Henry v. Looney
| Decision Date | 02 February 1971 |
| Citation | 317 N.Y.S.2d 848,65 Misc.2d 759 |
| Parties | In the Matter of John HENRY * Jr., an Infant, by John Henry * Sr., His Father, Petitioner, v. Francis B. LOONEY, as Police Commissioner of Nassau County, and John B. Bailey, as Chief of Police of the Village of Sands Point, Respondents. |
| Court | New York Supreme Court |
The question in this proceeding is whether a court may relieve a party of the practical stigma of a criminal arrest record. Theoretically the problem should not exist, for an arrest in and of itself, lawful or otherwise, is legally and logically probative of nothing regarding the character and background of the person arrested. As a practical matter, however, an arrest record may stigmatize and impede its victim throughout his lifetime.
On a summer day in 1968, by appointment, the fifteen year old petitioner and two companions arrived by boat at a friend's home to spend the day water skiing. Petitioner and one friend swam to the shore and knocked at a rear door of the house. No one answered. Other doors were tried, without response. The boys looked through several windows concluded that the house was empty, and turned to race each other back to the shore and then to their friend in the waiting boat. While in the water, a shot sounded. Petitioner turned, saw a police officer, and returned to the shore. Shortly thereafter, and notwithstanding attempts to explain his presence at the property, petitioner was arrested and charged with attempted burglary.
Due to petitioner's age, the matter was transferred to the Family Court where, after due explanation and an executed agreement by his parents releasing local police authorities from any liability, the charge was withdrawn. On October 31, 1969, the Family Court ordered petitioner's record 'sealed and withheld from public inspection' subject to future inspection upon written order of the Administrative Judge of the Court.
The files of the Nassau County and Sands Point Police Departments now contain records showing petitioner's arrest on a charge of attempted burglary. Through his attorney, petitioner requested that these records be destroyed or obliterated. The requests having been refused, this proceeding was commenced.
The petition asks for physical expungement and obliteration of petitioner's surname from all arrest records, the sealing and segregated filing of the records of this proceeding, and a declaration that petitioner's arrest was null and void. It is alleged that maintenance of the records or divulging their contents violates petitioner's rights to due process and the equal protection of the law, and that absent obliteration, petitioner may be discriminated against in connection with college applications, future employment and professional licensing.
The respondents candidly admit that 'petitioner makes out a compelling case on a sympathy basis', but they point to the absence of a statutory authorization for relief, and further suggest that relief will be illusory in any event because petitioner must always answer the question 'Were you ever arrested?' in the affirmative and thereby open the Pandora's box which his petition seeks to close forever.
While it is true that the petitioner may find the entire issue reopened by an honest response to the question posed above, it does not follow that the Court should therefore refrain from giving relief to the extent possible. At the least, the subject of whether or not petitioner had been arrested should be opened with petitioner's knowledge rather than through private investigation, so that petitioner may be afforded an opportunity to explain fully to those willing to listen. The protection afforded by the law is worthwhile if it does no more than assure petitioner that doors will not be closed, and opportunities precluded, on the basis of an arrest record, privately uncovered, but never mentioned.
No doubt, the subject matter of this proceeding is more susceptible to comprehensive legislative treatment than judicial disposition on a case by case basis. Other States carefully classify the disposition of all criminal arrests, so that existing records will accurately reflect and distinguish a wholly groundless arrest (See, e.g. Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C., 1969); Menard v. Mitchell, 430 F.2d 486, 494 (D.C.Cir., 1970)), from an arrest not resulting in prosecution or conviction for other reasons. In some circumstances, the record may be ordered sealed, in others the arrest deemed a detention only, and in still other cases the person arrested (or convicted) is authorized to answer the query 'Were you ever arrested?' in the negative. (See, Calif.Penal Code, §§ 1203.45, 849(b)(1).) On the other hand, commentators and penologists have seriously questioned whether we best serve the individual, society or the ends of justice by expunging, sealing or otherwise suppressing facts as they actually exist. They contend that the concealment is illusory at best, that it often creates more problems than it solves, and that a valid solution lies only in education and the maintenance of better records (61J. Crim.Law, Criminology and Police Science 378, No. 3). Indeed, one Court has implied that this education might be profitably extended to public agencies, the police and the Courts as well (Menard v. Mitchell, 430 F.2d 486, 490--491 (D.C.Cir. 1970)). Be that as it may, the immediate task is to give such relief as is available and warranted by the circumstances in the...
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