R.C. v. City of N.Y.

• Citation: 64 Misc.3d 368,100 N.Y.S.3d 824
• Decision Date: 29 April 2019
• Docket Number: 153739/2018
• Parties: R.C., A.G., and J.J., suing under pseudonyms, on behalf of themselves and all others similarly situated, Plaintiffs, v. The CITY OF NEW YORK and James P. O'Neill, New York City Police Department Commissioner, in his Official capacity, Defendants.
• Court: United States State Supreme Court (New York)

64 Misc.3d 368

100 N.Y.S.3d 824

R.C., A.G., and J.J., suing under pseudonyms, on behalf of themselves and all others similarly situated, Plaintiffs,

v.The CITY OF NEW YORK and James P. O'Neill, New York City Police Department Commissioner, in his Official capacity, Defendants.

153739/2018

Supreme Court, New York County, New York.

Decided April 29, 2019

Attorneys for Plaintiffs, Jenn Rolnick Borchetta, Esq., Shakeer Rahman, Esq., Johanna B. Steinberg, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, New York 10451, Johnathan S. Kolodner, Esq., Martine B. Forneret, Esq., Alexandra K. Theobald, Esq., Eric Boettcher, Esq., Pekham Pal, Esq., Michael Cinnamon, Esq., Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York 10006, 212-225-2000

Attorneys for Defendants, Thomas B. Roberts, Esq., Corporation Counsel, Zachary W. Carter, Esq., 100 Church Street, Room 2-110, New York, New York 10007, 212-356-0872

Alexander M. Tisch, J.Plaintiffs R.C., A.G., and J.J. commenced the instant putative class action on behalf of themselves and others similarly situated against defendants the City of New York and James P. O'Neill challenging the New York City Police Department's (NYPD) policy and practice of maintaining, using, and disclosing sealed arrest records in violation of Criminal Procedure Law (CPL) Sections 160.50 and 160.55 (the sealing statutes) and due process rights under the New York State Constitution. Plaintiffs' complaint alleges, inter alia, that the NYPD maintains numerous databases containing information that is sealed under the statutes, but that such information is routinely accessed for investigative and various other purposes without court permission in violation of the statutes.

Defendants move pursuant to Civil Practice Laws and Rules (CPLR) 3211 (a) (7)¹ to dismiss the third cause of action alleging due process violations and all causes of action premised upon allegations concerning the NYPD's own internal use of the sealed information. Defendants do not challenge the legal sufficiency of the claims to the extent that they are premised upon the allegations that the NYPD routinely and unlawfully discloses sealed information to media and other agencies.

CPL § 160.50 provides, in relevant part, that when a criminal action is terminated in favor of the accused "the record of such action or proceeding shall be sealed."²

Section 160.50 (c) states "all official records and papers ... relating to the arrest or prosecution ... on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency." Subdivision (d) of the same section goes on to provide exceptions to sealing:

(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, or in any district court, city court or the criminal court of the city of New York provided that such court sealed the record, 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 department of corrections and community supervision 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 as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every 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, or

(vi) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision.

CPL § 160.60 states the intended effect of the sealing, to wit, that "the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution." It goes on to provide that the arrest or prosecution "shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling," and generally prohibits any inquiry into such arrest or prosecution ( CPL § 160.60 ).

Allegations Concerning NYPD's Internal Use of Sealed Information

In support of their motion, defendants argue that the policy, language, and judicial interpretation of the foregoing statutory provisions of the sealing statutes permit the NYPD to use sealed arrest information³ within its possession for investigatory or other purposes.

It is well settled that "in the construction [of statutes], the intent ... is to be sought first of all, in the words and language employed" ( McCluskey v. Cromwell , 11 N.Y. 593, 601 [1854] ; see Palmer v. Van Santvoord , 153 N.Y. 612, 615-16, 47 N.E. 915 [1897] ). Indeed, "[t]he text of a statute is the ‘clearest indicator’ of ... legislative intent and ‘courts should construe unambiguous language to give effect to its plain meaning’ " ( Matter of Avella v. City of New York , 29 N.Y.3d 425, 434, 80 N.E.3d 982 [2017], quoting Matter of DaimlerChrysler Corp. v. Spitzer , 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] ; see Matter of Alonzo M. v. New York City Dept. of Probation , 72 N.Y.2d 662, 665, 536 N.Y.S.2d 26, 532 N.E.2d 1254 [1988] ). "[I]f the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation" ( McCluskey , 11 N.Y. at 601 ; see id. at 602, quoting Newell v. The People , 3 Selden, 97 [noting that if the plain words "embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then ... there is no room for construction"] ).

As demonstrated infra , a reading of the plain language may very well end the inquiry; however, the Court will address defendants' arguments on the statute's purpose, legislative history, and judicial interpretation (see Matter of Sutka v. Conners , 73 N.Y.2d 395, 403, 541 N.Y.S.2d 191, 538 N.E.2d 1012 [1989] ["Legislative intent may be discerned from the face of a statute, but an apparent lack of ambiguity is rarely, if ever, conclusive"] ). Accordingly, "inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" ( id. ). A review of the plain language, together with the legislative intent, purpose, and judicial interpretation of the sealing statutes renders it abundantly clear that defendants' interpretation of the statute is without merit.

Plain Language

The statutes state that sealed arrest information that is "on file with ... any ... police agency ... shall be sealed and not made available to any person or public or private agency" ( CPL § 160.50 [1 ] [c] ). The plain reading of the words infer that this pertains to sealed arrest information within a police agency's (i.e., the NYPD's) own possession (see Matter of Alonzo M. , 72 N.Y.2d at 665-66, 536 N.Y.S.2d 26, 532 N.E.2d 1254 [analyzing the substantially similar sealing provisions of Family Court Act § 375.1 and finding that the "words and purport of [the statute] are plain"] ).

Further, the statute expressly states what entities may access and use sealed arrest information, for what purpose, and how to gain such access (see CPL § 160.50 [1 ] [d] ). Defendants do not contend that they are not considered a "law enforcement agency" within the specific exception enumerated in subdivision (ii) of CPL § 160.50 (1) (d). Therefore, to access and use sealed arrest information, the NYPD would have to move ex parte and demonstrate to the court "that justice requires that such records be made available to it" ( CPL § 160.50 [1 ] [d] [ii] ). In reading the subdivisions (c) and (d) together, the Court does not find any language by which it should be inferred, as defendants suggest, that the NYPD is permitted to use sealed arrest information maintained in its possession for investigatory purposes or otherwise (see Alonzo M. , 72 N.Y.2d at 665-66, 536 N.Y.S.2d 26, 532 N.E.2d 1254 ["Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, ‘an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’ "], quoting Patrolmen's Benevolent Assn of City of NY v. City of New York , 41 N.Y.2d 205, 208-09, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ). To be sure, the Court of Appeals also found such language to be clear when it held that the New York City Department of Probation violated a substantially similar sealing provision, Family Court Act § 375.1. The Court in Alonzo M. specifically rejected the Probation Department's argument that the sealing provision required a different interpretation because the sealed information was "acquired" from records and files "maintained for itself," i.e., in its own possession (see Alonzo M. , 72 N.Y.2d at 664, 669, 536 N.Y.S.2d 26, 532 N.E.2d 1254 ). Such exception is...