People v. Miller
| Decision Date | 23 May 1977 |
| Docket Number | AP-5 |
| Citation | 394 N.Y.S.2d 1006,90 Misc.2d 399 |
| Parties | The PEOPLE of the State of New York v. Yvonne MILLER, Defendant |
| Court | New York City Court |
Robert Morgenthau, Dist. Atty., New York County, New York City, for the People; Thomas D. Thacher, II, Asst. Dist. Atty., New York City, of counsel.
Henry A. Drescher, New York City, for defendant.
The defendant, by her attorney, has made a motion, pursuant to CPL 160.50, for the return of photographs and fingerprints and for the sealing of her record of arrest and conviction. On July 22, 1974, the defendant was arrested and charged with the crime of prostitution (Penal Law § 230.00), a Class B misdemeanor. On July 23, 1974, at the arraignment, she entered a plea of guilty to a lesser charge, disorderly conduct, a violation (Penal Law § 240.20). She was sentenced to a conditional discharge. The present motion was made on April 14, 1977. Proper service upon the District Attorney was made on April 1, 1977 and no answering affidavit was submitted by him. On April 21, 1977, this court reserved decision on the motion to May 19, 1977.
CPL 160.50 was recently enacted by the Legislature at the 1976 session (L.1976, ch. 877, § 1). Upon the termination of a criminal action or proceeding in favor of an accused person, it mandates that an order be entered and immediately served upon the division of criminal justice services and upon police departments and law enforcement agencies, and that the order direct the return to the accused person or his designated agent of all photographs, plates or proofs, palmprints and fingerprints taken or made; that all official records and papers other than court decisions relating to the arrest or prosecution be sealed.
The text of subdivision 1 is as follows:
" § 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 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."
Subdivision 2 sets forth specific instances of terminations in favor of an accused person. The text of subdivision 2 is as follows:
The first issue to be resolved in the instant matter is whether the defendant, who was charged in 1974, may properly seek to avail herself of the benefit of the relief set forth in this new statute which became effective September 1, 1976, assuming that all of the other prerequisites provided therein were satisfied. The answer is yes. Subdivision 3 so provides as follows:
(Emphasis added)
Having determined that the early date of her conviction is not a bar to this application, the second and most important issue before the court is whether section 160.50 provides for sealing of records, return of fingerprints, photographs, and palmprints in the instant case where the defendant pleaded guilty to a reduced charge, the violation of disorderly conduct.
In People v. Flores, 393 N.Y.S.2d 664 (), the court granted the motion for an order directing the sealing of official records and papers and the return of all fingerprints and photographs taken at the time of arrest.
The court relied in part on Dwyer v. Guido, 54 A.D.2d 956, 388 N.Y.S.2d 636, an Appellate Division, Second Department case.
The facts of the Flores case are as follows: On July 5, 1976, the defendant was arrested and charged with a violation of Penal Law 120.25 (), as well as various traffic infractions arising out of the same auto accident in which pedestrians had been almost struck. Pursuant to CPL 160.10, the defendant was fingerprinted and photographed. Thereafter, on July 7, 1976, the defendant entered pleas of guilty to various traffic infractions, the pleas covered all charges, including reckless endangerment; and all other charges were dismissed. A fine of $150 was paid by defendant. The defendant, who had never been convicted of a...
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