Opinion
38046.
Decided June 9, 2008.
CINDY INTSCHERT, DISTRICT ATTORNEY OF JEFFERSON CO., By: Attorney Rodney Kyle, Watertown, New York.
JULIE HUTCHINS, PUBLIC DEFENDER OF JEFFERSON CO., By: Attorney Matthew Porter, Watertown, New York.
This decision is a follow-up to People v Nicholas (2008), 19 Misc 3d 322, in which the defendant was allowed to withdraw her plea for the reasons stated therein and then elected to plea to a violation. It is to address the motion by the People to bar the sealing of the records under CPL 160.55 (1) in the interest of justice.
The issue in this case requires a review of two public policies of the State. The first is the concern for the safety and welfare of children and the second is the automatic sealing of the record of an arrest for a criminal charge that has been dismissed and/or reduce to a violation to which a defendant has admitted guilt under CPL Sections 160.50(1) and 160.55(1).
The State policy to protect the safety and welfare of children needs no explanation. The policy behind sealing criminal records under CPL 160.50(1) and 160.55(1) was stated by the Court of Appeals in Mtr of Katherine B v Cataldo (2005), 5 NY3d 196:
"The sealing requirement 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 ( Harper, 89 NY2d at 766). That detriment to one's reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions. The statute's design is to lessen such consequences' ( Hynes, 47 NY2d at 662 [citations omitted])." Id. p. 202.
This decision will focus only on the question of whether under CPL 160.55(1) it is in the interest of justice to bar the sealing of a record maintained at the division of criminal justice services (DCJS) as well as at other agencies listed there when the facts admitted to by a defendant involve conduct that endangered the safety and welfare of a child. The Court does not address a situation where a charge has been dismissed and the records are automatically sealed by CPL 160.50(1) in deciding this case. In this case because the defendant's admission to facts evidencing conduct that endangered the health and safety of a child was under a plea to a violation the sealing provisions of CPL 160.55(1) only effect records not filed in this Court ( Nicholas, supra, p. 330).
The decision of whether or not to seal a record under 160.55(1) is based upon whether or not it is in the interest of justice to do so. There is a body of jurisprudence dealing with leaving a child alone arising from criminal and family court decisions that are helpful in deciding how to apply the "interest of justice" standard in this case where a child was left unattended in a motor vehicle by the defendant.
People v Watson (1999), 182 Misc 2d 644, dealt with a motion under CPL 170.40(1) to dismiss the case in the interest of justice in which the defendant was charged "with endangering the welfare of a child in violation of Penal Law Section 260.10(1)" (id. p. 645). The facts alleged that the defendant ". . . left a seven-year-old child alone in a locked apartment for approximately2 ½ hours" (id.).
The Court then applied ". . . the factors set forth in CPL 170.40(1)(a) through (j)" before finding no "compelling factor, consideration or circumstance" merited dismissing the charge in the interest of justice based on the facts alleged. The Watson Court in application of these factors stated, in part,
(a) Seriousness of the offense
It is obvious that the offense charged is inherently serious.
(b) Extent of harm caused by the defendant
Although the extent of harm caused by the defendant's actions consisted, in this instance, of an allegation that the child was merely scared, it is reasonably foreseeable that extreme harm could come to a young child who is left alone at home (e.g., accidents, fires, intruders).
(c) Evidence of guilt
Sufficient evidence exists to form a strong case against the defendant. The defendant has admitted that he left the child alone at home.
(d) History, character and condition of the defendant
Although the various personal background factors enumerated by the defendant may be considered in mitigation upon imposition of sentence, they do not rise to the level of requiring the court to act favorably on the defendant's request to dismiss. Moreover, the fact that the defendant does not have a prior criminal record, standing alone, does not warrant the relief sought. (See, People v Crespo, 244 AD2d 563, 564 [2d Dept 1997], lv denied 91 NY2d 925.)
(f) The purpose and effect of imposing a sentence authorized for the offense upon the defendant
Among the purposes of imposing a sentence upon a defendant who is convicted of a crime is deterrence. The deterrence is aimed at the defendant and at the public at large. In the event that a dismissal is granted, the defendant, or any other person, may think it acceptable to leave small children at home without proper supervision. The effect of imposing a sentence is to inform the public that the conduct engaged in by the defendant will not be tolerated.
(g) The impact of dismissal on the safety or welfare of the community
The safety and welfare of young children in the community will be affected by a dismissal of the charges. As noted above, without punishment others may disregard the importance of providing proper supervision for children.
(h) The impact of dismissal upon the confidence of the public in the criminal justice system
A dismissal of these charges would cause the public to lose confidence in the criminal justice system. The public would view the system as unconcerned or cavalier about the welfare of children. Id. pps. 651-652.
In People v Barrios (1994), 160 Misc 2d 612, the Court was asked to dismiss a charge against the defendants under P.L. 260.10(1) in the furtherance of justice under CPL 170.40(1) because ". . . the prior adjudication of the Family Court proceeding compels the dismissal of these charges in the furtherance of justice" (id. p. 613). The Court applied in making its decision factors (a) to (j) of CPL 170.40(1) including,
F. Purpose and Effect of Imposing a Sentence
Defendants argue that the ameliorative provisions of the Family Court order render unnecessary any sentence this court might impose. Specifically, the Family Court order removes the children from the custody of the parents, requires the parents to engage in parenting skills classes, to cooperate with other referrals from the Child Welfare Administration, and requires the mother to remain drug free. However, the Family Court serves a function very different from that of the criminal court. A child protective proceeding is civil in nature. ( Matter of Nicole V., 71 NY2d 112.) Its purpose is to protect children from injury or mistreatment, safeguard their physical mental, and emotional well-being, and insure the parent's right to due process of law. ( Supra; Family Ct Act Section 1011.) In contrast, the function of the criminal justice system is not just protection, but deterrence, rehabilitation and retribution. ( People v McConnell, 49 NY2d 340.) It provides an appropriate public response to the particular offense committed. (Penal Law Section 1.05.) The entry of a Family Court dispositional order, protective and rehabilitative in nature, does not serve the legitimate and necessary function of seeing that criminal behavior is both punished and deterred. Such a distinction requires the continuation of the penal process.
G. Impact on the Safety and Welfare of the Community
Courts of criminal jurisdiction have the duty of advancing the safety and welfare of the community through the just enforcement of its law. This interest is particularly compelling when the safety and welfare of a child is involved. ( New York v Ferber, 458 US 747, 756-757, upon remand 57 NY2d 256.) One purpose of the Penal Law is "[t]o insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection." (Penal Law Section 1.05.) Disclaiming this important duty and interest because of the prior civil adjudication would have an adverse impact on the safety and welfare of the community.
H. Impact Upon the Confidence of the Public in the Criminal Justice System
Likewise, public confidence in the criminal justice system would be eroded by a dismissal of the instant case. This case involves disturbing allegations of harm inflicted upon a child. Society has a right to expect that criminal behavior directed toward its most defenseless members will not be tolerated, and that allegations of such behavior will be given the court's full and careful attention. Id. pps. 616-617.
In People v Hogan (2004), 5 Misc 2d 151, the Court had occasion to determine whether to seal a record under CPL 160.50(1) when the People oppose such sealing in the interest of justice. In order to resolve the question Judge Morse prefaced his answer stating "[B]orrowing from the factors a Court is to apply in considering the interest of justice' in other contexts . . . [citing CPL 170.40, 210.40]" (id. p. 169) was appropriate, before going on to incorporate some factors listed in those sections upon which to explain its decision not to seal the records "in the interest of justice" under CPL 160.50(1).
In order to apply the interest of justice standard under CPL 160.55(1) in deciding whether to prohibit the sealing of a criminal record the Court agrees considering the context of the issues in this case that the "[C]ourts of criminal jurisdiction have a duty of advancing the safety and welfare of the community through the just enforcement of its laws . . . [an] interest . . . particularly compelling when the safety and welfare of a child is involved" ( Barrios, supra, p. 616).
The Watson and Barrios cases considered under the CPL 170.40(1) interest of justice standard granting the defendant charged with a crime the benefit of a dismissal while this case involves considering under the CPL 160.55(1) interest of justice standard depriving the defendant of the benefit of a sealing of the criminal record.
A CPL 170.40(1) interest of justice motion requires the court to consider the specific criteria listed there, in whole or in part, in making its decision of whether it finds "some compelling factor, consideration or circumstance clearly demonstrating" upon which to base a decision to dismiss a criminal charge in the interest of justice, while a CPL 160.55(1) interest of justice motion does not provide such criteria.
In considering, then, whether to grant a motion to bar the sealing of a criminal record under CPL 160.55(1) the "interest of justice" wording is a verbal threshold placed in the statute to guide the court in making its decision. In Hogan the Court considered the "interest of justice' [used] in other contexts [170.40]" and elected to "borrow" factors from them in making a decision to grant interest of justice relief in that case under CPL 160.50(1) (id. p. 169).
This Court agrees with that approach in deciding a motion under CPL 160.55(1). The "interest of justice" verbal threshold would require the Court to find from the facts in a case "some compelling factor, consideration or circumstance" to qualify granting relief under that rubric from case law ( People v Clayton (1973), 41 NY2d 204) and incorporated in CPL 170.40(1), as well as relying on appropriate "factors" from CPL 170.40(1)(a) to (f) as criteria to refer to in its decision ( Hogan).
The Court finds using this approach to guide it in balancing the concerns of the community in protecting children and the interest of an individual defendant in a sealed record when deciding the issue provides for "the just enforcement of its laws" ( Barrios, supra, p. 616).
The facts admitted to by Ms. Nichols were that she left an eighteen month old child alone in a vehicle strapped into a car seat on March 16, 2007 at 4:30 p.m. in a public parking lot for over 25 minutes with the motor running while she had a tanning session.
When initially confronted with the situation she advised the officer it was her child and that she had another person in another car parked in the same lot watching the child. All of these statements were false as supported by the fact the witness who discovered the child's situation saw no other cars and/or persons in the lot at that time and the actual mother of the child was found not to be Nicholas as she had originally informed the investigating officer on the phone. She never informed the real mother about the incident and when she did, she lied to her claiming another person was at the lot watching the infant as it slept in the car while the engine was running for over 25 minutes.
In order to determine if the facts admitted to by the defendant amount to meeting the interest of justice threshold by showing "some compelling factor, consideration or circumstance" based on leaving a child alone and unattended, a review of the "child alone" New York jurisprudence gives perspective to the issue.
Professor Douglas J. Besharov (Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Judiciary-Court Acts Sect. 1012, at 363 [1999 ed]) addresses the topic "children left alone" based on Family Court standards.
He states that ". . . allegations brought under this provision [1012(f)(i)(B) Neglected Child'] are those involving children left alone or in unreasonably dangerous situations both at home and away from home . . . some children are locked in cars while their parents go shopping or attend a movie . . . inherently dangerous behavior . . . [that could be] fatal" (id. p. 363); and dealing with ". . . very young children left at home alone . . . [as] [S]ome children are simply too young to be left alone no matter how safe the home environment seems" (id. p. 364).
He points out that "[T]he need for easy decision-making notwithstanding, there is no way of specifying when children are old enough to be left unattended, and for how long" and concludes that "[H]ence, each situation must be judged individually" thereafter setting forth nine factors that ". . . should be considered in deciding whether a child was too young to be left alone" (id. p. 365) under the circumstances of the case.
In Watson the Court opined that leaving a seven year old child alone in a locked apartment for over two hours was an "inherently serious" charge because it was "reasonably foreseeable that extreme harm could come to a young child . . . left alone at home." The Court went on to state that it was unacceptable "to have small children at home without proper supervision . . . [that] will not be tolerated" (id. p. 651).
In Barrios, the Court stated the public policy of this State's concern for the safety and welfare of the community ". . . is particularly compelling when the safety and welfare of a child is involved" before going on to state "[S]ociety has a right to expect that criminal behavior directed towards its most defenseless members will not be tolerated" (id. pps. 616-617).
Prof. Besharov said leaving a child alone "in unreasonably dangerous situations . . . at home or away from home . . . locked in cars while their parents go shopping or attend a movie . . . [is] inherently dangerous behavior . . . [that could be] fatal" (id. p. 364).
He goes on to say that despite the "need for easy decision-making . . . there is no way of specifying when children are old enough to be left unattended, and for how long" (id. p. 365). He concludes in order to "whether a child was too young to be left alone" that "each situation must be judged individually" suggesting nine factors that should be considered in each case (id).
In People v Rickert (1983), 58 NY2d 122, the Court observed that when a court decides an issue using the interest of justice standard it was not an "untrammeled right to act on purely subjective considerations. Required, rather, was a sensitive balancing of interests of the individual and of the People . . ." (id p. 127). In this case the "sensitive balancing of interests" is the "stigma" associated with an arrest record for a crime that would be sealed in the defendant's interests and society's interest in the welfare and safety of children.
Prof. Besharov plainly stated that leaving a child in a locked car while "shopping" was "inherently dangerous behavior" that could be "fatal." In Watson concluded leaving a child of seven alone in a locked house for over two hours was "inherently serious."
It is clear not all "child alone" situations are per se "inherently dangerous" and as Prof. Besharou correctly states "each situation must be judged individually" considering nine suggested factors to guide the Court's inquiry in assessing each case in a Family Court hearing.
The Court finds that the conduct of the defendant in this case "borrowing" ( Hogan) factors from CPL 170.40(1) and/or those outlined by Prof. Besharov it was "reasonably foreseeable that extreme harm could come to a young child" ( Watson, supra, p. 651) left alone at age 18 months in a car with its motor running in a public parking lot at dusk on a March evening over twenty minutes while the defendant attends a tanning session, i.e., sexual predators, car jacking, carbon monoxide, sudden illness of child.
The Court having so determined such admitted conduct qualifies as "inherently dangerous" based on the circumstances of this case, the next question is whether it is in the "interest of justice" to bar the sealing of the record of the arrest for child endangerment. In this case the Court finds that the record should not be sealed not only because the defendant's initial conduct of leaving the child unattended in those circumstances, but also, because she lied about the situation first to the investigating officer as well as to the parent of the child. The Court finds that she clearly put her own interests ahead of those of the child and the record of this conduct should remain unsealed at DCJS. This will allow any person considering entrusting the care of a child in the future to the defendant access to the fact she was arrested for child endangerment and where to locate the court where the plea to a violation was entered to review the records of the incident in order to make an informed decision about whether to trust her with another child.
The Court, then, finds that the interest of society in the safety and welfare of children by keeping this record unsealed is greater than society's interest in relieving the defendant of the "stigma" a public arrest record entails. The Court also points out that merely leaving the record open at DCJS only alerts those who access it to where to review the record of the incident open to public review at the Court where the plea to a violation was entered . The Court finds no injustice to the defendant in keeping the notice of the fact her arrest for child endangerment unsealed in the DCJS records when, in fact, that was what she admitted to in the violation plea.
Conclusion
The automatic sealing of a criminal record under CPL 160.55(1) should not be barred in the interest of justice unless the cause for keeping it open be a just one. The Court has found in this case by keeping the record unsealed about the defendant's admitted conduct towards a child it will give prominent public notice provided by the DCJS listing of the defendant's child endangerment conduct as well as identifying the local criminal court where the records upon which the violation plea was based are open to public review otherwise unlikely to be discovered at this remote location without the DCJS listing.
The Court grants the motion of the People under CPL 160.55(1) to bar the sealing of the defendant's record in the interest of justice. This decision shall serve as the judgment and order of the Court.