Issues In NY Criminal Law--Vol. 4, #1©
Issue: What comes within the sealing requirement of CPL §160.50?
The term "sealing" is used in several areas of criminal law. Sealing of tapes occurs upon the return of a wiretap. An indictment that was not initially prosecuted as a felony complaint and is directly presented to the grand jury is termed a sealed indictment.
One other use of the word occurs when a criminal charge is dismissed. CPL §160.50 and §160.55 require sealing of records and papers relating to the arrest or prosecution.
The purpose of the sealing provision in CPL §160.50 is to insure that a person who is charged but not convicted suffers no stigma of having once been the subject of an unsustained accusation. Kalogris v Roberts, 185 AD2d 335, 586 NYS2d 806 (2d Dept 1992).
"Official records and papers"
What records come within this order? The records subject to a sealing order include "all official records and papers . . . relating to the arrest or prosecution." CPL §160.50.
What are "official record and papers"? Courts have struggled with the scope of this language. A fairly easy example: an indictment is an official record. Hynes v Karassik, 63 AD2d 597, 405 NYS2d 242 (1st Dept 1978), affd 47 NY2d 659, 419 NYS2d 942 (1979).
According to the Court of Appeals, "This broad and inclusive statement should be read to include a tape recording that was integral to both appellant's arrest and his prosecution." Matter of Dondi, 63 NY2d 331, 482 NYS2d 431 (1984).
Several cases have found certain items do not constitute official records and papers. These include:
- A tape recording does not come within the term simply because it was marked in evidence as a trial exhibit. Hynes v Karassik, 63 AD2d 597, 405 NYS2d 242 (1st Dept 1978), affd 47 NY2d 659, 419 NYS2d 942 (1979).
- Tape-recorded statements that were suppressed were not part of the official records and papers. Matter of Anonymous, 95 AD2d 763, 464 NYS2d 194 (2d Dept 1983).
- Investigative and audit reports prepared by a prosecutor are not official records. People v Neuman, 104 Misc2d 324, 428 NYS2d 577 (Sup Ct 1980).
- Medicaid fraud records were not "official records" and interest of justice requires unsealing to allow for civil action that is pending. People v Roe, 165 Misc2d 554, 628 NYS2d 997 (Sup Ct 1995).
- In a homicide case that resulted in an acquittal, the victim's blood-stained clothing or tissue fluids were not official records. Vrooman v Dentes, 205 AD2d 235, 619 NYS2d 790 (3d Dept 1994).
In one broad exception, the Court of Appeals held that arrest photos were permitted to be used to identify the defendant in a subsequent crime. People v Patterson, 78 NY2d 711, 579 NYS2d 617 (1991).
In addition, the sealing statute does not come into play where a criminal investigation occurred but did not result in an arrest. Doe v DA of County of Nassau, 166 Misc2d 188, 632 NYS2d 414 (Sup Ct 1995).
Effect of civil proceedings
The pendency of a lawsuit or administrative proceeding may affect whether items from prosecution or police files are to remain unsealed or, once sealed, will be unsealed. The statute provides for unsealing in the "interest of justice." Unsealing in the interests of justice is a power vested in the district attorney before the sealing order is made. Hynes v Karassik, 63 AD2d 597, 405 NYS2d 242 (1st Dept 1978). A second "interests of justice" provision in the statute allows unsealing afterwards. People v Roe, 165 Misc2d 554, 628 NYS2d 997 (Sup Ct 1995).
In a teacher disciplinary proceeding, records from a criminal proceeding that were sealed upon acquittal were held to be unavailable to the board of education. Matter of Joseph M., 82 NY2d 128, 603 NYS2d 804 (1993).
Statutory interpretation of CPL §160.50 has occurred several times with disciplinary proceedings against lawyers. An acquittal in a criminal case is not conclusive with respect to the grievance matter. Anonymous Attorneys v Bar Association of Erie County, 41 NY2d 506, 393 NYS2d 961 (1977). In Matter of Dondi, the Court of Appeals held that tape recordings made during the course of a criminal investigation of an attorney were subject to the sealing order. Matter of Dondi, 63 NY2d 331, 482 NYS2d 431 (1984).
In Dondi, the Court of Appeals noted that the Appellate Division has inherent authority over records and its oversight and disciplinary power over attorneys permit them to unseal criminal records. Such discretionary power may be invoked only upon a compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline of an attorney cannot be accomplished.
Pending civil suit
When a civil suit is pending while the criminal one is being dismissed, courts have allowed the records to remain unsealed.
Where a wife was acquitted of murder, DSS sought release (over the wife's objection) of information from the criminal case: bloody clothing and tissue fluids. A paternity action was pending during the criminal case. The court held that these are not official records; moreover, these items cannot stigmatize the defendant. DSS's unsealing motion, brought after sealing of records, was granted. Vrooman v Dentes, 205 AD2d 235, 619 NYS2d 790 (3d Dept 1994).
Subsequent civil suit
Where former criminal defendants brought suit against former employer for indemnification for the cost of defending criminal action, they waived the privilege. See First American Corp v Al-Nahyan, 2 F Supp2d 58 (Dist Columbia 1998).
Later criminal case
Records from a prior criminal proceeding that was resolved favorably for defendant are sealed and may not be used by the prosecution on either direct or cross. People v Seeley, 179 Misc2d 42, 683 NYS2d 795 (Sup Ct 1998).
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