Family Court, Nassau County, October 10, 2019

James E. Flood, Jr., for respondent.

Jared A. Kasschau, County Attorney, Family Court Bureau (Christine Hughes of counsel), for presentment agency.

The respondent in these juvenile delinquency proceedings has moved pursuant to Family Court Act § 375.2 for an order sealing certain official records and papers relating to the finding of delinquency made against him in 2016. The presentment agency has filed opposition to the respondent's motion to seal, and the respondent has filed reply papers. The respondent's motion to seal is determined as follows:

On April 22, 2015, the respondent, M.D. (DOB xx/xx/2001), was found after trial (Fam Ct, Westchester County, Scattaretico-Naber, A.J.F.C.) to have committed acts which, if committed by an adult, would constitute the crime of sexual abuse in the third degree (Penal Law § 130.55), a class B misdemeanor. The findings against the respondent arose from incidents occurring on two separate dates, on or about October 6, 2014, and on or about October 8, 2014, when the respondent was 13 years old. The matter was then transferred to this court for a dispositional hearing due to the respondent being domiciled in N.C.

This court conducted extensive and comprehensive dispositional proceedings involving multiple hearing dates. On January 11, 2016, the court issued an order of disposition which adjudicated the respondent to be a juvenile delinquent and placed him on probation under the supervision of the Probation Department of the County of Nassau for a period of 20 months. (Order of disposition, Jan. 11, 2016 at 2.) The associated conditions of probation included the requirement that, inter alia, the respondent was to immediately be enrolled in one-on-one weekly counseling with a New York State licensed social worker to discuss decision-making, anger management and sexually-related outbursts. (Order and conditions of supervision, Jan. 11, 2016, ¶ 16.)

The respondent's motion to seal consists of an affirmation of counsel with supporting exhibits. The respondent's counsel argues that the juvenile delinquency records in these matters should be sealed "in the interest of justice." (Affirmation of Rachel Rayzak, Esq., July 24, 2019 [affirmation in support], ¶ 34.) Counsel asserts that the factors supporting the sealing of the respondent's records include, inter alia, that an unsealed{**66 Misc 3d at 289} record can prejudice the respondent's rehabilitative efforts; that the nature of the respondent's offenses do not warrant the denial of a motion to seal and that the respondent successfully completed his probation term and has had no further involvement in the juvenile or criminal justice systems. (Affirmation in support ¶¶ 40-48.) Counsel cites to the respondent's history of mental and physical health issues, including his being hospitalized in June 2018 for a "downturn in his mental health." (Affirmation in support ¶¶ 9-10, 13, 17.) According to counsel, after the respondent cooperated with hospitalization and agreed to accept medication management, he completely "turned his life around" and has become a role model to his school peers, including by serving as a student mentor to new students, by participating in his high school's vocational program and by graduating with a Regents diploma. (Affirmation in support ¶¶ 16, 24-26.) Counsel asserts that the respondent will continue to receive ongoing therapeutic support services and vocational rehabilitation services and that he plans to attend college in the fall of 2020. (Affirmation in support ¶¶ 32-33, 50.)

The presentment agency argues that the respondent's juvenile delinquency record should not be sealed due to factors such as the serious and sexual nature of the "deliberate" and intentional acts he committed against the complainant. (Amended opp to mot to seal record affirmation of Christine R. Hughes, Esq., Aug. 1, 2019 [affirmation in opp], ¶ 7.) The presentment agency further argues that even though the respondent did not violate probation, it is unclear if the counseling ordered as a condition of probation was conducted or successful. (Affirmation in opp ¶ 8.) It is further argued by the presentment agency that the respondent committed acts in this case that are more serious than acts committed by young offenders in other cases where a motion to seal was denied. (Affirmation in opp ¶ 8.) The presentment agency argues that the "harm caused by the crime" is a factor to be seriously considered and states that the record "is completely lacking information on the complainant in this matter." (Affirmation in opp ¶ 9.) The presentment agency argues that the respondent's interests are "adequately" protected by the automatic confidential nature of family court proceedings, which prohibit "indiscriminate public inspection" of family court records. (Affirmation in opp ¶ 11.)

{**66 Misc 3d at 290}In the respondent's affirmation in reply, counsel for the respondent^[FN1] asserts that the [*3]respondent successfully completed his probation, the terms of which were clearly delineated by the court, and disputes the presentment agency's assertion that it was "unclear" whether the respondent completed the counseling ordered as a condition of probation. (Affirmation in reply of James E. Flood, Jr., Esq., Sept. 13, 2019 [affirmation in reply], ¶ 4.) Counsel also disputes the presentment agency's assertion that in this case the protection of the community outweighs the respondent's need for his record to be sealed. (Affirmation in reply ¶ 6.) Counsel for the respondent concludes that the granting of respondent's motion to seal will enable the respondent to enter the next phase of his life in a better position than he is now and to acknowledge the great progress he has made. (Affirmation in reply ¶ 7.)

The respondent's motion to seal is filed pursuant to Family Court Act § 375.2, which provides as follows:

"If an action has resulted in a finding of delinquency . . . other than a finding that the respondent committed a designated felony act, the court may, in the interest of justice and upon motion of the respondent, order the sealing of appropriate records pursuant to subdivision one of section 375.1.^[FN2]" (Family Ct Act § 375.2 [1].)

There appear to be relatively few reported decisions determining motions to seal pursuant to Family Court Act § 375.2, particularly at the appellate level. Additionally, the statute instructs that a motion to seal may be granted "in the interest of justice" but it does not define that term or provide a list of{**66 Misc 3d at 291} specific factors to assist the court in determining when it would be in the "interest of justice" to seal juvenile delinquency records.

The court, however, is guided by several considerations, the first and foremost being "[t]he overriding intent of the juvenile delinquency article" which is "to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public." (Matter of Robert J., 2 NY3d 339, 346 [2004]; see also Matter of Emily P., 63 Misc 3d 755, 759 [Fam Ct, NY County 2019].) Equally important, this court is statutorily mandated to make its "interests of justice" determination by "consider[ing] the needs and best interests of the respondent as well as the need for protection of the community." (Family Ct Act § 301.1; see also Matter of Arturo R., 52 Misc 3d 496, 502 [Fam Ct, Queens County 2016] ["Where a court is asked to exercise its 'interest of justice' jurisdiction . . . the court must engage in 'a sensitive balancing of the interests of the individual and of the People' . . . so that 'a proper result is reached' "].)

The court is further guided by the Court of Appeals' proclamation that juvenile "[d]elinquency proceedings are designed not just to punish the malefactor but also to extinguish the causes of juvenile delinquency through rehabilitation and treatment" such that "[a] hallmark of the juvenile justice system is that a delinquency adjudication 'cannot constitute a criminal [*4]conviction' and a juvenile delinquent 'cannot be denominated a criminal.' " (Green v Montgomery, 95 NY2d 693, 697-698 [2001].) Consistent with this premise, the purpose of Family Court Act §§ 375.1 and 375.2 governing the sealing of juvenile delinquency records is "to prevent a person who was the subject of a juvenile delinquency proceeding from future prejudice which may be caused by private persons or public agencies hav[ing] access to records relating to the proceeding." (Matter of Dashawn Q., 112 AD3d 1250, 1252 [3d Dept 2013]; Matter of Kiara C., 31 Misc 3d 1245[A], 2011 NY Slip Op 51111[U] [Fam Ct, Queens County 2011].)

Considering the totality of the circumstances of this particular case, the court finds that it is "in the interest of justice" to seal the respondent's juvenile delinquency records for the reasons discussed in greater detail below.

First, the juvenile records sought to be sealed in this case arise from acts of delinquency that the respondent committed nearly five years ago, before he had even turned 14 years old.{**66 Misc 3d at 292} It is neither novel nor uncommon to postulate that a 13 (or 14) year old's biological ability to self-regulate behavior and conduct is vastly underdeveloped compared to that of an adult, even compared to someone who only recently attained the age of majority. (See e.g. Graham v Florida, 560 US 48, 68 [2010] ["developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds . . . parts of the brain involved in behavior control continue to mature through late adolescence"]; People v Alvarez, 33 NY3d 286, 311 [2019, Wilson, J., dissenting].)^[FN3] It is therefore reasonable to assume that the respondent has matured, both physiologically and psychologically, since the time he committed the acts of delinquency years earlier. Such assumption is bolstered by the undisputed fact that the respondent has not had any further involvement in the juvenile or criminal justice system in the five years since he committed the delinquent acts in 2014 and that he successfully completed his term of probation with services.

An additional factor that is significant to this court is the respondent's challenge of dealing with several physical and mental health difficulties and, perhaps most significantly, the respondent's willingness to undertake the steps necessary to improve his physical and mental health. Indeed, the court is particularly cognizant of the implications of the respondent's physical and mental health conditions, having conducted extensive and comprehensive proceedings to determine the disposition that would most effectively rehabilitate the respondent.

It is apparent, based on the motion submissions, that the respondent has made and continues to make significant progress toward rehabilitation. Cognizant of what the respondent's counsel characterized as a "downturn in his mental health"^[FN4] culminating in a hospitalization in June 2018 for a major{**66 Misc 3d at 293} depressive episode, the court notes the documented "turn around" in the respondent's attitude and behavior after he agreed to accept medication management. [*5]Specifically, according to S.O., LICSW, the director of clinical services at the W.A.,^[FN5] the respondent progressed from presenting with oppositional behaviors, aggressive outbursts and sexual behavior problems, to improving every aspect of his life including improving his physical health by losing 30 pounds, and improving his behavior and attitude by representing the W.A. at fundraising events, serving as a student mentor to new students, obtaining a job through the center's vocational program and experiencing a significant and positive change in his relationship with his father. (Exhibit C to affirmation in support.)

The presentment agency's opposition to the respondent's motion to seal is largely premised on the seriousness and concerning nature of the respondent's delinquency acts. (Affirmation in opp ¶¶ 7, 13.) The court is of course mindful of the serious and concerning nature of the respondent's delinquency acts. However, Family Court Act § 375.2 specifically permits any respondent to apply for the sealing of records, with the narrow exception of an individual found to have committed a designated felony. (Family Ct Act § 375.2; Merril Sobie, 2011 Supp Practice Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 375.2 ["Given favorable circumstances, Section 375.2 is always available and should be utilized, regardless of the severity of the underlying finding"].)

The court has no intention of minimizing the serious and concerning nature of the acts of delinquency committed by the respondent. However, the court finds that it would be inappropriate to view the respondent's conduct "in a vacuum"^[FN6] and instead considers the respondent's conduct together with the other circumstances of this case, including his well-documented mental and physical health challenges and his documented efforts to address and remedy these matters. Likewise, there is no basis in the record for the court to accurately assess the harm caused to the complainant in this matter,^[FN7] including the extent to which she continues to be affected by the incidents. The court finds that the presentment agency's unsubstantiated{**66 Misc 3d at 294} assertion that the respondent's conduct "left the complainant traumatized even years after the incidents"^[FN8] is insufficient to warrant a denial of the respondent's application.

Furthermore, the court also finds that there are material distinctions between the facts of this case and in those cases where a motion to seal has been denied. Specifically, the respondent in this case successfully completed his probation term^[FN9] without incident and has not had any further involvement with the juvenile justice or criminal justice systems,^[FN10] and the court is not aware of any pending or impending court proceeding for which the records would be material [*6]and necessary to secure necessary services and treatment for the respondent and/or other juveniles.^[FN11]

Having considered the parties' respective motion submissions and the information already in the court's possession as a result of having previously conducted extensive dispositional proceedings in these matters involving multiple witnesses and documentary exhibits, the court finds that, under the totality of the circumstances, it is "in the interest of justice" to grant the respondent's motion to seal pursuant to Family Court Act § 375.2.

Accordingly, it is ordered that the respondent's motion to seal his juvenile delinquency records pursuant to Family Court Act § 375.2 is granted; and it is further ordered that the Clerk of the Court shall immediately notify the Clerk of the Court of the Family Court of the State of New York, Westchester County; the director and the County Attorney for the Office of the Westchester County Attorney; the director and the County{**66 Misc 3d at 295} Attorney for the Office of the Nassau County Attorney; the director of the Nassau County Probation Department; the director of the Westchester County Probation Department; the commissioner of the Nassau County Police Department; and the commissioner of the Westchester County Police Department, as well as the New York State Division of Criminal Justice Services that the records of the juvenile delinquency proceedings against the respondent (in Nassau County, under docket Nos. D-XXXX-15 and D-XXXX-15; and in Westchester County, under docket Nos. D-XXXXX-14 and D-XXXXX-14) shall be sealed immediately pursuant to Family Court Act § 375.2; and it is further ordered that all other requests for relief not addressed herein are deemed denied.

"all official records and papers, including judgments and orders of the court, but not including public court decisions or opinions or records and briefs on appeal, relating to the arrest, the prosecution and the probation service proceedings, including all duplicates or copies thereof, on file with the court, police agency, probation service and presentment agency."

Such records would be "sealed and not made available to any person or public or private agency." (Family Ct Act § 375.1 [1].)