Thursday, October 20, 2011

Sealed Records Cannot Be Obtained Solely For Use In Pending Criminal Proceedings

The sealing requirement of CPL 160.50 "was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused" http://www.blogger.com/img/blank.gif(Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997. The limited exceptions to the sealing requirement are to be strictly construed in accordance with this purpose.

In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that

petitioner relied upon an exception that permits a law enforcement agency to obtain the release of sealed records if "justice requires that such records be made available to it" (CPL 160.50 [1] [d] [ii]). The Court of Appeals has clarified, however, that "[t]he statute's . . . primary focus is the unsealing of records for investigatory purposes" and, as such, the exception is analogous to other investigatory tools employed to uncover criminal conduct "prior to commencement of a criminal proceeding" (Matter of Katherine B. v Cataldo, 5 NY3d at 205 [emphasis added]). Apart from a "singular circumstance" not present here, the exception does not apply to a prosecutor — such as the Pennsylvania district attorney prosecuting respondent's case — seeking sealed records "after commencement of a criminal proceeding" (id.; see Matter of Akieba Mc., 72 AD3d 689, 690 [2010]; Preiser, 2005 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, 2011 Supp Pamphlet, at 125-126). A Pennsylvania police department also sought the records, but there is no indication that its "investigation" was in any way separate — at the time of the request — from the pending prosecution. Indeed, the only reasons given for seeking the records were for their admission at trial, as well as to assist in respondent's sentencing and evaluation for sex offender registration purposes.

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