Ciraulo v. Dillon
| Decision Date | 07 May 1981 |
| Citation | 108 Misc.2d 751,438 N.Y.S.2d 972 |
| Parties | Frank J. CIRAULO, Petitioner, v. Denis DILLON, District Attorney et al., Respondents. |
| Court | New York Supreme Court |
Clavin & Fisher, Valley Stream, for petitioner.
Denis Dillon, Dist. Atty. Nassau County, pro se.
In this Article 78 Proceeding the petitioner seeks to have the respondent, District Attorney, held in contempt. He also seeks an order directing the production of certain materials in the possession of said respondent together with the sealing of such records. The petition against the other named respondents has been withdrawn.
On January 1, 1979, an information was filed against the petitioner charging him with driving while intoxicated. Thereafter, on April 6, 1979, District Court Judge DeMaro dismissed the information on the petitioner's motion due to the failure of the prosecution to supplement the information with a supporting deposition. The order of dismissal states, in part, as follows:
A new information was promptly filed against petitioner on April 12, 1979, and he was arraigned on that information in May of 1979. The second information is based on the same conduct alleged in the dismissed defective information.
On June 26, 1980, District Court Judge Jules Orenstein directed the return of fingerprints and photographs as well as the sealing of petitioner's record under § 160.50 of the Criminal Procedure Law. Judge Orenstein's order pertained to the initial information that was dismissed by Judge DeMaro.
The petitioner, in this proceeding, seeks to give effect to the sealing order signed over fourteen months after the new information was filed, so as to preclude the respondent, District Attorney, from using the sealed records in the prosecution of petitioner on the pending information.
A Criminal Trial was scheduled for March 12, 1981, in the District Court. At that time petitioner moved to have the prosecution precluded from introducing into evidence the records of the dismissed information. The Trial Judge then referred the matter to Judge DeMaro for a clarification of his prior order dismissing the original information.
On March 16, 1981, Judge DeMaro, after oral argument, amended his initial order, nunc pro tunc, by adding the following paragraph:
"No subsequent sealing order pursuant to Article 160 of the Criminal Procedure Law shall be construed to preclude use of the records of these proceedings in a future prosecution for the same acts alleged in the information herewith dismissed."
The respondent, District Attorney, was never served with a copy of Judge Orenstein's order until March 18, 1981, but prior to that time on March 16, 1981, a copy of the order was made available to the District Attorney's Office for inspection during oral argument before Judge DeMaro.
CPL 160.50 was enacted by the Legislature in 1976 (see, Chapter 877, § 1 of the Laws of 1976). Section 160.50 provides basically that upon the termination of a criminal action in one's favor, every photograph or fingerprint taken be returned and all official records and papers relating to the arrest or prosecution of that charge be sealed....
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Wayne M., Matter of
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