Relates to unsealing criminal records

BILL NUMBER:S4471

Title of bill

An act to amend the criminal procedure law, in relation to unsealing criminal records

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend the Criminal Procedure Law to authorize a court to unseal records, where justice requires it, on notice both to the adverse party and the subject of the records.

In 2003, political demonstrators in New York City handcuffed themselves in a human chain across Fifth Avenue, creating a huge traffic disruption. The demonstrators were arrested and later found guilty after a jury trial of obstructing governmental administration in the second degree and disorderly conduct. In advance of the sentencing, the trial court asked the People to provide the prior criminal records of the defendants, and, toward that end, the prosecutor asked the court to unseal various records that contained information regarding the petitioner's previous political demonstration arrests. The records the court unsealed related to violation convictions and procedural dismissals; none were for acquittals or dismissals on the merits. The defendants brought an Article 78 proceeding to challenge the court's unsealing order, and, on appeal from the Appellate Division, the Court of Appeals vacated the unsealing order (see Katherine B. v Cataldo, 5 NY3d 196 [2005]). The Court held that CPL 160.50 was intended to serve as a broad sealing provision subject only to a few statutory exceptions. In a narrow and somewhat cramped reading of those exceptions, the Court found no provision which would allow a prosecutor access to sealed records after the commencement of a proceeding. The closest CPL Article 160 comes is in the provision for making sealed records available to "a law enforcement agency upon ex parte motion in any superior Court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it" (CPL 160.50(1)(d)(ii); CPL 160.55(1)(d)(ii)). The Court, however, limited this exception to the unsealing of records for "investigatory purposes," and suggested that the "investigatory purposes" exception ceases upon commencement of the criminal proceeding. The Court thus limited prosecutorial access to sealed records after commencement to the "singular circumstance" where a defendant requests an ACD in low level marijuana cases (Katherine B., 5 NY3d at 205; CPL 160.50(1)(d)(i)).

This Office believes that Katherine B. has inappropriately narrowed the situations where the Court may unseal records. There are numerous legitimate times when a court should have the authority to unseal a record in the interest of justice. However, recognizing that an ex parte application to unseal may lead to unwarranted unsealing orders, this measure provides that an unsealing order must be made on notice

to both the adversary and the subject of the records. This will insure that the court is fully briefed on all the issues surrounding the application and will, in contested cases, provide a record that can be adequately reviewed by an appellate court.

This measure, which would have no meaningful fiscal impact on the State, would take effect on the first day of November next succeeding the date on which it shall have become a law.

2011 LEGISLATIVE HISTORY: None. New proposal.