New York State Police v. Charles Q

• Decision Date: 15 July 1993
• Parties: In the Matter of NEW YORK STATE POLICE, Respondent, v. CHARLES "Q", 1 Appellant. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 513

600 N.Y.S.2d 513

192 A.D.2d 142

In the Matter of NEW YORK STATE POLICE, Respondent, v. CHARLES "Q", ¹ Appellant.

Supreme Court, Appellate Division,

Third Department.

July 15, 1993.

Caputo, Aulisi and Skoda (Richard T. Aulisi, of counsel), Gloversville, for appellant.

Robert Abrams, Atty. Gen. (Nancy Spiegel, of counsel), Albany, for respondent.

Before WEISS, P.J., and YESAWICH, LEVINE, MERCURE and MAHONEY, JJ.

MERCURE, Justice.

Appeal from an order of the County Court of Fulton County (Mazzone, J.), entered November 12, 1992, which, inter alia, granted petitioner's application to unseal the record of certain criminal proceedings.

As the result of an investigation by members of the City of Gloversville Police Department and the State Police, respondent, a State Trooper, was arrested on March 5, 1991. Respondent was subsequently indicted in Fulton County for various counts of rape in the second degree, sodomy in the second degree, sexual abuse in the second degree and endangering the welfare of a child as the result of alleged contact with a female under the age of 14. Respondent was suspended from his position as a State Trooper on the day of his arrest and, on September 19, 1991, was served with disciplinary charges based upon the same conduct as that underlying the criminal charges. The parties consented to postpone the disciplinary proceeding pending the conclusion of the criminal action. On June 30, 1992, a jury acquitted defendant of all charges. County Court subsequently signed an order pursuant to CPL 160.50 directed to, among others, the State Police, providing that "[a]ll official records and papers relating to [respondent's] arrest or prosecution BE SEALED and not made available to any person or public or private agency except as provided in [CPL 160.50(1)(d) ]".

In October 1992, petitioner made this application pursuant to CPL 160.50(1)(d)(ii) and County Court's "inherent power" seeking an order unsealing and authorizing the use in the pending disciplinary proceeding of tape recordings of conversations between respondent and the victim and respondent and the victim's foster mother prior written statements (as limited by petitioner's brief) of the victim and her foster mother taken shortly after the criminal charges were filed, and the transcripts of trial testimony of witnesses expected to testify at the hearing. Respondent cross-moved for an order directing petitioner to turn over to him all material obtained in connection with the criminal investigation and trial and forbidding the use in the pending administrative proceeding of any information "derived from" the material previously sealed by County Court's order. County Court concluded that, in seeking records "in aid of a departmental disciplinary proceeding", petitioner was not acting as a "law enforcement agency" within the purview of CPL 160.50(1)(d)(ii); nonetheless, in the exercise of its "inherent power to unseal [its] records when justice demands" (Matter of Police Commr. of City of N.Y., 131 Misc.2d 695, 701, 501 N.Y.S.2d 568), County Court granted petitioner's application and denied respondent's cross motion. Respondent appeals.

Initially, we agree with County Court that, in conducting a disciplinary proceeding concerning one of its own employees, petitioner is acting as a public employer, not a "law enforcement agency", and is not entitled to obtain sealed records under CPL 160.50(1)(d)(ii) (see, Matter of Police Commr. of City of N.Y., supra ). Although there is no question that petitioner has an obligation to protect the public from a potentially unfit State Trooper, no less compelling an obligation rests upon the employers of school teachers, playground attendants, child protective service workers and numerous other public employees. CPL 160.50(1)(d) provides those employers no access to sealed records. Nor are we persuaded by petitioner's reliance upon CPL 160.50(1)(d)(v), which affords the prospective employer of a peace officer access to sealed records without the necessity of a court order. The fact that the Legislature limited the scope of the statutory provision to the hiring of a peace officer and made no provision for access to records in connection with a disciplinary proceeding against a peace officer defeats rather than furthers petitioner's argument (see, Matter of Degnan v. Constantine, 189 A.D.2d 423, 425, 596 N.Y.S.2d 867, 869).

There is no question that County Court had inherent authority to unseal the criminal records upon a showing that the material was essential to petitioner's investigation and prosecution of the disciplinary charges against respondent (see, Matter of Dondi, 63 N.Y.2d 331, 482 N.Y.S.2d 431, 472 N.E.2d 281; Matter of Hynes v. Karassik, 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015). Nonetheless, such authority "should be exercised rarely and only in extraordinary circumstances" (see, Van Loon v. Moskowitz, 172 A.D.2d 749, 569 N.Y.S.2d 135; Matter of Hynes v. Karassik, supra, 47 N.Y.2d at 664, 419 N.Y.S.2d 942, 393 N.E.2d 1015). Notably, such discretionary power may not be invoked in the absence of a "compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline of [a...