Opinion
CR-036677-18KN
04-02-2019
The PEOPLE of the State of New York, Plaintiff, v. Edwin GALARZA, Defendant.
By an ex parte motion, dated February 28, 2019, the People move, pursuant to Criminal Procedure Law (CPL) § 160.50(1)(d)(ii), for an order unsealing all court paperwork pertaining to docket 2017KN06089.
The People state that docket 2017KN06089 involved the defendant and complainant, William Garcia; that during the pendency of that case, a temporary order of protection was served on the defendant on behalf of William Garcia with an expiration date of June 28, 2018; and that on June 29, 2018, that docket was dismissed pursuant to CPL § 30.30 and sealed. On August 10, 2018, the defendant was charged in this current case with Penal Law (PL) § 215(3), criminal contempt in the second degree, for having allegedly approached William Garcia, on June 24, 2018, by stopping his car close to William Garcia's car and saying, "What's up?"
The People now move to unseal docket 2017KN06089, in the hopes of obtaining the order of protection issued in that case, as well as minutes from a December 7, 2017 calendar call in that case.
Upon termination of a criminal case in favor of the accused, the record of such action or proceeding must be sealed and not made available to any person or public or private agency. CPL §§ 160.50(1)(a), 160.50(1)(b), and 160.50(1)(c). There are six possible exceptions to this rule, all contained in CPL § 160.50(1)(d). One of those exceptions provides for unsealing for "a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter", ( CPL § 160.50[1][d][i] ); a second exception provides for unsealing for "a law enforcement agency upon ex parte motion..., if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it", ( CPL § 160.50[1][d][ii] ).
The Court of Appeals ruled that the legislature has strictly limited a court's authority to make sealed records available to a prosecutor once a criminal proceeding has commenced to "the singular circumstance delineated in CPL § 160.50(1)(d)(i), —where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade, a benefit that an accused may obtain only once." Katherine B. v. Cataldo, 5 NY3d 196, 205 (2005).
In Katherine B., the prosecutor attempted to obtain an unsealing order pursuant to CPL § 160.50(1)(d)(ii) which applies to law enforcement agencies, as the People are attempting to do in the case before this court. However, the Court of Appeals in Katherine B. rejected that position, holding that "the Legislature has limited a court's authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the singular circumstance delineated in CPL 160.50(1)(d)(I)..." Id. at 205.
The term "law enforcement agency" was discussed in Katherine B. , where the Court pointed out that the term, whenever it was used in CPL § 160.50, always appears in conjunction with the terms "police department," and/or the "division of criminal justices services." Katherine B. supra, at 204. See People v. Marcus A. , 28 Misc 3d 667,673 (2010). It has been held that a prosecutor is not a law enforcement agency within the meaning of CPL § 160.50. People v. Diaz , 15 Misc 3d, 410 (2007).
The People now complain that "we cannot fulfill our legal mandate of prosecuting the defendant without access to the minutes of January 23, 2013 [sic ] and acquiring a certified order of protection" (see People's Memorandum , p.6), and unconvincingly argue without common law or statutory support that "Cataldo cannot be narrowly construed to allow Defendant to benefit because of the fortuity of time, i.e. sealing of a case after violating an order". The People (People's Memorandum , p.6), however, are ignoring the fact that it was not a "fortuity of time", but a situation completely of their own making. By that, this court does not refer to the People's failure that allowed the first case to be dismissed pursuant to CPL § 30.30 ; but instead it refers to the People ignoring the meaning of the Court of Appeals ruling in Katherine B. , "The statute's provisions strongly suggest that its primary focus is the unsealing of records for investigatory purposes ." Id. at 205 (emphasis added).
The People are referring to Katherine B. v. Cataldo , 5 NY3d 196 (2005).
Referring to item (ii) of CPL § 160.50(1)(d).
Katherine B. does not prevent a defendant from being prosecuted for violating an
order of protection which is now contained in a sealed court file. However, the effect of its ruling highlights the need for the law enforcement officers to obtain that order of protection pursuant to CPL § 160.50(1)(d)(ii) while investigating the complaint of a violation of that order before the People charge the defendant. In the present case, if the People were contacted by William Garcia complaining that Edwin Galarza had violated the order of protection by approaching him and speaking to him, then the People could have referred the case for investigatory purposes to the police who would in turn make an ex parte motion to unseal docket 2017KN06089 and obtain the order of protection. At that point, the People would have enough evidence to make out a prima facie case against the defendant and then they could properly charge him with criminal contempt.
The law as discussed above establishes that the prosecutor is not included in the term "law enforcement agency", and that CPL § 160.50(1)(d)(ii) is available only to law enforcement agencies. Thus, where the People are moving for unsealing pursuant to CPL § 160.50(1)(d)(ii), they cannot prevail because that section is available only to law enforcement agencies.
Accordingly, for the reasons stated above, the People's ex parte motion to unseal docket 2017KN06089 is denied.
Whereas defendant is currently facing criminal charges contained in this case, docket CR-036677-18KN, and ex parte communication between the prosecutor and the court would not be proper under that circumstance, a copy of the People's motion and this decision will be provided to the defendant and his attorney on the next court date, April 2, 2019.
The foregoing constitutes the decision and order of this court.