The New York State Police (hereinafter "NYSP"), via the New York State Attorney General's Office (hereinafter "AG") have moved, pursuant to CPL 160.50 (1)(d)(ii), for the records in the instant matter to be unsealed for the limited purpose of using police documents and videos as part of an Extreme Risk Protection Order (hereinafter "ERPO") proceeding in Richmond County. The materials sought are already in NYSP's possession, however, unsealing would be required to present the materials as evidence in the ERPO proceeding. Applications made under CPL 160.50 (1)(d)(ii) are generally made ex parte, as allowed by the statute, however, in this matter, the defendant received notice of this motion and has opposed this application.

The defendant was arrested on February 23, 2024, for Driving a Motor Vehicle while Under the Influence of Alcohol. As a result of this arrest, the defendant was taken to the Intoxicated Driver Testing Unit (hereinafter "IDTU") at the 78th precinct to determine his level of intoxication. While at the IDTU room the defendant stated, in sum and substance, that he wanted to kill himself, "begged" to be shot, "smashed his head on the wall and ground" and kicked at officers from NYSP and the New York City Police Department (hereinafter "NYPD"). The defendant refused to comply with the officers' instructions and had to be physically restrained until Emergency Medical Services arrived.

Ultimately, the defendant was taken to the hospital for psychological treatment. After treatment the defendant was returned to the 78th precinct for further processing, only to be taken back to the hospital for further psychological evaluation and treatment before he was arraigned on his arrest.

The defendant was arraigned on February 24, 2025, on charges of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§ 1192 [1], [2] and [3]), [*2]Obstructing Governmental Administration in the Second Degree (PL § 195.05 [1]) and Resisting Arrest (PL § 205.30). On May 19, 2025, the People filed a superseding information, dismissing the charges of Obstructing Governmental Administration in the Second Degree and Resisting Arrest, leaving only the 3 counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs.

On February 24, 2025, NYSP filed an application for a temporary ERPO (hereinafter "TERPO") against the defendant in Richmond County Supreme Court. The TERPO was granted and the proceeding was adjourned for the defendant to appear and for a final hearing. As of the date of this decision, the final ERPO hearing has not been completed.

On September 11, 2025, the criminal case was dismissed and sealed pursuant to CPL 30.30 (1)(b).

CPL 160.50 requires that "[u]pon the termination of a criminal action or proceeding against a person in favor of such person . . . the record of such action shall be sealed." (CPL 160.50 [1]) This includes "all official records and papers . . . relating to the arrest or prosecution . . . on file with . . . any . . . police agency" (CPL 160.50 [1][c]). However, "not all documents or records constitute official records relating to the arrest or prosecution, and thus not all documents or records are subject to the sealing statute" (People v P.D., 78 Misc 3d 352, 356 [Crim Ct, Kings County 2023]). Here, the court must first determine whether the materials NYSP seek are official records that require sealing under CPL 160.50.

"[A]lthough CPL 160.50 specifies judgments and orders of a court as items 'included' in the category of official records and papers, the statute is otherwise silent on the nature of such 'official' material'" (Harper v Angiolillo, 89 NY2d 761, 765-766 [1997]). "[S]uch records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case" (id. at 766, citing Matter of Dondi, 63 NY2d 331, 337 [1984]).

Courts have held that certain documents and recordings generated by police departments are not official records within the meaning of CPL 160.50 (see, Matter of Dockery v New York City Housing Authority, 51 AD3d 575 [1st Dept 2008] [911 calls are not official records pertaining to a defendant's arrest or prosecution]; Matter of Krystal N., 193 AD3d 602 [1st Dept 2021] [911 calls are not official records within the meaning of CPL 160.50]; People v P.D., 78 Misc 3d 352 [Crim Ct, Kings County 2023] [Domestic Incident Reports are generated from incidents that may result in an arrest but can also be generated in incidents that don't involve an arrest and are therefore not part of the official record that is sealed]; Matter of N.J. (S.H.), 85 Misc 3d 1081 [Fam Ct, Kings County 2024] [Domestic Incident Reports and videos from officers body-worn cameras [hereinafter "BWC"] are not part of the official record that requires sealing under CPL 160.50]).

Certain documents and/or recordings serve a broader purpose beyond criminal arrests and prosecutions. They can be used for a variety of other reasons. For example, BWC footage, which records all types of encounters, such as various interactions between officers and the public, offers the public transparency and is used to evaluate law enforcement conduct in the community. (see, e.g., Matter of N.J., 85 Misc 3d at 1086 ["BWCs are used to 'record enforcement, investigative and other encounters between the police and public. They provide a contemporaneous, objective record of these encounters, facilitate review of events by supervisors, foster accountability, and encourage lawful and respectful interactions between the public and police"]). Because certain documents and materials are used for a broader purpose, [*3]the materials cannot be considered materials generated solely for the arrest, investigation and prosecution of the matter, which requires sealing after the matter is terminated in favor of the accused.

Here, NYSP seeks the NYPD video taken of the defendant at the precinct, in the IDTU room. A person arrested for Driving While Intoxicated is taken to the IDTU for coordination tests to determine the person's intoxication level (see generally, People v Aviles, 28 NY3d 497 [2016] [administration of coordination tests at IDTU is an investigative technique designed to gather evidence of intoxication]). Therefore, an IDTU video is generated during testing as the result of an arrest for the purpose of gathering evidence for a prosecution. Accordingly, an IDTU video is an official record that must be sealed pursuant to CPL 160.50 in the event of the dismissal of the criminal case.

Since the materials in question are an official record that must be sealed when this matter was dismissed, the question now turns to whether justice requires that the materials be unsealed and made available to NYSP.

CPL 160.50 "serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation." (Hynes v Karassik, 47 NY2d 659, 662 [1979].) "Consistent with this design and the 'plain intendment of the statutory scheme,' the 'general proscription' against releasing sealed records and materials is subject only to a few narrow exceptions." (Katherine B. v Cataldo, 5 NY3d 196, 202 [2005] citing Matter of Joseph M., 82 NY2d 128, 134 [1993].) "The six statutory exceptions [to unseal records] are precisely drawn. This underscores the Legislature's commitment to prohibiting disclosure of sealed records . . . except where the statute explicitly provides otherwise." (Katherine B. at 203.)

CPL 160.50 (1)(d)(ii) provides that sealed records shall be made available to "a law enforcement agency upon an ex parte motion in . . . the criminal court of the city of New York provided that such court sealed the record, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it." Although the Criminal Procedure Law does not define what constitutes a law enforcement agency, there can be no doubt that NYSP, which employs police officers as defined in CPL 1.20 (34), qualifies as a law enforcement agency within the meaning of this statute. Therefore, NYSP through the AG may make an application to unseal the documents.

NYSP argues that justice requires that the IDTU materials be unsealed because they seek to present the materials during their ERPO application. Pursuant to CPLR § 6341, an ERPO proceeding is one where a law enforcement agency files an application "upon the receipt of credible information that an individual is likely to engage in conduct that would result in serious harm to themselves or others". Upon the filing of such a petition, the court must conduct a hearing and determine whether the petitioner has proved by clear and convincing evidence that the respondent is likely to engage in conduct that would result in serious harm to themselves or others (CPLR § 6343 [2]). In its determination the court "may consider the petition and any evidence submitted by the petitioner, [and] the respondent, any testimony presented, and the report of the relevant law enforcement agency submitted" (Id.)

If the court grants the ERPO application, any firearm, rifle or shotgun previously removed from the respondent's custody would be retained by the law enforcement agency and any firearms, rifles or shotguns in the respondent's possession must be surrendered to law [*4]enforcement. (CPLR § 6343 [3][b]) Any existing firearm license will be suspended and the respondent will be ineligible to apply for a firearm license. (Id.) Additionally, the respondent will be prohibited from purchasing or possessing any firearm, rifle or shotgun. (Id.) These restrictions will remain in effect for up to one year from the issuance of the ERPO. (CPLR § 6343 [3][d])

The purpose of this statute is to protect "the public at large and preventing crime and serious injury." (R.M. v C.M., 226 AD3d 153, 165 [2d Dept 2024] [internal citations omitted]). These proceedings were established to promote public safety and to hopefully prevent tragedies involving firearms, including interpersonal gun violence and suicide involving a gun. (Sen. Introducer's Memo in Support, Bill Jacket, L 2019, ch 19, §1) The establishment of Article 63-A of the CPLR was "an effort to provide concerned family members, law enforcement authorities, and certain other specified stakeholders with an efficient mechanism to obtain a court order prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun, upon a showing that the person is likely to engage in conduct that would result in serious harm to self or others." (McMorris v Michael W., 83 Misc 3d 956, 962 [Sup Ct, Dutchess County 2024].)

NYSP, through the AG, argues that the video is necessary to present at the ERPO hearing so that the Supreme Court can visibly assess whether the defendant's conduct during the IDTU evinces the likelihood of self-harm. The defendant argues, and NYSP concede, that the NYSP officer can testify to the underlying facts that are on the IDTU video. However, an individual's affect and demeanor provide context to their words and "the visual impact [of an individual's] rantings is hard to capture in words" (Kohler v S.L., 81 Misc 3d 1220 [A] at *2 [Sup Ct, Albany County 2023]). An officer's testimony is not analogous to a video depicting the defendant's statements and the context surrounding them, including his conduct and demeanor while in the IDTU room. In addition to listening to the officer's testimony, the Supreme Court should have the benefit of seeing the defendant's demeanor, his behavior, hear his statements and observe the interactions between the defendant, NYSP and NYPD while in the IDTU room, in considering NYSP's application for the ERPO. Therefore, justice requires the unsealing of these materials.

Given that NYSP is requesting access to the sealed IDTU video for the limited use at the ERPO hearing, justice requires the materials be made available, in accordance with CPL 160.50 (1)(d)(ii).

Accordingly, this Court finds that the AG and NYSP have established a basis under CPL 160.50 to unseal and make the records available. Therefore, the application to unseal the records in this matter for use during the pending ERPO proceeding against the defendant is granted.

This constitutes the decision and order of this Court.