Supreme Court, Queens County, December 12, 2018

Jane Doe, defendant pro se.

Richard A. Brown, District Attorney (Anastasia Spanakos of counsel), for plaintiff.

In 1984, defendant Jane Doe^[FN1] was arrested and indicted for a violent felony offense, robbery in the second degree, which she allegedly committed when she was a 16 year old high school student—when, in other words, she was eligible for adjudication as a youthful offender. Defendant ultimately pleaded guilty to attempted second-degree robbery (which is also a violent felony offense), and the sentencing court denied her youthful offender treatment. Now, 34 years after her guilty plea, defendant moves to seal her conviction pursuant to CPL 160.59. The court, regrettably, is constrained to deny the motion because, as the People correctly contend, defendant's conviction of a violent felony offense makes her ineligible for sealing under the statute. This unfortunate result, in the court's view, is inconsistent with the laudable goals of the sealing statute. Accordingly, the court again calls upon the legislature, as it did in People v John Doe (61 Misc 3d 996 [Sup Ct, Queens County 2018]), to amend the statute, this time, as explained in more detail below, to allow for the sealing of violent felony offenses, when, as in this case, the defendant was eligible to be adjudicated a youthful offender at the time of his or her conviction.

On March 13, 1984, defendant was arrested in connection with a robbery that had allegedly occurred the day before at a Queens County high school. According to the criminal complaint and bill of particulars, the three perpetrators approached the victim in the school hallway. Defendant "twisted the complainant's arm" while one of the other two perpetrators took her pocketbook and "unicorn charm." About one month later, a grand jury charged defendant with one count of robbery in the{**62 Misc 3d at 576} second degree, a violent felony offense (Penal Law §§ 70.02 [1] [b]; 160.10 [1]).^[FN2]

On October 10, 1984, defendant pleaded guilty to attempted robbery in the second degree. At her sentencing a few weeks later, the court (Demakos, J.) denied her youthful offender treatment and sentenced her to five years' probation.^[FN3] Defendant never appealed her conviction or sentence.^[FN4]

At the request of the Department of Probation, defendant's probationary sentence was terminated early, in August 1988. Since that time, she has not been convicted of any crimes.

Defendant, who is currently over 50 years old, now moves, pro se, to seal her attempted robbery conviction. In her application, defendant states that she recently "applied for a job thinking this charge [from] [34] years ago was sealed." That job, according to defendant's NYSID sheet, was a position as a nursing home, home care, or hospice worker and required a criminal background check (see 10 NYCRR 402.3). The People oppose defendant's motion on the ground that convictions of violent felony offenses—such as attempted second-degree robbery {**62 Misc 3d at 577}(see Penal Law § 70.02 [1] [c])—are not eligible to be sealed.^[FN5]

Section 160.59 of the Criminal Procedure Law, which took effect in October of 2017, provides a mechanism for defendants to move to seal up to two "eligible offenses"—only one of which can be a felony (see CPL 160.59 [2] [a]). The purpose of the statute, as Governor Cuomo indicated at the time of its enactment, is to "eliminate unnecessary barriers to opportunity and employment that form[erly] incarcerated individuals face and to improve the fairness and effectiveness of the state's criminal justice system" (see Governor's Press Office, Press Release: Governor Cuomo Announces Raise the Age Law that Seals Non-Violent Criminal Convictions Takes Effect October 7 [Oct. 6, 2017], https://www.governor.ny.gov/news/governor-cuomo-announces-raise-age-law-seals-non-violent-criminal-convictions-takes-effect). To this end, the Executive Law was amended to make it an unlawful discriminatory practice "to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation" that resulted in a conviction that was subsequently sealed pursuant to the new statute (Executive Law § 296 [16]).^[FN6]

An individual is entitled to make a sealing application once 10 years have passed since either the imposition of sentence or, if an incarceratory sentence was imposed, her release from prison, as long as she: has not been convicted of more than one felony, "or more than two crimes"; does not have an open criminal case; is not required to register as a sex offender; and has{**62 Misc 3d at 578} not already obtained sealing of the maximum number of convictions allowed under CPL 160.59 or 160.58 (see CPL 160.59 [3], [5]). None of these bars is present in this case.

Certain categories of offenses, including violent felony offenses (see Penal Law § 70.02),^[FN7] however, may not be sealed (see CPL 160.59 [1] [a]). This is so no matter how much [*2]time has passed since the defendant committed the crime and regardless of how compelling a case the applicant can make that sealing would serve the interests of justice and not compromise public safety. It is this provision that constrains the court to deny defendant's motion, even though the attempted robbery here, a violent felony offense, occurred nearly 31/2 decades ago, when defendant was what the Criminal Procedure Law now refers to as an "adolescent offender" (CPL 1.20 [44]), and even though she has not been convicted of any crimes since.

There are several reasons to question the wisdom of this categorical approach to sealing eligibility. It can, for one thing, produce seemingly inequitable outcomes. For example, the court recently granted a sealing application in an unrelated case where another defendant and an accomplice committed a robbery during which they allegedly assaulted the victim. The defendant in that other case, who was 19 years old at the time of the offense, was charged, just like the defendant here, with robbery in the second degree. But he was ultimately able to resolve the case by pleading guilty to attempted robbery in the third degree—which is not a violent felony (see Penal Law §§ 70.02, 160.05)—in exchange for a probationary sentence. Thus, an individual who committed a robbery as an adult, which was violent by any reasonable definition of the word, was eligible to have his conviction sealed. Defendant's conviction, on the other hand—which arose from conduct she engaged in when she was a 16 year old high school student, and which apparently did not result in any injuries to the victim—must permanently remain on her criminal record.

{**62 Misc 3d at 579}A revision to the sealing statute that gave courts the discretion to seal convictions of certain violent felony offenses for defendants who were eligible to be adjudicated youthful offenders could help eliminate such disparities, at least when it comes to young offenders. These disparities, after all, can be the product of any number of factors beyond the defendant's control, such as whether the prosecutor handling the case was willing to offer a plea bargain to a non-violent felony offense, whether defense counsel actively advocated on defendant's behalf for such a disposition, or whether the trial judge was amenable to a resolution of the case on those terms.

Potential disparities aside, this case also highlights another important, yet perhaps unanticipated, shortcoming of the new sealing statute: its failure to explicitly address criminal records of younger offenders,^[FN8] even though it was enacted as part of the Raise the Age legislation. Courts and legislators have relatively recently begun to acknowledge, in a more thoughtful and forceful way, that younger offenders are often less culpable than adults who commit the same offenses and, therefore, should be treated differently by the criminal justice system. This recognition "rest[s] not only on common sense—on what any parent knows—but on science and social science as well" (Miller v Alabama, 567 US 460, 471 [2012] [internal quotation marks omitted]). What parents intuitively understand, and what neuroscience confirms, is that adolescents are immature and lack a well-developed sense of responsibility and, consequently, often engage in reckless, impulsive, and risky behavior (id.; see also People v Perez, 23 NY3d 89, 109 [2014] [Rivera, J., dissenting] ["(i)t is generally accepted . . . that children simply do not have the capacity to fully appreciate the world and the consequences of their actions and choices"]). Compounding these developmental deficiencies is the susceptibility of young people to negative influences and peer pressure, as well as their "[in]ability [due to their age] to extricate themselves" from situations in which criminal or antisocial behavior is{**62 Misc 3d at 580} likely to occur (Miller, 567 US at 471; see also Matter of Vega v Bell, 47 NY2d 543, 548 [1979] [noting that juveniles "are more easily influenced by their companions and their environment than are adults"]). These factors, taken together, make it more likely that youths will engage in criminal conduct.

But, as the Supreme Court has emphasized in a series of decisions resolving Eighth Amendment challenges to severe sentences imposed on juvenile offenders, younger offenders have the capacity to change and possess "greater prospects for reform" (Miller, 567 US at 471). In fact, " '[o]nly a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood' " (Roper v Simmons, 543 US 551, 570 [2005], quoting Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am Psychologist 1009, 1014 [2003]).

This notion—that " 'incorrigibility is inconsistent with youth' " (Graham v Florida, 560 US 48, 73 [2010], quoting Workman v Commonwealth, 429 SW2d 374, 378 [Ky Ct App 1968])—is one of the animating purposes of New York's recently enacted Raise the Age legislation. That statute, as of October 1, 2019, will make many, if not most, criminal cases involving offenders younger than 18 years old eligible for removal to Family Court, including cases involving certain violent felonies (see CPL 722.23). In Family Court, the young person is not subject to criminal liability, but rather, adjudication as a juvenile delinquent (see Family Ct Act §§ 301.2 [1]; 380.1 [1] ["(n)o adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal"]).

The distinct possibility that a younger offender will mature and reform was also a significant part of the rationale behind the Court of Appeals' decision in People v Rudolph (21 NY3d 497 [2013]), which held that, in every case where youthful offender treatment is a possibility, the trial court must decide whether such treatment is warranted, even when the defendant does not request it. "The judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining," or waived by inaction, the Court reasoned (Rudolph, 21 NY3d at 501).

Determining whether an eligible defendant is a suitable candidate for youthful offender treatment (see CPL 720.20 [1]),{**62 Misc 3d at 581} or whether a juvenile offender's case should be diverted to Family Court over the objection of the District Attorney's Office (see e.g. People v Robert C., 46 Misc 3d 382 [Sup Ct, Queens County 2014]), can be challenging, because the decision rests, at least in part, on a prediction of whether the offender's criminal conduct is attributable to "unfortunate yet transient immaturity" (Montgomery v Louisiana, 577 US &mdash, &mdash, 136 S Ct 718, 734 [2016] [internal quotation marks omitted]), rather than being a manifestation of a lifelong antisocial personality. In the sealing context, though, no such prescience is needed. Since a sealing application can only be made once 10 years have passed from sentencing or the defendant's release from prison, the court will generally be able to tell, based on the defendant's actual record (or lack thereof), which of those two scenarios—fleeting immaturity as opposed to "permanent incorrigibility" (id.)—best explains the youthful criminal conduct.

Given that advantage, it would serve the interests of justice, and comport with our recent, more sophisticated understanding of "the relationship between youth and unlawful behavior" (Rudolph, 21 NY3d at 506 [Graffeo, J., concurring]) to expand sealing eligibility to convictions of violent felony offenses that were committed when the defendant was younger than 19, provided that, at the time of the conviction, the defendant was eligible to be adjudicated a youthful offender. Because sealing eligibility in New York is relatively strict, there would seem to be little risk that a truly violent, antisocial person would be eligible for relief. After all, an individual would have to show, among other things, that: the requisite 10 year waiting period has been satisfied; he or she has, at most, one additional conviction, and that the conviction was for a misdemeanor; and he or she does not have any unresolved criminal charges pending against him or her. A person who can establish all of these things would be able to make a strong case that, whatever violent behavior she engaged in as a young person was not representative of the mature adult she ultimately became, and, therefore, she should be given an opportunity to put that particular episode of her adolescent life behind her.

In essence, expanding sealing eligibility to these sorts of cases would allow a court to take a second look at a young offender, a decade or more after he or she committed a violent crime, and decide whether part of the penalty imposed—the burden of a felony record—should be lifted (at least to the {**62 Misc 3d at 582}extent permitted by law).^[FN9] And, in this regard, it is worth emphasizing that expanding sealing eligibility means only that, i.e., the opportunity to make an application. It does not guarantee that sealing will ultimately be granted. That result ultimately turns on whether the applicant can persuade the court that sealing is appropriate in light of the circumstances presented by a particular case.

This case presents a very compelling example of an individual whose violent felony record deserves a second look. As emphasized, the attempted robbery in which defendant participated occurred when she was a high school student. Indeed, the crime itself took place inside defendant's school. And although robbery is unquestionably a serious crime, the court notes that legitimate concerns have been raised by experts in fields ranging from law enforcement to education to childhood development about the effects of resolving student misconduct issues through the adult criminal justice system (see e.g. New York City School-Justice Partnership Task Force, Keeping Kids In School and Out of Court [May 2013], available at https://www.nycourts.gov/ip/justiceforchildren/PDF/NYC-School-JusticeTaskForceReportAndRecommendations.pdf).

Moreover, here, there were no allegations that the victim was injured, or that defendant herself was the actual "taker" of the property. Also, two other individuals were involved, so, perhaps, the idea to commit the crime was not defendant's and she was more of a follower than a leader. But, even if that was not the case, the fact remains that decades have passed since the attempted robbery and defendant has not been convicted of, or even arrested for, any further violent offenses. Therefore, the conclusion that the crime was the result of immaturity and youthful recklessness, instead of a fully-formed violent disposition, seems inescapable.

The court is, of course, cognizant of the fact that society is often reluctant to "give a break" to individuals who have committed violent crimes. But surely that reluctance is less{**62 Misc 3d at 583} entrenched, and less justified, where the crime was committed when the defendant was not yet an adult. Indeed, it would seem relatively uncontroversial to suggest that things people do as teenagers should not define them for the rest of their lives (see Rudolph, 21 NY3d at 501 [observing that youthful offender treatment gives young offenders "the opportunity for a fresh start, without a criminal record"]). For this reason, expanding sealing to this limited class of cases would not, in this court's view, diminish "the public's confidence in and respect for the law" (CPL 160.59 [7] [g]). To the contrary, it would comport with the ideal, which is so fundamental in this country, that almost everyone should be entitled to a second chance (cf. Alan Blinder, Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help, NY Times, Oct. 8, 2018 at A12, available at https://www.nytimes.com/2018/10/07/us/expungement-criminal-justice.html [quoting a former United States pardon attorney, stating that expungements "ought to be something that prosecutors welcome and use to their advantage to . . . advertise criminal justice success stories"]).

Along the same lines, the court also believes that expanding sealing eligibility in this way would not have any negative public safety implications (see CPL 160.59 [7] [g]), especially since, as noted, courts are always free to deny a sealing application on the merits—by weighing the various interest-of-justice factors enumerated in the statute (CPL 160.59 [7]). Still, if a defendant can persuasively demonstrate, 10 years or more after she committed a crime, that her conviction of a violent felony offense was the result of the many behavioral characteristics that attend youth, she would presumably be a minimal risk for reoffending. And that conclusion would be even stronger where, as in this case, the defendant has a decades-long record of not having recidivated (see United States v Johnson, 685 F3d 660, 661 [7th Cir 2012] ["(t)he propensity to engage in criminal activity declines with age"]). Furthermore, it is difficult to conceive of how sealing under CPL 160.59, given its various exceptions providing for access to sealed records (see CPL 160.59 [9], [10]; n 9, supra), could in any meaningful way impede effective enforcement of the law. And, to the limited extent that it does, the unfortunately small number of convictions that have been sealed since the statute's enactment a year ago—reportedly less than 50 in this county and less than 600 statewide (see Shayna Jacobs, Law That Seals Old Criminal Records Helps New Yorkers Find New Work,{**62 Misc 3d at 584} Better Lives, NY Daily News, Oct. 13, 2018, available at http://www.nydailynews.com/new-york/ny-metro-legal-aid-conviction-sealing-year-later-20181012-story.html; see also Jan Ransom, Criminal Convictions Behind Them, Few Have Had Their Records Sealed, NY Times, July 4, 2018, available at https://www.nytimes.com/2018/07/04/nyregion/criminal-conviction-records-sealed.html)—would certainly minimize any adverse effect in this regard.

In sum, the court respectfully suggests, as it has previously (see John Doe, 61 Misc 3d 996), that the legislature consider amending CPL 160.59 to allow for the sealing of convictions of violent felony offenses committed by defendants who were eligible for youthful offender treatment, but did not receive it. This could be accomplished by revising subdivision (1) (a) of the statute, which defines the offenses that are eligible for sealing, to create an exception to the general prohibition on sealing convictions of violent felony offenses, when the offender was an "eligible youth" as defined in the youthful offender statute at the time of the conviction (see CPL 720.10 [2]). This proposed revision, to be clear, would not affect the sealing statute's independent prohibitions on sealing other categories of offenses. For example, a defendant can be adjudicated a youthful offender for certain serious sex crimes (see CPL 720.10 [2] [a] [iii]; [3]). But the sealing statute does not allow for the sealing of any sex offense defined in article 130 of the Penal Law or any offense that requires registration as a sex offender (CPL 160.59 [1] [a]). Likewise, a defendant can receive youthful offender treatment in connection with a manslaughter conviction (see e.g. Shrubsall, 167 AD2d at 931). Felony homicide offenses, however, are not eligible for sealing (see CPL 160.59 [1] [a]). In short, what the court is proposing is a discrete exception to the prohibition on sealing convictions of violent felony offenses for individuals who were youthful-offender eligible at the time of conviction, and when the offense is not otherwise ineligible for sealing.

Amending the statute in this way would reflect an acknowledgment, consistent with the legislative policy concerns underpinning the Raise the Age legislation and the reasoning contained in the Supreme Court's and the Court of Appeals' still-developing juvenile sentencing jurisprudence, that when it comes to the criminal justice system, there are myriad ways in which young people should be treated differently than adults.

It would also give this defendant the opportunity to receive substantially the same treatment that a 16 year old would{**62 Misc 3d at 585} receive today if she were arrested under similar circumstances. Indeed, under the current statutory scheme, if an adolescent offender is charged with committing a robbery where no one was significantly injured and no gun or "deadly weapon" was used, the case will be removed to Family Court—with all of the benefits and protections that entails (see Robert C., 46 Misc 3d at 389-390)—unless the People are able to convince the court that "extraordinary circumstances" warrant keeping the case in criminal court (CPL 722.23 [1] [d]; [2] [c]). The Raise the Age statute does not define "extraordinary circumstances," but routine robbery cases like this one surely would defy such characterization. At the very least, the court is confident that, today, a defendant in a case like this, assuming it remained in criminal court, would be granted youthful offender treatment, either by the trial judge, or, if not, then on appeal (see People v Darius B., 145 AD3d 793, 794 [2d Dept 2016] [reversing denial of youthful offender treatment in first-degree robbery case]; People v David S., 78 AD3d 1205, 1206 [2d Dept 2010] [same result in attempted second-degree robbery case]; People v Nadja B., 23 AD3d 394, 394 [2d Dept 2005] [same in second-degree burglary case]; People v Randell T., 121 AD3d 439, 439-440 [1st Dept 2014] [same in second-degree robbery case]; People v Maria M., 102 AD3d 402, 403 [1st Dept 2013] [same in second-degree assault case]; People v Kwame S., 95 AD3d 664, 664-665 [1st Dept 2012] [same in first-degree robbery case]).

If the statute were amended as proposed, the court would grant defendant's motion without reservation. But, since the court must, of course, decide the motion within the parameters of the current statute, it must, unfortunately, deny it.