Joseph M. (New York City Bd. of Educ.), Matter of

• Citation: 623 N.E.2d 1154,82 N.Y.2d 128,603 N.Y.S.2d 804
• Parties: , 623 N.E.2d 1154, 87 Ed. Law Rep. 217 In the Matter of JOSEPH M., Appellant. NEW YORK CITY BOARD OF EDUCATION, Respondent.
• Decision Date: 14 October 1993
• Court: New York Court of Appeals Court of Appeals

Page 804

603 N.Y.S.2d 804

82 N.Y.2d 128, 623 N.E.2d 1154, 87

Ed. Law Rep. 217

In the Matter of JOSEPH M., Appellant.

NEW YORK CITY BOARD OF EDUCATION, Respondent.

Court of Appeals of New York.

Oct. 14, 1993.

Frederick K. Reich and James R. Sandner, New York City, for appellant.

O. Peter Sherwood, Corp. Counsel of New York City (Deborah R. Douglas and Fay Leoussis, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

The general rule established by CPL 160.50 is that--unless the court determines that the interests of justice require otherwise--the record of a criminal action or proceeding upon termination in favor of the accused "shall be sealed and not made available to any person or public or private agency" (subd [1][c]. The statute specifies that the sealed records shall be made available upon request to the accused and to six enumerated categories of persons or public or private agencies (see, subd [1][d]. The question presented in this appeal is whether a Board of Education, a public agency not listed in CPL 160.50(1)(d), is entitled to obtain such sealed records for use in a hearing under Education Law § 3020-a on charges brought against a tenured teacher.

For reasons to be explained, we conclude that a Board of Education may not have access to sealed records for such purpose. It follows that in this case there was no legal basis for directing the unsealing of records pertaining to the unsuccessful prosecution of respondent for a misdemeanor charge of drug possession. There should, accordingly, be a reversal.

I

Respondent, a tenured music teacher, was arrested on May 12, 1990 on charges of misdemeanor possession of a controlled substance (Penal Law § 220.03). On April 15, 1991, a jury acquitted him of the charge. As required by CPL 160.50, the Trial Judge sealed the records pertaining to the arrest and prosecution. On May 29, 1991, the petitioner Board of Education commenced disciplinary proceedings against respondent pursuant to Education Law § 2590-j(7)(b) and § 3020-a, charging him with the same misconduct as alleged in the unsuccessful criminal prosecution.

The Board brought the instant application on January 21, 1992 in Supreme Court for an order unsealing the criminal court records as well as releasing the prosecutor's file and the physical evidence. Supreme Court granted the Board's application, concluding that despite the lack of specific statutory power it had inherent discretionary power to unseal records "in extraordinary circumstances in the interests of fairness and justice", citing Matter of Dondi (63 N.Y.2d 331, 338, 482 N.Y.S.2d 431, 472 N.E.2d 281) and Matter of Hynes v. Karassik (47 N.Y.2d 659, 664-665, 419 N.Y.S.2d 942, 393 N.E.2d 1015). The court held that the Board had "demonstrated a compelling need to unseal the records because it cannot obtain the information elsewhere and it needs the records to conduct the disciplinary proceeding". The Appellate Division affirmed unanimously on the authority of Matter of Dondi, noting that " 'without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline * * * cannot be accomplished.' " (188 A.D.2d 319, 590 N.Y.S.2d 725.) We granted leave to appeal.

II

CPL 160.50 was enacted in 1976 in the same reform legislation that added a provision to the Human Rights Law (now Executive Law § 296[16] making it an unlawful discriminatory practice for an employer, in connection with the employment of an individual, to inquire about or act adversely on any prior criminal accusation which had terminated in the employee's favor. ^* The purpose in adding these provisions to the Criminal Procedure Law and the Human Rights Law was to ensure that the protections provided to exonerated accuseds be "consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law" (Governor's Approval Mem, 1976 McKinney's Session Laws of NY, at 2451). As we noted in People v. Patterson (78 N.Y.2d 711, 579 N.Y.S.2d 617, 587 N.E.2d 255):

"Indeed, the over-all scheme of the enactments demonstrates that the legislative objective was to remove any 'stigma' flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities (see, People v. Anderson, 97 Misc.2d 408, 411 N.Y.S.2d 830 * * * )" (id., 78 N.Y.2d at 716, 579 N.Y.S.2d 617, 587 N.E.2d 255).

To effectuate this purpose, CPL 160.50 employs language that is mandatory. Upon termination of a criminal action in favor of an accused, the section provides that the record of such action "shall be sealed" (160.50[1]; that all photographs, palmprints and fingerprints "shall forthwith be returned to such person" (160.50[1][a]; that any agency which may have transmitted copies of such photographs, palmprints, or fingerprints to an agency of another jurisdiction "shall forthwith formally request [their return]" (160.50[1][b]; and that all official records and papers relating to the arrest or prosecution "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" (160.50[1][c] [emphasis added].

After a sealing order issues, CPL 160.50(1)(d) specifies a few instances when the sealed records may be released to specified categories of persons or agencies, viz., to a prosecutor in a criminal proceeding involving marihuana in which the accused has moved for adjournment in contemplation of dismissal (cl [i]; to a law enforcement agency on a showing that justice requires such release (cl [ii]; to an agency acting on an application made by the accused for a gun license (cl [iii]; to the New York State Division of Parole, under certain conditions, when the accused is on parole (cl [iv]; to a prospective employer in connection with an employment application of an accused for a position as a police officer or peace officer (cl [v]; and to the probation department responsible for supervision of the accused when the arrest subject to the inquiry occurred while the accused was under such supervision (cl [vi].

These exceptions in CPL 160.50(1)(d) have been characterized as "narrowly defined" (Matter of Hynes v. Karassik, 47 N.Y.2d 659, 663, supra, 419 N.Y.S.2d 942, 393 N.E.2d 1015). Indeed, in Karassik, we construed the statute strictly and held that none of the exceptions could justify making sealed records available to assist a grievance committee in determining whether to bring professional disciplinary charges against a lawyer (id., at 663, 419 N.Y.S.2d 942, 393 N.E.2d 1015; see, Patterson, supra, 78 N.Y.2d at 714, 579 N.Y.S.2d 617, 587 N.E.2d 255 [finding "no authorization in (CPL 160.50) for the use in a law enforcement agency's investigatory procedures of a photograph retained in violation thereof"]; Dondi, supra, 63 N.Y.2d at 338, 482 N.Y.S.2d 431, 472 N.E.2d 281 [restating rule in Karassik that a grievance committee "has no standing under CPL 160.50 to seek an order to obtain records sealed pursuant to that provision as it does not constitute a 'law enforcement agency' "]; see also, Matter of Skyline Inn Corp., 44 N.Y.2d 695, 696, supra, 405 N.Y.S.2d 440, 376 N.E.2d 912 [refusing to make exception to the Human Rights Law provision (now Executive Law § 296[15] to permit State Liquor Authority to consider dismissed criminal charge against licensee seeking a renewal]; and supra, note).

Despite the statute's mandatory language, its evident intent to limit the exceptions to persons or groups having some association with law enforcement problems, and the legislative recognition of the importance of protecting individuals from having dismissed criminal charges considered in connection with their employment, the Board would have us construe the statute as including an exception for teacher disciplinary proceedings. This we decline to do. Suffice it to say that if the Legislature had intended to create such an exception--one which, unlike the other exceptions, would have no law...