People v. C.W.

Full title: The People of the State of New York, Plaintiff, v. C.W., Defendant.

Court: Supreme Court, Nassau County

Date published: Jul 30, 2021

72 Misc. 3d 1082 (N.Y. Sup. Ct. 2021)

2021 N.Y. Slip Op. 21199

151 N.Y.S.3d 614

Opinion

XXX11-1990

07-30-2021

The People of the State of New York, Plaintiff, v. C.W., Defendant.

For the People of the State of New York: Hon. Joyce Smith, Acting District Attorney of Nassau County by: Kevin C. King, Esq., Of Counsel For the Defendant: Collins, Gann, McCloskey & Barry, PLLC by: Richard D. Collins, Esq.

Angelo A. Delligatti, J.

For the People of the State of New York: Hon. Joyce Smith, Acting District Attorney of Nassau County by: Kevin C. King, Esq., Of Counsel

For the Defendant: Collins, Gann, McCloskey & Barry, PLLC by: Richard D. Collins, Esq.

Angelo A. Delligatti, J.

The defendant, C.W., was convicted, by a judgement of this Court (Boklan, J.) rendered on March 13, 1990, upon his plea of guilty, of one count of attempted grand larceny in the third degree (Penal Law former § 110.00/155.35) and sentenced to 90 days' jail concurrent with five years' probation. The defendant now seeks, in papers dated April 5, 2021, to have the records relating to this conviction sealed pursuant to CPL 160.59. The defendant has appended to his motion the relevant papers listed in CPL 160.50(2)(b). The People oppose the motion, by affirmation dated May 18, 2021. The People claim that this case is ineligible for sealing because the defendant appears to have been convicted, on February 21, 2018 in Spotsylvania County Court, in the Commonwealth of Virginia, of falsely summoning or giving false reports to law-enforcement officials (Virginia Code former § 18.2-461), a class 1 misdemeanor, and to have received a 90-day suspended jail sentence. The defendant has not filed a reply.

Section 160.59 of the Criminal Procedure Law provides for records pertaining to criminal convictions for certain "eligible offenses" to be sealed. An eligible offense is

any crime defined in the laws of this state other than a sex offense defined in article one hundred thirty of the penal law, an offense defined in article two hundred sixty-three of the penal law, a felony offense defined in article one hundred twenty-five of the penal law, a violent felony offense defined in section 70.02 of the penal law, a class A felony offense defined in the penal law, a felony offense defined in article one hundred five of the penal law where the underlying offense is not an eligible offense, an attempt to commit an offense that is not an eligible offense if the attempt is a felony, or an offense for which registration as a sex offender is required pursuant to article six-C of the correction law.

CPL 160.59(1)(a). A defendant convicted of two such eligible offenses, no more than one of which is a felony, may apply for sealing no earlier than ten years after the date of the last such conviction (excluding any time spent incarcerated). See CPL 160.59(5). A court is required to deny such an application where, as relevant here, "the defendant was convicted of any crime after the date of the entry of judgement of the last conviction for which sealing is sought." CPL 160.99(3)(f).

The term "crime" refers to either a felony or a misdemeanor, both of which are types of offenses. See Penal Law § 10.00(4), (5), (6). An offense is defined as "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same." Penal Law § 10.00(1) (emphasis added). These definitions apply with equal force to the provisions of the Criminal Procedure Law. See CPL 1.20.

Applying these definitions, all offenses, including crimes, cannot arise from the violation of laws enacted by any entity other than the State of New York or any of its political subdivisions. Thus, even where a violation of an out-of-state statute might be a crime, such violation does not fit within the statutory definition of a crime and cannot, with certain exceptions, ¹ be considered a crime within the framework New York criminal practice. The law ² that the defendant appears to have violated in 2018 was enacted by the Commonwealth of Virginia, which is neither the State of New York or a political subdivision thereof. It follows that, in the context of CPL 160.59, notwithstanding his 2018 Virginia conviction, the defendant has not been convicted of a "crime" since his 1990 conviction.

1 One example of such an exception is in the context of determining whether a defendant has been convicted of a predicate felony for sentencing purposes, where the statute makes specific reference to out-of-state convictions. See Penal Law §§ 70.04(1)(b)(i); 70.06(1)(b)(i); 70.08(1)(b); 70.10(1)(b). CPL 160.59 contains no such reference.

2 The Virginia statute is a law and cannot fairly be characterized as an order, rule, or regulation.

Finally, upon weighing the factors listed in CPL 160.59(7), this Court finds that the records of the instant conviction should be sealed. Accordingly, it is

ORDERED that the judgment of conviction in the above-listed criminal action, including covered charges, are sealed pursuant to CPL 160.59, and it is further

ORDERED that the clerk of the court shall enter the sealing in accordance with the provisions set forth in subdivisions eight and nine of CPL 160.59.