People v. Flores
| Decision Date | 11 April 1977 |
| Citation | 90 Misc.2d 190,393 N.Y.S.2d 664 |
| Parties | PEOPLE of the State of New York v. Enrique FLORES, Defendant. |
| Court | New York City Court |
Eugene Gold, Dist. Atty., Brooklyn by Jay Dennis Cohen, Asst. Dist. Atty., for the People.
Zerin & Cooper, New York City by Harold I. Guberman, Smithtown, Diane B. Stillman, New York City, of counsel, for defendant.
The defendant moves for an order directing the sealing of all records herein and the return of all fingerprints and photographs taken at the time of his arrest.
On July 5, 1976, defendant was arrested and charged with violation of Penal Law sec. 120.25, reckless endangerment (a class D felony) in that he allegedly drove a motor vehicle at an excessive rate of speed onto a sidewalk almost striking a number of pedestrians. The defendant was also charged with various traffic infractions arising out of the same incident. He was fingerprinted and photographed pursuant to the statutory authority of sec. 160.10 of the Criminal Procedure Law.
On July 7, 1976, defendant entered pleas of guilty to various traffic infractions, to wit: Vehicle & Traffic Law sec. 1102 (), Vehicle & Traffic Law sec. 1180 () and Traffic Regulations sec. 30--C--1 (). Said pleas covered all of charges against the defendant, including the felony charge of reckless endangerment and all other charges were dismissed. Defendant was fined the sum of $150 and said fine has been paid.
Thereafter, defendant, who had never been convicted of a crime, made application to the Police Commissioner of the City of New York for return of his fingerprints and photographs pursuant to sec. 79--e of the Civil Rights Law which provided as follows:
Upon the determination of a criminal action or proceeding against a person, in favor of such person, unless another criminal action or proceeding is pending against him (or unless such person has previously been convicted in this state of a crime or of the violation of loitering, as defined in subdivision three of section 240.35 of the penal law or has previously been convicted elsewhere of any offense which would be deemed a crime or the violation of loitering, as defined in subdivision three of section 240.35 of the penal law if committed within the state) every photograph of such person and photographic plate or proof, palmprints and fingerprints taken or made of such person while such action or proceeding is pending by direction or authority of any police officer, peace officer, or any member of any police department, and all duplicates and copies thereof shall be returned on demand to such person or his representative, duly authorized in writing, who is an attorney admitted to practice law in New York state, by the police officer, peace officer or member of any police department having any such photograph, photographic plate or proof, copy or duplicate in his possession or under his control;
Said request was, however, denied by the Police Commissioner upon the ground that return of fingerprints and photographs is now covered by sec. 165.50 and 160.60 of the Criminal Procedure Law which was added by Chapter 877 of the Laws of 1976, effective September 1, 1976, which repealed sec. 79--e of the Civil Rights Law, and which provides:
' § 160.50 Order upon termination of criminal action in favor of the accused
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 immediate 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;
(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;
'3. A person in whose favor a criminal action or proceeding was terminated, as defined in subdivision two of this section, prior to the effective date of this section, may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless another criminal action or proceeding is pending against him, or unless the district attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise.
' § 160.60 Effect of termination of criminal actions in favor of the accused
Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.'
It is not disputed that the procedures of the New York City Police...
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