Opinion
XXXXX
03-18-2019
In the Matter of Emily P., A Person Alleged to be a Juvenile Delinquent, Respondent.
Zachary W. Carter, Esq. Corporation Counsel of the City of New York 60 Lafayette Street, Room 7A3 New York, NY 10013 Jessica R. Welsh, Esq., Of Counsel Dawne A. Mitchell, Esq. The Legal Aid Society Juvenile Rights Practice 60 Lafayette Street, 9th Floor New York, NY 10013 Attorney for Respondent Willie E. Jones, Esq., Of Counsel
Zachary W. Carter, Esq. Corporation Counsel of the City of New York 60 Lafayette Street, Room 7A3 New York, NY 10013 Jessica R. Welsh, Esq., Of Counsel Dawne A. Mitchell, Esq. The Legal Aid Society Juvenile Rights Practice 60 Lafayette Street, 9th Floor New York, NY 10013 Attorney for Respondent Willie E. Jones, Esq., Of Counsel Carol Goldstein, J.
In a case which underscores the tremendous potential for the rehabilitation of juveniles in delinquency matters, respondent Emily P.—now a thirty-four-year-old accomplished forensic scientist, who is about to commence a position with the United States Attorney's Office—asks that her delinquency adjudication, entered when she was fifteen years old, be "sealed, expunged, and otherwise deleted." Recognizing that the overriding intent of delinquency proceedings is not to punish, but "to intervene and positively impact the lives of troubled young people" (Matter of Robert J., 2 NY3d 339, 346 [2004]), the court vacates the dispositional order entered nineteen years ago, dismisses the delinquency petition, and seals and expunges the record (see FCA §§ 355.1[1][b]; 352.1[2]; 375.1 & 375.3). This relief will permit respondent to advance in her career in public service unencumbered by the delinquency adjudication.
Background
On June 6, 2000, in Manhattan Family Court, respondent admitted to committing acts constituting menacing in the third degree, a class B misdemeanor. The complainant was her nineteen-year-old sister. On August 17, 2000, respondent was given an eighteen-month term of probation, with the condition that she attend counseling. On October 25, 2000, in Bronx Family Court, respondent admitted to committing acts constituting assault in the third degree, a class A misdemeanor. The case involved a fight with a peer. Respondent was given a concurrent twelve-month term of probation. Respondent successfully completed her probationary terms and has had no further dealings with the juvenile justice or the criminal justice system.
Respondent is now a forensic scientist and has enjoyed major academic and professional accomplishments. Respondent graduated from John Jay College of Criminal Justice in 2007, with a Bachelor of Science degree in Forensic Science, majoring in Criminalistics. She is a member of the Chi Alpha Epsilon Honor Society. In 2012, respondent earned a Master of Science degree in Forensic Science from Pace University. She earned her master's degree with a 4.00 GPA and received the "Forensic Science Graduate Achievement Award." In 2011, respondent was selected as the alumni speaker at the John Jay College graduation ceremony. Also, that year, she was selected to join a team that demonstrated the forensic processes involved in sexual assault evidence examination and DNA testing to Vice President Joseph Biden and Attorney General Loretta Lynch. In 2016, because of her professional accomplishments, respondent was selected to be part of a five-member panel to represent five different generations of John Jay College graduates. Respondent is a member of the American Academy of Forensic Science in the field of Criminalistics.
Professionally, respondent worked for GlaxoSmithKline as a compound crystallographer and for JB Waste Oil as an analytical chemist. Thereafter, for six years, she was employed as a forensic scientist by the Office of the Chief Medical Examiner of the City of New York. Respondent is now about to embark on a position in Washington D.C. as a forensic scientist with the United States Attorney's Office.
On November 28, 2018, petitioner appeared in this court, pro se, and filed a motion requesting that her juvenile record in Manhattan Family Court be "sealed, expunged, and otherwise deleted." She explained that being depicted as a juvenile delinquent "can still bear heavy consequences." Respondent asserted that she is now a "valued citizen" and has held government positions. She requested the "deletion" of her juvenile record because she believes that it poses an obstacle to her career.
On January 17, 2019, respondent filed a similar motion in Bronx Family Court seeking to vacate her delinquency adjudication, dismiss the delinquency petition, and seal her records in that court. On January 24, 2019, Bronx Family Court issued an order sealing respondent's juvenile delinquency record, but denied the other requested relief.
On December 20, 2018, respondent advised the court that she was currently undergoing a "secret" security clearance, which is required for her upcoming position at the United States Attorney's Office and, as part of the clearance process, she had to disclose her delinquency record. Security clearance is required for federal employees who have access to classified national security information. "Secret" security clearance is the mid-level clearance between "confidential" and "top secret" (US Department of State official website). Respondent was concerned that she may have to disclose her delinquency record in the future since she plans to devote her career to government service. She stated that having a juvenile record is a "nightmare" and that it would be "comforting and settling" for her to know that this delinquency finding would not have to be disclosed in the future. Since respondent had previously been represented by The Legal Aid Society in the 2000 delinquency proceedings, the court reappointed Legal Aid to represent her on the instant motion.
On January 7, 2019, respondent's attorney filed a memorandum in support of the motion. Counsel argues that the court should exercise its inherent power to expunge court records pursuant to FCA § 375.3 and should, in its discretion, expunge respondent's delinquency record. Alternatively, respondent contends that respondent's record should be sealed in the interests of justice, pursuant to FCA § 375.2. As a third alternative, respondent requests that pursuant to FCA § 355.1(1)(b), the dispositional order be vacated, the delinquency petition be dismissed, and the court record of the case be expunged. Counsel contends that respondent's extraordinary accomplishments since her delinquency adjudication many years ago constitutes both a "change of circumstances" to modify or vacate the dispositional order as well as a basis for the court to grant this relief in the "interests of justice" (see Matter of Delfin A.,123 AD2d 318, 320 [2nd Dept. 1986])
In response papers, the presentment agency, the Corporation Counsel of the City of New York, does not oppose the sealing of respondent's delinquency records pursuant to FCA § 375.2 and agrees that allowing those records to remain unsealed would result in "an injustice." The presentment agency, however, opposes modification or vacatur of the order of disposition and the expungement of the court record.
With respect to her request to vacate the delinquency adjudication, the presentment agency acknowledges the inherent right of the court to vacate its own orders "in the interests of justice" under Matter of Delfin A. However, the presentment agency contends that this power is generally reserved for situations where there was a defect in the underlying proceedings and, in the instant case, there was no claimed defect in the 2000 proceedings. The presentment agency also argues that the dispositional order should only be vacated while the order is still in effect.
With respect to expungement, citing Matter of Dorothy D. (49 NY2d 212, 216 [1980]), the presentment agency argues that expungement is generally reserved for situations where there is a finding of "complete innocence," and respondent is not completely innocent of having committed delinquent acts. Despite its opposition to expungement, the presentment agency does not contend that the retention of respondent's delinquency records would serve any societal purpose.
Decision
The Court of Appeals has recognized that "[t]he overriding intent of the juvenile delinquency article is to empower the Family Court to intervene and positively impact the lives of troubled young people while protecting the public." (Matter of Robert J.,2 NY3d at 346; see also Matter of Carmelo E., 57 NY2d 431, 435 [1982] [goal of delinquency proceedings is "not to punish a malefactor, but rather to supervise and guide a troubled youth"]; Matter of Quinton A., 49 NY2d 328, 335 [1980] [delinquency proceedings are designed not solely to punish, "but to extinguish the causes of juvenile delinquency through rehabilitation and treatment"]).
That the overarching purpose of delinquency proceedings is rehabilitation, not punishment, is evident from the legislative pronouncement at the very start of Article Three of the Family Court Act that in any delinquency proceeding, the court must "consider the needs and best interests of the respondent as well as the need for protection of the community" (emphasis added) (FCA § 301.1).
Recognizing the continuing duty of the Family Court to consider the respondents' best interests even after disposition, FCA § 375.2(1) provides that except for certain serious felony findings (designated felony acts as defined in FCA § 301.2 [8]), the court may "in the interest of justice" order the sealing of delinquency records (see also Matter of A.B., 13 Misc 3d 1242A [Fam Ct, Nassau County]; 2006 NY Slip Op 52291 [U] acknowledging that the court's responsibility towards a respondent does not "end at disposition").
The sealing of delinquency records undeniably provides a substantial benefit to the young person. As the Court of Appeals observed in Dorothy D. at 215:
That the very existence of delinquency records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services or the professions, cannot be seriously questioned.
In the instant case, it is not disputed that the sealing of respondent's delinquency record would serve the "interest of justice." Respondent has led a law-abiding life since the age of sixteen, has achieved marked professional success as measured by any yardstick, and society has no need for access to respondent's delinquency record.
The key issue before the court is whether the sealing of respondent's delinquency record is an adequate remedy under the circumstances and whether there are alternative remedies which will better serve the interests of respondent without compromising the interests of society at large.
A sealing order under FCA § 375.2 just seals the Family Court record, it does not vacate the delinquency adjudication. Moreover, the delinquency record continues to be maintained by the Family Court.
Regarding her delinquency record, respondent's main concern is being questioned by her current and prospective employers about her delinquent past. As she explained in court, despite the many years that have elapsed since her delinquency adjudications and her considerable accomplishments, she still has to explain the delinquency findings to her employers (see Joy Radice, The Juvenile Record Myth, 106 Geo L.J. 365, 386-387 [2018] noting that job applications frequently ask questions such as whether the applicant has ever been arrested or has a juvenile delinquency finding, thus forcing or encouraging the applicant to disclose delinquency adjudications) . Respondent described having to respond to these types of inquiries as a "nightmare."
Even if an applicant is not legally required to reveal a delinquency adjudication to an employer, the applicant may believe that failing to do so will jeopardize his or her employment.
The court notes that respondent is currently undergoing a mid-level security clearance as part of her upcoming employment at the Office of the U.S. Attorney and information regarding her delinquency adjudications had to be revealed. Respondent is committed to a career in government service and it is almost certain that additional clearances, which will include inquiries into her past, will follow.
Even if respondent's delinquency records are sealed under FCA § 375.2, the delinquency adjudication would still remain on the books and she may again be compelled to disclose her past delinquent acts. Only if respondent's delinquency adjudication is vacated and her Family Court record is sealed and expunged can she feel assured that her record need not be revealed. She can then finally put this phase of her life behind her and advance in her career unimpeded.
This court determines that the combined remedies which will most effectively serve respondent's best interests and the interests of justice are vacatur of the dispositional order pursuant to FCA § 355.1(1)(b); dismissal of the delinquency petition pursuant to FCA § 352.1(2); sealing of the Family Court record pursuant to FCA § 375.1; and expungement of the court record pursuant to FCA § 375.3. After these orders are executed, respondent will no longer have to report delinquency findings to current and future employers and access to the New York County Family Court record cannot be obtained.
FCA § 355.1(1)(b) provides that "upon a showing of a substantial change of circumstances, the court may . . . stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article." Additionally, even in the absence of a change in circumstances, the court has inherent power under FCA § 355.1 to vacate or modify any order "for sufficient reason in the interests of justice" (Matter of Delphin A., at 320). Contrary to the suggestion of the presentment agency, the Family Court's inherent power is not limited to situations where there had been a defect in the original delinquency proceedings.
Significantly, the rehabilitation of the juvenile has been found to constitute a" sufficient reason" to modify or vacate the dispositional orders pursuant to FCA 355.1. Thus, in Matter of Andrew L., 34 Misc 3d 1234A [Fam Ct, Queens County]; 2012 NY Slip Op 50362[U] and Matter of Amber F., 23 Misc 3d 1101A [Fam Ct, Queens County]; 2009 NY Slip Op 50531[U], where respondents had demonstrated complete rehabilitation, the court vacated the delinquency adjudications pursuant to FCA § 355.1 and adjourned the matters in contemplation of dismissal pursuant to FCA § 315.3. (See also Matter of Kiara C., 31 Misc 3d 1245A [Fam Ct, Queens County]; 2011 NY Slip Op 51111[U] [respondent granted permission to seek relief under FCA § 355.1 upon successful completion of 15 months of probationary supervision]; Matter of A.B., [pursuant to FCA § 355.1, respondent may seek to modify disposition of probation upon showing that probation services are no longer needed]).
Here, far beyond rehabilitation, respondent has demonstrated a high level of professional and academic achievement coupled with a commitment to public service. Respondent's noteworthy accomplishments established "sufficient reason" to vacate the delinquency finding in the "interests of justice." The court also notes that the vacatur of respondent's delinquency adjudication follows the direction in FCA § 301.1 that in any delinquency proceeding, the court must consider the "needs and best interests of the respondent."
Contrary to the presentment agency's assertion that respondent is not entitled to this relief because the dispositional order has already expired, there is nothing in the statute or case law which precludes the court from vacating a dispositional order after its expiration. While motions under FCA § 355.1 are typically made while the order is in effect, as demonstrated above, delinquency adjudications have effects far beyond the expiration of the term of the dispositional order. Thus, there are times when it is appropriate to vacate the delinquency adjudication after the dispositional order has expired. Indeed, there may be even more compelling reasons to vacate the delinquency adjudication after the passage of time has allowed for the respondent to establish more thoroughly his or her rehabilitation and to demonstrate a particular need for vacatur.
In support of its argument that the use of FCA § 355.1 is inappropriate after the dispositional order has expired, the presentment agency points to subd. 3, which provides that if a new order of disposition is entered, "the date such order expires shall not be later than the expiration date of the original order." As a matter of fairness to the respondent, this provision precludes a court from vacating a dispositional order and then entering a new dispositional order which is longer than the original order. It has no applicability where, as here, an order is vacated and the petition is dismissed. It does not lead to the conclusion that a delinquency adjudication may not be vacated after the expiration of the dispositional order.
After vacating the dispositional order of August 17, 2000, the court dismisses the delinquency petition since respondent is not in need of supervision, treatment or confinement (see FCA § 352.1[2]). Thereafter, the matter is sealed pursuant to FCA § 375.1 because the proceedings were terminated favorably to respondent. The sealing order under FCA § 375.1, seals the Family Court record as well as the records of the police department, the presentment agency and the probation department. However, after a sealing order, the court record is still maintained and may be subject to a motion to unseal.
The court is therefore also issuing an order of expungement under FCA § 375.3 because an order of expungement provides for the destruction of the paper and digital court record, making it irretrievable. FCA § 375.3 provides that "nothing in this article shall preclude the court's inherent power to order the expungement of court records." While the statute itself does not place any restrictions on the types of cases which may be expunged, in Matter of Dorothy D., at 216, the court stated in dictum that this remedy would not be appropriate under circumstances where there was not "complete innocence" of the respondent. This dictum, however, has not been consistently followed. In Matter of Ejiro A. (268 AD2d 428 [2000]) and Matter of Jens P. (159 AD2d 707 [1990]), the Appellate Division, Second Department, dismissed the petitions and ordered the court records expunged even though it was clear that the respondents were not completely innocent. In both cases, the appeals court determined that there was insufficient evidence that the respondents needed supervision treatment or confinement, not that they were innocent of committing the underlying delinquent acts. In the instant case, based upon respondent's noteworthy accomplishments and her well-founded concern that she will be questioned about her past delinquent acts by current and future employers, expungement is warranted and the court is ordering that remedy.
An order of expungement pursuant to FCA §375.3 is not sufficient without a sealing order pursuant to FCA § 375.1 because the expungement order only affects the court record. It does affect the records maintained by the police and probation departments and by the presentment agency (Matter of Dorothy D. at 215-216 citing Matter of Richard S., 32 NY2d 592 [1973]). --------
In sum, for the reasons stated above, the court vacates the dispositional order entered in this court on August 17, 2000, dismisses the delinquency petition, and seals and expunges respondent's delinquency record. ENTER: _____________________ CAROL GOLDSTEIN, FCJ
Dated: New York, NY March 18, 2019