People v. Donner

• Decision Date: 18 December 1980
• Citation: 435 N.Y.S.2d 225,106 Misc.2d 779
• Parties: The PEOPLE of the State of New York v. Mary DONNER a/k/a Patricia O'Leary, Defendant.
• Court: New York Town Court

Page 225

435 N.Y.S.2d 225

106 Misc.2d 779

The PEOPLE of the State of New York v. Mary DONNER a/k/a Patricia O'Leary, Defendant.

Brighton Town Court, Monroe County.

Dec. 18, 1980.

Lawrence T. Kurlander, Dist. Atty., for the People; Howard R. Relin, Asst. Dist. Atty., of counsel.

Thomas J. Cocuzzi, Rochester, for defendant.

OPINION OF THE COURT

JOHN J. ARK, Justice.

Since May, 1978, the Defendant, MARY DONNER, had several arrests and subsequent proceedings in the Brighton Town Court. These arrests included a single arrest for Criminal Possession of a Forged Instrument in the Second Degree, four arrests for Issuing a Bad Check, and one arrest alleging violation of the Vehicle and Traffic Law in the State of New York. All of these matters were resolved in the Defendant's favor, i. e. either through withdrawal by the complainant and/or the District Attorney's Office or adjournment in contemplation of dismissal.

In compliance with § 160.50 of the Criminal Procedure Law, several Justices of the Brighton Town Court executed orders sealing the photographs, fingerprints, and all official records and papers relating to these several arrests and prosecutions. The court orders, however, through clerical error only, did not contain the provisions reflected in § 160.50(1)(d) making such records available to the person accused, or to such person's designated agent. Upon requesting access and being denied the same, Defendant moved ex parte for an order permitting her access to any and all files compiled relative to the charges disposed of in the Brighton Town Court. On or about August 7th, 1980, the Honorable John J. Ark executed such an order providing the Defendant with such relief. Thereafter, following correspondence on August 12th, 1980 from Mr. Howard R. Relin, Second Assistant Monroe County District Attorney, the order allowing Defendant access to her files was stayed, pending further proceedings. Thereafter, on August 26, 1980, a hearing was conducted in the Brighton Town Court. The purpose of this hearing was to provide the District Attorney an opportunity to show that the interest of justice required the Defendant be denied access to these records.

It was stipulated prior to the commencement of the hearing that The People of the State of New York bore the burden of proving that the interest of justice would not be served by providing the Defendant, MARY DONNER, access to the several files in the custody of the Town of Brighton Police Department. It was further agreed that the burden of proof should be met only upon establishing by a fair preponderance of the evidence that the interest of justice required a denial of the relief sought.

The People called as their only witness Officer Scott Hill, the record supervisor for the Brighton Police Department. Officer Hill testified that it was the policy of the Brighton Police Department not to release contents of any sealed file to any person, whether the accused or otherwise. Officer Hill further testified that the Defendant had been arrested approximately twenty-six times since 1969, and had been convicted of at least eight crimes in Monroe County alone. In addition, Officer Hill stated that he had opened the files in question the evening before the hearing, pursuant to a Monroe County Court Order, and determined that the files contained "confidential" material. However, Officer Hill did not specify upon what he based this latter conclusion.

This Court believes two threshold questions must be resolved before the ultimate criterion of the "interests of justice" can be addressed.

First, for the purposes of this proceeding, the prosecution maintained that the "interest of justice" standard in Section 160.50(1) may be made applicable only to subparagraph d, thereby precluding the accused or such person's designated agent from having the records made available to him or her. In essence, the prosecution is requesting that the Court fulfill its statutory mandate by ordering the "sealing" provisions of subparagraphs a, b, and c, but in the "interest of justice" not allow the accused to have access to her records pursuant to subparagraph d.

Subparagraphs (a), (b), (c) and (d) of CPL § 160.50(1) are listed and connected only by the word "and" between subparagraphs (c) and (d). Although there is no New York precedent on point, this Court holds that the use of the conjunctive "and" alone excludes the efficacy of any of the alternatives standing alone. Thus, subparagraphs (a), (b), (c) and (d) are to be considered cumulatively and jointly, and not alternatively. ¹ Accordingly, CPL § 160.50(1) mandates that the Court shall enter an order directing that each of subparagraphs (a), (b), (c) and (d) be complied with.

The prosecution's recourse was "upon motion with not less than five (5) days notice to such person or his attorney demonstrate to the satisfaction of the Court that the interest of justice required otherwise", to show why the Court shall not enter an order requiring all the actions enumerated in subparagraphs a, b, c and d. For the prosecution now, after a, b, and c have been complied with to preclude the accused from seeing her records as allowed by subdivision d is inherently unfair and contrary to the intent of the statute which is "... to protect the rights of certain persons upon favorable determination of criminal actions against them." (L.1977, ch. 905, Memorandum). This Court is unconvinced that a person's rights can be protected by not giving her access to police files concerning her, particularly when the Criminal Procedure Law requires that "such records shall be made available to the person accused or to such person's designated agent." (CPL § 160.50(1)(d)).

Second, the parties agreed...