Opinion
2870-08.
Decided July 1, 2010.
Stanley S. Kaplan, Esq., Assistant District Attorney, Office of Robert T. Johnson, Esq., Bronx, New York.
Angel Frau, Esq., Office of Steven Banks, Esq., Bronx, New York, Attorney for Defendant.
In 2008, Defendant Latisha Bowden was indicted in 2008 on numerous weapons charges after police, in a late night encounter with Defendant on a fire escape, searched a bag in her possession and found a gun and ammunition. In a written decision, dated March 31, 2010, this Court granted Defendant's motion to suppress the gun and ammunition and all evidence obtained thereafter as a result of an illegal search by police of Defendant's bag without a warrant (the "Suppression Decision"). After denying the People's motion to reargue, the Court thereafter dismissed all counts of the indictment against Defendant.
The People now move for an order to unseal the record in this case so that they may pursue an appeal of the Suppression Decision. Defendant has filed no opposition to this motion.
As set forth below, the motion to unseal is granted.
The record of a criminal action or proceeding is to be sealed only when that action terminates in favor of the accused. CPL 160.50(1). Where a case is dismissed against the accused and the People have not appealed that dismissal, the case is considered terminated "in favor of such person." CPL 160.50(3)(b); People v. Blount, 116 Misc 2d 975, 976 (Sup. Ct., New York Co. 1982). Where the People appeal the dismissal, however, the case cannot yet be considered terminated in favor of the accused, and is not entitled to be sealed. Blount, 116 Misc 2d at 976.
The case would be deemed "terminated in favor of the accused" upon expiration of the time to appeal if no appeal has been filed or upon any appellate denial of the People's appeal. Neither of which has happened yet. CPL 160.50(3)(b); People v. Caven, 169 Misc 2d 89, 93 (Sup. Ct., Bronx Co. 1996).
In this case, the People timely filed a notice of appeal. The People had 30 days from service of notice of entry of the Suppression Decision in which to file a notice of appeal. CPL 460.10(1)(a); People v. Washington, 86 NY2d 853, 854 (1995). The People were never served with a notice of entry of this decision and order, nor has notice of entry been filed with the Clerk's Office. The People's Notice of Appeal was filed on May 13, 2010, and although this Court rendered its decision on March 31, 2010, the People's time to appeal had not started to run since there was no notice of entry served upon them by the prevailing party. Washington, 86 NY2d at 854; People v. Lynch, 195 Misc 2d 814, 815 (Sup. Ct., Bronx Co. 2003). Therefore, the People's notice of appeal is timely. Washington, 86 NY2d at 854.
The record should not have been sealed by the Clerk's Office until the People's time to appeal had run. People v. Blount, 116 Misc 2d at 976 (" . . . if a notice of appeal is filed by the People in a dismissed case, that would mean that the criminal proceeding has not terminated in favor of the accused. If it has not been terminated in his favor, the record may not be sealed.").
Accordingly, the People's application to unseal the record is granted to the extent that the testimony and all exhibits introduced at the pre-trial hearing in this case be made available to the People for use in their appeal of this Court's March 31, 2010, Suppression Decision.
The following papers were considered by the Court in deciding the motion: Notice of Motion, filed on June 17, 2010, of Stanley S. Kaplan, Assistant District Attorney, in Support of Motion.
This constitutes the Decision and Order of this Court.