In the Matter of New York State Commission on Judicial Conduct, Respondent,v.Seth Rubenstein, Appellant. (And Another Action.)BriefN.Y.April 30, 2014To Be Argued By: GARY B. FREIDMAN Time Requested: 15 Minutes APL-2013-00107 New York County Clerk’s Indictment No. 5768/08 Court of Appeals STATE OF NEW YORK In the Matter of Releasing Official Records and Papers to the New York State Commission on Judicial Conduct NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT, Petitioner-Respondent,against SETH RUBENSTEIN, Respondent-Appellant. THE PEOPLE OF THE STATE OF NEW YORK against [Redacted] and SETH RUBENSTEIN, Defendants. BRIEF FOR RESPONDENT-APPELLANT d GARY B. FREIDMAN JEFFERY H. SHEETZ GREENFIELD STEIN & SENIOR, LLP Attorneys for Respondent-Appellant 600 Third Avenue New York, New York 10016 Telephone: (212) 818-9600 Facsimile: (212) 818-1264July 2, 2013 TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT I THE STATE COMMISSION’S COMPLETION OF ITS INVESTIGATION AND DISCIPLINARY PROCEEDING AGAINST JUDGE DOE DID NOT RENDER MR. RUBENSTEIN’S APPEAL MOOT, AND EVEN IF IT DID, THE APPELLATE DIVISION SHOULD HAVE DECIDED MR. RUBENSTEIN’S APPEAL BECAUSE THE ISSUE WHETHER CPL §160.50 BARS DISCLOSURE TO THE STATE COMMISSION OF AN ACQUITTED DEFENDANT’S SEALED CRIMINAL RECORDS IS NOVEL AND SUBSTANTIAL, LIKELY TO RECUR AND TO CONTINUE TO EVADE REVIEW . . . . . . . . . . . . . . . . . . . 13 POINT II THIS COURT SHOULD REVERSE THE APPELLATE DIVISION’S DISMISSAL OF MR. RUBENSTEIN’S APPEAL AND JUSTICE FISHER’S MAY 25, 2012 ORDER, BECAUSE JUSTICE FISHER’S RELEASE OF MR. RUBENSTEIN’S CRIMINAL RECORDS VIOLATES CPL §160.50, IN CONFLICT WITH THIS COURT’S PRIOR DECISIONS . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 -ii- TABLE OF AUTHORITIES Cases: Pages Arnold v. District Council No. 9, Intern. Broth. of Painters and Allied Trades, 46 N.Y.2d 999, 416 N.Y.S.2d 235 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Bezio v. Dorsey, 21 N.Y.3d 93, 2013 WL 1829892 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Bickwid v. Deutsch, 87 N.Y.2d 862, 638 N.Y.S. 932 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 14 City of Elmira v. Doe, 39 A.D.3d 942, 833 N.Y.S.2d 304 (3d Dep’t 2007), opinion amended on other grounds, 2007 WL 2080918 (3d Dep’t 2007), aff’d, 11 N.Y.3d 799, 868 N.Y.S.2d 568 (2008) . . . . . . . . . . . . . . . . . . . . . . . 22, 24 Coleman v. Daines, 19 N.Y.3d 1087, 955 N.Y.S.2d 831 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 15 East Meadow Community Concerts Ass’n. v. Board of Ed. of Union Free School Dist. No. 3, Nassau County, 18 N.Y.2d 129, 272 N.Y.S.2d 341 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Gold v. Lomenzo, 29 N.Y.2d 468, 329 N.Y.S.2d 805 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Green v. Montgomery, 95 N.Y.2d 693, 723 N.Y.S.2d 744 (2001) . . . . . . . . 3, 16 Lovell v. New York State Div. of Parole, 40 A.D.3d 1166, 835 N.Y.S.2d 514 (3d Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . 18 Matter of Dondi, 63 N.Y.2d 331, 482 N.Y.S.2d 431 (1984) . . . . . . . . . . . . . . . . . . . . . 14, 22, 26, 27 -iii- Matter of Hynes v. Karassik, 47 N.Y.2d 659, 419 N.Y.S.2d 942 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 22 Matter of Joseph M., 82 N.Y.2d 128, 603 N.Y.S.2d 804 (1993) . . . . . . . . . . . . . . . . 3, 16, 18, 21, 23, 24 Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 800 N.Y.S.2d 363 (2005) . . . . . . . . . . . . . . . . 10, 16, 18, 21, 24, 26 Matter of M.B., 6 N.Y.3d 437, 813 N.Y.S.2d 349 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Matter of State Commission on Judicial Conduct, 108 Misc.2d 800, 438 N.Y.S.2d 979 (Sup. Ct. Monroe Co. 1981) . . . . . . . . . . . 18 People v. Marcus A., 28 Misc.3d 667, 902 N.Y.S.2d 796 (Sup. Ct. N.Y. Co. 2010) . . . . . . . . . . . . . . . 26 Weissman v. City of New York, 96 A.D.2d 454, 464 N.Y.S.2d 764 (1 Dep’t),st appeal dismissed, 60 N.Y.2d 815, 469 N.Y.S.2d 700 (1983) . . . . . . . . . . . . . . . . 19 Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Williams v. Cornelius, 76 N.Y.2d 542, 561 N.Y.S.2d 701 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Wunning v. Johnson, 114 A.D.2d 269, 499 N.Y.S.2d 272 (3d Dep’t), appeal denied, 68 N.Y.2d 601, 505 N.Y.S.2d 1025 (1986) . . . . . . . . . . . . . . . . . 19 Statutes: CPL §160.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim CPL §160.50(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 -iv- CPL §160.50(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 CPL §160.50(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21, 23 CPL §160.50(1)(d)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CPL §160.50(1)(d)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 CPL §160.50(1)(d)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CPL §160.50(1)(d)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CPL §160.50(1)(d)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CPL §160.50(1)(d)(vi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CPLR §5602(a)(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Executive Law §259-i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Judiciary Law §42(1)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Judiciary Law §42(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 25 Judiciary Law §90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Judiciary Law §90(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Legislative Law §83-f(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Legislative Law §83-i(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Legislative Law §83-m(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 PRELIMINARY STATEMENT Respondent-Appellant, Seth Rubenstein (“Mr. Rubenstein”), submits this brief in support of his appeal from the Appellate Division, First Department’s Decision and Order dated February 5, 2013 (R. vii) dismissing his appeal from the May 25, 2012 Order of the Supreme Court, New York County (Fisher, J.S.C.) (the “May 25, 2012 Order”) (R. x), which denied his motion to vacate her prior order, entered May 6, 2010 (the “Ex Parte Order”) (R. xiv), releasing to Petitioner- Respondent, New York State Commission on Judicial Conduct (the “State Commission”), the sealed records of Mr. Rubenstein’s criminal prosecution for alleged campaign violations, of which he, and his co-defendant, Judge Doe, were acquitted. Despite Criminal Procedure Law (“CPL”) §160.50's prohibition of the release of such records, the Appellate Division accepted the State Commission’s argument that Mr. Rubenstein’s appeal was moot, because its proceeding concerning Judge Doe, for which it claims the records were sought, was concluded. Mr. Rubenstein’s claim is not moot, because the continuing presence of the State Commission’s determination on its website, with no steps to protect Mr. Rubenstein’s identity, has “enduring consequences” for his credibility and reputation. See, Bickwid v. Deutsch, 87 N.Y.2d 862, 863-64, 638 N.Y.S.2d 932, 932-33 (1995). Mr. Rubenstein has been a member of the Bar since 1954.1 -2- In publishing its decision censuring Judge Doe (in which the identities of both Judge Doe and Mr. Rubenstein are revealed), the State Commission has done the very thing CPL §160.50 was designed to prevent -- the sullying of Mr. Rubenstein’s personal and professional reputation. Despite Mr. Rubenstein’s1 acquittal, the State Commission, using his improperly obtained criminal court file, has publicly rehashed these charges, without even the slightest effort to protect Mr. Rubenstein’s privacy or reputation. Intimate personal details, including a provision of his will, have been published on its website, without any steps - such as simple redactions - to protect his identity. Even if Mr. Rubenstein’s claim were rendered moot by the State Commission’s actions, Mr. Rubenstein’s appeal falls well within this Court’s decisions requiring consideration of appeals “where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts.” Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 833 (2012). The issue raised by Mr. Rubenstein’s appeal is one of profound importance to the public and to members of the judiciary and others whose actions are the subject of State -3- Commission investigations. Allowing the State Commission access to the sealed records of an acquitted defendant’s criminal proceedings violates CPL §160.50's express proscription against such disclosure and its purposes, which are “to protect accused individuals from the unauthorized use of their records,” Green v. Montgomery, 95 N.Y.2d 693, 701, 723 N.Y.S.2d 744, 749 (2001), and “to remove any ‘stigma’ flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities.” Matter of Joseph M., 82 N.Y.2d 128, 131-32, 603 N.Y.S.2d 804, 805 (1993). The State Commission can conduct its own investigation of alleged judicial misconduct; simply because it is more convenient to use the sealed criminal records of an acquitted defendant, does not justify infringing on that defendant’s rights under CPL §160.50. The question whether CPL §160.50 precludes the State Commission from obtaining sealed records has never been decided by any appellate court. By its own admission, the State Commission has repeatedly obtained, ex parte, sealed criminal records and intends to do so in the future. Because the State Commission’s applications for disclosure are ex parte, the issue is likely to continue to evade review. -4- Thus, Mr. Rubenstein’s appeal meets all of the requirements for review of an issue under the mootness exception. Further, because of the issue’s importance, we respectfully request that this Court address it on this appeal, and hold that the State Commission’s actions violated CPL §160.50. QUESTIONS PRESENTED 1. Should the Appellate Division have decided Mr. Rubenstein’s appeal because (a) the question whether CPL §160.50 precludes disclosure of sealed criminal records to the State Commission is both novel and of considerable public importance, (b) by the State Commission’s own admission, the issue is likely to recur, and (c) the issue is likely to continue to evade review because the State Commission acts ex parte? The Appellate Division answered in the negative. 2. Should the Appellate Division have decided Mr. Rubenstein’s appeal, and reversed the motion court’s May 25, 2012 Order, because, in foreclosing Mr. Rubenstein from appealing Justice Fisher’s order, the Appellate Division left standing a ruling which violates CPL §160.50's unequivocal proscription against -5- disclosure of an acquitted defendant’s criminal records and this Court’s decisions declining to authorize additional “judge-made” exceptions to CPL §160.50? The Appellate Division answered in the negative. 3. Should the Appellate Division also have decided Mr. Rubenstein’s appeal, because the issue remains live because the presence of the State Commission’s determination concerning Judge Doe on its website continues to have adverse consequences for Mr. Rubenstein’s credibility and reputation? The Appellate Division answered in the negative. STATEMENT OF JURISDICTION This Court has jurisdiction to review the Appellate Division’s February 5, 2013 Order because it is appealable by permission of this Court, which was granted by its Order entered May 7, 2013 (R. vi), and it finally determines the proceeding. CPLR §5602(a)(1)(i). The questions presented were raised in the motion court and the Appellate Division (R. xxxv-xlix, 1-3, 4-5, 6-9, 13-21, 64-76) and, therefore, have been preserved for review by this Court. NYLJ, Nov. 2, 2009, p. 17, col. 3 (Sup. Ct. New York Co.)2 -6- STATEMENT OF FACTS Mr. Rubenstein and his co-defendant, Judge Doe, were indicted for alleged violations of the Penal and Election Laws, in connection with Judge Doe’s successful campaign for election in 2008 (R. xxxvii, 14-15). By Decision and Order dated October 30, 2009, the trial court (Obus, J.) dismissed eight of the indictment’s2 ten counts (R. xxxvii, 15). Trial was held on the remaining two counts and on April 1, 2010, by a unanimous jury verdict, both Mr. Rubenstein and Judge Doe were acquitted and his criminal file then sealed in accordance with CPL §160.50 (R. xix, xxxvii-xxxviii, 15, 60). Unbeknownst to Mr. Rubenstein, on May 6, 2010 Justice Fisher issued the Ex Parte Order (R. xiv), upon the ex parte application of the State Commission, which directs that “the official records and papers, including transcripts if any, in [Mr. Rubenstein’s criminal proceeding]” be released to the Administrator of the State Commission (Robert H. Tembeckjian, Esq.) for use in “proceedings conducted [by the State Commission] pursuant to Article 6, Section 22, of the Constitution and Article 2-A of the Judiciary Law” (R. xiv, xxxviii, 15, 23). The Ex Parte Order did not limit the release to Mr. Rubenstein’s criminal court file, but also included “other -7- records, including exhibits and other related case documents and/or materials” (Id.). Although the Ex Parte Order states that it was entered upon an affirmation submitted by Mr. Tembeckjian, Mr. Rubenstein was advised by the Clerk that the affirmation was not in the court’s file, and the State Commission refused to provide Mr. Rubenstein with a copy until the afternoon before Mr. Rubenstein’s motion to vacate the Ex Parte Order was returnable (R. xxxviii, 15-16, 48, 60-62). On January 5, 2011, the State Commission, by its special counsel, Alan W. Friedberg, Esq., took Mr. Rubenstein’s deposition in connection with its investigation of Judge Doe. During that deposition, Mr. Friedberg acknowledged that the State Commission had obtained the Ex Parte Order and was in possession of documents “from either the District Attorney, the court, or a participant in” Mr. Rubenstein’s criminal proceeding (R. xxxviii-xxxix, 16, 28-29) and that the questions that he would be asking Mr. Rubenstein “at least in part, derived from court records that were turned over and pursuant to that court order” (R. xxxix, 16, 31). When Mr. Rubenstein’s counsel asked for a copy of the Ex Parte Order Mr. Friedberg refused (R. xxxix, 16, 29). He also refused to provide Mr. Rubenstein with a copy of the transcript of his deposition; the first time Mr. Rubenstein saw it was in March or The documents which the State Commission obtained pursuant to the Ex3 Parte Order are not limited to the Court file. A perusal of Mr. Rubenstein’s deposition transcript reveals that, among other things, the State Commission was in possession of notes made by the District Attorney’s investigator, who had arrived unannounced at Mr. Rubenstein’s home at 7:00 A.M., to interview him, shortly before charges were filed (R. xl, 19). -8- April, 2012, when the State Commission furnished it to Judge Doe’s counsel (R. xxxix, 16). In early April, 2012, Mr. Rubenstein was served with a subpoena issued by the State Commission, directing him to appear and give testimony at a hearing concerning Judge Doe on July 9, 2012 (R. xxxix, 17, 36-37). Once Mr. Rubenstein had an opportunity to read his deposition transcript and because he was concerned that the State Commission would continue to use confidential records from his criminal proceeding, including notes prepared by the District Attorney’s Office, on May 17, 2012, he moved for an order:3 (a) vacating the Ex Parte Order; (b) precluding the State Commission, its counsel and any of its officers and agents from using any documents and materials and any information obtained pursuant to the Ex Parte Order for any purpose; -9- (c) directing the State Commission, its counsel and its officers and agents to return all originals and copies to the files from which they were obtained; and (d) granting him such other and further relief as the court deemed just and proper (R. xxxix-xl, 10-45). The State Commission’s belatedly produced Tembeckjian affirmation, submitted as an exhibit to the State Commission’s opposition papers (R. xl, 48, 60- 62), confirms that the State Commission has repeatedly obtained ex parte orders granting it access to acquitted defendants’ sealed criminal records (R. xl-xli, 61, 61.1). As confirmed by its Appellate Division brief and at oral argument in the Appellate Division, the State Commission claims that the prohibition in CPL §160.50 does not apply to it and that it need make no special showing to obtain the sealed records (R. xli). By Decision and Order, dated May 25, 2012 (the “May 25, 2012 Order” as defined, supra) (R. x), Justice Fisher denied Mr. Rubenstein’s motion, holding that he did not have standing to contest the release of his sealed records (R. xi, xli, 7). She also erroneously concluded that Judiciary Law §42(3), which provides the State Commission with general authority to obtain “assistance, information and data” from courts and other government agencies, overrides CPL §160.50's express mandate that By Order entered on August 28, 2012, the Appellate Division denied Mr.4 Rubenstein’s motion for a preliminary injunction restraining the State Commission from using his improperly obtained criminal records pending the determination of his appeal (R. xlii). The State Commission had previously advised the Appellate Division that the July 9, 2012 hearing for which Mr. Rubenstein had been subpoenaed was adjourned without date (Id.). -10- an acquitted criminal defendant’s records be sealed and not be disclosed to any persons other than those expressly provided for by that section -- which makes no mention of the State Commission (R. xii-xiii, xli, 8-9). Justice Fisher’s decision also ignores this Court’s holding in Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 800 N.Y.S.2d 363 (2005), and other controlling authority of this Court, which has construed CPL §160.50 to preclude disclosure to any persons other than those expressly set forth in CPL §160.50(1)(d), with the limited exception of the Appellate Division, when it is carrying out its responsibility to discipline attorneys, and then, only upon a showing of a compelling need for production. Mr. Rubenstein appealed Justice Fisher’s May 25, 2012 Decision and Order (R. xlii, 4-5), and oral argument was held on October 3. 2012 (R. xlii) . At the4 argument the State Commission orally confirmed that it had repeatedly obtained ex parte orders granting it access to other acquitted defendants’ criminal files, and intended to do so in the future (R. xlii, xlvi). -11- On October 10, 2012, the State Commission released its decision censuring Judge Doe based on the alleged campaign violations for which she and Mr. Rubenstein were acquitted (R. xlii, liii-lxxii). No attempt was made to protect Mr. Rubenstein’s identity, although the State Commission had no authority to discipline Mr. Rubenstein. Indeed, intimate, personal details of his life derived from the criminal proceedings, including a provision in his will, were publicly disclosed (R. xlii, lv). The published decision also reveals Mr. Rubenstein’s and Judge Doe’s indictment, and is replete with comments critical of Mr. Rubenstein’s conduct (see, e.g., R. liv, lv, lx-lxii, lxiv, lxvi-lxxi). Thus, although the State Commission contends that it “has not made the unsealed records public” (R. xviii), and that “not a single document from the criminal trial has been (or will be) made public” (R. xxiii), it is but a hollow representation, because the substance of that record, to which it gained access only through the Ex Parte Order, has now been broadcast to the world. On November 21, 2012, the State Commission moved to dismiss Mr. Rubenstein’s appeal on the grounds that its rendering of a public determination concerning Judge Doe had rendered Mr. Rubenstein’s appeal moot (R. xv-xxiv). Mr. Rubenstein countered that his appeal was not moot, because the State Commission was still unlawfully in possession of his sealed records, and that, even if his appeal -12- was moot, the Appellate should decide it under the well established exception “where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts.” Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 833 (2012) (R. xxxv, xxxvi- xxxvii, xliii- xlviii). Mr. Rubenstein also argued that the appeal should be decided because the continuing presence of the State Commission’s determination on its website, with no steps to protect Mr. Rubenstein’s identity, has “enduring consequences” for his credibility and reputation. Bickwid v. Deutsch, 87 N.Y.2d 862, 863-64, 638 N.Y.S.2d 932, 933 (1995) (R. xxxv-xxxvi, xliii-xlv, xlviii). By Decision and Order entered February 5, 2013, the Appellate Division granted the State Commission’s motion holding that “the matter has been rendered moot.” (R. vii-viii). The Appellate Division directed, however, that “all documents contained in the previously sealed records that were furnished to the Commission be returned forthwith to the court and be resealed for all purposes” (R. ix). By Decision and Order dated May 7, 2013, this Court granted Mr. Rubenstein leave to appeal (R. vi). -13- ARGUMENT POINT I THE STATE COMMISSION’S COMPLETION OF ITS INVESTIGATION AND DISCIPLINARY PROCEEDING AGAINST JUDGE DOE DID NOT RENDER MR. RUBENSTEIN’S APPEAL MOOT, AND EVEN IF IT DID, THE APPELLATE DIVISION SHOULD HAVE DECIDED MR. RUBENSTEIN’S APPEAL BECAUSE THE ISSUE WHETHER CPL §160.50 BARS DISCLOSURE TO THE STATE COMMISSION OF AN ACQUITTED DEFENDANT’S SEALED CRIMINAL RECORDS IS NOVEL AND SUBSTANTIAL, LIKELY TO RECUR AND TO CONTINUE TO EVADE REVIEW The Appellate Division’s conclusion that the issues underlying Mr. Rubenstein’s appeal are no longer alive is without merit. By publishing its decision censuring Judge Doe on its website (in which the identities of both Judge Doe and Mr. Rubenstein are revealed), the State Commission has done the very thing CPL §160.50 was designed to prevent - besmirched Mr. Rubenstein’s personal and professional reputation. Even intimate personal details derived solely from the records which the State Commission improperly obtained - including a provision of his will - have been included in its published decision. The continuing presence of the State Commission’s determination on its public website has “enduring consequences” for Mr. Rubenstein’s credibility and reputation as a practicing -14- attorney. See, Bickwid v. Deutsch, 87 N.Y.2d 862, 863-64, 638 N.Y.S.2d 932, 932- 33 (1995) (civil contempt appeal by accountant who was occasionally engaged as a forensic accountant and expert witness was reviewable although he had already served contempt sentence because “‘the adjudication could no doubt be used to attack [his] credibility’ ... thus jeopardizing his professional reputation and means of earning a living”); see also Williams v. Cornelius, 76 N.Y.2d 542, 546, 561 N.Y.S.2d 701, 703 (1990) (Article 78 challenge to summary criminal contempt adjudication not moot, despite fact that contempt sentence had been served, because “lasting consequences potentially flow from the adjudication.”). At a minimum, the State Commission should be directed to remove from its website all references to Mr. Rubenstein. Cf., Matter of Dondi, 63 N.Y.2d 331, 339-40, 482 N.Y.S.2d 431, 435-36 (1984) (dismissing Grievance Committee’s disciplinary proceeding because it was tainted by Committee’s improper ex parte obtaining of the acquitted attorney’s criminal records). Even if the Appellate Division were correct in determining that the State Commission’s actions rendered Mr. Rubenstein’s appeal moot, it should have decided it “because of the importance of the question involved, the possibility of recurrence, and the fact that orders of this nature ... typically evade review.” Westchester -15- Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 437, 423 N.Y.S.2d 630, 633 (1979); accord Matter of M.B., 6 N.Y.3d 437, 447, 813 N.Y.S.2d 349, 355 (2006) (“like the Appellate Division, we address this appeal under the exception to the mootness doctrine because the issue presented is substantial, likely to recur and involves a situation capable of evading review”); Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 833 (2012) (“An exception to the mootness doctrine may apply ... where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts.”). In foreclosing Mr. Rubenstein from appealing Justice Fisher’s order, the Appellate Division left standing a ruling which is contrary to law and has profound implications for acquitted criminal defendants. Despite CPL §160.50's unequivocal mandate and the absence of any exception for the State Commission, Justice Fisher released Mr. Rubenstein’s sealed records ex parte to the State Commission. As a result, the criminal charges for which Mr. Rubenstein was acquitted over three years ago, have been rehashed by the State Commission in its published, public determination concerning Judge Doe. -16- The State Commission’s use of Mr. Rubenstein’s records, without any attempt to protect his identity, violates both the letter and purpose of CPL §160.50, which is “to protect accused individuals from the unauthorized use of their records,” Green v. Montgomery, 95 N.Y.2d 693, 701, 723 N.Y.S.2d 744, 749 (2001), and “to remove any ‘stigma’ flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities.” Matter of Joseph M., 82 N.Y.2d 128, 131-32, 603 N.Y.S.2d 804, 805 (1993). “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.” Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 202, 800 N.Y.S.2d 363, 366 (2005) (quoting Matter of Hynes v. Karassik, 47 N.Y.2d 659, 662, 419 N.Y.S.2d 942, 944 (1979)). The tarnishing of Mr. Rubenstein’s reputation and credibility is inevitable, given the State Commission’s highly public airing of the criminal allegations. -17- Justice Fisher’s ruling has adverse ramifications both for members of the judiciary who are the subjects of the State Commission’s proceedings and individuals, like Mr. Rubenstein, over whom the State Commission has no jurisdiction. The Legislature has granted the State Commission no authority to obtain these acquitted defendants’ sealed criminal records, and such records should not be released merely to serve the convenience of the State Commission, which certainly has the capacity to conduct its own investigation. See Judiciary Law, §42(1)-(6). The State Commission has admitted, in the Tembeckjian affirmation, in its brief and on oral argument on Mr. Rubenstein’s appeal to the Appellate Division, and in its dismissal motion, that it has repeatedly sought and obtained such ex parte orders, and intends to do so in the future (R. xxxvii, xlii, lxxvii, 50-51, 61-61.1). Appellate review will continue to be evaded because the State Commission obtains the orders without notice (Id.), or, as here, will claim that any appeal is moot, because it has already used the defendant’s criminal file in its investigation. The question is a novel one, as no Appellate Court has addressed the issue (see Bezio v. Dorsey, 21 N.Y.3d 93, 2013 WL 1829892 (2013)), where this Court recently endorsed the Only one trial court decision has been reported, Matter of State5 Commission on Judicial Conduct, 108 Misc.2d 800, 438 N.Y.S.2d 979 (Sup. Ct. Monroe Co. 1981), and it long predates Matter of Joseph M., supra, and Matter of Katherine B. v. Cataldo, supra, which preclude disclosure to persons other than those expressly provided for in CPL §160.50(1)(d). The only exception is the Appellate Division’s authority to order unsealing in attorney disciplinary matters, and then only upon a showing of compelling need for unsealing. -18- Appellate Division’s application of the mootness exception, “because of the dearth of New York precedent” concerning the issue). 5 In Lovell v. New York State Div. of Parole, 40 A.D.3d 1166, 835 N.Y.S.2d 514 (3d Dep’t 2007), the Appellate Division held that a Parole Board’s failure to comply with Executive Law §259-i’s requirement that it consider sentencing minutes and the sentencing court’s recommendations before rendering a decision presented a “substantial issue” which authorized the Court’s review, even though the appeal would otherwise be mooted by the defendant’s reappearance before the Board after he filed his appeal. Mr. Rubenstein’s rights under CPL §160.50 are at least (if not more) significant than those of the defendant in Lovell. Similarly, in Gold v. Lomenzo, 29 N.Y.2d 468, 475-76, 329 N.Y.S.2d 805, 810-11 (1972), this Court reviewed the propriety of certain conditions that had been imposed by an order suspending a real estate broker’s license, although the Secretary of State had revoked the broker’s license before his appeal, and the broker did not seek review of the -19- revocation. See also Weissman v. City of New York, 96 A.D.2d 454, 456, 464 N.Y.S.2d 764, 767 (1 Dep’t), appeal dismissed, 60 N.Y.2d 815, 469 N.Y.S.2d 700st (1983) (question whether Supreme Court had jurisdiction to determine petition to direct buildings commissioner to issue vacate order was “of sufficient importance” to warrant consideration although, during pendency of appeal, city had issued a temporary vacate order and the subject buildings were vacated); Arnold v. District Council No. 9, Intern. Broth. of Painters and Allied Trades, 46 N.Y.2d 999, 1001, 416 N.Y.S.2d 235, 236 (1979) (claim that union election should be set aside because unsuccessful candidate was ineligible to run reviewed although subsequent election had been held for position’s next term of office because “the dispute is one which is apt to recur”); Wunning v. Johnson, 114 A.D.2d 269, 271, 499 N.Y.S.2d 272, 273 (3d Dep’t), appeal denied, 68 N.Y.2d 601, 505 N.Y.S.2d 1025 (1986) (female police officer’s claim that she was discriminated against because she was reassigned rather than given sick leave when she became pregnant heard “since there is a likelihood of repetition ... and it is also possible for the issue to again evade review”). In sum, Mr. Rubenstein’s appeal remains live for adjudication notwithstanding the State Commission’s publication of its determination to censure Judge Doe, but even if the immediate controversy between Mr. Rubenstein and the -20- State Commission were moot, his appeal should be determined because, without this Court’s intervention, the important and substantial privacy rights of all acquitted criminal defendants under CPL §160.50 will continue to be jeopardized. POINT II THIS COURT SHOULD REVERSE THE APPELLATE DIVISION’S DISMISSAL OF MR. RUBENSTEIN’S APPEAL AND JUSTICE FISHER’S MAY 25, 2012 ORDER, BECAUSE JUSTICE FISHER’S RELEASE OF MR. RUBENSTEIN’S CRIMINAL RECORDS VIOLATES CPL §160.50, IN CONFLICT WITH THIS COURT’S PRIOR DECISIONS The Appellate Division’s dismissal of Mr. Rubenstein’s appeal, and Justice Fisher’s May 25, 2012 Order, should also be reversed because Justice Fisher’s release of Mr. Rubenstein’s criminal records is contrary to CPL §160.50's mandate that Upon the termination of a criminal action or proceeding against a person in favor of such person ... the record of such action or proceeding shall be sealed.... (CPL §160.50(1)). CPL §160.50(1)(c) further provides that: -21- all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency. Under CPL §160.50(1)(d), only a limited number of persons (other than the accused) may be granted access to sealed records, which “narrow exceptions,” Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 202, 800 N.Y.S.2d 363, 366 (2005), must be “construed strictly.” Matter of Joseph M., 82 N.Y.2d 128, 132, 603 N.Y.S.2d 804, 806 (1993). The only persons to whom disclosure is authorized by CPL §160.50 are: • (i) a prosecutor in a proceeding in which the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana [CPL §160.50(1)(d)(i)]; • (ii) a law enforcement agency upon ex parte motion in any superior court, if it demonstrates to the satisfaction of the court that justice requires that the records be made available to it [CPL §160.50(1)(d)(ii)]; • (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for a license [CPL §160.50(1)(d)(iii)]; -22- • (iv) the New York state department of corrections and community supervision when the accused is on parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under parole supervision [CPL §160.50(1)(d)(iv)]; • (v) a prospective employer of a police officer or peace officer concerning an application for employment [CPL §160.50(1)(d)(v)]; and • (vi) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision [CPL §160.50(1)(d)(vi)]. The State Commission does not fall within any of these exceptions, and this Court has consistently held that grievance committees or other organizations seeking criminal records for disciplinary purposes are not “law enforcement agencies” under CPL §160.50(1)(d)(ii). See, e.g., Matter of Dondi, 63 N.Y.2d 331, 338, 482 N.Y.S.2d 431, 434-35 (1984) (holding that a grievance committee for attorney discipline “has no standing under CPL 160.50 to seek an order to obtain records sealed pursuant to that provision as it does not constitute a ‘law enforcement agency’ for the purpose of CPL 160.50”); Matter of Hynes v. Karissik, 47 N.Y.2d 659, 663, 419 N.Y.S.2d 942, 944 (1979) (same). Even police departments are not construed as “law enforcement agencies,” where they seek access to an acquitted defendant’s records for disciplinary purposes. City of Elmira v. Doe, 39 A.D.3d 942, 943, 833 -23- N.Y.S.2d 304, 306 (3d Dep’t 2007), opinion amended on other grounds, 2007 WL 2080918 (3d Dep’t 2007), aff’d, 11 N.Y.3d 799, 868 N.Y.S.2d 568 (2008). This Court has repeatedly rebuffed attempts to create exceptions outside those specifically provided by CPL §160.50(1)(d). In Matter of Joseph M., supra, it declined to make an exception for the New York City Board of Education, which requested the unsealing of a tenured teacher’s controlled substance prosecution for use in disciplinary proceedings against the teacher. The Supreme Court had held that it had inherent discretionary power to unseal records “in extraordinary circumstances in the interests of fairness and justice.” 82 N.Y.2d at 130, 603 N.Y.S.2d at 805. The Appellate Division affirmed, holding that “without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline * * * cannot be accomplished.” Id. at 131, 603 N.Y.S.2d at 805. Despite these findings, this Court reversed, holding that such “inherent power” to unseal records was confined solely to the Appellate Division in its discharge of its responsibility, under Judiciary Law §90(2), for overseeing attorneys. Absent such a specific grant of power, a holding that the court has inherent authority to order the unsealing of records for use in a teacher disciplinary proceeding would frustrate a primary purpose of the 1976 amendments to the Criminal Procedure Law and the Human Rights Law (L. -24- 1976, ch. 877) - protecting exonerated individuals from the unwarranted stigma that their employers or others could attach to dismissed criminal charges. Moreover, finding such an “inherent power” basis for an unsealing order here would subvert the plain intendment of the statutory scheme - to establish, in unequivocal mandatory language, a general proscription against releasing sealed records and materials, subject only to a few narrow exceptions. If there is to be an exception to the general rule proscribing the release of sealed records - upon a showing of “extraordinary circumstances” of the type alleged here - it should be created by the Legislature, not by the courts. [Citations omitted, emphasis in original] 82 N.Y.2d at 133-34, 603 N.Y.S.2d at 807 (emphasis in original). In Matter of Katherine B. v. Cataldo, supra, this Court reaffirmed its holding in Matter of Joseph M., stating that it “confin[ed] inherent judicial authority to unseal records ... to [the] Appellate Division’s responsibility for discipline of attorneys pursuant to Judiciary Law §90.” 5 N.Y.3d at 202-03, 800 N.Y.S.2d at 366. Accord, City of Elmira v. Doe, supra, 39 A.D.3d at 944, 833 N.Y.S.2d at 306 (“While the Court of Appeals has indicated that courts have inherent authority to unseal criminal records in rare and extraordinary circumstances when necessary to serve fairness and justice, it has since confined that authority to the ‘Appellate -25- Division’s responsibility for discipline of attorneys pursuant to Judiciary Law §90', a responsibility not implicated in this case.”). Here, too, the State Commission is not one of the persons excepted from CPL §160.50's mandate, and Justice Fisher had no “inherent authority” to order the records’ release. Judiciary Law §42(3), upon which Justice Fisher relied in releasing Mr. Rubenstein’s records, is not to the contrary. Judiciary Law §42(3) simply authorizes the State Commission to “request and receive” only “such assistance, information and data as will enable it properly to carry out its functions, powers and duties;” no reference is made to obtaining records sealed by statute. Substantially identical language is contained in the enabling statutes for a number of other commissions and entities, including the Legislative Commission on the Development of Rural Resources, Legislative Law §83-i(6), the Legislative Task Force on Demographic Research and Reapportionment, Legislative Law §83-m(11), and the Legislative Commission on Skills Development and Career Education, Legislative Law §83-f(6), none of which could seriously argue that they were entitled to obtain records sealed under CPL §160.50. Had the Legislature intended that Judiciary Law §42(3) override CPL §160.50's explicit proscription against disclosure, it would have said so, given -26- “the strong public policy in favor of sealing dismissed actions” embodied in CPL §160.50. People v. Marcus A., 28 Misc.3d 667, 673, 902 N.Y.S.2d 796, 801 (Sup. Ct. N.Y. Co. 2010), citing Matter of Katherine B. v. Cataldo, supra. That it did not do so, confirms that no exception was intended. Moreover, even if Justice Fisher were correct that she had “inherent authority” to release Mr. Rubenstein’s records to the State Commission, the State Commission did not show a compelling need for unsealing. In describing the “extraordinary circumstances” under which the Appellate Division may grant access to sealed records in attorney disciplinary proceedings, this Court has held that: Such discretionary power may be invoked, however, only upon a compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline of an attorney cannot be accomplished. Only upon such a showing will the authority over attorney discipline override the protection of confidentiality accorded by the Criminal Procedure Law to those acquitted in criminal actions. When a demonstration of necessity is made, the Appellate Division may issue an order permitting the unsealing of records, which order shall be reviewable in this Court. Matter of Dondi, supra, 63 N.Y.2d at 338, 482 N.Y.S.2d at 435 (Emphasis added). “Convenience alone will not justify an unsealing.” Id. at 339, 482 N.Y.S.2d at 435. -27- The State Commission made no such showing. The Tembeckjian affirmation (R. 60-62) “set[s] forth no facts indicating that other avenues of investigation had 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.” Matter of Dondi, 63 N.Y.2d at 339, 482 N.Y.S.2d at 435. Nor was there any “indication of the gravity or circumstances of the underlying investigation.” Id. at 339, 482 N.Y.S.2d at 435. In effect, Justice Fisher has ruled that, contrary to the clear and unequivocal terms of CPL §160.50, the State Commission may obtain the sealed records by simply asking. While we acknowledge that this Court, if it reverses an Appellate Division’s dismissal on appeal, would normally remand for a decision by the Appellate Division on the merits, we respectfully submit that in view of the importance of the issue presented by Mr. Rubenstein’s appeal, and that issues concerning Mr. Rubenstein’s appeal from the dismissal are intertwined with the appeal’s merits, this Court, upon reversal of the order appealed from, should also consider the merits and determine that Justice Fisher improperly released Mr. Rubenstein’s criminal records to the State Commission in violation of CPL §160.50. Cf. East Meadow Community Concerts Ass’n. v. Board of Ed. of Union Free School -28- Dist. No. 3, Nassau County, 18 N.Y.2d 129, 272 N.Y.S.2d 341 (1966) (discussing applicable constitutional principles and directing that “the case be remanded to [the Appellate Division] for further proceedings in accordance with this opinion,” where Appellate Division had dismissed appeal on mootness grounds) (emphasis added). CONCLUSION For the foregoing reasons, it is respectfully submitted that the Decision and Order appealed from should be reversed, and that this Court should determine that the State Commission was barred by CPL §160.50 from obtaining Mr. Rubenstein’s criminal records, or remit the matter to the Appellate Division for a -29- determination on that issue, and that Mr. Rubenstein should be granted such other and further relief as this Court deems just and proper. Dated: New York, New York July 2, 2013 Respectfully submitted, GREENFIELD STEIN & SENIOR, LLP By: Gary B. Freidman Attorneys for Respondent Appellant Seth Rubenstein 600 Third Avenue New York, NY 10016 Telephone: (212) 818-9600 Facsimile: (212) 818-1264 Of Counsel: Gary B. Freidman Jeffery H. Sheetz /s/ Gary B. Freidman