Opinion
No. 1797–2009.
06-26-2014
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 v. Andy E., Defendant.
Vivian Y. Joo, Esq., New York, for Petitioner, Police Commissioner of the City of New York. Andres M. Aranda, Esq. Bronx, for Respondent.
Vivian Y. Joo, Esq., New York, for Petitioner, Police Commissioner of the City of New York.
Andres M. Aranda, Esq. Bronx, for Respondent.
Opinion
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 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. 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.
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.
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 N.Y.2d 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.” 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 N.Y.2d 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 A.D.2d 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 A.D.2d 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 N.Y. v. Patrick M., 131 Misc.2d 695 [Sup Ct, N.Y. 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 N.Y.2d 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 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 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.
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.”
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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 A.D.2d 142 [3d Dept 1993] ; see also People v. Patrick M., 131 Misc.2d 695 [Sup Ct, N.Y. 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.