Relates to unsealing criminal records involving orders of protection

This measure would amend the Criminal Procedure Law to authorize a court to unseal records of an order of protection where necessary to prosecute a defendant for violating that order of protection.

This measure is proposed in response to recent cases that have uncovered a serious issue concerning orders of protection contained in a sealed file (see People v Marcus A, 28 Misc 3d 667 [Sup Ct, NY County 2010]); see also Matter of Akieba Mc, 72 AD3d 689 [2d Dept 2010]). When a criminal contempt prosecution is commenced, and the basis for the charge is that the defendant knowingly violated a lawful order of a court (see PL §§ 215.50, 215.51 or 215.52), a prosecutor must obtain a copy of the underlying order of protection alleged to have been violated. A certified copy of the order is most often used to replace a misdemeanor complaint with an information (see CPL 170.65), or as evidence before the grand jury in felony contempt prosecutions. It also is admissible as trial evidence to establish that the order was issued and in effect at the time of the contempt. Because in most cases an order of protection is a public document, a prosecutor simply obtains a certified copy from the clerk of the court (Judiciary Law §255).

However, where the underlying order of protection has been issued in connection with a case that has terminated in favor of the defendant, both the court record and the District Attorney's records are sealed pursuant to CPL 160.50. Nonetheless, even where the criminal action in which the order of protection arose is dismissed, there is no bar to prosecution where a defendant violating the order of protection while the action was pending. However, once the underlying criminal case is dismissed and sealed, there is no provision in the Criminal Procedure Law that allows a court to unseal the order of protection so that a certified copy of the order defendant is charged with violating may be obtained.

The Court of Appeals has repeatedly held that the "general proscription against releasing sealed records and materials (is) subject only to a few narrow exceptions" (Matter of Katherine B v Cataldo, 5 NY3d 196, 203 [2005], quoting Matter of Joseph M., 82 NY2d 128, 134 [1993]). Although CPL 160.50(1)(d) sets forth those exceptions, the Court has limited the unsealing of records by a District Attorney after commencement of a criminal action to the "singular circumstance" where a defendant requests an adjournment in contemplation of dismissal in low level marijuana cases (5 NY3d at 205; CPL 160.50(1)(d)(i). Thus, no matter how viable a contempt prosecution might otherwise be, a District Attorney's Office is effectively hamstrung from obtaining an underlying order of protection that had been issued in a sealed case.

We believe that a court should be permitted to unseal a record to allow a prosecutor to obtain a copy of an order of protection when necessary to prosecute a defendant for willful disobedience of a lawful court mandate. This measure is narrowly tailored to meet this individualized need and is necessary to protect both victims of domestic violence and the integrity of the judicial process.

This measure, which would have no meaningful fiscal impact on the State, would take effect immediately, and shall apply to all criminal actions commenced on or after such effective date.

Legislative history

None. New proposal.