Opinion
No. 2015NA009043.
01-29-2015
The PEOPLE of the State of New York, Plaintiff(s) v. Devin TANNER, Defendant(s).
Honorable Madeline Singas, District Attorney, Mineola. Lloyd J. Nadel, Esq., Mineola.
Honorable Madeline Singas, District Attorney, Mineola.
Lloyd J. Nadel, Esq., Mineola.
TRICIA M. FERRELL, J.
The defendant is charged with one violation of Criminal Mischief and now moves for an order to unseal the criminal file-Docket 2015NA009032.
According to the defendant's motion which has not been opposed by the prosecution, both he and the complainant were dating at the time of the alleged incident; an argument ensued and escalated into a pushing and shoving match. During this altercation, the defendant was struck in the head several times by the complainant and her daughter, and the defendant alleges that he suffered serious physical injury; the defendant allegedly damaged the complainant's door.
Charges were filed against both parties however the case against the complainant was dismissed according to the defendant; the basis for dismissal was not mentioned in the defendant's papers. Nevertheless, he now seeks the unsealing of the complainant's file so he can have access to review the statements made by the complainant, existing photographs and other information he would like to use during the cross examination of the complainant at trial.
Upon examination of his court file, both statements from the complainant and the defendant are contained therein. The complainant's statement to the police is annexed to the accusatory instrument and has already been provided to the defendant. Likewise, the defendant's statement to the police, which is attached to the prosecution's notice pursuant to Criminal Procedure Law Section 710.30 was also served upon the defendant at his arraignment. Additionally, the voluntary disclosure packet filed by the prosecution and served upon the defense on October 21, 2015 had several pictures of the injured defendant and the alleged damage to the complainant's door. No other materials are specifically requested by the defendant but he now requests the opportunity to view the entire file to determine whether any other items exist that would be useful to him.
The defendant asserts that the “interests of justice” require the unsealing of these files. The language previously referred to by the defendant is used within the context of an application by the prosecution or based upon the court's own motion. According to Section 160.50(1) of the Criminal Procedure Law,
“Upon termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, unless the district attorney upon motion with not less than five days notice to such person or his or her 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 that five days notice to such person or his or her attorney determines that the interests of justice require such otherwise and states the reasons for such determination on the record, the record of such action or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and unless the court has directed otherwise, that the record of such action or proceeding shall be sealed.”
Since the person accused isn't making the request for access to these records and the court hasn't done so on its own motion, it would appear as if the defendant at bar has no standing to make this request. Instead, by virtue of his application, he wants the court to use its discretionary power and order the unsealing of these files; the question of whether this court should exercise its discretion here is what remains and the statute provides guidance on this very issue.
Pursuant to Criminal Procedure Law Section 160.50(1)(d) there are only certain circumstances where the above referenced material would become accessible after being sealed; there are clearly enumerated parties who would have access to this material and none of these parties include a cross-complainant. Moreover, the Court of Appeals has referred other non-party litigants to the legislature to advocate for expansion of the exceptions provided for in the statute. Cases mentioned by the defense discuss these exceptions but also notes the court's limitations pertaining to the unsealing of dismissed criminal cases.
The Court of Appeals stated that it recognizes there are “but a few narrowly defined exceptions” permitting the unsealing of records, (In the Matter of Hynes v. Karassik, 47 N.Y.2d 659, 663 [1979] ), so it will only deviate from statutory authorization and exercise its discretionary power “to protect those who might unjustly be injured by the indiscriminate availability of these records,” (Id. at 664 ). Using this reasoning, the complainant, not this defendant, would be the focus of the inquiry since she is the person formerly accused of the crime that has been dismissed. In the Matter of Werfel v. Fitzgerald (23 A.D.306, 260 N.Y.S.2d 791 [1965] ), the court held that the petitioner seeking access to records sealed from the public must be a “specially aggrieved” party therefore the reason for allowing one access to sealed papers must be aligned with the purpose and objective of the statute which is to ensure that secrecy of a dismissed matter is upheld.
The court has repeatedly held that the statute's purpose must be upheld and has likewise repeatedly declined to exercise its discretionary power in this area. In one such instance the court refused to exercise its power to unseal the record of an attorney's dismissed criminal proceedings for use in the Grievance Committee's proceedings against this same attorney; its determination was that the circumstances didn't warrant the court's action. The factors it considered were the following: (1) the petitioner failed to set forth any facts which would indicate it was or would be unable to properly investigate their matter without the unsealing of the record in question, (2) there was no showing that the information contained therein is otherwise unavailable, and (3) the specific item the petitioner sought, being a tape recording of the attorney's statement made to the prosecution, was not subject to the protections of the statute. (In the Matter of Anonymous, 95 A.D.2d 763, 464 N.Y.S.2d 194 [1983] ).
Here, in the case at bar, the prosecution has already provided the defendant with copies of the crime scene photographs which relate to the charges filed against the defendant and the complainant, copies of the statements made by defendant and the complainant to the police, and the prosecution has also given the defense notice of the radio communications recordings which would undoubtedly relate to both parties since the officers responded to one call and the parties were both arrested at that time. It's unclear what more would exist in the court's file that would prevent the defendant from conducting a thorough investigation and mount a viable and successful defense and nothing else has been specifically requested. Knowing that the defendant also had the ability to directly access certain information as a complainant in the now closed case also raises question as to why he now wants to revisit this dismissed case. Its unknown whether his lack of cooperation contributed to its dismissal, but without speculation on that issue, he still failed to fully appreciate his status as a complainant in that case.
Had the defendant in the closed case (who is the complainant in the instant case) initiated a subsequent civil lawsuit, the court's analysis would be different. In Green v. Montgomery (746 N.E.2d 1036, 723 N.Y.S.2d 744 [2001] ), the court held that since the former defendant in a juvenile delinquency proceeding commenced an action related to charges from that proceeding, he “put at issue facts determined in his previous juvenile delinquency adjudication”. (Id. at 696 ). The defendant in Green affirmatively placed his conduct at issue therefore the court determined it would not allow him to use the confidentiality provisions of the Family Court Act to gain an unfair advantage. (Id. at 701 ). The court in Kalogris v. Roberts (586 N.Y.S.2d 806 [1992], held that the sealing privilege is effectively waived in a civil suit which affirmatively places at issue the information from the underlying criminal action. This court can't use the same analysis as in Kalogris because the parties were arrested together; together, they simultaneously initiated the charges they each faced; since they were also arraigned together, much can't be said about secrecy related to these events that now gives the complainant an unfair advantage. However, even if the factual details are known by both parties, this court still has no justification for revisiting the intimate details of a matter that has already be resolved and dismissed.
The Court of Appeals reiterates this position that the statute must be followed in the Matter of Harper v. Angiolillo (89 N.Y.2d 761, 680 N.E.2d 602, 658 N.Y.S.2d 229 [1997] ), even if the person seeking access to the records is the aggrieved party. “Given the absence of a clear and unequivocal expression of intent from the Legislature to dispense with existing limitations in the ability of a former defendant to obtain unrestrained access to law enforcement records, (Id. at 768 ), the petitioner (formerly accused party) failed to demonstrate his right to the records he seeks.” This same petitioner wouldn't be entitled to every record in the possession of law enforcement during his criminal proceedings, (Id . at 769, see also Criminal Procedure Section 240), therefore the defendant in the instant case can't expect this court to hold otherwise and provide him with greater privileges than permitted; no lawful entitlement to access these files exist. If there will be an exception to the general rule it should be created by the legislature, who initially created these limitations, not the courts. (Matter of Joseph M., 82 N.Y.2d 128, 603 N.Y.S.2d 804 [1993] ).
Therefore, based upon the foregoing, the defendant's application pursuant to Criminal Procedure Law Section 160.50 is denied. However, notwithstanding the above, the prosecution must always comply with the Criminal Procedure Law and provide the defendant with exculpatory material pursuant to Brady v. Maryland (373 U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215 [U.S.Md 1963] ).
Herein lies the decision of the court.
So Ordered.