People v. Gallina
| Decision Date | 22 April 1985 |
| Citation | 488 N.Y.S.2d 249,110 A.D.2d 847 |
| Parties | The PEOPLE, etc., Respondent, v. John GALLINA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hyman J. Greenberg, Kew Gardens (Spiros A. Tsimbinos, Kew Gardens, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki kowalski Brooklyn, and Carol Cimkowski, of counsel), for respondent.
Before WEINSTEIN, J.P., and BROWN, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 23, 1984, convicting him of robbery in the second degree, assault in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Judgment affirmed, and matter remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).
The principal issue defendant raises on this appeal is whether a photograph of him taken during a previous arrest that had resulted in a youthful offender adjudication may be placed in police investigation files of photographs that are viewed by crime victims to identify potential suspects.
On November 12, 1982, defendant was adjudicated a youthful offender for a previous incident. The instant appeal arises out of a conviction for a crime which occurred on December 9, 1982. On December 16, 1982, complainant selected a photograph of defendant from a collection of 2,000 photographs on file at the police "Central Robbery" unit as representing that of her assailant. It was stipulated that this photograph was part of the file on which defendant had been given youthful offender treatment.
CPL 720.35(2) provides that all records relating to youthful offender adjudication "are confidential and may not be made available to any person or public or private agency" except "upon specific authorization of the court". It is conceded that court permission to use this photograph was neither sought nor granted.
Defendant argues that the placement of his photograph in the investigation files of the police department and its use in ascertaining his identity was illegal, and, therefore, that any in-court identification should have been suppressed as being impermissibly tainted by this illegality.
Such a use of a photograph for investigative purposes within the confines of the police department does not violate CPL 720.35. The purpose of this provision is similar to that of CPL 160.50, which governs terminations of criminal actions in favor of the accused, in that both provisions were "intended to remove the 'stigma' of the alleged criminal activity and its adverse affect on the accused, thereby affording protection to such accused in the pursuit of employment, education, professional licensing and insurance opportunities" (People v. Anderson, 97 Misc.2d 408, 412, 411 N.Y.S.2d 830). Showing the photograph to a crime victim as one of a collection of numerous photographs does not affect any of these pursuits.
Moreover, the language of these two provisions indicates that the Legislature did not intend to prohibit the investigative use of photographs taken after an arrest which resulted in a youthful-offender adjudication. Following termination of a case in favor of the accused, CPL 160.50 specifically provides that photographs are to be returned to the accused or his attorney (CPL 160.50[1][a] ). Other "records and papers" are to be "sealed and not made available to any person or public or private agency" (CPL 160.50[1][c], emphasis supplied).
Section 720.35 differs from CPL 160.50 in two respects. First, it makes no distinction for the treatment of photographs. * Photographs in a youthful-offender case are not returned following an adjudication but remain with the agency. Second, the otherwise parallel provision for the treatment of "records and papers" in CPL 720.35 merely states that they "are confidential and may not be made available" (CPL 720.35[2], emphasis supplied). This is not a meaningless distinction. "Confidential" implies a less sweeping prohibition than "sealed" and its use implies that the internal use of a youthful-offender's photograph is not necessarily prohibited.
We regard the display of such photographs to witnesses within the confines of the agency to be such a permitted use. It has always been a legitimate function of law enforcement to identify and apprehend...
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