People v. Casella
| Decision Date | 02 June 1977 |
| Docket Number | AP-1 |
| Citation | 395 N.Y.S.2d 909,90 Misc.2d 442 |
| Parties | The PEOPLE of the State of New York v. Donna T. CASELLA, Defendant. The PEOPLE of the State of New York v. Robert POLICHETTI, Defendant. The PEOPLE of the State of New York v. Leslio CASTILLO, Defendant |
| Court | New York City Court |
Thomas R. Sullivan, Dist. Atty., Richmond County, Staten Island, for the prosecution; Andrew McGee, Staten Island, of counsel.
Philip G. Minardo, Staten Island, for defendant Casella.
Dennis Peterson, Staten Island, for defendant Polichetti.
William Gallagher, Legal Aid Society, for defendant Castillo; Janet Norton, Staten Island, of counsel.
The defendants have moved pursuant to CPL 160.50 to have fingerprints returned and the records sealed.
At this juncture, the court wishes to commend both the prosecutor and defense counsels for their cooperation and fine memoranda.
Defendant Casella was arrested and charged with the crimes of petit larceny (Penal Law § 155.25) and criminal possession of burglar's tools (Penal Law § 140.35); both are Class A misdemeanors. The maximum term of imprisonment for an A misdemeanor is one year (Penal Law § 70.15, subd. 1).
The defendant pleaded guilty to trespass (Penal Law § 140.05) and disorderly conduct (Penal Law § 240.20), both violations, the maximum term of imprisonment being fifteen days (Penal Law § 70.15, subd. 4). The defendant was fined and paid said fine. At this time, counsel for the defendant moved the court, pursuant to CPL § 160.50, for an order directing that the matter be sealed and the fingerprints and photographs be returned. The defendant has no previous criminal record.
The other two defendants had been charged with petit larceny (Penal Law § 155.25) and had pleaded guilty to disorderly conduct (Penal Law § 240.20).
The issue thus presents itself: Is a plea of guilty to a violation from the charges of a Class A misdemeanor 1 such a "favorable disposition of the criminal proceeding" within the meaning of CPL § 160.50?
Initially we must state that in this motion for return of fingerprints and photographs of the defendants and for a sealing of an official record and papers relating to the arrest or prosecution of the defendants, the defendants must rely on section 160.50 of the Criminal Procedure Law. It has been clearly established that the sealing or return of these documents depends upon no inherent right of the defendant, but only upon a right established by statute. This principle was established as early as 1904, when the Court of Appeals held in Matter of Molineux v. Collins, 177 N.Y. 395, 69 N.E. 727 (1904) that a defendant who had been convicted and imprisoned and then later exonerated did not have any right to the return of photographs and body measurements taken of the defendant (the science of fingerprint identification not yet having been accepted), and that he should look to the legislature for relief. This same principle was reiterated by the Supreme Court, New York County, in Troilo v. Valentine, 179 Misc. 954, 40 N.Y.S.2d 442 (Sup.Ct., N.Y.1943) where the court held, "No right to the requested return (of fingerprints) unless it is conferred by statute", exists (40 N.Y.S.2d 442 at 443).
CPL 160.50 became effective in September of 1976 (L.1976, ch. 877). Its predecessors were the Civil Rights Law, § 79-e 2 and the Penal Law of 1909, § 516 3 (repealed in 1965). These statutes did not deal with the sealing of the records. CPL § 160.50 has added the requirement of sealing.
CPL § 160.50 states the following:
"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, unless another criminal action or proceeding is pending against such person, or unless the district attorney upon motion with not less than five days notice to such person or his attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, 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, or to the attorney who represented him at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palmprint or fingerprints in its possession or under its control;
(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 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 such department or agency shall return them as provided herein;
(c) all official records and papers other than court decisions 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 (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (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 accusatory instrument pursuant to article four hundred seventy was entered; or
(b) an order to dismiss the accusatory instrument pursuant to section 170.30, 170.50, 170.55, 170.56, 210.20, or 210.46 of this chapter was 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 was made pursuant to section 330.10 of this chapter; or
(d) a trial order of dismissal pursuant to section 290.10 or 360.40 of this chapter was 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
(e) an order setting aside a verdict pursuant to section 330.30 or 370.10 of this chapter was 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 and no new trial has been ordered; or
(f) an order vacating a judgment pursuant to section 440.10 of this chapter was 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, and no new trial has been ordered; or
(g) an order of discharge pursuant to article seventy of the civil practice law and rules was 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." (emphasis added)
To determine whether the defendant may move for that relief provided under § 160.50, we must determine whether the "pleading down" present here constitutes a termination of a criminal action in favor of such person under the provisions of § 160.50.
The scenario of each of these cases is the same. The defendant is arrested on a "printable" offense. The defendant subsequently plea bargains down to a violation. The defendant's logic is that since the end result is a "non-printable" offense, the fingerprints (and photographs) should be returned and the records sealed pursuant to CPL 160.50.
The forerunners of CPL 160.50 were section 516 of the Penal Law (1909) () and Civil Rights Law, § 79-e (repealed L.1976, c. 877, § 3, effective September 1, 1976). A review of the cases determined under these statutes may assist in determining what a "termination of the criminal procedure in favor" of the defendant is.
In Troilo v. Valentine, 179 Misc. 954, 40 N.Y.S.2d 442, the Supreme Court, New York County, in interpreting section 516 of the Penal Law, held that an acquittal on a charge of carrying a dangerous weapon entitled the defendant to a return of fingerprints taken when he was arrested.
In Campbell v. Adams, 206 Misc. 673, 133 N.Y.S.2d 876, upon dismissal of a charge of burglary, a youth was entitled to a return of his fingerprints and photographs.
In the Matter of Foster, 72 Misc.2d 1029, 340 N.Y.S.2d 758, the defendant had received an adjournment in contemplation of dismissal in regard to...
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