People v. Kenny
| Decision Date | 03 December 2018 |
| Docket Number | CR-030306-16NA |
| Citation | 89 N.Y.S.3d 556,62 Misc.3d 528 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Kelly KENNY, Defendant. |
| Court | New York District Court |
Madeline Singas, Nassau County District Attorney
Attorneys: Lavallee Law Offices, PLLC
On November 24, 2016, following her arrest the prior day, the Defendant was arraigned on charges of driving while intoxicated per se , aggravated driving while intoxicated and common law driving while intoxicated, in violation of VTL § 1192(2), 1192(2a) and 1192(3), respectively. Thereafter, as the result of the Defendant's motion for such relief, by Decision and Order dated June 14, 2017, this court (Engel, J.) dismissed the entire docket, pursuant to CPL § 170.30(1)(a), due to the facial insufficiency of the accusatory instruments. Specifically, the court found that the instruments failed to properly allege an essential element of the crimes charged, to wit: operation. This matter was then automatically sealed, pursuant to CPL 160.50(1).
On July 21, 2017, the People refiled new accusatory instruments charging the Defendant with the same offenses listed hereinabove, under Docket No. CR-018751-17NA. At the same time, the People filed what they titled a Certificate of Readiness. After failing to secure the Defendant's voluntary surrender on the newly filed charges, on July 25, 2017 the People obtained a warrant for the Defendant's arrest.
On October 6, 2017 the Defendant was arraigned before Hon. Paul Meli on the newly filed accusatory instruments. The matter was then adjourned to Part 7, for October 20, 2017.
On October 20, 2017 the Defendant was re-arraigned before Hon. Eric Bjorneby on the newly filed accusatory instruments. The matter was then adjourned, at the Defendant's request, to December 5, 2017, for voluntary disclosure.
On December 5, 2017 the People served voluntary disclosure; and, the court set a schedule for the Defendant to make her omnibus motion. The matter was then adjourned to January 19, 2018.
On January 19, 2018 all papers were submitted on the Defendant's omnibus motion; and, the matter was adjourned to March 13, 2018 for decision. On March 6, 2018 the court (Lerose, J.) granted the Defendant a Mapp / Huntley / Dunaway1 hearing.
On March 13, 2018 the matter was adjourned to April 17, 2018.
On April 17, 2018, at the Defendant's request, the matter was adjourned to May 22, 2018, for the ordered hearing.
On May 22, 2018 the People were not ready to proceed with the ordered hearing and requested the matter be adjourned to May 29, 2018. At the Defendant's request the hearing was instead adjourned to July 10, 2018.
On July 10, 2018 Part 7 was closed and the matter was adjourned, off calendar, by stipulation of the parties, to July 24, 2018.
On July 24, 2018 the People were ready to proceed with the ordered hearing. The Defendant was not present on that date; and, at the request of defense counsel, the matter was adjourned to September 4, 2018.
On September 4, 2018 the Defendant waived the hearings ordered by Judge Lerose and filed a motion to dismiss pursuant to CPL § 30.30 and 170.30(1)(e).
The People now move, pursuant to CPL § 160.50, to have the records of this matter, Docket No. CR-030306-16NA, unsealed. In so doing, the People argue that the records under this docket were improperly sealed, that the Defendant has waived any protection afforded by CPL § 160.50 by filing a motion to dismiss pursuant to CPL §§ 170.30(1)(e) and 30.30, under Docket Number CR-108751-17NA, and that the records must be unsealed in the interests of justice, pursuant to CPL § 160.50(1)(d)(ii). The court shall address these arguments seriatim .
The People argue that "the defendant's case was not terminated in the Defendant's favor by this Court's dismissal order, and the Records (sic ) for Docket CR-030306-16NA were improperly sealed." (Memorandum of Law 9/18/18, p.8) More particularly, the People argue:
Although Docket CR-030306-16NA was dismissed for facial insufficiency, the criminal action against the defendant was never terminated as termination is defined in C.P.L. § 160.50 as the People are permitted to cure defective accusatory instruments that are insufficient. When the People filed a new accusatory instrument under Docket CR-018751-17NA, said instrument derived from the first accusatory instrument and is thus part of the same criminal action."
The People confuse the "relation back" doctrine in speedy trial litigation, [See : People v. Sinistaj , 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986) ; People v. Osgood , 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 (1980) ; People v. Lomax , 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980) ] with the sealing of actions or proceedings against a person in favor of such person.
CPL § 160.50(1) provides, in pertinent part, "Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, the record of such action or proceeding shall be sealed." Note the mandatory language employed by this section. See : Matter of Joseph M , 82 N.Y.2d 128, 603 N.Y.S.2d 804, 623 N.E.2d 1154 (1993) ; Wilson v. City of New York , 240 A.D.2d 266, 659 N.Y.S.2d 8 (1st Dept. 1997) CPL § 160.50(3)(b) explicitly and unequivocally provides, in pertinent part:
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: an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30 of this chapter was entered or deemed entered, and the people have not appealed from such order.
As is clear from the foregoing, in defining the phrase "terminated in favor of such person," strictly "[f]or the purposes of subdivision one of this section," the Legislature specifically included any order to dismiss pursuant to CPL § 170.30. This definition in no way affects the "relation back" doctrine as applied in speedy trial litigation, nor impacts one's double jeopardy rights. It is merely an unequivocal Legislative mandate that for sealing purposes, a criminal action or proceeding dismissed pursuant to CPL § 170.30 shall be a termination in favor of the accused. See : People v. Blackman , 90 Misc.2d 977, 979, 396 N.Y.S.2d 982, 984 (Crim. Ct. Queens Co. 1977), wherein the court appropriately noted:
Once the Legislature has explicitly and specifically set forth the circumstance under which a proceeding can be deemed terminated favorably to a defendant, there is no longer any room for judicial interpretation or to seek the intent of the Legislature. The intent is specifically set forth in this case in 160.50(2)2
CPL. In such case the Legislature has mandated the meaning of "terminated in favor os such person" and the court is bound by such mandate. If the Legislature was guilty of an oversight, it is up to that body to correct it.
Given the fact that the accusatory instruments filed under this docket were dismissed due to their facial insufficiency, pursuant to CPL § 170.30(1)(a), this proceeding was terminated in favor of the Defendant; and, the file was properly sealed.
The People correctly note that "a criminal defendant can waive the statutory sealing privilege by placing at issue the conduct underlying the sealed records, which is common or related to the terminated prosecution." (Memorandum of Law 9/18/18, p. 10) See generally : Lundell v. Ford Motor Company , 120 A.D.2d 575, 502 N.Y.S.2d 63 (2nd Dept. 1986) ; Kalogris v. Roberts , 185 A.D.2d 335, 586 N.Y.S.2d 806 (2nd Dept. 1992) The People then, however, try to squeeze a square peg into a round hole by arguing that "[s]ince the defendant has alleged in her motion to dismiss that the People's speedy trial began to run from the filing of the accusatory instrument under Docket CR-030306-16NA, she waived the statutory protection of C.P.L. § 160.50." (Memorandum of Law 9/18/18, p. 12)
As the court made clear in Best v. 2170 5th Avenue Corporation , 60 A.D.3d 405, 873 N.Y.S.2d 631 (1st Dept. 2009), cited by the People, a waiver of sealing will occur when an individual "affirmatively places the underlying conduct at issue by bringing a civil suit." (emphasis added) See also : Green v. Montgomery , 95 N.Y.2d 693, 723 N.Y.S.2d 744, 746 N.E.2d 1036 (2001)
By moving to dismiss Docket Number CR-018751-17NA, pursuant to CPL § 170.30(1)(e), alleging a denial of her speedy trial rights, the Defendant is in no way placing at issue her alleged underlying conduct in Docket Number CR-030306-16NA. What the Defendant is actually putting in issue is the People's conduct, or lack thereof, in allegedly failing to timely move her case to trial pursuant to CPL § 30.30.
Under the circumstances presented herein, there has been no waiver of the Defendant's sealing rights.
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