Opinion
7943/2015
01-05-2017
People of the State of New York, v. Diana Veliz, Defendant.
For the People: Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York; Krystyn Tendy, of counsel. For Defendant: David M. Chidekel, Esq., New York, New York.
For the People: Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York; Krystyn Tendy, of counsel. For Defendant: David M. Chidekel, Esq., New York, New York. Matthew J. D'Emic, J.
The defendant is moving before this court for an order unsealing the records of any person arrested with the captioned defendant, or whose arrest is referred to as an "associated arrest" to the defendant's arrest, in order to permit the defendant's attorney to examine and copy any necessary documents in the arrest file(s), and for the file(s) to then be resealed.
Having learned from discovery paperwork that originally a co-defendant was arrested with the instant defendant, the defense seeks to have access to information regarding this "associated arrest" (identified as arrest number K15675368 and number 2015-066-4657), contending, on information and belief, that information pertaining to the associated arrest is germane and vital to the defendant's defense in this case where she is charged with Attempted Murder and Assault in the First Degree. Defense counsel states that the Assistant District Attorney assigned to this case denied his request for information about this arrest on the ground that the matter was sealed.
Upon due consideration of the defendant's application the court determines that it is denied.
The sealing of court and law enforcement records occurs by operation of law when a criminal action or proceeding "has been terminated in favor of the accused" (see CPL § 160.50 [3]).
CPL § 160.50 provides that upon the termination of a criminal action or proceeding in favor of the accused, such as where the police or the District Attorney's office elects not to pursue criminal charges against the person, or where all charges are dismissed by the Grand Jury, or where the case is favorably terminated at a later point, the record of such action or proceeding shall be sealed and all photographs and prints shall be either destroyed or returned to the person.
The statute further provides that "all official records and papers, including judgments and orders of a court . . . , relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency" (see CPL § 160.50 [1] [c]).
Although sealed, under certain very limited circumstances the statute permits sealed records to be made available to enumerated third parties or agencies:
"[S]uch records shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order [of dismissal or adjournment in contemplation of dismissal in cases involving marihuana offenses]; or (ii) a law enforcement agency upon ex parte motion in any superior court [or in the court which sealed the record], if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is on parole supervision . . . , and the arrest . . . occurred while the accused was under such supervision, or (v) any prospective employer of a police officer or peace officer . . . , in relation to an application for employment as a police officer or peace officer . . . ; or (vi) the probation department responsible for supervision of the accused when the arrest . . . occurred while the accused was under such supervision" (CPL § 160.50 [1] [d]).
These exceptions have been strictly construed and the class of persons/agencies entitled to obtain sealed records has not been expanded, and thus parties falling outside the enumerated exceptions who seek disclosure of records sealed pursuant to CPL 160.50 have been found to have no standing, and the court no statutory authorization to release such records (see Matter of Joseph M., 82 NY2d 128, 132-133 [1993]).
The instant application of Ms. Veliz clearly does not fit within any of the enumerated exceptions. She has no right under CPL § 160.50 (1) (d) to obtain sealed arrest records nor standing to make the application.
The court's analysis of this matter does not, however, end here. Rather, it must be observed that courts have on occasion granted unsealing orders as was required in the interest of justice due to exceptional circumstances, and the Court of Appeals has discussed the court's power to do so.
In Matter of Hynes v Karassik, while denying an attorney grievance committee access to an attorney's sealed record after acquittal in a criminal trial for lack of standing under CPL 160.50, the Court of Appeals did observe that, "in appropriate cases" courts have an inherent power to provide similar relief "when the interests of justice so dictate" (47 NY2d 659, 664 [1979], rearg. denied, 48 NY2d 656, amend remittitur denied, 48 NY2d 657).
The High Court explained that [t]he 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 [citations omitted]," [but] this power has been "exercised only rarely" (id.).
In Karassik, the Court of Appeals ultimately ruled that Criminal Term had abused its discretion by disregarding the statute and directing the unsealing of the attorney's criminal case records.
In a later case, involving a similar application by the Grievance Committee for the Second and Eleventh Judicial Districts, the Court of Appeals indicated that it was in "extraordinary circumstances" that the court may exercise its discretionary power to unseal records sealed pursuant to CPL 160.50, but "only upon a compelling demonstration" that such was necessary (Matter of Dondi, 63 NY2d 331, 338 [1984]). The Dondi majority found that there had been no showing of necessity in that case.
Turning to the matter at bar, in support of Ms. Veliz' application counsel merely indicates his belief that information pertaining to the associate arrest is "germane and vital" to his client's defense. Counsel does not explain how he reaches this conclusion or note what information has led him to his belief. Counsel's application does not demonstrate that there is a particular necessity for the sealed records or that this is an unusual case in any way as would warrant such exceptional relief (compare In re Stanley, 32 Misc 3d 897 [Sup. Ct., Kings Co. 2011—due process mandated that murder victim's arrest records be unsealed to allow woman charged with his murder to present a battered woman's defense]). Rather, by all appearances the instant application is more in the nature of a "fishing expedition."
In conclusion, this court does not find that the defendant has made the requisite exceptional showing here that justice compels that she be provided with the sealed records.
Accordingly, the defendant's application to unseal the subject arrest records and related files is, respectfully, denied.
This constitutes the decision and order of the court. Dated: January 5, 2017 Matthew J. D'Emic J.S.C.