Summary
affirming Appellate Division's order preventing official records and papers pertaining to a criminal trial in which an attorney had been acquitted from being unsealed for use in a subsequent investigation into the attorney's fitness to practice law
Summary of this case from Opn. No. 2002-20Opinion
Argued May 30, 1979
Decided July 10, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, LAWRENCE J. TONETTI, J.
Charles J. Hynes, Deputy Attorney-General (Arthur Weinstein and Richard D. Carruthers of counsel), for appellant.
Bennett L. Gershman for respondent.
Frank A. Finnerty, Jr., Peter F. Tortorici and Edward H. Albert for the Grievance Committee for the Second and Eleventh Judicial Districts, amicus curiae.
The issue before us is whether an order which directs the sealing of official records and papers pertaining to a criminal trial in which an attorney has been acquitted, operates to prevent those records from being unsealed for use in a subsequent investigation into the attorney's fitness to practice law. The Appellate Division reversed and denied the motion for unsealing as a matter of law. We now affirm.
The parties have not briefed the question of whether the appeal is properly before us. If the appeal is being taken from an order entered in a "criminal proceeding", we would be required to dismiss inasmuch as there is apparently no statutory authority for such an appeal (see CPL 1.20, subd 18; 450.10, 450.15; Matter of Santangello v People, 38 N.Y.2d 536; Matter of Alphonso C. [Morgenthau], 38 N.Y.2d 923). On the other hand, if the appeal is being taken from an independent order entered in a civil proceeding, an appeal would lie to this court under CPLR 5601 (subd a) by virtue of the reversal at the Appellate Division. We hold the matter to be civil, for although it relates to a criminal matter, it does not affect the criminal judgment itself, but only a collateral aspect of it — namely, the sealing of the court record (see People v Public Serv. Mut. Ins. Co., 37 N.Y.2d 606, 610-611).
Respondent, a lawyer, was indicted for the misdemeanor of criminal solicitation in the second degree. The charge was based on the allegation that he had counseled a client to deny before a Grand Jury that he had paid $5,000 in cash to expedite approval of his nursing home establishment. After the verdict of acquittal, the attorney promptly and successfully moved under CPL 160.50 for an order sealing the official records of the prosecution.
Two months later, however, the Special Prosecutor, acting at the request of the Committee on Grievances of the Association of the Bar of the City of New York, moved the court to order that the records and papers be unsealed to assist the committee in determining whether to bring professional disciplinary charges. The trial court granted the prosecutor's motion "in the interests of justice". In reversing, the Appellate Division concluded that CPL 160.50 (subd 1) did not authorize any exception to the sealing requirement in this situation. It also held that two tape recordings introduced into evidence at the criminal trial were not within the definition of "official records and papers" protected by the sealing statute (CPL 160.50, subd 1, par [c]).
Respondent's appeal, purportedly taken as a matter of right from so much of the decision as held that the tapes were not within the embrace of CPL 160.50, was dismissed on the ground that he was neither a party aggrieved (CPLR 5511) nor able to appeal from an asserted error in the opinion rather than the order of the court (Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 394-395). He did not move for leave to appeal.
In pertinent part, CPL 160.50 reads:
"1. Upon the termination of a criminal action or proceeding against a person in favor of such person * * * unless the district attorney upon motion with not less than five days notice to such person or his attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the court wherein such criminal action or proceeding was terminated shall enter an order, which shall immediately be served by the clerk of the court upon the commissioner of the division of criminal justice services and upon the heads of all police departments and other law enforcement agencies having copies thereof, directing that:
* * *
"(c) all official records and papers, including judgments and orders of a court * * * relating to the arrest or prosecution * * * on file with the division of criminal justice services, any court, police agency, or prosecutor's office be sealed and not made available to any person or public or private agency".
The statute serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation. That detriment to one's reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions (see Menard v Mitchell, 430 F.2d 486, 490 [BAZELON, Ch. J.]; see, also, Schwartz Skolnik, Two Studies of Legal Stigma, 10 Social Prob 133 [1962]; Hess Le Poole, Abuse of the Record of Arrest Not Leading to Conviction, 13 Crime Delinquency 494 [1967]). The statute's design is to lessen such consequences (see Governor's Approval Memorandum, N Y Legis Ann, 1976, p 408; see, generally, Gough, Expungement of Adjudication Records of Juvenile and Adult Offenders: A Problem of Status, 1966 Wn. U LQ 147, 156, 157-162).
The broad thrust of the sealing requirement is further evidenced by CPL 160.60, which states in no uncertain terms that "[t]he arrest or [unsuccessful] prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling". Consistent with the statute's remedial purpose, is its intended application to any criminal action or proceeding terminated in favor of the person accused. The broad definition thus encompasses an expansive class of dispositions, including acquittal and various specified dismissals and vacaturs, regardless of whether premised on grounds unrelated to guilt or innocence (see CPL 160.50, subd 2).
The comprehensiveness of the statutory scheme is also manifested by subdivision 14 of section 296 of the Executive Law, adopted in conjunction with CPL 160.50, which makes it an unlawful discriminatory practice for "any person, agency, bureau, corporation or association * * * to make any inquiry about * * * or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual * * * [which was terminated in his favor] in connection with the licensing, employment or providing of credit or insurance to such individual" (see Matter of Skyline Inn Corp. v New York State Liq. Auth., 44 N.Y.2d 695).
CPL 160.50 furthermore establishes the methods by which such records may remain unsealed (subd 1). And, once a sealing order has issued there are but few narrowly defined exceptions to its terms; to wit, the records remain available (1) to a prosecutor in any proceeding in which the accused has moved for an order for an adjournment in contemplation of dismissal in a case involving marihuana, (2) to a law enforcement agency if justice requires that such records be made available to it, or (3) to any agency having responsibility for the issuance of gun licenses (CPL 160.50, subd 1, par [d]). None of these, obviously, can justify making the records available to the Grievance Committee. Although it has been suggested that these exceptions may prove too narrow (see Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 160.50 [Cum Supp, 1978-1979], p 288; cf. State Educ Dept Memo Recommending Disapproval of S 9924-A [CPL 160.50], June 21, 1976), the Legislature did not expand the scope of the exclusions from a sealing order when it amended the statute in 1977 (L 1977, ch 835, §§ 1, 2; L 1977, ch 905, § 1).
Though the statute, therefore, embodies stringent safeguards by which court records may remain confidential, in appropriate cases courts have called upon a power, traditionally labeled inherent, to provide similar relief when the interests of justice so dictate. The power grows out of that measure of discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice (see Matter of Werfel v Fitzgerald, 23 A.D.2d 306, 311; see, also, Restricting Public Access to Judicial Records of State Courts, Ann., 84 ALR3d 598).
Exercised only rarely, this power has variously been wielded to amend and conform court records to the truth (People ex rel. Hirschberg v Orange County Ct., 271 N.Y. 151, 156-157; Bohlen v Metropolitan El. Ry. Co., 121 N.Y. 546, 550-551), or to seal court records in order to preserve confidentiality in sensitive proceedings (see Matter of Richard S. v City of New York, 32 N.Y.2d 592, 595-596 [Family Court may exercise inherent power to seal its records when adjudication of juvenile as "person in need of supervision" was reversed]; Danziger v Hearst Corp., 304 N.Y. 244, 248-249; Stevenson v News Syndicate Co., 276 App. Div. 614, 618, affd 302 N.Y. 81 [court has inherent power to promulgate rule sealing records in matrimonial actions]), or to expunge records relating to a prosecution from which no conviction resulted (see Matter of Henry v Looney, 65 Misc.2d 759, 762-763 [WACHTLER, J.] [juvenile's surname expunged from arrest records, court records sealed]). In all these cases, resort to sealing or expungement, even absent any statutory authorization, was found warranted to protect those who might unjustly be injured by the indiscriminate availability of records.
It is suggested that, by like logic, in the even rarer and more extraordinary circumstances in which sealed records must be unsealed in order to serve fairness and justice, courts are not impotent to do so as well. On that premise, appellant argues that the special responsibility of courts in dealing with matters relating to discipline of members of the Bar furnishes a sufficiently compelling impetus for the courts to plumb their inherent power to make sealed records available (cf. Matter of Anonymous Attorneys, 41 N.Y.2d 506, 511).
But, indeed, while cases might arise in which the exercise of a power to unseal would be appropriate (cf. Johnson v State, 336 So.2d 93, 95 [Fla]), the proceeding before us does not present such a situation. We need go no further than to say that in the light of the availability of the tapes of conversations between the respondent and the operator of the nursing home, a key to the criminal prosecution itself, the Appellate Division did not err in finding that Criminal Term had abused its discretion by disregarding the clear and unequivocal words of the statute.
Accordingly, the order of the Appellate Division should be affirmed.
I concur in the result reached by the majority but on a different analysis.
The application for access to the contents of respondent's sealed records and papers was made in this instance at Criminal Term on behalf of the Committee on Grievances pursuant to CPL 160.50 (subd 1). It is conceded that such application falls within none of the categories listed in paragraph (d) of the subdivision. Nor, in my view, is it of a kind with those limited instances referred to in the majority opinion in which courts exercise reserved, inherent power to unseal or to seal records to protect the rights of litigants or other affected individuals in the interests of justice, or conceivably to assist public officials in the discharge of their duties in the public interest.
The application and the purpose to be served by the restricted unsealing in this instance is of a different genre. Here disclosure is sought to assist the courts themselves, or more precisely an arm of the court to which authority has been expressly delegated, in the oversight and discipline of attorneys and counselors at law. Responsibility therefor is vested by law exclusively in the Appellate Division (Judiciary Law, § 90, subd 2); Criminal Term has neither authority nor responsibility in such matters. Accordingly, the Appellate Division in this case properly determined that it was error for that court to have directed the unsealing of official records and papers relating to the criminal charge of which respondent was acquitted. We are not now asked to review a determination by the Appellate Division of an application to it for the issuance of an order making the sealed criminal proceeding records available in discharge of that court's disciplinary responsibility.
Chief Judge COOKE and Judges GABRIELLI and WACHTLER concur with Judge FUCHSBERG; Judge JONES concurs in result in a separate opinion in which Judge JASEN concurs; Judge MEYER taking no part.
Order affirmed, with costs.