THOMAS J. SPOTA District Attorney of Suffolk County By: Michael J. Miller, Esq. Criminal Courts Building 200 Center Drive Riverhead, NY 11901 MATTHEW W. BRISSENDEN, PC Attorney for Defendant 666 Old Country Road, Suite 501 Garden City, NY 11530 KEAHON, FLEISHER & FERRANTE By: William J. Keahon, Esq. Attorney for Defendant 1393 Vet. Mem. Highway, Suite 312 N. Hauppauge, NY 11788 LEVINE SULLIVAN KOCH & SCHULZ, LLP By: Katherine M. Bolger, Esq. Attorneys for Newsday, LLC 321 West 44th Street, Suite 1000 New York, NY 10036
THOMAS J. SPOTA District Attorney of Suffolk County By: Michael J. Miller, Esq. Criminal Courts Building 200 Center Drive Riverhead, NY 11901 MATTHEW W. BRISSENDEN, PC Attorney for Defendant 666 Old Country Road, Suite 501 Garden City, NY 11530 KEAHON, FLEISHER & FERRANTE By: William J. Keahon, Esq. Attorney for Defendant 1393 Vet. Mem. Highway, Suite 312 N. Hauppauge, NY 11788 LEVINE SULLIVAN KOCH & SCHULZ, LLP By: Katherine M. Bolger, Esq. Attorneys for Newsday, LLC 321 West 44th Street, Suite 1000 New York, NY 10036 James Hudson, J.
It is hereby ORDERED , that the motion of Mr. Robert Macedonio for this Court to recuse itself from considering the post-sentence applications in this case is denied. It is further
ORDERED , that the application of Mr. Macedonio to seal the record in this matter pursuant to CPL §160.58 is denied. It is further
ORDERED , that the application of Newsday for an order directing the unsealing of the subject search warrant affidavit is granted save for certain redactions imposed by the Court. It is further ORDERED , that the application of Newsday for an order directing the unsealing of the plea agreement between the District Attorney's Office and Mr. Macedonio is granted save for certain redactions imposed by the Court. It is further
ORDERED , that the effective date of this decision shall be five days after its entry by the Clerk of the Court
Newsday has made a request to unseal the search warrant application relating to the prosecution of the Defendant and to unseal his plea agreement. The People and the Defendant oppose both of these applications.
Additionally, Mr. Macedonio has made a separate application to seal the entire court file in his matter pursuant to CPL § 160.58. Newsday has opposed this application.
Initially, the Court wishes to thank counsel for their eloquent and scholarly arguments which are a credit to our profession.
Prior to addressing the respective applications, the Court must consider a motion by Mr. Macedonio for the Court to recuse itself. Counsel for Newsday takes no position on the motion for recusal. The District Attorney's Office, however, has stated that it agrees " with Mr. Macedonio's observation that Newsday has maneuvered this Court into an untenable position. Nevertheless, we caution that Newsday could manufacture a similar problem by using its publication to question the actions of any other judge reviewing these motions" (Affirmation of ADA Michael Miller dated April 11th, 2016).
The gravamen of the motion for recusal is that a Newsday article appeared in February of this year which questioned the circumstances of Mr. Macedonio's plea, subsequent re-plea and re-sentence. This disposition, which was urged by both defense counsel and the District Attorney, was approved by the Court. Mr. Macedonio contends that since the Court was interviewed for the Newsday article and presided over the proceedings which Newsday has questioned, recusal is warranted. For the reasons discussed herein, the Court disagrees.
There is no basis for recusal under Judiciary Law § 14, nor under the common law ( Caperton v . A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 ). Thus, the Court must look to the provisions of the Rules of Judicial Conduct and case law to determine if recusal is warranted.
Mr. Macedonio's reliance on 22 NYCRR Rule 100.3(B)(8) is misplaced. This rule prohibits a judge from making " any public comment about a pending or impending proceeding" (emphasis ours). Although the Court did speak with a Newsday reporter some months prior to the article's publication, it was to briefly relate the circumstances of the disposition of a case that had been closed four years earlier. As in the case of People v . Lazzaro , 180 AD2d 696, 696, 580 N.Y.S.2d 43, 44 (2nd Dept.1992) " [t]he challenged comments merely explained for public information the procedures of the court.'"
Although the Newsday article was critical of the Court, it must be noted that no comments made by the Court could be construed so as to infer a predisposition in deciding the instant applications (22 NYCRR §100.3 [B]).
None of the specific subdivisions found in 22 NYCRR §100.3[E] which require disqualification are present in the case before the Court. Mr. Macedonio, however, contends that 22 NYCRR §100.3[E] should be applied in this instance. This section reads: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Additionally, it is argued that our deciding these applications creates an appearance of impropriety in violation of 22 NYCRR §100.2.
We must consider that the reason for Mr. Macedonio's request concerns press coverage of this Court. As pointed out in the District Attorney's affirmation, this pressure can be brought to bear on any jurist hearing these applications. If the Court were to recuse on the basis offered, the same circumstances could easily be repeated and my colleagues placed in a similar dilemma. Regardless of the outcome, any judge could be subjected to public calumny for their decision. Any jurist could have their impartiality questioned under these circumstances. This Court asserts that a claim of lack of impartiality would be as unreasonable in being directed towards this Court as any other. As with the case of a vexatious litigant who sues a judge who rules against him/her, the use of unfavorable press coverage could be used by the unscrupulous to create a false controversy. It would allow litigants "...a license under which the judge would serve at their will" ( Spremo v . Babchik , 155 Misc 2d 796, 799-800, 589 N.Y.S.2d 1019, 1022 [Sup. Ct. Queens Co.1992], aff'd as modified, 216 AD2d 382, 628 N.Y.S.2d 167 [2nd Dept. 1995] citing, Davis v . Board of School Commrs ., 517 F.2d 1044 [5th Cir.1975], cited in People v . Diaz , 130 Misc 2d 1024, 498 N.Y.S.2d 698; U .S. v. Grismore , 564 F.2d 929 [10th Cir.1977]).
The Court wishes to note that it is not invoking the venerable "Rule of Necessity," which " provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard" ( Pines v . State , 115 AD3d 80, 90, 979 N.Y.S.2d 142, 150, appeal dismissed, 23 NY3d 982, 989 N.Y.S.2d 13 ). The aforementioned rule presumes the existence of a bias that all jurists would suffer from. In the case at bar the Court does not concede Mr. Macedonio's argument that this Court may harbor a bias. It merely notes that his claims would apply to all judges.
The admonition that the Court be unswayed by "...public clamor or fear of criticism..." is one that all judges must adhere to (22 NYCRR § 100.3[B]). For the Court to disqualify itself at this juncture would be an abdication of that responsibility.
Under these circumstances it is up to the conscience and discretion of the Court to determine if we should disqualify ourselves ( People v . Harris , 133 AD3d 880, 22 N.Y.S.3d 62 [2nd Dept. 2015], leave to appeal denied, 26 NY3d 1145N.Y.S.3d, 2016 WL 1059312 ). The Court having searched its conscience, is comfortable in assuring the parties that it can be fair and impartial in this case ( Silber v . Silber , 84 AD3d 931, 923 N.Y.S.2d 131 [2nd Dept. 2011]). Therefore, the motion for the Court to recuse is denied.
We now turn to the District Attorney and Mr. Macedonio's procedural objections to Newsday's motion.
The application brought by Newsday was originally made in the form of a letter. This matter was placed on the Court's Calendar February 11, 2016 to afford the People the opportunity to interpose any written opposition in connection with the application. The People and Mr. Macedonio's counsel requested an adjournment until February 18, 2016, for the purposes of submitting written opposition to the motion. Newsday's counsel consented to this request. Newsday was afforded the opportunity to submit supplemental material in support of its application. On February 18, 2016, the parties appeared before the Court. The People and Mr. Keahon (counsel for Mr. Macedonio) both objected to the Court considering the application based on a letter instead of by way of formal motion. Accordingly, the Court gave leave for Newsday to make its application pursuant to Article 22 of the CPLR. The instant motion was filed and made returnable on April 4, 2016. Thereafter, the Court received a communication from Mr. Keahon indicating that the parties had consented to adjourn the return date to April 13, 2016. During the time between Newsday's initial motion and the ultimate return date, Mr. Macedonio filed a motion for his case file to be sealed pursuant to CPL 160.58.
Both Mr. Macedonio and the District Attorney ask the Court to deny the application of Newsday on the grounds that its request should have been brought as an Article 78 proceeding. Newsday's protestations to the contrary, in addition to the substantive discussions contained therein, the very titles of the actions cited by the applicant demonstrate that the proper form to bring this request should be by a Special Proceeding (e.g., Crain Communications Inc . v. Hughs , 74 NY2d 626, 541 N.Y.S.2d 971, ; Westchester Rockland Newspapers , Inc. v. Leggett , 48 NY2d 430, 423 N.Y.S.2d 630 ). The cases brought to the Court's attention by the Respondents ( e. g., NY Post Corp . v. Leibowtiz , 2 NY2d 677, 684, 163 N.Y.S.2d 409 ; Associated Press v . Bell 70 NY2d 32; 517 N.Y.S.2d 444 ) are to the same effect.
A fair reading of the contents of these decisions reaffirms the principle that the preferred method of addressing Newsday's application would be in the fashion suggested by the People and Mr. Macedonio. Despite this, however, failure to conform with the mechanical rules of pleading does not automatically bar a prayer for relief.
CPLR 2001 provides:
"At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."
The legislative purpose behind the wording of CPLR 2001 was to " disregard technical defects, occurring at the commencement of an action, that do not prejudice the opposing party" ( Ruffin v . Lion Corp., 15 NY3d 578, 581, 915 N.Y.S.2d 204 (2010) citing, Legislative Sponsor's Memorandum).
The People and Mr. Macedonio have had the opportunity to be placed fully on notice of the application of Newsday and have been given the opportunity to present their arguments and respond to the contentions of their adversary. They cannot claim prejudice. We remind the parties that: "If there is a request for access to inspect sealed documents, that request must be heard by the Court" ( Matter of Searches of Semtex Indus . Corp., 876 F. Supp. 426, 429 [E.D.NY 1995] citing, Application of Newsday , 895 F.2d 74 [2d Cir.], cert. denied, 496 U.S. 931, 110 S.Ct. 2631 ). In short, the form of the application does not outweigh its substance.
Under the circumstances presented, we find that the interests of justice oblige us to overlook the technical defects in the mode of application by Newsday and look instead on its merit (CPLR 2001).
In addition to their procedural objection, the District Attorney and Mr. Macedonio both contend that Newsday lacks standing to controvert the Court's prior sealing orders in this case. Additionally, Mr. Macedonio contends that Newsday lacks standing to oppose his motion to seal under CPL § 160.58. Once again, the Court disagrees.
Newsday's counsel correctly states that the news media's right to bring an application challenging the Court's action in sealing the search warrant and plea agreement has been well established. The authority cited by Newsday on this point such as Westchester Rockland Newspapers , Inc. v. Leggett , supra; Oliver v . Postel , 30 NY2d 171, 331 N.Y.S.2d 407 ; and Associated Press v . Owens , 160 A.D2d 902, 554 N.Y.S.2d 334 [2nd Dept.1990]; etc., all support the view that the public at large has a right to make such an application. The press stands in the same position as the public and is possessed of the same right ( Daily News , L.P. v. Wiley , 126 AD3d 511, 512, 6 N.Y.S.3d 19 [1st Dept. 2015]).
The standing of a third party to challenge a sealing application made under CPL §160.58 appears to be one of first impression. This Court finds that if standing were denied, it would effectively eviscerate both the First Amendment and common-law rights of access that protect the principle favoring open public records. Such a policy would have to have been specified by the Legislature when this section of law was enacted. Since the Legislature has not done so, the Court will not impose it. Accordingly, the Court finds that Newsday has standing to oppose the application to seal.
The question of standing having been established, the Court will consider Mr. Macedonio's motion to seal the entire file in this matter .
CPL 160.58 provides:
"1. A defendant convicted of any offense defined in article two hundred twenty or two hundred twenty-one of the penal law or a specified offense defined in subdivision five of section 410.91 of this chapter who has successfully completed a judicial diversion program under article two hundred sixteen of this chapter, or one of the programs heretofore known as drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section.
2. The court that sentenced the defendant to a judicially sanctioned drug treatment program may on its own motion, or on the defendant's motion, order that all official records and papers relating to the arrest, prosecution and conviction which resulted in the defendant's participation in the judicially sanctioned drug treatment program be conditionally sealed."
Before considering whether to seal a Defendant's file, the Court must consider
"...any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant's criminal history; and (iv) the impact of sealing the defendant's records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety" (CPL § 160.58 ).
The Court shall examine the factors in favor of Mr. Macedonio's application and those which argue against it. The conviction before the Court is for a single count of Criminal Possession of a Controlled Substance in the 7th Degree, a Class "A" Misdemeanor. As far as the character of the Defendant, Mr. Macedonio has brought forth evidence that he has successfully completed a judicially sanctioned drug treatment program and has volunteered as a speaker in connection with the Court's own Judicial Diversion Program (Defendant's Exhibits C and G). The Defendant's criminal history consists solely of the conviction before the Court. In short, factors (i), (ii) and (iii) all speak in favor of the application.
The factor found in 160.58[iv] however, does not incline the Court towards the Defendant. Mr. Macedonio is to be commended for his successful rehabilitation which demonstrates that the mercy extended to him by the Court was not abused or used for anything other than the pursuit of a law abiding life. We find, however, that his very success argues against his sealing application.
In the case of In re K ., 35 Misc 3d 742, 745-46, 942 N.Y.S.2d 772, 775 (Sup. Ct. NY Co. 2012), the Court, in granting a 160.58 application described how the Defendant had suffered " impediments to further achievement attendant upon his conviction record" (Id. at 745-46). By contrast, in the case of People v . Modesto , 32 Misc 3d 287, 922 N.Y.S.2d 920, (Sup. Ct. Bronx Co. 2011), the Court observed that " the record lacks proof of adverse effect upon Defendant's employment opportunities" (Id. at 290-291). In People v . Sarubbi , 44 Misc 3d 1215(A), 997 N.Y.S.2d 100 (Sup.Ct. Nassau Co. 2014), it was noted that "...defendant's conviction has not hindered his ability to find gainful employment." In both Modesto and Sarubbi , the application to seal was denied.
The documents submitted by Mr. Macedonio demonstrate that in the intervening four years he has returned to the practice of law and has fully reintegrated into society. (Defendant's Exhibit G). This has all occurred with his conviction being a public record and with an unsealed file (with the exception of his plea agreement) subject to public scrutiny. The clear language of 150.58(3)(iv) and the persuasive authority found in analogous cases shows that the Court should consider sealing if the conviction has proven to be an impediment to gainful employment. That is clearly not a factor in the matter at hand. Indeed, Mr. Macedonio's misdemeanor conviction allowed him to apply for reinstatement as an attorney. This application was granted by the Appellate Division ( Matter of Macedonio , 103 AD3d 154, 157, 956 N.Y.S.2d 918, 920 [2nd Dept. 2013]).
The language contained in the phrase "...any relevant factors, including but not limited to..." (CPL §160.58 ) gives the Court the power to address other factors in favor of and against a sealing order. There is limited case law interpreting this section so it falls to the Court to consider appropriate circumstances in addition to the listed provisions of this statute. In that light, another factor which the Court feels is germane to deciding this question is what was the reasonable expectation of the parties at the time of original plea and subsequent re-plea.
In the case of People v. JG , 36 Misc 3d 399, 402, 948 N.Y.S.2d 536, 538 (Sup. Ct. NY Co. 2012), a sealing application was granted. In addition to the other enumerated 160.58  factors, however, the Court stated " both parties understood that, upon successful completion of the Judicial Diversion Program, the Court would consider sealing the records of this criminal action. This promise concerning sealing was one of several promises which induced the Defendant to sign the plea agreement" (Id. at 402).
In the case before us there was no understanding that any portion of the file, other than the plea agreement itself, would be sealed. Therefore, Mr. Macedonio cannot claim that he was denied any of the benefits of his negotiated sentence.
We also find that confidence in the justice system is a valid criteria to use in making a sealing determination ( Joy v . N., 692 F.2d 880, 893 [2d Cir. 1982]). There is an accepted public interest " in the citizen's desire to keep a watchful eye on the workings of public agencies and in a newspaper publisher's intention to publish information concerning the operation of government (cites omitted)" Nixon v . Warner Communications , Inc ., 435 U.S. 589, 598, 98 S. Ct. 1306, 1312 ).
It appears that the application of the Defendant, over four years after his case was closed, comes not in response to the general public's access to the Court's file, but from an inquiry by the press. Under these circumstances, it would be an improvident exercise of discretion to grant his application.
Therefore, the application by Mr. Macedonio for an order sealing the file in this case pursuant to CPL §160.58 will be denied.
We now address the motion by Newsday to unseal the search warrant application and Mr. Macedonio's plea agreement. In support of its motion, Newsday cites to the authority found in the First Amendment of the United States Constitution and Art.1 Sec. 8 NYS Constitution, Judiciary Law § 4; the Court Rules at 22 NYCRR 216.1 and certain case law interpreting same.
The Court must first address that portion of Newsday's motion which is based on 22 NYCRR §216.1(a). This rule provides, in relevant part, that a Court may seal a record only "...upon a written finding of good cause, which shall specify the grounds thereof." A full reading of this section, however, as well as the case law interpreting same, demonstrates that it has only been applied in civil disputes and is not applicable to criminal cases; ( Crain Commc'ns , Inc. v. Hughes , supra; Danco Labs . v. Chemical Works of Gedeon Richter , 274 AD2d 1, 711 N.Y.S.2d 419 ). Crain Commc'ns held that public access to Court records could be curtailed in matters involving "...a source of business information which might harm a litigant's competitive standing" (Id. at 352). The Court would also act to protect "...confidential trade information" (Id. at 352). Danco involved a breach of contract action. Although the learned Court engaged in a thorough discussion of the principle of open courts in both civil and criminal matters, there is no doubt that it confined Rule 216.1's use to civil actions and was not seeking to extend it to criminal cases (Id. p.7).
We draw counsel's attention to the "Title" section of the aforementioned rule: "Part 216. Sealing of Court Records in Civil Actions in the Trial Courts" (Emphasis Ours). The limitation of Rule §216.1[a] is demonstrated by the fact that it was promulgated in response to concerns that "...had been widely expressed about the practice of sealing records of settlements in product liability and other tort actions where the information might alert other consumers to potential defects" ( Matter of Twentieth Century Fox Film Corp ., 190 AD2d 483, 486, 601 N.Y.S.2d 267, 269 (1st Dept.1993) citing M. Hoenig, Products Liability, New York's Rule on Sealing of Court Records, NYLJ, March 1, 1991, at 3, col. 1; Carpinello, Public Access to Court Records in Civil Proceedings: The New York Approach, 54 Albany L. Rev. 93, 98—100). The clear inapplicability of this section of the Court Rules, being manifest by both case law and the plain wording of the regulation itself, constitutes a misstatement of law. It is of little utility to the Court or the applicant's cause, especially when there are two theories (constitutional and common law) which argue so clearly in Newsday's favor.
Therefore, that aspect of Newsday's motion to vacate the sealing orders predicated on 22 NYCRR §216.1 must be denied.
Newsday's reliance on Judiciary Law §4 is also chimerical. In support of its application, Newsday relies on the holdings in decisions such as Press-Enterprise Co . v. Super. Ct , 478 US1 106, S.Ct. 2735 (1986); Press-Enterprise Co . v. Super. Ct , 464 U.S. 501, 104 S.Ct. 819 ; Globe Newspaper Co . v. Super Ct. 457 U.S. 596, 102 S.Ct. 2613 ; and Richmond Newspapers , Inc. v. Virginia , 448 U.S. 555, 100 S.Ct. 2814 ). A close reading of those opinions shows that they discussed instances wherein the lower Court had either sealed the proceedings or the transcript of same. This is readily distinguishable from the matter sub judice in which a review of the Court records indicate that the Defendant's pleas and sentences were held in open Court in accordance with Judiciary Law §4. This section provides: "The sittings of every court within this state shall be public, and every citizen may freely attend the same...." It must be observed that at no time during Mr. Macedonio's plea or sentence was the courtroom or transcripts of its proceedings, sealed or otherwise protected from public view, with the sole exception of the referenced plea agreement.
We turn to the two areas of law that govern the propriety of the instant application, the common-law right to inspect court records and the First Amendment right of access. These two principles will be discussed ad seriatim.
The affidavit in support of the search warrant was sealed in a separate application prior to Mr. Macedonio's arrest and arraignment on the Superior Court Information. The law traditionally treats these two items (i.e., the plea agreement and search warrant) in separate fashions and each enjoys different protections.
The public's right to inspect court documents is subject to the inherent power of the courts to regulate same ( Hynes v . Karassik , 47 NY2d 659, 664, 419 N.Y.S.2d 942 ). It is a power, however, that should be used sparingly. The Court must always consider that this authority to limit access must be viewed through the lens of extensive case law which recognizes a presumption in favor of public and news media access to court files.
Public records such as a filed search warrant "...are only subject to the common-law right of access to court records" People v . Burton , 189 AD2d 532, 535-36, 597 N.Y.S.2d 488, 491-92 (3rd 1993) citing, Nixon v . Warner Communications , supra at 597—598. New York has long recognized this common-law right, which predates our constitution ( United States v . Mitchell , 179 U.S.App.D.C. 293, 301, 551 F.2d 1252, 1260 , see, Newsday , Inc. v. Sise , 71 NY2d 146, 153 n.4, 524 N.Y.S.2d 35  cert. denied 486 U.S. 1056, 108 S.Ct. 2823 ).
It has been noted that the First Amendment, if applicable, provides more protection for the public's right of access than its common law companion ( Rushford v . New Yorker Magazine , Inc., 846 F.2d 249, 253 [4th Cir.1988]). The common law right of access, however, applies to all publicly filed documents (see, Nixon , 435 U.S. at 597).
The First Amendment only extends its aegis to a narrow category of papers filed in connection with trials, hearings and guilty pleas, specifically "...whether the place and process have historically been open to the press and general public..." and "...whether public access plays a significant positive role in the functioning of the particular process in question" ( Press —Enterprise Co . v. Super. Ct , supra at 8. In Matter of New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987) the Court acknowledged a "...qualified First Amendment right of access..." to written documents filed with the Court in connection with proceedings before it. The plea agreement of Mr. Macedonio was presented in open court and thus, falls into this category ( U .S. v. Haller , 837 F.2d 84 [2nd Cir.1988]).
When the First Amendment is properly invoked to seek access to a court proceeding or documents filed in connection thereto, the Court may deny the application "...only by proof of a compelling governmental interest' and proof that the denial is narrowly tailored to serve that interest,'" Matter of EyeCare Physicians of America , 100 F.3d 514, 519 (7th Cir.1996) citing, Baltimore Sun Co . v. Goetz , 886 F.2d 60, 64 [4th Cir. 1989] quoting Globe Newspaper Co . v. Super. Ct., supra at 606]).
This contrasts with the test to be applied when the common law right of access is invoked. In that instance, a court is required to balance the competing considerations in favor of and against sealing ( United States v . Smith , 985 F. Supp. 2d 506 [S.D.NY 2013]).
Law enforcement has a legitimate interest in protecting the confidentiality of its informants and undercover officers, as well as insuring current and future investigations are not compromised by disclosure ( People v . Darden , 34 NY2d 177  at 183, 356 N.Y.S.2d 582; People v . Hinton , 31 NY2d 71, 334 N.Y.S.2d 885, ); People v . Seychel , 136 Misc 2d 310, 313-14, 518 N.Y.S.2d 754, 757 [Sup. Ct. NY Co. 1987]). Additionally, innocent third parties who may be wrongly identified as the targets of investigation or mistaken as informants are also proper subjects of the Court's protection ( Matter of Search of Fair Fin ., 692 F.3d 424, 431-32 [6th Cir. 2012]). As the Court held in Application of Newsday , Inc., 895 F.2d 74, 78-80 (2d Cir. 1990) "[T]he privacy interests of innocent third parties as well as those of defendants that may be harmed by disclosure should weigh heavily in a court's balancing equation..." (Id. at 80).
The aforementioned case law clearly establish that the Court is under an obligation at this juncture to weigh the competing interests of the public's common law right of access against the factors listed above and decide if the search warrant application is to remain sealed. Newsday has noted, as part of its argument to unseal, that the initial sealing order was made without a written decision or finding on the record. Counsel must be aware that "[a] warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge" ( United States v . U.S. District Court for the Eastern Dist. of Mich., 407 U.S. 297, 321, 92 S.Ct. 2125, ). There is no case law or interpretation of CPL Article 690 that can be construed as requiring an issuing judge to state the reasons for sealing a search warrant at the time the warrant application was originally made. "Indeed, judicial officers have long respected the confidentialities involved in criminal investigations and generally afforded deference to the government's determinations on the need for secrecy" ( Matter of Search of Fair Fin ., supra, at 430-31 [6th Cir. 2012]). The requirement of the Court's articulating a rationale for sealing only arises when the search warrant becomes the subject, as in the matter sub judice, to a motion to unseal.
Applying the forgoing to the sealed search warrant application, the Court has made the following determination. An important reason for the initially sealing, namely, the integrity of an ongoing investigation, is no longer extant. There are, however, numerous references to undercover detectives, a confidential informant, uncharged persons and other innocent third parties as sources of information. The release of identifying information concerning these individuals, even eight years after the fact, could place their physical safety in danger. Therefore, balancing the public interest in disclosure against the safety of these individuals, the Court will redact the search warrant application to obscure this sensitive information and order the remainder unsealed.
We now turn to the question of whether the plea agreement of Mr. Macedonio should remain under seal. Since this was submitted in open court, the propriety of it remaining shielded from public review is governed both by the common law right of access and the First Amendment ( U .S. v. Haller , supra at 87; National Broadcasting Company Inc . v. Myers , 635 F.2d 945 [2nd Cir.1980]). The motion to seal the plea agreement was made upon the application of both the People and defense counsel, thus posing the question of whether a joint application is entitled to greater weight than an ex parte application.
Mr. Macedonio's plea agreement was sealed in 2008, upon the joint motion of the parties, thus giving it the effect of a stipulation. It is beyond cavil that " the parties to any litigation are free to chart their own procedural course... and they may fashion the basis upon which a particular controversy is to be resolved (citations omitted)" Kass v . Kass , 235 AD2d 150, 162, 663 N.Y.S.2d 581 , aff'd, 91 NY2d 554, 673 N.Y.S.2d 350 ). By jointly proceeding in this manner the parties " may stipulate away statutory, and even constitutional rights" ( Mitchell v . New York Hosp., 61 NY2d 208, 214, 473 N.Y.S.2d 148  quoting Matter of New York , Lackawanna & Western R.R. Co., 98 NY 447, 453, 53 Sickels 447 (1885]).
The rationale behind the rule regarding stipulations is not simple judicial economy although that is a factor ( Mitchell v . New York Hosp., supra at 214 citing Salesian Soc . v. Village of Ellenville , 41 NY2d 521, 525—526, 393 N.Y.S.2d 972 (1977]). It is also a recognition of the good faith of two attorneys sworn to uphold the law and conducting themselves pursuant to the Rules of Professional Conduct. Rule 3.3 imposes a particular requirement that any attorney appearing before a Court shall conduct themselves with probity (see, NY ST RPC Rule 3.3 [a]).
Although the above referenced case law involved civil litigation, the presence of the District Attorney as a party to a stipulation is certainly an inducement to its acceptance by the Court. In addition to the strictures imposed on all attorneys by Rule 3.3, the Rules of Professional Conduct impose an additional obligation upon a prosecutor to be " a minister of justice and not simply an advocate" (Rules of Prof. Con., Rule 3.8 McK. Consol. Laws, Book 29 App, Comment ). It is well settled that "...a District Attorney and Assistant District Attorneys are not merely partisan advocates, but public officials charged with administering justice honestly, fairly and impartially" ( People v . Heller , 120 Misc 2d 85, 90, 465 N.Y.S.2d 671 [Sup. Ct. Kings Co. 1983]; see, People v . Miller , 149 AD2d 439, 539 N.Y.S.2d 782 [2nd Dept.1989]). It necessarily follows that the District Attorney, placing the prestige of his/her office behind a stipulation (such as sealing a plea agreement) is to be accorded great deference. This moves the Court to declare that, it would be difficult, if not impossible, for a Court to function if, as a general rule, it can't accept an attorney's word as a sworn officer of the Court.
All this is presumed, and properly so, but we remind the parties that presumptions, as the learned Judge Lamm opined 110 years ago "...may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts" ( In re Fischer's Will , 183 Misc. 792, 794, 50 N.Y.S.2d 894, 896 [Sur. Ct. Erie Co. 1944] citing, In Matter of Simpson's Estate , 175 Misc. 718, 24 N.Y.S.2d 954, 959 [Sur. Ct. NY Co. 1941], quoting Mockowik v . Kansas City , St. Joseph & Council Bluffs R. Co., 196 Mo. 550, 94 S.W. 256 ).
It is axiomatic that the presumed correctness of an attorney's actions may be challenged. Traditionally, this has been accomplished via the advocacy of opposing counsel. The law also recognizes, however, that via the involvement of the public at large or the Fourth Estate, a determination in Court can be challenged, reported and subjected to public scrutiny ( United States v . Amodeo , 44 F.3d 141, 145 [2d Cir. 1995]).
The recent holding in Daily News , L.P. v. Wiley , 126 AD3d 511, 6 N.Y.S.3d 19 (1st Dept. 2015) states that a trial Court " cannot close the courtroom or seal evidence and transcripts merely because the parties are consenting to same and the case has obtained notoriety" (Id. at 515). The trial Court in Wiley was faced with an application by the news media to unseal in an ongoing criminal trial. In the matter at hand, Mr. Macedonio's plea was sealed, in an open courtroom, by joint application of the District Attorney and defense counsel without opposition by Newsday or any member of the public. As noted above, such stipulations are to be accorded great weight by the Court. Once challenged, however, it does become incumbent on the Court to make a Hinton style inquiry to determine if sealing is warranted ( People v . Hinton , 31 NY2d 71, 334 N.Y.S.2d 885 ).
The People and Mr. Macedonio's counsel have argued that Newsday's application is untimely ( Coopersmith v . Gold , 156 Misc 2d 594 NY2d 521[Sup Ct. Rockland Co.1992]; CPLR §216). Although this contention is presented with great skill, the Court is unpersuaded. In order to safeguard a First Amendment protection, Courts have traditionally afforded the news media an opportunity to oppose a sealing order prior to its issuance Mancheski v . Gabelli Grp. Capital Partners , 39 AD3d 499, 501, 835 N.Y.S.2d 595, 597 (2nd Dept. 2007) citing, Matter of Herald Co . v. Weisenberg , 59 NY2d 378, 383, 465 N.Y.S.2d 862; Coopersmith v . Gold , supra at 599-600. Although Newsday did not oppose the initial sealing of the search warrant affidavit or the plea agreement, there has been no showing of circumstances which would bar its application under the doctrine of laches ( Dwyer by Dwyer v . Mazzola , 171 AD2d 726, 567 N.Y.S.2d 281 [2nd Dept.1991] citing, 75 NYJur2d, Limitations and Laches, § 330]).
The question is not whether Newsday could have opposed the initial sealing orders in the past. The important factor is that the Court's sealing orders constitute a restraint of the First Amendment (as to the plea agreement) and the common law right of access (as to the search warrant affidavit) at this time. To protect these respective rights, the Court holds that an application of this type can be made at any time a public document remains under seal (c.f., Capruso v . Vill. of Kings Point , 23 NY3d 631, 992 N.Y.S.2d 469 ). To hold otherwise would result in impermissive burden shifting which always remains on the party seeking to seal (or maintain the sealing of) public records ( Mosallem v . Berenson , 76 AD3d 345, 905 N.Y.S.2d 575 [1st Dept. 2010]). This would be a result not contemplated by Nixon v . Warner Commc'ns , Inc ., supra, Crain Commc'ns , Inc. v. Hughes , supra or their progeny.
Newsday has the same right of general access to the search warrant application and the plea agreement as the general public. Since there is a presumption in favor of open records, the sealed plea agreement must be ordered opened unless there is a compelling governmental interest in maintaining its closure ( Globe Newspaper Co . v. Superior Court of Norfolk County , 457 U.S. 596, 606, 102 S.Ct. 2613 ). Additionally, the Court must "narrowly tailor," to the greatest extent possible, any judicial record encompassed by the First Amendment right of access ( Press-Enterprise Co . v. Sup. Ct. supra at 9). Although there is an intrinsic difference between a search warrant application and a plea agreement, they both have common factors in deciding this question including: the danger that release of this information would result in harm to undercover detectives, informants and innocent third parties, deprive a Defendant of a fair trial, compromise an ongoing investigation, or jeopardize future investigations. ( People v . Castillo , 80 NY2d 578, 583, 592 N.Y.S.2d 945 ; In the Matter of Application of New York Times Co . for Access to Certain Sealed Court Records , 585 F. Supp. 2d 83, 87-88 [D.D.C. 2008]; Matter of EyeCare Physicians of America , supra at 519; United States v . E. Side Ophthalmology , No. 95 MAG. 2424 [THK], 1996 WL 31843, at *1-2 [S.D.NY Jan. 26, 1996]).
Mr. Macedonio argues that aspects of the search warrant which deal with an investigation into mortgage fraud should be redacted inasmuch as he pled guilty to a narcotics offense and hence, enjoys a presumption of innocence concerning mortgage fraud. Based on this, it is contended that he falls under the classification of an innocent third party ( Matter of John Doe Partnership , 145 Misc 2d 783, 548 N.Y.S.2d 389 [Sup. Ct. Westchester Co.1989]). This is an interesting argument that finds no purchase with the Court. The case law which delineates the protection of innocent third parties cannot be parsed to create a further subset of individuals who were convicted of some (or one) crime in connection with a search warrant but not other crimes which were the subject of that warrant. ( Matter of the New York Times Co ., 828 F.2d 110, 116 [2d Cir. 1987]; Matter of Search of Fair Fin ., supra, 431-32 [6th Cir. 2012]).
Some of these factors which existed in the past (e.g., ongoing investigation) are no longer present. The Court is not bound to deny or grant the application in toto. Both Newsday and the District Attorney acknowledge that the Court has the power to redact portions of the subject documents to accommodate, as much as possible, the public's right of access.
A review of the sealed search warrant application reveals that it is replete with references to undercover police officer(s) and information provided by confidential informants, as well as the actions and identities of innocent third parties. It is not a hypothetical concern, but a real one that persons who assisted the police in this investigation may be placed in physical danger if this information is made public. Likewise, the privacy interests of innocent third parties who have no knowledge of this application must be considered ( Application of Newsday , Inc ., 895 F.2d 74, 78-80 [2d Cir. 1990]; see, The New York Times Co . v. City of New York Fire Dep't , 4 NY3d 477, 796 N.Y.S.2d 302 ). We find that the public's right of access is outweighed by the harm the above persons would suffer if their identities were released.
Accordingly, the Court will unseal the search warrant application with the sole exception of those items listed above. The Court will redact the document in question and the redacted search warrant application will be made available for public inspection.
Mr. Macedonio was the sole Defendant named in the Superior Court Information before the Court. If the People are aware of any additional person(s) named in the search warrant who pled guilty to or were convicted of crimes in connection with evidence seized pursuant to the search warrant, they are directed to provide the Court with their name(s) so the redaction can be modified to reflect same. --------
Turning our analysis to the plea agreement we find that it contains references to innocent third parties who were not charged in connection with Mr. Macedonio's case. There is a compelling interest in protecting the privacy of these individuals (Matter of the New York Times Co ., 828 F.2d 110, 116 [2d Cir. 1987]). A blanket sealing of the plea agreement, however, would not satisfy the narrow tailoring required to safeguard the First Amendment right of access ( Matter of the Application of New York Times Co . for Access to Certain Sealed Court Records , 585 F. Supp. 2d 83, 94 [D.D.C. 2008]; Matter of the Eye Care Physicians of America , supra at 519; United States v . Bus. of Custer Battlefield Museum & Store Located at Interstate 90 , Exit 514 , S. of Billings , Mont ., 658 F.3d 1188, 1194-95 [9th Cir. 2011]; Hagestad v . Tragesser , 49 F.3d 1430, 1434 [9th Cir.1995]). To protect their identities, their names and information that could be used to identify them will be redacted. With that exception, the plea agreement will be available for public inspection.
Upon the issuance of this decision, a copy of the search warrant application and a copy of the plea agreement, with the redactions indicated, is being filed with the Clerk of the Court.
This Memorandum also constitutes the Order of the Court. DATED: MAY4, 2016 RIVERHEAD, NY HON. JAMES HUDSON, A.J.S.C.