People v. Bundy
| Decision Date | 23 May 2018 |
| Docket Number | XXXXX |
| Parties | People of the State of New York, Plaintiff, v. Tara Bundy, Defendant. |
| Court | New York Justice Court |
Sandra Doorley, Esq.
Assistant District Attorney
832 Ebenezer Watts Bldg.
Rochester, New York 14614
Melissa Wells-Spicer, Esq.
Attorney for Defendant
One East Main Street
Tenth Floor
Rochester, NY 14614
The defendant is charged with criminal contempt in the second degree. The defendant moves for dismissal on the ground that the pleadings are facially insufficient.
The allegations are that the defendant, in violation of a Family Court stay away Order of Protection in favor of her husband, went to Burgher King where he works, went to the front counter and requested condiments, saw her husband there and left quickly.
An Information, signed by a deputy sheriff who did not witness the incident, was filed on November 15, 2017. The defendant was arraigned on December 13, 2017. On January 24, 2018 the Information was dismissed for facial insufficiency because no supporting deposition of the husband had been filed.
The day after the dismissal and on January 25th a copy of the Information was filed together with the husband's supporting deposition. Arraignment was scheduled for February 14th but the defendant came to court late after defense counsel had left the courtroom, so the matter was adjourned to February 28th. On that date the People filed a copy of the Order of Protection, the defendant was arraigned and the case was adjourned to March 28th for argument of defendant's motion. In anticipation of a second motion to dismiss for facial insufficiency, the Court provided counsel with a copy of the unreported decision in People v. Bartell (Justice Court, Town of Greece 10/7/12).
Criminal Procedure Law, section 160.50, provides that upon the termination of a criminal action in favor of a defendant the record shall be sealed. Subsection 3.b. provides that where an accusatory instrument is dismissed for facial insufficiency, pursuant to CPL 170.30, termination in favor of the defendant occurs (1) upon the entry of an order of dismissal, or when such an order is deemed entered, which in the case of an oral order occurs immediately upon the issuance of the order, People v. Cooper, 19 NY3d 501, and (2) where the people have not appealed from the order, which typically is 30 days from the date of entry. Matter of Blount 116 Misc 2d 975 (Sup. Ct., NY Co. - 1982); People v. Bowden, 28 Misc 3d 1204(A) (Sup. Ct., Bronx Co. - 2010). Thus, prior to a lapse of 30 days from the date of an oral order, the case is not yet sealed and the people are free, during such period, to make use of any and all documents, including copies, in the file of the dismissed action.
I disagree with the analysis in People v. Bartell, supra, and People v. Cordeiro, 24 Misc 3d 526 (Justice Ct., Town of Webster - 2009). In both cases the courts took the position that a dismissal for facial insufficiency results in an automatic sealing as of the date of the dismissal. That position was made clear in Bartell when the court stated, The 30-day time to appeal was not even mentioned in Cordeiro. The difficulty with the rationale in Bartell and Cordeiro is that, once a dismissal order is issued, the people would have no opportunity to refile charges, despite the fact that a dismissal for facial insufficiency must always be without prejudice to refile. Of course, the people would have the option, pursuant to subsection 1 of the statute, of making a formal motion at any time, whether before or after a case is sealed, on five days notice to the defendant, for an order directing that the file not be sealed, but such an application would require the people to demonstrate "to the satisfaction of the court that the interests of justice require otherwise" (no sealing).
The court notes that, once a case is sealed, then, but for success on a formal motion, the people would be barred from using any documents, including copies, in the dismissal case file. This would include using information and data contained in the file to create new documents. However, this is not entirely clear from the current state of case law.
The statutory language in CPL 160.50(1)(c) covers "all official records and papers . . . relating to the arrest and prosecution,...
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