Morgenthau v. Becker
| Decision Date | 29 November 1979 |
| Court | New York Supreme Court |
| Parties | In the Matter of the Application of Robert M. MORGENTHAU, District Attorney, County of New York, Petitioner, for a judgment pursuant to Article 78 CPLR v. Leon BECKER, Judge of the Criminal Court of the City of New York, New York County, Respondent. |
Motions No. 2, No. 91 and No. 92 of August 20, 1979 are consolidated for disposition as hereafter indicated.
This is an Article 78 proceeding (Motion No. 2) in the nature of a writ of prohibition brought by petitioner Robert M. Morgenthau, District Attorney of New York County, against respondent Leon Becker, Judge of the Criminal Court of the City of New York, New York County, for a judgment prohibiting said respondent, the Hon. Leon Becker:
"(F)rom ordering that all fingerprints, palmprints and photographs taken of Natalie Robertson upon her arrest on September 15, 1977 be returned, and that the official records of the proceedings in People v. Natalie Robertson, (People v. Robertson, 97 Misc.2d 1026, 412 N.Y.S.2d 982) be changed from an arrest on the charge of Criminal Possession of Stolen Property in the Third Degree, a misdemeanor, to an arrest and conviction on the charge of Disorderly Conduct, a violation . . . "
It appears, and the facts are not in dispute, that Natalie Robertson was arraigned before respondent, sitting as a Judge of the Criminal Court in New York County on October 19, 1977, pursuant to Information No. N 77362 charging her with Criminal Possession of Stolen Property in the Third Degree (Penal Law § 165.40), a class A Misdemeanor.
At the arraignment, and pursuant to plea bargaining, a charge of Disorderly Conduct (Penal Law § 240.20), a violation, was added to Information No. N 773672 and Robertson entered a plea of guilty to that charge, to cover all charges in No. N 773672. Thereupon, Judge Becker sentenced Robertson to a conditional discharge and Robertson's attorney was directed to "prepare an order for the return of the (Robertson's) prints." (Transcript of Arraignment Proceedings, dated October 19, 1977, Proposed Intervenor-Respondent Natalie Robertson's Exhibit C).
Subsequently, on October 24, 1977, Robertson moved, pursuant to Criminal Procedure Law § 160.50, for an order directing that all fingerprints, palmprints and photographs of Robertson taken at the time of her arrest be returned and that the records of her arrest and conviction be sealed.
Criminal Procedure Law § 160.50 as amended to date provides in relevant part:
"1. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of this section . . . the court wherein such criminal action or proceeding was terminated shall enter an order, which shall immediately be served by the clerk of the court upon the commissioner of the division of criminal justice services and upon the heads of all police departments and other law enforcement agencies having copies thereof, directing that:
(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated . . . and all duplicates and copies thereof, shall forthwith be returned to such person . . . ;
(b) any police department or law enforcement agency, including the division of criminal justice services, which transmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdiction outside of the state of New York copies of any such photographs, photographic plates or proofs, palmprints and fingerprints . . . shall forthwith formally request in writing that all such copies be returned to the police department or law enforcement agency which transmitted or forwarded them, and upon such return . . . shall return them as provided herein . . . ;
(c) 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; and
(d) such records shall be made available to the person accused or to such person's designated agent, and shall be made available to . . . (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.
2. For the purposes of subdivision one of this section, a criminal action or proceeding against a person shall be considered terminated in favor of such person where:
(a) an order dismissing the entire accusatory instrument against such person pursuant to article four hundred seventy was entered; or
(b) an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30, 170.50, 170.55, 170.56, 170.75, 180.70, 210.20 or 210.46 of this chapter or section 81.25 of the mental hygiene law was entered or deemed entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(c) a verdict of complete acquittal . . . ; or
(d) a trial order of dismissal of the entire accusatory instrument against such person . . . ; or
(e) an order setting aside a verdict . . . ; or
(f) an order vacating a judgment . . . ; or
(g) an order of discharge pursuant to article seventy of the civil practice law and rules were entered . . . ; or
(h) . . . ; or
(i) prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person . . .
(j) following the arrest of such person, the arresting police agency, prior to the filing of an accusatory instrument in a local criminal court but subsequent to the forwarding of a copy of the fingerprints of such person to the division of criminal justice services, elects not to proceed further . . .
3. . . . "
On October 26, 1977, Judge Becker granted the motion as to the prints and photographs but denied the motion to seal. On October 27, 1977, Judge Becker stayed his order pending a motion by the People to rescind.
After considering memoranda filed by both parties, Judge Becker ruled, off the bench, on September 25, 1978, that Robertson was entitled to the return of the prints and photographs pursuant to CPLR § 160.50, but denied the motion to seal. On January 24, 1979, Judge Becker issued a written opinion explaining his decision, and on February 1, 1979, he signed an order directing the return of the prints and photographs and that the arrest records be changed to reflect an arrest and conviction of the violation rather than an arrest for the misdemeanor.
Petitioners, on behalf of the People, on February 20, 1979, filed a Notice of Appeal from Judge Becker's order with the Supreme Court, Appellate Term, First Department, which appeal apparently has not been perfected for reasons which will appear below. On April 6, 1979, Judge Becker issued an order staying the February 1, 1979 order, at petitioner's request, and which stated further that:
"The people hereby consent to defendant's (Robertson's) intervention, as either plaintiff or defendant, in any future Article 78 proceeding or other litigation concerning the underlying issues herein."
The notice of petition and petition, though not including Robertson as a named respondent, have been served on Robertson. Judge Becker has appeared herein Pro se and has cross-moved to dismiss the petition for the reasons set forth in his decision.
In motion No. 91, Robertson seeks leave to intervene as a party respondent either as a matter of right pursuant to CPLR 1012(a)(2) or in the discretion of the court pursuant to CPLR 7802(d). Neither petitioner or respondent objects to the motion to intervene, which is granted. Also granted, is Robertson's request for related relief with respect to Robertson's intervention herein (motion No. 92). Accordingly, Robertson's proposed answer to the petition (described as an amended answer), containing a cross-claim and objections in point of law, attached to her papers submitted on motion No. 92, is deemed served.
By way of the cross-claim, Robertson seeks mandamus relief compelling Judge Becker to order the sealing of all records and papers relating to her arrest or prosecution or violation conviction, in addition to directing the return of the prints and photographs previously ordered by Judge Becker pursuant to CPL § 160.50.
Petitioner alleges, and it is not disputed by respondent or the intervenor-respondent, that Judge Becker's order is not appealable (see CPL § 470.20: Matter of Santangelo v. People, 38 N.Y.2d 536, 539, 381 N.Y.S.2d 472, 473, 344 N.E.2d 404, 405). Thus, according to petitioner, "if prohibition does not lie, respondent Becker, and any other judge so inclined, will be able to violate the specific command of section 160.50, with no redress possible."
It is contended by the District Attorney that Judge Becker acted in excess of the authority conferred on him by CPL § 160.50 in ordering the return of the prints and photographs, and...
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