Smith, In re
| Decision Date | 19 May 1970 |
| Citation | 63 Misc.2d 198,310 N.Y.S.2d 617 |
| Parties | In the Matter of Earl SMITH and Ricardo Vasquez, Children Alleged to Be Juvenile Delinquents. * Family Court, City of New York, New York County |
| Court | New York City Court |
John J. Sullivan, New York City, by Hugh A. Scott, Police Dept. of New York City, for petitioners.
Harold J. Rothwax, New York City, by William Resnick, Mobilization for Youth, for respondents.
This is a motion by respondent-juveniles at the close of a juvenile delinquency proceeding against them, for an order directing the expungement of all court and police records relating to it and to their arrests.
The police took the 14 and 15 year old respondents into custody during a demonstration in front of a public school. Then, the proceeding in this court was initiated by juvenile delinquency petitions, attested by policemen, alleging acts by respondents which would constitute, if committed by adults, the crimes of unlawful assembly and riot, under Penal Law secs. 240.05 and 240.10. At the opening of trial, counsel for the New York City Police Department, representing the petitioners, was granted permission to withdraw the petitions, on his motion on the ground that he did 'not believe that we have enough evidence here to make out a prima facie case.' Respondents' present motion to expunge the court and police records relating to the petitions and to their arrests, contends that these records will stand as obstacles ot respondents' progress for years to come, particularly if they seek public employment after completing school.
While respondents' motion presents judicial questions of first impression, the handicap of a juvenile court record or a police record to a youth trying to gain a foothold in the job market, has concerned commentators on justice for juveniles and the underprivileged. 1 The most frequent respondents in juvenile delinquency cases in New York City, as elsewhere, appear to be children of the minorities and of the poor, as indeed are the instant respondents. The Court obviously cannot determine this case on the basis of the general social commentaries cited by respondents' diligent counsel. However, having considered the instant circumstances, the legal grounds for relief, and the jurisdiction of this Court, it has concluded that the motion should, with some modifications in the requested remedy, be granted.
Despite the prohibition on inspection of Family Court files, 2 employers secure knowledge of a juvenile delinquency petition in a job applicant's past, through a simple expedient--requiring him, as a condition of seeking employment, to obtain a court clerk's certificate of his record in this Court. 3
As to attest records, the New York City Police Department's regulations on confidentiality explicitly make exceptions for the release of information, in the discretion of the commanding officer, to the New York City Department of Personnel, the United States Civil Service Commission, the State Liquor Authority, and to any City agency as to any incumbent employee (Regulations of New York City Police Dept., c. 2 par. 6.0). The regulation does not differentiate between juvenile and adult arrest records, which are maintained in separate files but on the same forms and in the same central office.
While a police spokesman stated that the discretion to release information to the specified agencies about job applicants is not presently exercised, it appears that the practice varies from time to time (See Matter of Adler v. Lang, 21 A.D.2d 107, 108, 248 N.Y.S.2d 549, 551, 1st Dept., 1964). In any event, there is no question that arrest records are made available as to applicants for employment in the Housing, Transit or City Police or any other 'uniformed service' (e.g., firemen, court officers), and also as to applicants to the Police Department's licensing division for hack owner's or driver's licenses.
With respect to private employers, there is reason to doubt that the prohibition on access to police arrest records is rigidly enforced. 4 Additionally, arrest records unquestionably are disclosed to any employer who obtains a waiver of confidentiality from the job applicant.
While a Court Clerk's certificate would show that the juvenile delinquency petitions against respondents were 'withdrawn' and this termination Might also be inserted on the police arrest records, knowledge of this outcome would be unlikely to dissipate a potential employer's suspicions and doubts as to respondents' reliability. Employers, like the general public, tend to conclude from a charge and an arrest that 'where there is smoke, there must be fire,' and they may automatically disqualify applicants with arrest records when there are sufficient untarnished applicants.
Thus, even with the fair standards and procedures required of the New York City Civil Service Commission, it nevertheless disqualified an applicant for employment in part because of an arrest on a charge that was later dismissed--and there the arrest and the dismissal occurred ten years befroe the application for employment (Lang, above, 21 A.D.2d at p. 112, 248 N.Y.S.2d at p. 555). See also Cuccio v. Dept. of Personnel-Civil Service Commission of N.Y.C., 40 Misc.2d 345 346--347, 243 N.Y.S.2d 220, 221--222 (Sup.Ct.N.Y., 1963). 5 Indeed, 'about 75% Of the employment agencies sampled * * * in the New York City area * * * do not refer any applicant with a record regardless of whether the arrest was followed by a conviction.' 6 While less specific data is available as to the consequences of juvenile than of adult arrest records, it would seem that they are equally onerous, depending on the stage of life of the job-seeker.
Thus, in the economic world that respondents must prepare to enter, there tends to be a presumption of guilt from an arrest record, rather than the presumption of innocence that in the world of legal theory prevails until conviction. 7 On the instant motion, this Court--like respondents, their parents, and their community--must concern itself with the law in action, with the true impact, whether intended or unintended, of the system of justice upon their lives.
1. For an employer to draw any suspicion or inference of respondents' misconduct from their arrests and delinquency petitions would be especially unfair because the withdrawal of the petitions was due to a complete lack of evidence rather than a mere procedural snag 8 (this Court noticing that in practice petitioners attempt to establish a prima facie case if they have even a scintilla of evidence). Accordingly, respondents' motion is supported by analogy to the judicial power to grant protection against injury from a false, defamatory connotation. 9
2. Since there is no evidence of respondents' misconduct, there is no public interest from a law-enforcement standpoint in maintaining these records, except for statistical purposes (that is, without preserving respondents' names on them). See Wheeler v. Goodman, 306 F.Supp. 58, 65--66 (W.D.N.C.1969): 'Criminal investigation is not subserved in the least by retention of the files' of persons who have 'committed no crimes.'
Any reliance by law-enforcement officers on respondents' arrest records not only would be unsound, but also might be seriously harmful. For respondents' arrest records would render them a likely focus of police suspicion in the event of any neighborhood illegality; the records would tend to pin on them the burdensome--and sometimes self-fulfilling 10--tag of 'trouble-maker.'
In sum, the Court and police records in their present form pose threats of injury to the respondents without justification in the public interest in law-enforcement--and indeed contrary to the public interest in helping deprived youths climb out of the poverty ghetto. Accordingly, a second and significant basis for relief for respondents is that the State's maintenance of the records constitutes an infringement of the Constitutional guarantees of due process and equal protection of the law. 11
3. Besides the above general grounds for judicial relief, respondents, as juveniles, can voice a special plea. Mindful of the stresses, spontaneity, and plasticity of youth, the draftsmen of the Family Court Act sought to forestall future handicaps for young people even from adjudications of delinquency (see Sec. 783); a Fortiori the juvenile should be protected against the effects of a withdrawn petition. Again, the Act attempts to safeguard juveniles from adverse use of their arrest records (Sec. 784), and indeed to prevent the very existence of a juvenile 'arrest' record, by using the phrase 'taken into custody' instead of 'arrest' (Fam.Ct.Act, secs. 721--724). Certainly, these provisions were intended to be more than 'an empty gesture' (see Lang, above, 21 A.D.2d at pp. 110--111, 248 N.Y.S.2d at pp. 553--554; also Anonymous v. N.Y.C. Transit Authority, 4 A.D.2d 953, 167 N.Y.S.2d 715 (2nd Dept., 1957); and the courts must effectuate the legislative intent when it is frustrated by unforeseen practices.
4. It might be argued that relief is inappropriate because there has been no proof of the imminence of injury to respondents from the instant records. But the appearance as well as the actuality of fairness is essential in the administration of justice. 12 To maintain records of unproven charges against respondents appears unfair, because of the potential harm from these waste-products of the legal system even if they are never in fact used adversely. Respondents should be freed from the fear of an unfair handicap in securing employment--particularly in the civil service, which offers a primary path for upward mobility to minority youths like respondents.
Furthermore, it is unfeasible to condition relief on an actual or imminent adverse use of the records because respondents...
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