Opinion
No. 2023-50807 Claim No. 134918
07-21-2023
Pablo Fernandez, Claimant, v. The State of New York, Defendant.
For Claimant: Neufeld Scheck & Brustin, LLP By: Tony Joe and Emma Freudenberger, Esqs. Paul, Weiss, Rifkind, Wharton & Garrison, LLP By: Daniel J. Beller, Scott Kennedy and Kerissa N. Baron, Esqs. For Defendant: No appearance
Unpublished Opinion
For Claimant:
Neufeld Scheck & Brustin, LLP
By: Tony Joe and Emma Freudenberger, Esqs.
Paul, Weiss, Rifkind, Wharton & Garrison, LLP
By: Daniel J. Beller, Scott Kennedy and Kerissa N. Baron, Esqs.
For Defendant:
No appearance
Javier E. Vargas, J.
Papers Considered:
Notice of Motion & Exhibits Annexed 1-15
Upon the foregoing papers and for the following reasons, the Motion by Claimant Pablo Fernandez (hereinafter "claimant"), for the unsealing of a non-party's criminal record, is hereby denied.
By Verified Claim for Damages filed on June 12, 2020, the claimant commenced the instant action seeking to recover damages against Defendant State of New York (hereinafter "State") in the Court of Claims for wrongful conviction and imprisonment, pursuant to Court of Claim Act § 8-b, after spending almost 25 years imprisoned in State correctional facilities for the 1993 murder of a known Manhattan drug dealer, Ramon "Manny" Quintero, which he claimed to not have committed. The Claim alleges that the claimant's conviction was the result of a series of witnesses who falsely identified him as the murderer, but who have since recanted their story claiming they were coerced and pressured by a former New York City Police Department officer, nonparty Albert J. Melino, the arresting officer alleged to be directly responsible for the claimant's criminal conviction and incarceration. Following those recantations, the claimant's conviction was vacated by the United States Court of Appeals for the Second Circuit (see Fernandez v Capra, 916 F.3d 215 [2d Cir. 2019]). According to the Claim, Mr. Melino was fired in the aftermath of the claimant's conviction after investigators discovered he had sold half a kilogram of cocaine before joining the police force in June 1992.
In a prior Decision and Order dated February 11, 1997, the Supreme Court, New York County (Adlerberg, J.) dismissed the1996 criminal indictment against Police Officer Melino upon constitutional due process and speedy trial grounds after the court found no reasonable rationale to support the 47-month delay in prosecuting the case (see People v Melino, NYLJ, February 11, 1997, at 27, col. 1). Upon dismissal of the indictment, the criminal action was automatically sealed pursuant to Criminal Procedure Law (CPL) § 160.50 by that court. The claimant here has been attempting to obtain those criminal records for this civil matter from the New York District Attorney's Office and the New York State Police Department, without success.
As a result, by Notice of Motion filed April 4, 2023, the claimant moves for an order of this Court unsealing the criminal records in the custody of the New York State Police, District Attorney's Office, and other State law enforcement entities, stemming from the 1991 through 1992 narcotics-related criminal investigations of Mr. Melino. The claimant argues that those records are necessary to "probe why Melino chose to manufacture a case against" the claimant and to discover possible "evidence undermining the credibility of Melino's account of his conduct during the lineups and photo arrays at issue in this case." With his Motion, the claimant is essentially seeking to unearth a possible connection between Mr. Melino's alleged drug activities as the motive for framing the claimant with the murder of the drug dealer to cover up other suspected drug dealers.
At this Court's insistence during a status conference, the claimant was directed to attempt to notify Mr. Melino of the Motion, as he is the person in real interest of protecting the privacy of his sealed criminal records. The claimant's counsel provided an Affirmation dated April 20, 2023, representing that they have attempted to notify Mr. Melino of the Motion several times without success in both New York and Florida, as his actual whereabouts apparently are currently unknown. The State has filed no opposition to this Motion. Nevertheless, this Court disagrees with the claimant's request.
Pursuant to CPL 160.50(1)(c), 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," including all official records and papers, and not made available to any person or public or private agency (see People v Anonymous, 34 N.Y.3d 631 [2020]; Matter of New York Times Co. v District Attorney of Kings County, 179 A.D.3d 115, 122 [2d Dept. 2019]). The laudable legislative objective in enacting CPL 160.50 was to "insur[e] that one who is charged but not convicted of an offense suffers no stigma as a result of his [or her] having once been the object of an unsustained accusation" (Matter of Hynes v Karassik, 47 N.Y.2d 659, 662 [1979]), thereby affording protection to such accused in the pursuit of employment, education, professional licensing and insurance opportunities (see People v Patterson, 78 N.Y.2d 711, 716 [1991]; Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 N.Y.3d 570, 579-580 [2014]). Indeed, CPL 160.50(1)(d) designates specific parties and institutions that are entitled to obtain a copy of sealed criminal records, namely:
(i) a prosecutor in any proceeding in which the accused has moved for an order [of adjournment in contemplation of dismissal in a case involving marijuana charges below a felony grade]; or (ii) a law enforcement agency upon ex parte motion in any superior court, or in any district court, city court or the criminal court... if such agency demonstrate to the satisfaction of the court that justice requires release; or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made an application for such a license; or (iv) the New York state department of corrections and community supervision when the accused is on parole supervision as a result of conditional release...; or (v) any prospective employer of a police officer or peace officer... in relation to an application for employment... [so long as the applicant is provided with a copy of all records and given an opportunity to explain]; or (vi) the probation department responsible for supervision of the accused...
Applying these principles to the matter at bar, the claimant's Motion fails. It is apparent that the claimant is not among the specific parties entitled to obtain a copy for Mr. Melino's sealed records, as none of the above listed exceptions apply to him (see Lauricella v Tanya Towers Inc., 8 A.D.3d 153 [1st Dept. 2004]). While the claimant contends that he seeks to unseal these records primarily to challenge Mr. Melino's credibility as the arresting officer who was directly responsible for his criminal conviction, the statute's provisions strongly suggest that its primary focus is the unsealing of records for public investigations - not private impeachment purposes in a civil matter (see Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 N.Y.3d at 581; Matter of Katherine B. v Cataldo, 5 N.Y.3d 195, 204-205 [2005]).
Also, the claimant's contention that Mr. Melino waived his privacy rights when he filed civil suits challenging his dismissal from the New York City Police Department, is not supported by the record. It cannot be interpreted that Mr. Melino's waived his privacy protections in the instant Claim, as this Claim is totally unrelated to his prior civil proceedings (see Matter Abrams v Skolnik, 185 A.D.2d 407 [3rd Dept. 1992] [court found that protected individual waived his privacy rights by commencing civil tax action, affirmatively placing in issue elements common or related to his prior criminal tax indictment]). Moreover, this Court cannot find that the interest of justice clearly outweighs the protections afforded to the claimant under CPL 160.50, since that authority seems to be confined to attorney disciplinary matters and other extraordinary circumstances, not present herein (see Matter of New York State Commn. on Jud Conduct v. Rubenstein, 23 N.Y.3d at 580 ; Prag v Prag, 161 A.D.3d 1364 [3rd Dept. 2018]).
In any event, this Court is concerned about granting an order unsealing such records in a civil matter where the person protected by the statute is not a party or otherwise waived the protection/privilege of CPL 160.50 (see Matter of New York Times Co. v District Attorney of Kings County, 179 A.D.3d at 124). Not to mention that the Court of Claims may lack jurisdiction to grant a motion to unseal Mr. Melino's records considering that it is not the "superior court" or "criminal court," which decided the initial criminal matter and determined that sealing was mandated (CPL 160.50[1][d]); see Lauricella v Tanya Towers, Inc., 8 A.D.3d at 153; Wilson v City of New York, 240 A.D.2d 266 [1st Dept. 1997]).
Accordingly, based on the foregoing, the claimant's Motion, No. M-99283, to unseal Mr. Melino's official records of criminal proceedings relating to his 1991 to 1992 narcotics offenses, is denied.