Opinion
Decided November 18, 2011.
The People by Thomas J. Spota, District Attorney (Mary Skiber, Assistant District Attorney).
The People move for an order to unseal the court records in this docket, which was sealed pursuant to CPL § 160.50 ( see CPL § 160.50(1)(d)). This criminal action terminated in favor of the accused (CPL § 160.50(3)). The People seek unsealing of the file in order to obtain a certified copy of an order of protection it contains for use in prosecuting a subsequently commenced criminal action now pending against this defendant. The motion is denied ( see People v. Marcus A. , 28 Misc 3d 667; Albany County District Attorney's Office ex rel. Barrett Township Police v. William T., AD3d, 2011 NY Slip Op. 7339; Matter of Akieba Mc. , 72 AD3d 689 ).
In Matter of Katherine B. ( 5 NY3d 196), the New York State Court of Appeals ruled that the legislature has limited a court's authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the singular circumstance delineated in CPL 160.50(1)(d)(i) — where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade, a benefit that an accused may obtain only once ( Matter of Katherine B. , 5 NY3d 196 , 205).
The Court of Appeals rejected the position that the prosecutor could obtain an unsealing order pursuant to CPL § 160.50(1)(d)(ii), which applies to "law enforcement agencies." It stated
this case boils down to whether the "law enforcement agency" exception in CPL 160.50(1)(d)(ii) is broad enough to encompass an ex parte request by a prosecutor to unseal records for purposes of making sentencing recommendations. We conclude that it is not ( Matter of Katherine B., 5 NY3d 196,203).
The Katherine B. court enumerated all six of the authorizations to unseal contained in CPL § 160.50(1)(d), and observed
[t]hese six statutory exceptions are precisely drawn. This underscores the Legislature's commitment to prohibiting disclosure of sealed records — once initial sealing has not been forestalled in the interests of justice — except where the statute specifically provides otherwise ( Matter of Katherine B., 5 NY2d 196, 203).
Consequently, only if an applicant for an order to unseal comes within one of the authorizations of CPL § 160.50(1)(d) may the court grant an application to unseal. Defendant in the prosecutions sub judice has not moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade, the one instance in which, the Katherine B. court noted, a prosecutor is specifically authorized to obtain an unsealing order. However, the People assert that the Katherine B. ruling is not determinative of their motion.
They attempt to distinguish Matter of Katherine B., and conclude it is not controlling, so that unsealing is permissible in the case sub judice pursuant to CPL § 160.50(1)(d)(ii). They urge that although the prosecutor in Katherine B. was not acting as a "law enforcement agency," here their role is qualitatively different, and here they are acting as a "law enforcement agency" to which an order to unseal is available pursuant to CPL § 160.50(1)(d)(ii). Their position appears to be that although a prosecutor's office is not a "law enforcement agency" under CPL § 160.50(1)(d)(ii) when the prosecutor seeks an order to unseal court records in order to make sentencing recommendations, it is a "law enforcement agency" when the purpose of the application is to file an order of protection in a pending prosecution.
Case law does not support the interpretation of the People. Indeed, it indicates that the People are not a "law enforcement agency" here either. In People v. Gomez ( 9 Misc 3d 1117(A), 2005 NY Slip Op 51614(U)), involving a prosecution for criminal contempt in the second degree for violating a temporary order of protection (PL § 215.50(3)), the prosecutor asked the court to take judicial notice of the order of protection. The order was in a file that had been sealed pursuant to CPL § 160.50(1). The court noted that it would not have been authorized to order the unsealing of the proceeding in which the order was filed, quoting the language in the Katherine B. opinion which this court quoted earlier,
"the Legislature has limited a court's authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the to the singular circumstance delineated in CPL 160.50(1)(d)(i) — where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade" ( People v. Gomez, 2005 NY Slip Op 51614(U),3) quoting Matter of Katherine B., 5 NY3d 196, 205).
The Gomez court concluded that just as it could not unseal the file, it could not take judicial notice of the order the file contained.
In People v. Marcus A. ( 28 Misc 3d 667, supra), the court had granted an ex parte application to unseal made by the People pursuant to CPL § 160.50(1)(d) to obtain a copy of a temporary order of protection for use in a prosecution for violating the order, and defendant moved to vacate the unsealing order. The court granted defendant's motion to vacate its prior order granting the unsealing, finding that the Katherine B. decision was controlling, and ruling that it was "constrained by the strict reading of the statute within Katherine B. v. Cataldo to grant defendant's motion to vacate its . . . unsealing order" ( People v. Marcus A., 28 Misc 3d 667,675). In reaching its decision, the Marcus A. court took note of the ruling of the Appellate Division, Second Department, in Matter of Akieba Mc. ( 72 AD3d 689, supra), which reversed the grant of a motion made by a prosecutor pursuant to CPL § 160.50(1)(d)(ii) to unseal the record of a proceeding. In Akieba Mc., the prosecutor had sought to obtain the testimony or statement of the accused for use "in the event that she testifies in the trials against [two other individuals] and to prevent perjury" ( Matter of Akieba Mc., 72 AD3d 689, 690). The Second Department held that the prosecution's application "does not fall under the law enforcement agency' exception to the general proscription against releasing sealed records" ( Matter of Akieba Mc., 72 AD3d 689, 690, supra). With respect to this ruling, the court in Marcus A. commented that it found
little to distinguish the instant case from the facts before the Appellate Division in Akieba Mc. In both cases, the prosecutor sought unsealing for use in a pending matter, albeit in Akieba Mc. the pending action involved different individuals than the sealed proceeding. However, in neither Akieba Mc. nor the current matter can it be said that the prosecutor was acting as a law enforcement agency within the meaning of Katherine B. at the time of the unsealing application . . . Most importantly, the unsealing request was made after the defendant was arrested and arraigned on the new accusatory instrument ( Matter of Marcus A., 28 Misc 3d 667, 674).
The Appellate Division for the Third Department, citing the Second Department Matter of Akieba Mc. decision, also has ruled that the law enforcement agency exception of CPL § 160.50(1)(d)(ii) does not apply to a prosecutor seeking sealed records after the commencement of a criminal proceeding ( Albany County District Attorney's Office ex rel. Barrett Township Police v. William T., AD3d, 2011 NY Slip Op 7339, supra). In evaluating the meaning of the term "enforcement agency" under CPL § 160.50(1)(d)(ii), the Matter of Katherine B. court observed that
[t]he statute's provisions strongly suggest that its primary focus is the unsealing of records for investigatory purposes. By way of analogy, for example, applications for
eavesdropping or video surveillance warrants — always used as investigative tools and always filed prior to commencement of a criminal proceeding — are similarly directed to "a justice . . . upon ex parte application" (CPL 700.10[1]). The same is true for applications for a pen register and trap and trace devices ( see CPL 705.15[1]). More to the point for purposes of this appeal is the contrast between CPL 160.50(1)(d)(i) and CPL 160.50(1)(d)(ii). The former authorizes disclosure to a "prosecutor" in a "proceeding"; the latter simply to a "law enforcement agency"; the word "proceeding" does not appear in clause (ii) [emphasis added]
( Matter of Katherine B., 5 NY3d 196,205).
This court is of the view that the purpose for which the People seek an unsealing order here is no more investigatory in nature than the purpose for which the prosecutors were seeking unsealing orders in Matter of Katherine B., People v. Marcus A., Matter of Akieba Mc., and Albany County District Attorney's Office. In essence, the People seek to use the orders of protection in a pending prosecution. This does
not constitute investigation. Because the People are not seeking the unsealing for an investigatory purpose, and because the court in Matter of Katherine B. ties the term "law enforcement agency" as it appears in CPL § 160.50(1)(d)(ii) to an agency conducting an investigation, the People do not qualify as a "law enforcement agency" in the matter presently before the court for purposes of CPL § 160.50(1)(d)(ii). Consequently, they may not obtain an unsealing order under that subsection. No other subdivision of CPL § 160.50(1)(d) authorizes an order to unseal either.
The People also posit that the temporary order of protection which they seek is a business record to which the sealing provision of CPL § 160.50(1)(c) does not apply ( see People v. McGurk, 229 AD2d 895). However, CPL § 160.50(1)(c) applies to "all official records and papers, including judgments and orders of a court" [emphasis added]. In addition, the documents in People v. McGurk ( 229 AD2d 895, supra), were not orders of protection or any other document generated by a court. They were medicaid claim forms, medicaid remittance statements, and medicaid payment checks, all of which had been created prior to the commencement of the court proceeding by third parties in the course of the ongoing contractual relationship of those parties. Orders of protection, unlike those documents, as orders of the court, are part of the court record which is sealed pursuant to CPL § 160.50(1)(c)).
Consequently, unsealing is impermissible and this motion must be denied.