Anonymous, Matter of

• Decision Date: 03 June 1983
• Citation: 95 A.D.2d 763,464 N.Y.S.2d 194
• Parties: In the Matter of ANONYMOUS, an attorney and counselor at law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner.
• Court: New York Supreme Court — Appellate Division

Page 194

464 N.Y.S.2d 194

95 A.D.2d 763

In the Matter of ANONYMOUS, an attorney and counselor at law Grievance Committee for the Second and Eleventh Judicial Districts, petitioner.

Supreme Court, Appellate Division Second Department.

June 3, 1983.

Before MOLLEN, P.J., and DAMIANI, TITONE, MANGANO and BROWN, JJ.

MEMORANDUM BY THE COURT.

Motion by petitioner Grievance Committee to unseal the record of certain criminal proceedings sealed pursuant to CPL § 160.50.

Respondent was indicted on three counts of grand larceny in the second degree and one count of criminal solicitation in the second degree. Following a non-jury trial, he was acquitted of the grand larceny charges but found guilty of criminal solicitation in the second degree. Respondent was thereupon sentenced to be incarcerated for a period of nine months. On appeal, this court reversed the conviction and dismissed the indictment since there had been no corroboration of the testimony of the sole witness to the alleged crime. Thereafter, the record of the criminal proceedings were sealed pursuant to CPL § 160.50. Petitioner now seeks, upon this motion, to unseal said record.

Petitioner especially seeks access to a certain tape recording of a statement purportedly made by respondent to an assistant district attorney. Petitioner claims that the statement is approximately three hours in length and was suppressed during the criminal proceedings for failure to afford the respondent his Sixth Amendment right to counsel. Petitioner argues that the tape recording is essential to its investigation into alleged professional misconduct by the respondent.

The purpose of CPL § 160.50 in providing for the sealing of records upon the termination of a criminal action in favor of the accused is to lessen the adverse effect upon an individual's reputation and status which often results from an unsuccessful criminal prosecution (see, Governor's Approval Memorandum, N.Y.Legis.Ann.1976, p. 408). CPL § 160.50, subd. 1, par. (c) provides that upon the termination of a criminal action in favor of an accused the court shall enter an order directing, inter alia, that: "all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, 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 be sealed and not made available to any person or public or private agency;...."

Once sealed pursuant to the statute, records may be unsealed only in the certain specified circumstances set forth in CPL § 160.50, subd. 1, par. (d), as follows: "such 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 pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, 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 division of parole when the accused is on parole release supervision as result of conditional release or a parole granted by the New York State Board of Parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision."

While clearly petitioner does not fit within any of the categories of individuals or agencies enumerated under the statute which would justify making the records in the instant case available to it, the Court of Appeals has recognized that inherent discretionary power exists beyond the provisions of CPL § 160.50 which authorize the release of sealed records.

In Matter of Hynes v. Karassik, 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015, a case almost identical to that at bar, an attorney acquitted of criminal charges successfully moved under CPL § 160.50 for a sealing order. Thereafter, the Special Prose...