Opinion
No. 142.
Argued September 3, 2008.
Decided October 16, 2008.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered April 5, 2007 (as amended by unpublished order entered July 23, 2007). The Appellate Division order, insofar as appealed from, modified, on the law, an order of the Supreme Court, Chemung County (Peter C. Buckley, J), which had denied petitioners' application to unseal the record of certain criminal proceedings. The modification consisted of (1) reversing so much of the order as denied petitioners' application to unseal preexisting documents generated in petitioners' regular course of business during its investigation of other defendants, rather than in connection with the prosecution of the criminal proceeding against respondent, and (2) granting the application to that extent.
Respondent police officer was subject to criminal charges and a disciplinary proceeding arising from the same matters. After the criminal charges were dismissed, petitioners sought to unseal the criminal records for use in the disciplinary proceeding.
Matter of City of Elmira v Doe, 39 AD3d 942, affirmed.
Schlather, Geldenhuys, Stumbar Salk, Ithaca ( Diane V. Bruns of counsel), for appellant.
J. William O'Brien II, Corporation Counsel, Elmira ( John J. Ryan, Jr., of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.
In this special civil proceeding brought pursuant to CPL 160.50 to vacate a sealing order, the primary issue before this Court is whether some of the sealed materials constitute "official records" within the meaning of CPL 160.50 (1) (c). We agree with the Appellate Division that certain sealed records in this case (i.e., property tags, bags and logs showing the chain of custody of money surrendered by persons arrested by respondent, and other records generated in the investigations of those arrests) are not official records subject to a CPL 160.50 seal. Respondent's remaining argument that the Appellate Division erred in granting "resettlement and reargument" is without merit.
All parties now acknowledge that CPL 160.50 (1) (d) is not applicable; accordingly, we may not pass on those aspects of the rulings below. Throughout this proceeding, neither party addressed whether CPL 160.50 (1) (c) is a proper basis upon which to obtain sealed documents in this procedural context. They simply contest whether the subject materials constitute "official records." Thus, as this threshold issue was not preserved for appellate review, we must here accept without comment the general applicability of CPL 160.50 (1) (c) as a basis for vacatur.
Order, insofar as appealed from, affirmed, without costs, in a memorandum.