Defendant asked the court to find that he had satisfied the conditions of the plea agreement in this case. The People opposed the application asserting that defendant's arrest subsequent to his guilty plea violated that agreement. Defendant countered that the dismissal of the case based upon his re-arrest renders it a nullity and consequently provides no basis to find that he violated the plea agreement.

The court agreed with the defendant and in accordance with the plea agreement vacated his guilty plea to Aggravated Harassment in the Second Degree and sentenced him to a conditional discharge on the remaining count of Disorderly Conduct.

This decision explains the reasons for the court's rulings.

Defendant was arrested and arraigned on August 5, 2019 and charged in a criminal court complaint with Aggravated Harassment in the Second Degree (Penal Law § 240.30[2]) and Harassment in the Second Degree (Penal Law § 240.26[1]). He was released on his own recognizance and the case was adjourned to Manhattan Criminal Court Part D to September 9, 2019 for a supporting deposition.

The People thereafter on September 23, 2019 served and filed a superseding first party misdemeanor information containing two counts of Aggravated Harassment in the Second Degree (Penal Law § 240.30[1][A] and § 240.30[2]), two counts of Stalking in the Fourth Degree (Penal Law § 120.45[1] and § 120.45[2]) and a count of Harassment in the Second Degree (Penal Law § 240.26[1]).

The information alleges in part that on or about August 4, 2019 through August 5, 2019 the defendant made "195 phone calls" to the complainant in addition to sending her over one hundred text messages. The allegations include extensive quotes from one of the text messages [*2]including defendant's statement that, "all my things will be rounded up but not till you face the flame. U must be insane if you think I'm gonna let u get away with disrespecting me this way. The national guard couldn't save you."

On December 12, 2019 defendant pled guilty to charges in three separate prosecutions two of which are not relevant to these proceedings. In the instant matter he entered into a re-pleader agreement pleading guilty to both the misdemeanor charge of Aggravated Harassment in the Second Degree (Penal Law § 240.30[1][A]) and the added count of Disorderly Conduct (Penal Law § 240.20). The conditions of the plea agreement required the defendant to complete three months of mental health counseling that included an intimate partner violence component and remain arrest free for six months. Upon satisfaction of these terms he would be allowed to withdraw his plea to Aggravated Harassment in the Second Degree and be sentenced to a conditional discharge on the plea to Disorderly Conduct. The sentence also would include a full and final order of protection and a permanent waiver of the sealing of the record.

Counsel did not appear on the next court date of January 31, 2020 but notations on the court papers indicate that defendant was compliant with the plea conditions.

At the next court appearance on February 13, 2020 the case apparently was adjourned to March 24, 2020 for proof that defendant completed the mental health program component of the agreement.

The defendant was rearrested on February 25, 2020 and charged with criminal contempt arising from two separate incidents that took place after the plea in the instant matter.

The pandemic intervened.

Administrative adjournments for the instant matter took place on March 24, 2020, June 22, 2020, September 22, 2020 and October 14, 2020 with the parties finally appearing in court on November 12, 2020. The People noted that defendant had two new arrests (there appears to have been one arrest based upon two separate incidents) and the court adjourned the case for sentencing to December 18, 2020.

Defendant and counsel did not appear on that date and the court issued and stayed a bench warrant. There were subsequent adjournments on February 8, 2021 and March 23, 2021 when defendant appeared without counsel.

At the next adjourn date of March 26, 2021 the court papers note that new counsel was to be assigned.

Defendant was arrested again on March 22, 2021 and arraigned that day. He was charged with the felony Aggravated Family Offense and other crimes.

At defendant's arraignment the People requested bail arguing that the Aggravated Family Offense though not a per se bail qualifying offense would qualify as such pursuant to the so-called "harm/harm" provision set out in CPL 510.10 (4) (t). They submitted the complaint for the pending offense which charged defendant with Criminal Contempt in the Second Degree for violating an order of protection that had been issued December 12, 2019 in conjunction with defendant's guilty plea to misdemeanor criminal contempt. They then recounted the allegations underlying the felony arraignment charge.

Defense counsel objected to the People's application on the grounds that "the complaint [*3]that was sent by the prosecutor . . . just says that she got messages and phone calls that were in violation of the order of protection, but it doesn't say that it caused her any harm to [ ] her person." Transcript page 8.

The court noted that there was "nothing about the content of these messages in the underlying Criminal Court Complaint [and] . . . [i]n order . . . to find that this case is bail eligible, I have to find that reasonable cause to believe in harm as to the underlying case and the case that's before me right now" concluding that "a criminal contempt also creates some harm to the person who has the order of protection" in finding that the arraignment charge qualified as a bail eligible offense. Transcript pages 8-9.

The court set monetary bail and defendant remained in custody until his appearance in Manhattan Criminal Court Part F on March 26, 2021. At that appearance defendant pled guilty to Stalking in the Fourth Degree (Penal Law § 120.45[1]) a class B misdemeanor and was sentenced to one year probation.

Defendant failed to appear in court on April 21, 2021 and the court issued and stayed a bench warrant. The parties appeared on May 13, 2021 and subsequent adjourn dates on June 22, 2021 and July 20, 2021. The court papers indicate that the People each time opposed the re-pleader because of defendant's re-arrest and that the case was being adjourned to "track" an unspecified matter, presumably the case arising from defendant's February 25, 2020 arrest.

On September 8, 2021 the court dismissed and sealed that case at the People's request apparently based upon their inability to comply with statutory speedy trial mandates.

Further adjournments in Part D on the instant matter took place on September 8, 2021, November 4, 2021, November 12, 2021 and January 20, 2022 for what court markings denote as "updates". It was not until March 30, 2022 that defense counsel apparently for the first time requested a hearing pursuant to People v Outley, 80 NY2d 702 (1992).

Defendant submitted proof of and the People confirmed defendant's compliance with the mental health treatment condition of the re-pleader.

The court also received documents and case law and heard arguments from counsel on several subsequent court dates concerning whether defendant's February 25, 2020 arrest violated the plea agreement. No written motion or response was requested by the court or filed by the parties.

At the court appearance on May 5, 2022 the court found that there was no admissible or competent evidence upon which it could find that defendant had violated the no new arrest provision of the plea agreement. The court concluded that defendant satisfied the plea conditions, vacated the misdemeanor plea and imposed the promised sentence on the remaining count of Disorderly Conduct.

The determinative issue was whether defendant's February 25, 2020 arrest constituted a violation of the plea agreement even though the case arising from the arrest had been dismissed and sealed.

The People proffered several grounds to sustain such a finding. None of them survived review under applicable statute and case law.

The defendant entered into a re-pleader agreement whereby he pled guilty to both the [*4]misdemeanor offense of Aggravated Harassment in the Second Degree and a Disorderly Conduct violation with the promise that the plea to the criminal offense would be vacated upon his satisfaction of certain conditions. This included defendant's enrollment and completion of a three-month mental health treatment program that included an intimate partnership component and that he remain arrest free for six months.

Although the prosecution sets the terms of a re-pleader agreement they do not generally and did not here retain the sole discretion to determine whether defendant complied with its terms. Cf. People v Anonymous, 97 AD3d 1, 12 (1st Dept 2012)(court improvidently exercised its discretion in declining to accept the People's recommendation for sentencing under the plea agreement where plea agreement vested the people with the sole discretion to determine whether defendant complied with its terms including a determination of whether she had committed additional crimes).

In these circumstances the court is vested with the responsibility to determine if the defendant violated the agreement. People v Outley, 80 NY2d 702, 712 (1992).

Where the conditions of the re-pleader include a no new arrest provision the mere fact of an arrest is insufficient to find that the defendant violated this condition. The court therefore is required to conduct a sufficient inquiry to allow the defendant to challenge the basis for the arrest and to "assure itself that the information upon which it bases the sentence is reliable and accurate" People v Outley, 80 NY2d 702, 713 (1993).

The nature and components of the inquiry conducted is left to the court's discretion but it "must be of sufficient depth . . . so that the court can be satisfied-not of defendant's guilt of the new criminal charge but of the existence of a legitimate basis for the arrest on that charge." Id. at 713. (emphasis added).

Defendant correctly pointed out that the dismissal of the case upon which the arrest was based renders it a nullity. See CPL 160.60 ("Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision [three] of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution").

Further, when a case is dismissed CPL 160.50 (1) provides that "the record of such action or proceeding shall be sealed" and that upon notification of the clerk of the court:

all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency.

The sealed materials include, "All NYPD records, including Domestic Incident Reports." Matter of M.R., 67 Misc 3d 385 (Fam Ct, Bronx County 2020).

The People did not seek nor were there grounds to issue an unsealing order. People v Anonymous, 34 NY3d 631, 636 (2020)(discussing the "precisely drawn" statutory exceptions to sealing). Further CPL 160.50 (1) (d) (ii) does not permit the prosecution access to sealed records for sentencing purposes in another matter. Id. at 650.

Accordingly, evidence from the sealed case could not be used to determine whether defendant had been arrested during the re-pleader period or whether there was a legitimate basis for that arrest.

In addition, although the nature of the inquiry and proof submitted is left to the court the legitimacy of the arrest cannot be sustained solely on the prosecution's assertions. See People v Wilson, 55 Misc 3d 83, 84-85 (App Term 1st Dept 2017)(there was no competent proof of the legitimacy of the post plea marijuana offense where the prosecution conceded that the Bronx County District Attorney declined to prosecute the offense due to the non-appearance of the arresting officer to fill out the appropriate paper work and the court should not have relied upon the hearsay allegations contained in the affidavit of the Bronx prosecutor as to the circumstances of the arrest).

There was, however, an alternative route to finding that defendant violated the plea agreement's no new arrest provision. Defendant's second arrest during the pendency of this matter resulted in the arraignment court finding reasonable cause that he committed the offense while at liberty in a case charging him with a crime involving harm to another person. Although this second arrest took place after the expiration of the six-month no new arrest condition of the re-pleader agreement, the arraignment was conducted before the dismissal and sealing of the record of the February 25, 2020 arrest.

The restrictions on the proof that would be allowed at an Outley hearing conducted after the dismissal of that case self-evidently were not in place prior to that dismissal.

At defendant's arraignment on March 22, 2021 the People asserted that the Aggravated Family Offense charge in the complaint though not per se bail eligible could qualify as one pursuant to CPL 510.10 (4) (t).

That CPL section provides in relevant part that

4. Where the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion . . . fix bail . . . [and that] A principal stands charged with a qualifying offense for the purposes of this subdivision when he or she stands charged with: ...

(t) any felony or class A misdemeanor involving harm to an identifiable person or property, where such charge arose from conduct occurring while the defendant was released on his or her own recognizance or released under conditions for a separate felony or class A misdemeanor involving harm to an identifiable person or property, provided, however, that the prosecutor must show reasonable cause to believe that the defendant committed the instant crime and any underlying crime. For the purposes of this subparagraph, any of the underlying crimes need not be a qualifying offense as defined in this subdivision.

The People contended that "the defendant [was] bail eligible pursuant to CPL Section 510.10 (4) (t) because he has open cases involving harm to persons currently pending in Part D." Transcript page 3.

The complaint for that case was provided to counsel and the court. The prosecutor continued that on the underlying case "in Part D, the defendant is charged with Contempt in the [*5]Second Degree" in violation of an order of protection issued December 12, 2019 in conjunction with a second-degree criminal contempt conviction. Transcript pages 5-6.

The prosecutor then recounted the conduct underlying the case on for arraignment.

Defendant challenged the prosecution's characterization of the underlying offense stating that, "in the complaint that was sent by the Prosecutor, there is nothing . . . that constitutes harm to person [and] [i]t just says that she got messages and phone calls that were in violation of the order of protection, but it doesn't say that it caused her any harm." Transcript page 8.

The court noted that

there's nothing about the content of these messages in the underlying Criminal Court Complaint. . . . [and] [i]n order for me to find that this case is bail eligible, I have to find that reasonable cause to believe in harm as to the underlying case and the case that's before me right now. . . . I think any time there is an order of protection against someone, a violation of the order of protection punishable as a criminal contempt also creates some harm to the person who has the order of protection . . .

The court then deemed the arraignment offense bail qualifying. Transcript page 9.

As the arraignment court noted, the prosecutor was required in part to show reasonable cause to believe that the defendant committed the underlying crime to satisfy CPL 510.10 (4) (t). This standard is more exacting than the "legitimate basis for an arrest on the charge" imposed to find that the arrest violated the conditions of the re-pleader. People v Outley, 80 NY2d at 713. Moreover, the prosecution's presentation and court inquiry with defendant and counsel present constituted a sufficient inquiry to sustain that finding. Id. at 713.

If in fact the court determined the validity of defendant's February 25, 2020 arrest at the March 22, 2022 arraignment, that finding would predate the September 8, 2021 dismissal of the case. This court consequently could use it to establish defendant's violation of the no new arrest provision of the plea agreement. Cf. People v Carroll, 200 AD2d 630, 631 (2d Dept 1994)(Suffolk County court's probable cause finding applied to related Nassau County prosecution involving same issue).

Indeed, the subsequent dismissal of the case would not have retroactively invalidated the arraignment court's probable cause finding. This is the import of the court's findings in People v Smith, 248 AD2d 179 (1st Dept 1998). The decision in its entirety states:

[t]he court properly enhanced its originally promised sentence on the basis of defendant's post-plea indictment for two rapes (People v Outley, 80 NY2d 702, 713), and the sentence imposed was not an abuse of discretion. The fact that subsequent to sentencing defendant was acquitted of both rapes does not retroactively invalidate the sentence and does not, under all the circumstances, warrant a reduction in the interest of justice.

The arraignment court clearly found reasonable cause to support defendant's arrest. It is without dispute as well that the arrest took place after his plea in the instant case.

There is nothing in the transcript of that proceeding, however, indicating that the underlying offense was the crime for which defendant was arrested on February 25, 2020 or was one that took place at any other point during the plea agreement's six-month no new arrest [*6]period.

There also is no admissible or competent proof that could be used in conjunction with the arraignment court record to reach that conclusion.

This follows from the legal fact that the February 25, 2020 arrest is a nullity. And because "[t]he law clearly intends that the criminal action and proceedings be treated as if they never occurred-as if they are not part of defendant's past" [People v Anonymous, 34 NY3d at 637] there is no information associated with the February 25, 2020 arrest currently available to show that it was the one validated by the arraignment court.

The criminal court complaint based upon that arrest introduced at defendant's March 22, 2021 arraignment is now a sealed record. Similarly, the domestic incident reports that led to the arrest are sealed. Any current criminal history report should not contain a reference to that arrest. No witness could testify as to defendant's February 25, 2020 arrest or facts that might show a legitimate basis for it without implicating the sealed materials or violating the law's intent to eliminate that arrest from defendant's life history. The prosecutor's statements during court appearances prior to the dismissal of the case that the new arrest violated the conditions of the plea agreement do not satisfy the inquiry required by Outley.

Although this reading of the law might appear "to erect unreasonable barriers to the court's discovery of the truth at the cost of the integrity of the criminal justice system" (People v Anonymous, 34 NY3d at 663 dissenting opinion) controlling authority prevents the court from resolving the issue any other way.

Accordingly, in light of the foregoing, there was no admissible or competent evidence upon which to find that defendant violated the no new arrest provision of the plea agreement. Thus, pursuant to that agreement the court vacated defendant's guilty plea to Aggravated Harassment in the Second Degree and imposed the promised sentence for the remaining Disorderly Conduct charge.

As a further consequence of the court's decision, all evidence concerning this issue submitted at the Outley hearing that is subject to the sealing statute is stricken from the record.

This constitutes the decision and order of this Court.