| People v Anonymous |
| 2018 NY Slip Op 03097 [161 AD3d 401] |
| May 1, 2018 |
| Appellate Division, First Department |
[*1](May 1, 2018)
| The People of the State of New York,Respondent, v Anonymous, Appellant. |
Rosemary Herbert, Office of the Appellate Defender, New York (Katherine M.A. Pecore ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered September 10,2015, convicting defendant, upon his plea of guilty, of criminal possession of a controlledsubstance in the fourth degree, and sentencing him, as a second violent felony offender, to a termof eight years, affirmed.
Defendant pleaded guilty to criminal possession of a controlled substance in the fourthdegree. The court agreed to delay sentencing on the condition that defendant was not rearrestedor did not commit any new crimes. Prior to sentencing, defendant was arrested for robbery. Hetestified on his own behalf at the trial and denied the robbery while admitting to a drug crime.Defendant was acquitted at that trial and the record was sealed. The People in the instant mattersought an order to unseal defendant's testimony during sentencing to show that defendantviolated a condition of the plea based on defendant's statements during the robbery trial. Thecourt unsealed the record pursuant to CPL 160.50 (1) (d) (ii). The issue on appeal is whether theunsealing order in this case was justified. We conclude that the People were not entitled to anorder unsealing the record for the purpose of making a sentencing recommendation. However,defendant is not entitled to a new sentencing proceeding or a reduced sentence.
In Matter of Katherine B. vCataldo (5 NY3d 196 [2005]), the Court of Appeals noted that there are only a fewnarrow exceptions to the prohibition against releasing sealed records. It held that the "lawenforcement agency" exception in CPL 160.50 (1) (d) (ii) did not authorize the unsealing ofrecords for sentence recommendation purposes by the prosecution. The People attempt todistinguish Katherine B. by arguing that the unsealed testimony here was given whiledefendant was awaiting sentencing and did not involve conduct that predated the commencementof the instant case. We find this to be a distinction without a meaningful difference in terms ofthe protections offered by the sealing statute.
The People suggest that the circumstances here are extraordinary and that unsealing wasnecessary to fulfill the court's general due process duty to sentence based on accurate and reliableinformation and its statutory duty to "take into consideration the defendant's record ofcompliance with pre-sentence conditions ordered by the court" (CPL 400.10 [4]). However, thesentencing court in Katherine B. was under an identical due process duty and a similarstatutory duty (see CPL 380.50 [1]; see also CPL 390.40 [1]).
We conclude that a distinction may not be drawn between Katherine B. and this caseon the ground that the unsealed material here did not relate to "acquitted conduct"—i.e.,the robbery regarding which defendant was tried and acquitted—but rather involved anuncharged drug crime. The core purpose of the sealing statute is to protect against the disclosureof information directly relating to a charge that terminates in a defendant's favor. Prohibiting theprosecution from obtaining defendant's sealed trial testimony in this case comports with the basicprinciple that the defendant "suffers no stigma as a result of his having once been the object of anunsustained accusation" (Matter of Hynes v Karassik, 47 NY2d 659, 662[1979]).
[*2] However, while we agree withdefendant that the unsealing was improper, we reject his request for resentencing. In People vPatterson (78 NY2d 711 [1991]), the Court of Appeals held that suppression was notrequired where the police obtained identification evidence in violation of CPL 160.50, and thewitness then identified the defendant in court. The Court ruled that "there is nothing in thehistory of CPL 160.50 or related statutes indicating a legislative intent to confer a constitutionallyderived 'substantial right', such that the violation of that statute, without more, would justifyinvocation of the exclusionary rule with respect to subsequent independent and unrelatedcriminal proceedings" (id. at 716; see also People v Greene, 9 NY3d 277, 280 [2007]). We concludethat defendant is entitled to no greater relief based on the statutory violation that resulted in thecourt's consideration of the improperly unsealed information at sentencing than he would havebeen entitled to had the information been admitted at trial (see Barry Kamins, New YorkSearch and Seizure § 1.01 [7] [k] ["(c)ourts have uniformly held that in sentencing adefendant, a court may properly consider evidence that was previously suppressed"]; see e.g.People v Brown, 281 AD2d 700, 702 [3d Dept 2001], lv denied 96 NY2d 826[2001]). Thus, we are obligated to affirm based on Patterson.
We need not address the People's argument that consideration of the unsealed transcript washarmless in light of independent evidence in the record that defendant engaged in a drugtransaction, violating a condition of his promised sentence, while he was awaitingsentencing.
In light of our decision, the record of the robbery trial should be resealed.Concur—Renwick, J.P., Richter and Gesmer, JJ.
Tom and Oing, JJ., concur in a separate memorandum by Tom, J., as follows: I writeseparately because it is unnecessary to determine whether or not the People were entitled to anorder unsealing the record. As the majority recognizes, regardless of whether the unsealing waspermissible, defendant is not entitled to a new sentencing proceeding at which the unsealedmaterial would be excluded or a reduced sentence.
Indeed, the "violation of a statute does not, without more, justify suppressing the evidence towhich that violation leads" (People vGreene, 9 NY3d 277, 280 [2007], citing People v Patterson, 78 NY2d 711,716-717 [1991]). In Patterson, the Court of Appeals held that suppression of evidence attrial was not required for violations of CPL 160.50. Similarly, in Matter of Charles Q. vConstantine (85 NY2d 571, 575 [1995]), the Court of Appeals found that a violation of CPL160.50 did not require the exclusion of evidence from a disciplinary proceeding. Thus, if asealing-statute violation does not entitle a defendant to suppression of improperly unsealedmaterial at trial or a disciplinary hearing, such a violation would not entitle defendant to aresentencing (see People vMosquea, 18 AD3d 228 [1st Dept 2005]).
Moreover, the parties disagree whether any additional circumstances existed which wouldpermit the court to unseal criminal records, in particular to effect a "legal mandate" that would be"impossible to fulfill without unsealing criminal records" (Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23NY3d 570, 581 [2014]). In this regard, they dispute whether the sentencing court's mandateto determine whether defendant complied with the plea conditions (see CPL 400.10[1]-[4]) warranted the unsealing. The parties further argue over whether the facts of thiscase—including that the court knew in advance what the records contained, and that theunsealing was only to learn of the crimes defendant admitted committing under oath and notabout the crimes he was acquitted of—are distinct enough from Matter of Katherine B. v Cataldo (5NY3d 196 [2005]) to warrant a different result.
While we do not need to make a determination of this issue to decide this appeal, the Courtof Appeals has recognized "other sources of authority permitting access to sealed records"beyond those individuals and agencies enumerated in CPL 160.50 (Rubenstein, 23 NY3dat 580; see also Matter of Dondi, 63 NY2d 331 [1984] [grievance committee entitled toaccess sealed criminal records]).
It is my opinion that we cannot state whether the Court of Appeals would find that thesentencing court's legal mandate to determine whether a defendant complied with plea conditionswould permit the court to access sealed criminal records for that purpose. As argued [*3]by the People, such permission may be appropriate when faced withthe circumstances presented here, particularly that the unsealing was limited to discoveringadmissions made by the defendant about crimes he committed, and not to utilize informationabout other crimes he was acquitted of after trial under a separate indictment.