting posture toward a deputy sheriff while he was in the process of attempting to arrest another person. The defendant pleaded guilty to disorderly conduct on April 12, 2006, in satisfaction of the charge and was sentenced to a one-year conditional discharge, a fine of $100 and a surcharge of $100. The defendant made the appropriate payments. On February 9, 2016, and on December 20, 2017, at the defendant's request, the clerk of the court issued a certificate of disposition which indicated that this court imposed a fine and surcharge for disorderly conduct. The certificate also indicates "Seal Type: 160.55."

As explained above in the discussion under docket No. 05110106 (supra at 998-999), CPL 160.55 (1) (c) exempts sealing of this court's records. That is apparent from a comparison of the parallel subdivision (1) (c) in CPL 160.50. The latter includes references to court records while the former does not. Thus, the certificate of disposition issued in this case reflects all charges and the disposition of each. However, in accordance with CPL 160.55 (1) (c), the records of all police agencies were sealed.

The only entries appearing on the defendant's rap relate to this case. They include all of the information appearing on the certificate of disposition. According to a communication with a court analyst in the Criminal Disposition Reporting Unit of DCJS, the data is disclosed only to this court. An inquiry by any police agency or any other person or entity would result in{**59 Misc 3d at 1000} a "no record" response. Thus, it appears that the provisions of CPL 160.55 have been complied with by DCJS.

In anticipation of deciding defendant's pending motions, this court communicated with an employee of the Monroe County Sheriff's Office in the records department. I was advised that the record in this case was sealed and would not be available to anyone.

On February 17, 2006, the defendant was issued uniform traffic tickets for aggravated unlicensed operation of a motor vehicle in the third degree, an unclassified misdemeanor, unlicensed operation and an equipment violation, both traffic infractions. The defendant pleaded guilty to unlicensed operation on April 12, 2006, in satisfaction of all charges and was sentenced to a fine of $60 and a surcharge of $55. The defendant made the appropriate payments.

On February 9, 2016, and on December 20, 2017, the clerk of this court, at the defendant's request, issued a certificate of disposition which indicated that the charges of aggravated unlicensed operation and equipment violation had been "covered" and that the court imposed a fine and surcharge for the unlicensed operation charge. The certificate also indicates "Seal Type: 160.55." DMV was notified accordingly at the time.

As these were all non-fingerprintable offenses, including aggravated unlicensed operation, DCJS has no record of this case and there were no fingerprints or photographs to return to the defendant.

This court has recently been advised by a representative of the Monroe County Sheriff's Office, which issued the tickets, that in cases of this kind, involving a non-fingerprintable misdemeanor with a plea down to a traffic infraction, the policy is that the case is sealed and never reported to anyone.

In view of the foregoing, all six of the defendant's motions are denied in their entirety. Hopefully, the specifics contained in this decision will assure the defendant that the disposition in each of his cases was reported and processed in accordance with the applicable statutes.