Police Com'r of City of New York, Application of

• Decision Date: 04 April 1986
• Citation: 131 Misc.2d 695,501 N.Y.S.2d 568
• Parties: : PEOPLE of the State of New York v. PATRICK M., 1 and ano., Defendants. Supreme Court, Extraordinary Special and Trial Term, New York County
• Court: New York Supreme Court

Page 568

501 N.Y.S.2d 568

131 Misc.2d 695

In the Matter of the Application of the Police Commissioner

of the City of New York For an Order Unsealing and Making

Available Official Records and Minutes of the Supreme Court,

New York County, Extraordinary Special and Trial Term, in

the Proceeding Entitled:

PEOPLE of the State of New York v. PATRICK M., ¹ and ano., Defendants.

Supreme Court,

Extraordinary Special and Trial Term,

New York County.

April 4, 1986.

Dept. Advocate, New York City Police Dept., New York City (Debra A. Hamilton, of counsel), for the People.

Joseph Fallek, P.C., Brooklyn, for defendants.

FELICE K. SHEA, Justice:

On this motion by the Police Commissioner of the City of New York for an order pursuant to CPL § 160.50(1)(d)(ii), the Court must decide whether records of a dismissed criminal proceeding against a police officer should be unsealed for use at his departmental disciplinary hearing. The Police Department, on behalf of the Commissioner, seeks all official records and papers including Grand Jury materials and the files of the New York State Special Prosecutor.

Police Sergeant Patrick M. was indicted September 22, 1982 on two counts of official misconduct in violation of Penal Law §§ 195.00(1) and 195.00(2). On October 1, 1985, this Court dismissed the charges against defendant upon the representation of the Special Prosecutor that the prosecution was unable to prove a prima facie case at trial. Pursuant to CPL § 160.50(1)(c), the Court directed that the official records and papers in this matter be sealed.

The Police Department has lodged charges and specifications against defendant Patrick M. arising from acts alleged in the indictment and contends that an unsealing order is required so that the records of the criminal action may be used at the pending administrative disciplinary proceeding. Defendant opposes the application on the grounds that the Police Department lacks statutory standing to request unsealing of his criminal record, and further, that movant has not demonstrated that justice requires unsealing.

CPL § 160.50 provides in pertinent part:

"1. Upon the termination of a criminal action or proceeding against a person in favor of such person ... the court ... shall enter an order ... directing that:

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"(c) all official records and papers, including judgments and orders of a court ... relating to the arrest or prosecution ... 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, or (iv) the New York state division of parole when the accused is on parole supervision as a result of conditional release or a parole release granted by the New York state board of parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) any prospective employer of a police officer or peace officer ... in relation to an application for employment as a police officer or peace officer; provided however, that evey [sic] person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto." [emphasis supplied] Defendant contends first that the New York City Police Department is not a "law enforcement agency" within the meaning of CPL § 160.50(1)(d)(ii) when it moves for unsealing in furtherance of departmental disciplinary proceedings. Defendant takes the position that the Police Department, in seeking to discipline him, is pursuing a civil punishment in its capacity as employer, and that the Police Department can be a "law enforcement agency" under the statute only when it is performing its principal work of apprehending criminals. The Police Commissioner responds that the Police Department is a "law enforcement agency" within the plain meaning of the statute when it requests sealed records for use at a departmental hearing. Both parties claim to be supported by relevant case law and by their reading of the intent of the legislature.

"The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature." McKinney's Cons.Laws of N.Y., Book 1, Statutes § 92(a). CPL § 160.50 is directed at protecting an accused person from the adverse effects of an arrest record when the result of criminal charges is exoneration. Matter of Anonymous, 95 A.D.2d 763, 464 N.Y.S.2d 194; Matter of Robert S., 123 Misc.2d 225, 473 N.Y.S.2d 112; Governor's Memorandum, N.Y.Legis.Ann.1976, p. 408.

That the legislature is concerned with protecting the accused cannot be doubted. ² An examination of CPL § 160.50 reveals, however, that coupled with the concern of the legislature for the rights of an exonerated accused is a concern for protection of the public. Under CPL 160.50(1)(d) as enacted in 1976, ³ sealed records were to be made available to a prosecutor when the accused moved for an adjournment in contemplation of dismissal of a marijuana charge; to a law enforcement agency upon a showing that justice requires disclosure; and to a gun licensing agency when the accused has made application for a gun license. In 1981, the statute was amended ⁴ to add an exception making sealed records available to the New York State Division of Parole when the arrest occurred while the accused was under parole supervision. In 1985, CPL § 160.50 was further amended ⁵ to permit employers of police officers to have access to criminal records of exonerated applicants and to consider those records in making employment decisions.

CPL § 160.50(1)(d)(ii) is available to "a law enforcement agency upon ex parte motion." ⁶ When unsealing is sought by the police or a prosecutor in furtherance of a criminal investigation, an ex parte application is appropriate since notice might compromise the investigation. On the other hand, a motion to unseal when no criminal investigation is in progress ought to be made on notice. See People v. Blount, 116 Misc.2d 975, 456 N.Y.S.2d 970. The provision for an ex parte motion by law enforcement agencies lends weight to defendant's argument that "law enforcement agency" was intended by the legislature to have a restricted meaning.

Moreover, the statute, when read as a whole, supports the interpretation urged by defendant. If "law enforcement agency" under CPL § 160.50(1)(d)(ii) conferred standing on the police to move for unsealing while acting in all capacities, those portions of CPL § 160.50(1)(d) which give the police access to sealed records for specific purposes would be superfluous. Such an intent should not be imputed to the legislature. McKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 97, 144; Matter of Report of August-September 1983 Grand Jury III, Term XI, 103 A.D.2d 176, 183.

It might appear inconsistent for the legislature to permit the Police Department access to sealed records for the purpose of deciding whether to hire an applicant, and to withhold statutory standing when the records are sought for use in a disciplinary proceeding to determine whether a police officer should be permitted to continue service on the police force. However, any possible omission in the statutory scheme can be remedied only by the legislature. ⁷

There appears to be no decisional law addressing the issue of whether the Police Department is acting as a "law enforcement agency" when it seeks records pursuant to CPL § 160.50(1)(d)(ii) in aid of a departmental disciplinary proceeding. However, there are decisions dealing with related questions which offer guidance.

In a case where the District Attorney moved pursuant to CPL § 160.50(1)(d)(ii) to unseal records for the purpose of belatedly perfecting an appeal, the court refused to entertain the motion ex parte and determined that the prosecutor was not a "law enforcement agency" within the purview of the statute. People v. Blount, 116 Misc.2d 975, 456 N.Y.S.2d 970.

Where access to sealed records has been sought by other disciplinary bodies, the "law enforcement agency" exception in the statute has not been applied. In Matter of Attorney-General, 101 Misc.2d 36, 420 N.Y.S.2d 685 the Attorney General moved ex parte for sealed grand jury testimony in aid of an investigation by the State Office of Professional Conduct into misconduct by doctors. The court denied access under its inherent discretionary power, thus impliedly determining that there was no statutory basis for the motion. ⁸

The attorney discipline cases provide the closest parallel to the facts at bar. The proper administration of justice requires the highest standards of conduct from attorneys who practice law in our courts. Nonetheless, the Court of Appeals has held that an attorney disciplinary committee does not come under the "law enforcement agency" exception in the statute and generally is not entitled to access to sealed records for use in attorney disciplinary proceedings. Matter of Dondi, 63 N.Y.2d 331, 338, 482 N.Y.S.2d 431, 472 N.E.2d 281; Matter of Hynes v. Karassik, 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015.

In this Court's view, the Police Department does not come under the "law enforcement agency" exception to CPL § 160.50 when...