Wayne M., Matter of

• Decision Date: 04 October 1983
• Citation: 467 N.Y.S.2d 798,121 Misc.2d 346
• Parties: In the Matter of WAYNE M, A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 798

467 N.Y.S.2d 798

121 Misc.2d 346

In the Matter of WAYNE M, A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, New York County.

Oct. 4, 1983.

Nanette R. Kripke, The Legal Aid Soc., New York City, for respondent.

Peter Reinharz, Asst. Corp. Counsel, New York City, for petitioner.

DECISION

STANLEY GARTENSTEIN, Judge:

The within prosecution for attempted robbery in the first degree was dismissed upon motion of the presentation agency when it was unable to proceed to trial owing to the fact that complainant, a tourist, permanently left the United States for Sweden.

The presentation agency now moves for an order pursuant to FCA § 375.1(1) to prevent sealing. The statutory basis for such relief requires a finding that sealing would not be in the interests of justice, and tracks a similar statutory scheme applicable to adult criminal courts by virtue of CPL § 160.50. This motion also tracks a significant number of similar applications now before different parts of the court brought on in a substantial number of cases dismissed on grounds other than outright acquittal. Two arguments by the presentation agency support it:

a) that a dismissal (or withdrawal) for unavailability of a complainant, in effect a dismissal for failure to prosecute, does not constitute a favorable termination within the enabling statute;

b) that the respondent at some future time, may, for some ill-defined reason, plead guilty to the charge even though the presentation agency cannot go forward owing to absence of a complainant.

Concerning the first ground, the movant relies upon the opinion of our distinguished Criminal Court colleague, the Honorable Max H. Galfunt, in Peo. v. Bell, 95 Misc.2d 360, 407 N.Y.S.2d 944 which held that a dismissal for failure to prosecute is not a favorable termination under CPL § 160.50 inasmuch as it falls under the plenary powers of the court to control its own calendar (citing Riglander v. Star Co. 98 A.D. 101, 90 N.Y.S. 772, affd. 181 N.Y. 531, 73 N.E. 1131) rather than being rooted in the "interests of justice", the catch-phrase used in both statutory schemes. Judge Galfunt points out that the phrase "interests of justice" has been defined in terms of specific criteria listed in Peo. v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 (subsequently codified by statute in CPL 170.40 and 210.40 et seq.) and that these specific criteria contain no reference to a calendar dismissal for failure to prosecute. However, in Peo. v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385, 306 N.E.2d 402, the Court of Appeals in affirming the action of the nisi prius court specifically referred to a dismissal for failure to prosecute as a dismissal in the interests of justice within the meaning of CPL 170.40. We therefore, respectfully disagree with Bell.

Turning to the second ground, the court regrettably finds itself in the position of being compelled to call the attention of the presentation agency to the Code of Professional Responsibility, DR7-103 (B) which reads as follows:

(B) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

This ethical injunction includes a situation such as the one at bar in which a complainant is unavailable (cf. Peo. v. Jones, 87 Misc.2d 931, 387 N.Y.S.2d 779). ¹

The notion that a defendant or respondent will plead guilty when a complainant is permanently unavailable to testify can only be founded upon either of two possibilities:

a) that the prosecutor in flagrant violation of his or her ethical obligation to disclose this unavailability to adverse counsel has failed to do so; or

b) that knowing that the prosecution cannot possibly succeed, defense counsel nevertheless allows his client to plead guilty.

The first possibility properly furnishes grounds for professionally disciplining a prosecutor; the second a basis for disciplining defense counsel for professional incompetence. We cannot therefore believe that this argument has been advanced other than tongue-in-cheek.

In the final analysis, the within motion (and dozens like it) is based not on any special equity prevailing in this case, but on systemic considerations applicable to any proceeding commenced in this court or the adult criminal courts. As such, it reiterates the same arguments presented by the New York District Attorneys Association when CPL 160.50 was first drafted and approved, arguments rejected both by the Legislature and the Governor. (See Governor's Bill Jacket, Laws of 1976 c. 877, memorandum of N.Y. State District Attorneys Association dated June 17, 1976; Laws of 1977 c. 905 memorandum dated Aug. 3, 1977).

A motion to prevent sealing which states no special equities or unique facts peculiar to a particular prosecution at bar is in the final analysis, framed upon a disagreement with Legislative articulation of the public policy of this state and is properly addressed to the Legislature rather than the court. There is accordingly no basis to deny sealing.

In so ruling the court takes special pains to underscore two critically important points: 1. The notion that the "sealing" statutes are grounded in the presumption of innocence is based upon the non-legal or lay sense of that term, in effect an articulation of a philosophy which is far different from the precise legal meaning of that term as defined by the highest...