In the Matter of New York State Commission on Judicial Conduct, Respondent,v.Seth Rubenstein, Appellant. (And Another Action.)

Brief

N.Y.April 30, 2014

To 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. REPLY 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) 818-1264November 15, 2013 TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii REPLY ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 -ii- TABLE OF AUTHORITIES Cases: Pages Bickwid v. Deutsch, 87 N.Y.2d 862, 638 N.Y.S. 932 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Block v. Magee, 146 A.D.2d 730, 537 N.Y.S.2d 215 (2d Dep’t 1989) . . . . . . . . . . . . . . . . . . . . . . 12 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Coleman v. Daines, 19 N.Y.3d 1087, 955 N.Y.S.2d 831 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 DiFigola v. Horatio Arms, Inc., 189 A.D.2d 724, 593 N.Y.S.2d 9 (1 Dep’t 1993) . . . . . . . . . . . . . . . . . . . . . . . .st 12 Lillbask v. Conn. Dept. of Educ., 397 F.3d 77 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Matter of Camperlengo v. Blum, 56 N.Y.2d 251, 451 N.Y.S.2d 697 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Matter of Dondi, 63 N.Y.2d 331, 482 N.Y.S.2d 431 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11, 12 Matter of Duckman, 92 N.Y.2d 141, 677 N.Y.S.2d 248 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Matter of Joseph M., 82 N.Y.2d 128, 603 N.Y.S.2d 804 (1993) . . . . . . . . . . . . . . . . . . . . 1, 3, 6, 7, 8, 14 -iii- Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 800 N.Y.S.2d 363 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 14 Matter of N.Y. City Health & Hosps. Corp. v. N.Y. State Comm’n of Correction, 19 N.Y.3d 239, 946 N.Y.S.2d 547 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Matter of State Commission on Judicial Conduct, 108 Misc.2d 800, 438 N.Y.S.2d 979 (Sup. Ct. Monroe Co. 1981) . . . . . . . . . . . 14 Matter of Stern v. Morgenthau, 62 N.Y.2d 331, 476 N.Y.S.2d 810 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Seven Words LLC v. Network Solutions, 260 F.3d 1089 (9 Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 13, 14 Virag v. Hynes, 54 N.Y.2d 437, 446 N.Y.S.2d 196 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Statutes: Arts and Cultural Affairs Law §4.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Arts and Cultural Affairs Law §10.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CPL §160.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim CPL §160.50(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14 CPL §160.50(1)(d)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL §160.50(1)(d)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL §160.50(1)(d)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL §160.50(1)(d)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 -iv- CPL §160.50(1)(d)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL §160.50(1)(d)(vi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ECL §3-0303(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ECL §7-0107(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Education Law §655(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Highway Law §88-a(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Judiciary Law §42(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Judiciary Law §90(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Legislative Law §83-c(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Legislative Law §83-f(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Legislative Law §83-i(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Legislative Law §83-j(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Legislative Law §83-m(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Public Authorities Law §1204-e(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Public Authorities Law §1266-e(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Public Buildings Law §11(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Public Health Law §2500-c(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Public Health Law §2905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 State Technology Law §102(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 -v- Transportation Law §15(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Transportation Law §219(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Transportation Law §492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Other Authorities: Alexander, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, C4504:4, pp. 169-172 (2007) . . . . . . . . . . . . . . . 4 Letter of the State Education Department to Counsel to the Governor, dated June 21, 1976, Bill Jacket, L. 1976, ch. 877 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 N.Y. Const., art. I, §6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Prince, Richardson on Evidence §§5-319, 5-320 (11 ed. 1995) . . . . . . . . . . . . . .th 4 The State Commission’s claim that “Rubenstein does not deny that the1 plain language of the Judiciary Law covers the release of sealed records to the Commission” (Respondent’s Brief, p. 35) is not only untrue, but irrelevant. The issue before this Court is whether Justice Fisher’s release of Mr. Rubenstein’s sealed criminal records was improper because it violated CPL §160.50, which bars their release. REPLY ARGUMENT Despite its attempt to justify Justice Fisher’s unsealing order on policy grounds, the State Commission cannot escape the mandate of Matter of Joseph M., 82 N.Y.2d 128, 133-34, 603 N.Y.S.2d 804, 807 (1993) and Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 202-03, 800 N.Y.S.2d 363, 366 (2005), that CPL §160.50 controls the disclosure of sealed criminal records and that those records may be released only to the accused and those persons specified in CPL §160.50(1)(d)(i)-(vi). The only judge-made exception recognized by this Court is the Appellate Divisions’ authority, in attorney disciplinary proceedings, to permit disclosure upon a showing of compelling need. That Judiciary Law §42(3) generally permits the State Commission to “request and receive . . . assistance, information and data” from courts and other state agencies does not override CPL §160.50's explicit proscription against disclosure. Had the Legislature intended otherwise it would have said so. 1 Indeed, the very fact that the Legislature did not change the language of Judiciary Law §42(3), when it re-enacted it in 1978, following the enactment of CPL See, e.g., Legislative Commission on the Development of Rural2 Resources, Legislative Law §83-i(6); Legislative Task Force on Demographic Research and Reapportionment, Legislative Law §83-m(ll); Legislative Commission on Skills Development and Career Education, Legislative Law §83-f(6); Legislative Commission on the Modernization and Simplification of Tax Administration and the Tax Law, Legislative Law §83-j(6); Legislative Commission on Public Management Systems, Legislative Law §83-c(5); Council of Environmental Advisers, ECL §7- 0107(2)(a); Department of Health, Public Health Law §2905; State High Speed Rail Planning Board, Transportation Law §492; New York City Transit Authority Advisory Council, Public Authorities Law §1204-e(4); Institute for the Hudson River Collection, Arts and Cultural Affairs Law §10.11; Department of Environmental Conservation, ECL §3-0303(c); Department of Transportation, Transportation Law §15(3)(c); Metro-North Rail Commuter Council, Public Authorities Law §1266-e(4); Empire State Plaza Art Commission, Arts and Cultural Affairs Law §4.11; Office for Technology , State Technology Law §102(5); Commissioner of General Services, Public Buildings Law §11(3)(b); New York State Higher Education Services Corporation, Education Law §655(9); Commissioner of Health, Public Health Law §2500-c(5); State Public Transportation Safety Board, Transportation Law §219(l); Tourism Signage Task Force, Highway Law §88-a(8). -2- §160.50 (see Respondent’s Brief, p. 37, fn. 9), demonstrates that the Legislature did not view Section 42(3) as overriding CPL §160.50. There was no need to amend Judiciary Law §42(3) because it was never intended to grant the State Commission carte blanche to obtain records sealed by statute. The near ubiquitous appearance of provisions virtually identical or comparable to Judiciary Law §42(3) in the enabling statutes for other public bodies, confirms that no specific authority to override the2 proscription of CPL §160.50 was intended. In Matter of Dondi, this Court held that the grievance committee’s3 request for unsealing was insufficient because it failed to show a compelling need for the acquitted attorney’s records. The Court dismissed the disciplinary proceeding because it was tainted by the improper disclosure of the attorney’s criminal records. -3- The State Commission’s attempt to analogize its request for unsealing to that of an attorney grievance committee is misplaced. In Matter of Joseph M., supra, this Court construed its decision in Matter of Dondi, 63 N.Y.2d 331, 482 N.Y.S.2d 431 (1984) as recognizing an “inherent power” to unseal criminal records3 otherwise protected by CPL §160.50 because Judiciary Law §90(2) vested the Appellate Division with the responsibility for disciplining and overseeing attorneys. 82 N.Y.2d at 133, 603 N.Y.S.2d at 806. In Matter of Joseph M., this Court declined to extend this exception to an unsealing request by the New York City Board of Education because although the Appellate Division has been vested with the power to oversee and discipline attorneys, “the Appellate Division has been granted no comparable power as to teachers who are subject to disciplinary hearings not by the court system but by the Boards of Education under the Education Law.” Id. at 133, 603 N.Y.S.2d at 806-07 (Emphasis added). In other words, the exception for grievance committee requests in attorney disciplinary matters exists because those matters are committed to the judiciary (i.e., the Appellate Division) and not to a public body (such as the State Commission). Thus, the fact that the State -4- Commission may generally have the authority to request and receive, or to subpoena, records, does not confer the power to unseal records which have been sealed under CPL §160.50. Matter of N.Y. City Health & Hosps. Corp. v. N.Y. State Comm’n of Correction, 19 N.Y.3d 239, 946 N.Y.S.2d 547 (2012), concerning the physician- patient privilege, is not to the contrary. There, the State Commission of Correction sought hospital records for a post-mortem review of the cause of an inmate’s death. None of the policies served by the physician-patient privilege, such as promoting uninhibited and candid communication between patients and medical professionals, the accurate recording of confidential information and protection of patients’ reasonable privacy expectations, was implicated by the Commission’s subpoena. Here, CPL §160.50's twin policies of protecting Mr. Rubenstein from the stigma of criminal accusation and the unauthorized use of his records are directly implicated. Moreover, the physician-patient privilege, which is in derogation of the common law, is subject to many statutory and judge-made exceptions. See Prince, Richardson on Evidence §§5-319, 5-320 (11 ed. 1995); Alexander, Practice Commentaries,th McKinney’s Cons. Laws of N.Y., Book 7B, C4504:4, pp. 169-172 (2007); Matter of Camperlengo v. Blum, 56 N.Y.2d 251, 451 N.Y.S.2d 697 (1982) (allowing State Matter of N.Y. City Health & Hosps. Corp. is also distinguishable4 because the investigative powers expressly granted to the Correction Commission - including unrestricted access to all medical records concerning a deceased inmate generated by a correctional facility, and the report of the autopsy that the County Law requires to be performed, as well as the power to order an additional autopsy - are “so great as to render the effect of the abrogation of [the physician-patient] privilege in this context relatively insignificant.” 19 N.Y.3d at 245-46, 946 N.Y.S.2d at 551. No similar express access to sealed criminal records has been granted to the State Commission. -5- Department of Social Services to subpoena otherwise privileged medical records from a healthcare provider in pursuance of a Medicaid fraud investigation). By contrast, the “plain intendment of [CPL §160.50's] statutory scheme” is the “general proscription against releasing sealed records and materials ... subject only to a few narrow exceptions.” Matter of Katherine B., 5 N.Y.3d at 202, 800 N.Y.S.2d at 366 (emphasis in original). 4 It is no answer for the State Commission to claim that CPL §160.50's purposes are not jeopardized because its proceedings are confidential. While the State Commission’s investigative proceedings may be confidential, its determination, which discusses Mr. Rubenstein’s and Judge Doe’s indictment and which is replete with comments critical of Mr. Rubenstein’s conduct, clearly is not. Judge Doe’s The State Commission’s claim that its determination was based solely5 on Judge Doe’s admissions in her agreed statement of facts is disingenuous. The agreed statement was based on the records which the State Commission obtained in violation of CPL §160.50. Moreover, Mr. Rubenstein was never asked to nor did he consent to the “agreed statement.” -6- agreed statement of facts, which is based on the sealed records which the State Commission obtained in violation of CPL §160.50, is also published on its website.5 That CPL §160.50 was intended to bar disclosure, despite any adverse impact that it would have on investigatory bodies, is demonstrated by its legislative history and this Court’s decision in Matter of Joseph M., supra, denying the New York City Board of Education’s attempt to obtain sealed records in a teacher disciplinary proceeding. By letter to the then Governor dated June 21, 1976, the New York State Education Department strongly urged rejection of the bill, stating that “these provisions would very seriously handicap the efforts of the Regents and the Department to protect school children and members of the public from immoral or unethical teachers and professional practitioners.” Letter of the State Education Department to Counsel to the Governor, dated June 21, 1976, Bill Jacket, L. 1976, ch. 877. As examples, the Department stated that the bill would “prevent notice to the State Education Department and further investigation of a teacher who was repeatedly arrested on morals charges, or of a health professional who was repeatedly arrested -7- on drug charges,” concluding that “such a result would be detrimental to the public interest.” The State Board also observed, as the State Commission has here, that: [t]he fact that a criminal prosecution is terminated in favor of the accused should not prevent the Department from investigating the facts of the case. It should be remembered that the standard of proof required in a criminal conviction is far more stringent than that required in other forms of actions and proceedings. This bill would make it virtually impossible to use the evidence presented in an unsuccessful criminal prosecution as a basis for investigating an applicant’s moral fitness for a teaching or professional license or in connection with disciplinary proceedings directed toward the revocation of such a license. The public’s interest in safeguarding schoolchildren from persons of dubious moral character is at least as strong as its interest in protecting the integrity of the judiciary. Nevertheless, the bill was signed by the Governor even though the Legislature provided no exception for the State Education Department, and in Matter of Joseph M., this Court declined to create one declaring that: 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. 1976, ch. 877) - protecting exonerated individuals from the unwarranted stigma that their employers or others could attach to dismissed criminal charges. Matter of Joseph M. also puts the lie to the State Commission’s specious6 contention that CPL §160.50 “addresses only the release of records for purposes of criminal procedure or law enforcement” (Respondent’s Brief, p. 36). Matter of Joseph M. involved an administrative disciplinary proceeding as did 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) (police disciplinary matter). In both cases the courts held that CPL §160.50 barred disclosure because the parties seeking the sealed records did not fall within CPL §160.50's narrow exceptions. -8- 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 134, 603 N.Y.S.2d at 807. 6 The State Commission’s feckless attempt to justify its publication of its determination without redaction to protect Mr. Rubenstein’s identity demonstrates the wisdom of this Court’s refusal to engraft exceptions to CPL§160.50. The State Commission seeks to justify its publication by claiming that “public disclosure puts [other judicial candidates] on notice of Rubenstein’s incorrect views of campaign contribution limits - thus prophylactically ensuring that other candidates will not erroneously rely on Rubenstein’s advice” (Respondent’s Brief, p. 44). What tribunal -9- has determined that Mr. Rubenstein’s “views of campaign contribution limits” are “incorrect?” Certainly not the jury, which acquitted him on all counts. The State Commission has no jurisdiction to do so, as Mr. Rubenstein is not a judge nor was he ever named as a respondent in its proceeding against Judge Doe. The State Commission’s comments constitute the very abuse - an assault on Mr. Rubenstein’s integrity, reputation and credibility - that CPL §160.50 was designed to prevent. Similarly outrageous is the State Commission’s contention that “naming both the judge and the donor [Mr. Rubenstein] in its public determination deters other judicial candidates and donors from engaging in campaign finance abuses” (Respondent’s Brief, p. 44). The Commission has no jurisdiction to determine that Mr. Rubenstein “engage[d] in campaign finance abuses” and a jury acquitted him of those very charges. The mere fact that the State Commission’s investigative authority is grounded in the Constitution does not grant it the authority to override CPL §160.50. In Matter of Stern v. Morgenthau, 62 N.Y.2d 331, 476 N.Y.S.2d 810 (1984), this Court held that the Grand Jury, another constitutionally grounded body of long- standing, which has been vested with broad investigative powers and whose subpoenas are presumptively valid, Virag v. Hynes, 54 N.Y.2d 437, 442-43, 446 -10- N.Y.S.2d 196, 198-99 (1981), was precluded from subpoenaing records of a State Commission investigation of two judges in aid of its own investigation of those judges, because its powers to investigate criminal conduct must yield to the Legislature’s determination that State Commission proceedings remain confidential. Here, too, the Commission’s generalized authority to “request and receive ... such assistance, information and data as will enable it properly to carry out its functions, powers and duties” must yield to CPL §160.50's explicit proscription against disclosure of sealed criminal records. Significantly, in Matter of Stern v. Morgenthau, this Court quashed the subpoena even though the Judiciary Law contains no “specific provision prohibiting disclosure [of the State Commission’s records] to the Grand Jury,” 62 N.Y.2d at 337, 476 N.Y.S.2d at 813, and the Constitution provides that “[t]he power of grand juries to inquire into the willful misconduct in office of public officers ... shall never be suspended or impaired by law.” N.Y. Const., art. I, §6. Here, CPL §160.50 expressly precludes disclosure of sealed criminal records except to the persons enumerated in CPL §160.50(1)(d) and the State Commission is not included in the listed exceptions. The State Commission’s reliance on Matter of Duckman, 92 N.Y.2d 141, 677 N.Y.S.2d 248 (1998), is unavailing. There is no evidence that any criminal -11- defendant objected to the disclosure of the unsealed records to the Commission in that case. Moreover, in Matter of Duckman, the State Commission’s charges concerned Judge Duckman’s conduct in presiding over criminal proceedings; it is Judge Doe’s (and Mr. Rubenstein’s) conduct outside of court proceedings which is at issue here. The State Commission’s attempt to excuse its failure to make a compelling showing of need for Mr. Rubenstein’s records is equally without merit. Even if the Commission were correct that it should be entitled to exceptional treatment (which it should not), this Court has made it clear that a compelling showing of need is required. 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 will be reviewable in this Court. Matter of Dondi, supra, 63 N.Y.2d at 338, 482 N.Y.S.2d at 435 (Emphasis added). The State Commission must “set forth ... facts indicating that other avenues of In his supporting affirmation Mr. Tembeckjian seeks to justify the7 granting of the ex parte application by listing the other judges that have previously granted similar relief to the State Commission (R. 61, 61.1). -12- 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,” and an “indication of the gravity or circumstances of the underlying investigation.” Id. at 339, 482 N.Y.S.2d at 435. The affirmation submitted by the State Commission to obtain the Ex Parte Order (the “Tembeckjian Affirmation”) did none of this.7 The State Commission’s claim that Mr. Rubenstein has waived consideration of this issue on appeal by not raising it in the trial court is disingenuous. The Tembeckjian Affirmation was not even in the criminal court file and the State Commission steadfastly refused to provide Mr. Rubenstein with a copy until late afternoon on the day before the return date of Mr. Rubenstein’s motion. Moreover, because this argument involves a pure issue of law, Mr. Rubenstein need not have previously raised it. DiFigola v. Horatio Arms, Inc., 189 A.D.2d 724, 593 N.Y.S.2d 9 (1 Dep’t 1993); Block v. Magee, 146 A.D.2d 730, 537 N.Y.S.2d 215 (2dst Dep’t 1989). The deficiency of the Tembeckjian Affirmation is patent, and no contrary facts could have been presented had Mr. Rubenstein previously raised it. -13- The State Commission’s attempt to justify the Appellate Division’s finding of mootness is equally without merit. This Court has long held that review is available where the order appealed from has “enduring consequences” for the appellant’s credibility and reputation. See Bickwid v. Deutsch, 87 N.Y.2d 862, 863- 64, 638 N.Y.S.2d 932, 932-33 (1995). The continuing presence of the State Commission’s determination on its website, with no steps to protect Mr. Rubenstein’s identity, has such “enduring consequences.” Mr. Rubenstein’s request for redaction of the State Commission’s determination is not the kind of last minute request that led the courts in Lillbask v. Conn. Dept. of Educ., 397 F.3d 77 (2d Cir. 2005) and Seven Words LLC v. Network Solutions, 260 F.3d 1089 (9 Cir. 2001) to conclude that the plaintiffs’ claims inth those cases had become moot. Mr. Rubenstein’s request that an order be entered “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” (R. 11) is broad enough to include his request that his name be redacted from the Commission’s public filings (R. xxxvi, xliv-xlv), which were based on its acquisition of such records. Moreover, neither the Commission’s determination nor Judge Doe’s agreed statement of facts had been published at the time Mr. Rubenstein sought to vacate the Ex Parte Order. As soon as the issue Only one trial court decision has been reported, Matter of State Commission8 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. -14- became ripe, he pressed for this relief. In Lillbask and Seven Words LLC, by contrast, the appellants who sought to salvage their appeals by asserting eleventh hour claims for damages had either abandoned a damage claim (Lillbask) or made a deliberate strategic decision not to assert it (Seven Words LLC). Even if moot, the issue whether the State Commission can have untrammeled access to acquitted defendants’ criminal records is one that “(1) is likely to recur ..., (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). No Appellate Court has passed on this issue and the State Commission’s devotion8 of most of its brief to its merits confirms that it is substantial. The State Commission has admitted that it has previously obtained such records and intends to continue obtaining such records and, because its applications are ex-parte, the issue is likely to continue to evade appellate review. The suggestion that Mr. Rubenstein unduly delayed in raising the issue is belied by the State Commission’s refusal to provide -15- him with a copy of the Ex-Parte Order, the Tembeckjian affirmation upon which it was based, or even the transcript of the deposition which it took of Mr. Rubenstein in its proceeding against Judge Doe, despite his prompt request for copies of all of these documents. Indeed, the State Commission did not disclose a copy of the Tembeckjian affirmation (which was not in the Court’s file) until the day before the return of Mr. Rubenstein’s motion to vacate the Ex Parte Order. In sum, Justice Fisher’s authorization of the release of Mr. Rubenstein’s criminal records contravenes the plain language of CPL §160.50 and this Court’s established case law precluding their disclosure. Absent a reversal, Mr. Rubenstein’s rights under CPL §160.50 will be rendered nugatory. CONCLUSION For all of the forgoing 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 and direct that all references to Mr. Rubenstein on the State Commission’s website be redacted, or remit the matter to the Appellate Division -16- for a 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 November 15, 2013 Respectfully submitted, GREENFIELD STEIN & SENIOR, LLP By: /s/ Gary B. Freidman Gary B. Freidman Attorneys for Seth Rubenstein 600 Third Avenue New York, NY 10016 (212) 818-9600 gfreidman@gss-law.com Of Counsel: Gary B. Freidman Jeffery H. Sheetz