People v. Nicholas

• Decision Date: 11 February 2008
• Docket Number: 38046.
• Citation: 854 N.Y.S.2d 877,19 Misc.3d 322,2008 NY Slip Op 28049
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MARIA P. NICHOLAS, Defendant.
• Court: New York District Court

19 Misc.3d 322

854 N.Y.S.2d 877

2008 NY Slip Op 28049

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MARIA P. NICHOLAS, Defendant.

38046.

City Court of Watertown.

February 11, 2008.

Julie Hutchins, Public Defender, Watertown (Matthew Porter of counsel), for defendant.

Cindy Intschert, District Attorney, Watertown (Rodney Kyle of counsel), for plaintiff.

OPINION OF THE COURT

JAMES C. HARBERSON, Jr., J.

Issue

CPL 160.55 (1) provides for an automatic notification by the Court Clerk to various agencies that, based upon a conviction of a violation reduced from the original criminal charge, all records should be disposed of and sealed as provided by statute "unless the district attorney upon motion with not less than five days notice ... or the court on its own motion with not less than five days notice ... determines that the interests of justice require otherwise," so the defendant may be heard on the issue.

The defense argues that because the five days' notice was not given before the defendant entered a plea to the reduced charge and the motion was made only after the plea to the violation had been entered it should be considered untimely and the request be denied by the court. The People argue that the request was timely and the motion be considered.

Decision

CPL 160.55 states that "[u]pon the termination of a criminal proceeding" the automatic notification by the Court Clerk shall occur unless a five-day notice of a motion not to seal such records is given by the court or prosecutor. CPL 1.20 (16) and 160.50 (1) taken together provide that a "termination of a criminal action" (CPL 160.50 [1]) occurs "with the imposition of sentence" (CPL 1.20 [16] [c]). Inasmuch as the court has yet to impose sentence, stayed on its own volition on November 12, 2007 to address the opposition to the People's request to not seal the record under CPL 160.55 (1), no sealing can occur automatically so the issue of denying the prosecutor's motion under CPL 160.55 (1) is moot being premature as the operation of the statute cannot yet take place.

Professor Peter Preiser (Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, at 713 [1992 ed]) observed:

"Note however that the 1991 amendment introduced a procedural inconsistency. Subdivision one retains the court's authority to direct that the sealing process is not to take place in individual cases, if it determines that the interests of justice warrant denial of sealing. But any such direction requires a motion on five days notice to the defendant or to counsel. If the provision authorizing the court to deny the right to the benefits of the statute is to remain, the procedure should allow time for the motion prior to the clerk's automatic initiation of the process."

In his 2004 Practice Commentaries for the same section he said:

"In passing, note that the 1991 amendment introduced a minor procedural inconsistency. Thus, while requiring the clerk of the court to take sealing action `upon termination of the action or proceeding', the procedure nevertheless creates a window for the district attorney or the court on its own motion to move to block that action upon five days advance notice to the defendant, which would then require further delay for a ruling. Presumably, this has worked out administratively, as research to date has not uncovered any case law pointing up a difficulty." (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, at 607 [2004 ed].)

It is this "procedural inconsistency" at issue in this case, where on the one hand the clerk is directed by statute to automatically seal the case, while on the other hand it also provides for a five-day delay initially if a motion is made to not seal the records.

Professor Preiser's recommendation in his 1992 Practice Commentaries was that if the provision to allow the "right to the benefits ... is to remain, the procedure should allow time for the motion prior to the clerk's automatic initiation of the process" (at 713). Later in his 2004 Commentaries, the issue not having been addressed by legislation, he assumed the "gap" had been "worked out administratively" (at 607).

In 1980, two courts dealt with the timing of the five days' minimum notice.

In People v Neuman (104 Misc 2d 324 [1980]), the court stated,

"First, as a threshold matter, the court would note that CPL 160.50 does not require the prosecutor to move in opposition within any particular time period, but only that he give at least five days' notice to the defendant that in his opinion the interests of justice do not call for sealing" (id. at 326).

In People v Schleyer (192 Misc 2d 113 [2002]), the court explained:

"Defendant contends that a charge `satisfied' by a plea in another court is a termination of a criminal action in favor of the accused pursuant to CPL 160.50. Upon an adjudication in favor of the accused, the law requires that all records must be sealed unless the District Attorney demonstrates that `the interests of justice require otherwise' (CPL 160.50 [1]). The records in this matter are not presently sealed.

"It should be noted that the mechanism for triggering the sealing, prior to the 1991 amendment, provided that the court was to enter an order to be served by the clerk of the court; the 1991 amendment eliminated the need for a judicial order to effectuate the sealing of records (see, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, at 713)." (Id. at 114.)

In People v Gartenberg (105 Misc 2d 657 [1980]), the court reviewed CPL 160.55 in response to the issues in that case which provides insight to deal with those raised by the defense in this case, even though the automatic sealing provision now a part of CPL 160.55 (1) was not yet part of the statute.

The Gartenberg court wrote,

"Subdivision 2, however, of CPL 160.55, the newly enacted law, states that where a person against whom a criminal action or proceeding was terminated by conviction of a traffic infraction or violation prior to the effective date of that section, that person may upon motion to the court upon not less than 20 days' notice to the District Attorney, move for an order granting the relief referred to therein; and that such an order should be granted unless the District Attorney demonstrates to the satisfaction of the court that the interest of justice requires otherwise.

"The District Attorney herein argues in opposition to the within motion in that at the time the plea bargaining was effectuated in the instant case the present law did not exist. Had the law been in existence, the People would have insisted upon a waiver of the sealing rights as is currently the policy of the District Attorney's office, as part of the plea bargaining. The court cannot delve into the retrospective intentions which may have been included in the negotiations prior to the enactment of this law. The new law specifically states that such applications should be granted even for prior convictions unless the District Attorney demonstrates to the satisfaction of the court that in the interest of justice they require otherwise. More has to be shown to the court in each specific case for this court to avoid the consequences dictated by the newly enacted provisions, since the court must assume that the Legislature in making this provision retroactive would have considered that plea bargaining of prior matters may possibly have been dealt with differently although one cannot say positively what would have been the respective positions at the time without the new law being in effect." (Id. at 658-659.)

In 2004, People v Anonymous (7 AD3d 309 [2004]) dealt with the interplay of the automatic sealing required under CPL 160.50 (1), an oral application by the prosecutor to oppose the sealing of the record, and the court's conduct in response to the situation.

In People v Anonymous, the facts show that "immediately after a jury acquitted defendant, . . . the trial court, upon oral application of the People, stayed the sealing of the record for 30 days, without explanation and over the objection of defense counsel" who argued "that the order staying the record be vacated inasmuch as it failed to comply with the requirements of CPL 160.50" (id. at 310).

The Court ruled:

"We also find that the trial court improperly issued the initial order staying the sealing of defendant's record immediately after his acquittal. CPL 160.50 (1) provides that following the acquittal of a defendant, the record is to be immediately sealed unless the People demonstrate that the interests of justice require that the sealing be stayed `upon motion with not less than five days notice' to the defendant or defense counsel. Here, it is undisputed that neither defendant nor his attorney was ever provided with the requisite five days' notice. Furthermore, the People failed to demonstrate that the interests of justice warranted the issuance of the initial stay since OPMC's investigation was not even mentioned until the People's letter of December 9, 2003. Since the initial stay order was improperly issued, defendant's record should have been sealed on the day of his acquittal and the People's motion to extend the stay should have been deemed a motion to unseal a sealed record." (Id. at 310.)

The court agrees with Professor Preiser's conclusion that the five days' notice of a motion to not seal the record is required to be given to the defendant either by the prosecutor or the court at any time prior to the defendant's plea to a charge reduced from a crime to a violation under CPL 160.55 (1) to "allow time for the motion prior to the clerk's automatic initiation for the process" (1992 Practice Commentaries at 713) at the "termination of a criminal proceeding" (CPL 160.55 [1]).

In this way no defendant will be "surprised" by a motion either by the prosecutor or the court to not seal a record one might reasonably expect to be sealed upon pleading...