Opinion
111375/03.
Decided August 2, 2005.
This is a personal injury action seeking monetary damages for injuries sustained by plaintiff John Munoz on June 23, 2002, when he was allegedly attacked and assaulted. Co-defendant Tangier, LLC d/b/a Sugar ("Tangier") moves for an order, pursuant to Public Officer's Law § 87 and CPLR § 3101(a)(4), directing the New York City Police Department to provide an unredacted copy of the criminal investigation file with respect to co-defendant Angel Rosado ("Rosado"), including the UF-61 Complaint against the defendant; DD-5 Follow Up Detective Reports; RAP sheet on the defendant; and witness statements. Tangier also seeks an order directing the New York County District Attorney to provide grand jury minutes, trial testimony and other records. Plaintiff cross-moves requesting the same relief. Defendant Rosado opposes the motions, arguing that the statutorily sealed records are exempt from disclosure and that disclosure "would constitute an unwarranted invasion of personal privacy." Also, the District Attorney opposes unsealing of the file, arguing that it is not permitted by statute and that movants have failed to follow required F.O.I.L. procedure and have applied to the wrong court for relief. Defendant Tangiers has replied, arguing that defendant Rosado has placed his conduct and the criminal records in issue in his answer, whereby he invoked an affirmative defense alleging plaintiff's damages were caused by his own wrongdoing and cross-claims asking for indemnification and contribution from Tangiers due to its wrongful conduct.
I. Facts
On June 23, 2002, plaintiff John Munoz was allegedly attacked and assaulted by Rosado on the premises of co-defendant Tangier. Rosado was arrested following the alleged assault, which was investigated by the New York City Police Department. Charges were brought, and Rosado was criminally prosecuted. Rosado testified at trial, and he was subsequently acquitted on all counts. Shortly thereafter, the criminal file was sealed. This civil action followed. Defendant Tangier, now, seeks materials and testimony from the sealed file.
II. Conclusions of Law
A. Agency Disclosure Pursuant to Public Officer's Law § 87 and CPLR 3101(a)(4)
CPLR 3101(a)(4) provides:
[g]enerally . . . [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.
Further, Public Officer's Law § 87 makes all agency records "presumptively open for public inspection and copying unless they fall within one of the [eight] enumerated exemptions." See Gould v. New York City Police Dep't., 89 NY2d 267, 274-275 (1996); Moore v. Santussi, 151 AD2d 677 (2nd Dept. 1989). Public Officer's Law § 87(2) enumerates these exemptions and makes certain categories of government records unavailable, including, inter alia, those that "are specifically exempted from disclosure by state or federal statute." Public Officer's Law § 87(2)(a).
Rosado claims that the sought-after records are specifically exempted from disclosure by Criminal Procedure Law (CPL) § 160.50(1), which mandates that "[u]pon the termination of a criminal action or proceeding against a person in favor of such person . . . the record of such action or proceeding shall be sealed." The sealing covers
all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office.
CPL § 160.50(1)(c). See Matter of Harper v. Angiolillo, 89 NY2d 761 (1997). A termination of a criminal proceeding is deemed to favor the accused under several circumstances, including where "a verdict of complete acquittal was made pursuant to section 330.10 of this chapter." CPL § 160.50(3)(c). Sealed records may only be released upon court order in the event of six enumerated exceptions:
(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 (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns . . . or (iv) the New York state division of parole when the accused is on parole supervision as a result of conditional release . . . or (v) any prospective employer of a police officer or peace officer . . . in relation to an application for employment as a police officer or peace officer . . . 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 § 160.50(1)(d). Unless documents are requested for one of these reasons, they will remain sealed. Id.
As recently noted by the Court of Appeals, the enumerated exceptions for unsealing criminal records "are precisely drawn" and may not be expanded upon by a court in the interest of justice. Katherine B. v. Cataldo, ___ NY3d ___ (July 6, 2005); NYLJ, July 7, 2005, at 19, col 3. Moreover, even if a case falls within one of these exceptions, a court order to unseal a criminal case file sealed under CPL § 160.50(3)(c) must be made by motion before a judge of the criminal court that had jurisdiction over the case. Lauricella v. Tanya Towers, 8 AD3d 153 (1st Dept. 2004); Wilson v. City of New York, 240 AD2d 166 (1st Dept. 1997).
It is undisputed that the materials in question here were properly sealed pursuant to CPL § 160.50(3)(c) and do not fall within one of the narrowly drawn and specifically enumerated exceptions permitting disclosure. Additionally, even if they did, the motion has not been made before the proper court. Consequently, an order to disclose New York City Police Department and the New York County District Attorney records pursuant to Public Officer's Law § 87 and CPLR 3101(a)(4), cannot be granted.
B. Order to Disclose As to Defendant Rosado
While disclosure of the sealed records are barred by Public Officer's Law § 87, the Court may direct a party to disclose necessary and material documents. Having gone to trial on this matter, defendant Rosado's criminal defense attorney would be in possession of much, if not all, of the material requested as it, no doubt, was turned over pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963) and People v. Rosario, 9 NY2d 286 (1961).
As discussed above, CPLR 3101(a)(4) provides for expansive discovery. Here, where plaintiff and co-defendant seek documents which speak directly to the facts of the incident and defendant Rosado's credibility, where defendant Rosado has placed plaintiff's and co-defendant's conduct in issue and where the parties offer dramatically different accounts of what took place, the sought-after documents are material and necessary and full disclosure will be ordered. Accordingly, it is
ORDERED that the motion of co-defendant Tangier, LLC d/b/a Sugar to compel disclosure from the New York City Police Department and the New York County District Attorney of agency documents is denied; and it is further
ORDERED that the cross-motion of plaintiff to compel disclosure from the New York City Police Department and the New York County District Attorney of agency documents is denied; and it is further
ORDERED that co-defendant Angel Rosado is directed to authorize his attorney to disclose all requested documents to the extent they exist, to plaintiff and co-defendant Tangier.
The foregoing constitutes the decision and order of the Court.