Opinion
4517 2003
01-31-2018
The PEOPLE of the State of New York v. JAIME S., Defendant.
Paul D. Petrus, Jr., New York City, for Defendant Cyrus Vance, Jr., District Attorney, New York County, New York City, by Andrew B. Joyce, for the People
Paul D. Petrus, Jr., New York City, for Defendant
Cyrus Vance, Jr., District Attorney, New York County, New York City, by Andrew B. Joyce, for the People
Ruth Pickholz, J.The defendant moves to have the record of his conviction sealed pursuant to CPL 160.59.
The defendant was employed as an information technology officer by a prominent law firm between 1997 and 2002. Toward the end of his tenure he began to access the firm's web and email servers hundreds of times without permission. He gained access to emails of fourteen employees, and perused client lists and employee salary information which he had no right to see. Whether he trolled through the files out of pique, boredom, or some more nefarious motive is not known, but it was never alleged that he utilized or attempted to profit from the information that he wrongly viewed. Nevertheless, the firm claimed that his unauthorized delving was partially responsible for the crash of the firm's computer system in February 2003. The firm estimated that the costs of returning the system to operation and the billable hours lost as a result of the crash totaled approximately $393,000.
The defendant was charged with numerous computer crimes. He eventually pleaded guilty to a Superior Court Information charging him with two class E felonies: unlawful duplication of computer related material in the first degree ( Penal Law 156.30 [2 ] ) and criminal possession of computer related material ( Penal Law 156.35 ). In return for his plea the court (Brenda Soloff, J.) sentenced him to a five-year probationary term and a $5000 fine, which he paid immediately. The court terminated his probation in February 2007, more than a year early.
All are Penal Law Article 156 crimes and are eligible offenses as defined in Penal Law 160.59 (1)(a).
The defendant is skilled and experienced in his field, and was able to maintain employment in a well-paid position even after his conviction. This state of affairs ended in 2010, when a larger entity purchased the company that had been employing him. He contends that this company offered him a position but rescinded its offer after conducting a background check. He states that he had approximately 15 other job interviews after being terminated, and that he often made it to the final interview only to be told that he was not being offered the position. He surmises that in most of these instances the prospective employer soured on him after conducting a background check which laid bare his conviction. The defendant states that after these events he was forced to apply for unemployment insurance, and when those benefits were exhausted, he lived on his savings. He became depressed and anxious. Sometime in 2011 he obtained a position with the company which employs him to this day. Although the company pays him a substantial salary, the defendant states that he would like to advance to higher and more intellectually challenging positions. An applicant wishing to obtaining such positions is required to have an unblemished record, and a candidate must undergo a rigorous background check. He fears that the record of his conviction will inevitably disqualify him from any position for which he applies. He has therefore applied under CPL 160.59 to have the record of his two felony convictions sealed.
As permitted by CPL 160.59 (1)(a).
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The People emphasize that defendant's crimes were serious ones, and caused considerable damage to his employer, however long ago. They do not dispute that he is a successful, productive and stable member of society, but they seek to turn his achievements against him. Their primary reason for opposing his application is that sealing his conviction would do him little good because, in their estimation, his "societal standing ... is already at an apex." In contrast, they argue, societal utility would be greatly served by keeping the conviction unsealed. That he was convicted of two computer-related crimes is precisely what a prospective employer would like to know in weighing whether to extend him a job offer in his field. They thus urge me to find that any benefit that would accrue to the defendant if his conviction were sealed is negligible, and outweighed by the great desirability of giving prospective employers access to the record of his misdeeds.
None of the People's argument is compelling. The statute lists seven nonexclusive factors for a court's consideration. Weighing in defendant's favor is that almost fifteen years have passed since he was convicted of these crimes ( CPL 160.59 [7 ][a] ), during which time he has led a stable and productive life ( CPL 160.59 [7 ][d] ). He had no other criminal entanglements either before or after these events ( CPL 160.59 [7 ][c] ). The People argue that he committed serious crimes, but he was convicted of but two E class felonies, both of which the legislature has classified as offenses eligible for sealing. As the People contend, prospective employers might well find it useful to know that the defendant was previously convicted of these crimes, but no more so than any employer would find it useful to know that a job applicant was convicted of fraud, larceny, identity theft, forgery or bribery. The legislature has classified all of these as eligible crimes, and many if not all of them are at least as serious as the crimes of which defendant was convicted. The People argue that his snooping helped cause his employer's servers to crash, thereby causing hundreds of thousands of dollars in damages and lost productivity, but the mechanism by which this occurred is open to question, and the proof of damages is poorly documented ( CPL 160.59 [7 ] [b] ). The law firm injured by the defendant has not taken any position on his application ( CPL 160.59 [7 ][e] ). There is no evidence that the defendant committed his crimes maliciously or for personal gain. Neither is there anything in the record before me which suggests that he might be prone to engage in such conduct again.
The People's argument that the defendant would derive little benefit from sealing his criminal record is specious, if not disingenuous. If they truly believed that he has reached an apex in his professional life, there would be no reason for them to oppose his application, as he could reach no position of significantly greater influence or authority. It is only because he might advance himself further, and perhaps significantly, that there is reason to keep the record of his crimes available to employers.
The broader question then becomes, as the People implicitly argue, whether there is reason to deny him relief because the impetus and underlying rationale for the statute was the desire to help those whose criminal convictions prevented them from fully integrating into society, and not someone in defendant's position. There has been increased discussion in recent years regarding the collateral consequences of a criminal conviction. One of the more serious of these is the limited access to the labor market which a conviction brings (Mackenzie J. Yael, Expungement Law: An Extraordinary Remedy for an Extraordinary Harm , 25 Geo J on Poverty Law and Policy 169 [2017] ). The New York State Legislature enacted CPL 160.59 in conjunction with an amendment of the Penal Law which raised the age of criminal responsibility from 16 to 18. Concern about the collateral consequences of a criminal record was a core concern of the proponents of the bill (id.). The legislature made sure that a court reviewing a sealing application would consider its concern by requiring it to weigh "the impact of sealing the defendant's record upon his or her rehabilitation and upon his or her successful and productive reentry and reentry into society ( CPL 160.59 [7 ][f] ). It is possible to derive from factor (7)(f), as the People do, the conclusion that if a person is already well integrated into society, there is less need to seal his or her record.
It cannot be denied that the defendant is not among those whom the bill was primarily intended to benefit. He has had no difficulty achieving meaningful employment despite his criminal record, and has reached a comfortable economic station in life. But although he seems integrated into society and economically secure at present, there is no guarantee that such will always be the case. He seemed secure after his conviction but his status was upended in 2010 when the company that he was working for was purchased by another. The new regime offered him a position but changed its mind after conducting a background check. He suffered from anxiety and depression, and was forced to live on his savings until he found a new job. Given his record, it was not a foregone conclusion that anyone would hire him. Circumstances change, and there is no way to be sure that anyone is permanently secure in life. Whether or not he ever tries to advance himself, his conviction may yet again undo him. It makes little sense to deny the defendant relief under the statute until such time as his life takes a turn for the worse. Granting his application now may ensure that day never comes.
The defendant has made clear, however, that he is not content to maintain the status quo, but that he rather seeks to apply for more responsible positions. As his past attempts have shown, however, his background will necessarily be subject to strict scrutiny when he does, and it seems almost inevitable that the record of his criminal conviction will bar him from advancing. It is not for the court, any more than it is for the People, to decree that someone has risen far enough in life, or opine that he or she will derive little benefit from rising further. Moreover, society often benefits when people strive to achieve, regardless of the economic rung on which they happen to be on at the time. Finally, whatever the intentions of the legislature may have been, the statute does not limit relief to any particular class of people.
Accordingly, the defendant's application is granted.