Criminal Court of the City of New York, Bronx County, September 20, 2022

Darcel D. Clark, District Attorney (Amanda Vega of counsel), for plaintiff.

The Bronx Defenders (Nayantara Bhushan of counsel) for defendant.

On September 16, 2022, this court conducted a hearing pursuant to Matter of Crawford v Ally (197 AD3d 27 [1st Dept 2021]). At the hearing, the People proffered an NYPD Domestic Incident Report (DIR) as evidence in support of their application for a full order of protection. This DIR described an alleged domestic incident from last year that resulted in the arrest of the same person accused here. However, the ensuing criminal case there had later been dismissed and sealed pursuant to CPL 160.50. From the bench, the court orally ruled that it would not consider this DIR. This written decision further explains the court's reasoning.

In 1976, the legislature enacted CPL 160.50 to " 'eliminate the continued use of arrest and prosecution information by the courts' " and others " 'upon the termination of criminal actions in favor of an accused individual.' " (R.C. v City of New York, 64 Misc 3d 368, 373-374 [Sup Ct, NY County 2019], quoting Budget Report on Bills at 1, Bill Jacket, L 1976, ch 877.) As the Governor noted when approving the law, "consistent with the presumption of innocence, . . . no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law." (Id. at 374, quoting Governor's Approval Mem, 1976 McKinney's Session Laws of NY at 2451.) "This protection is all the more important today given the increased awareness of the overrepresentation of indigent people of color in the criminal justice system." (Matter of Joshua F. [Yvelino F.], 73 Misc 3d 209, 212 [Fam Ct, Kings County 2021].)

"To effectuate this purpose, CPL 160.50 employs language that is mandatory." (Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128, 132 [1993].) Relevant here, the statute{**76 Misc 3d at 1024} mandates that "all official records and papers . . . relating to the arrest or prosecution" that are "on file with" a "prosecutor's office shall be sealed and not made available to any person or public or private agency." (CPL 160.50 [1] [c] [emphasis added].) "Thus, when a criminal case is dismissed and sealed, all documents or other official records relating to that arrest must be sealed as well or the protection [*2]applied to these individuals by the sealing statute is rendered meaningless." (Joshua F., 73 Misc 3d at 210.)

"The People may seek to unseal the record only as provided by the sealing statute." (People v Anonymous, 34 NY3d 631, 640 n 2 [2020].) Consistent with its "general proscription against releasing sealed records," the statute provides only "a few narrow exceptions" that are "precisely drawn." (See Matter of Katherine B. v Cataldo, 5 NY3d 196, 202-203 [2005]; CPL 160.50 [1] [d].) "[T]he statutory language limits the prosecutor's access to such records post-commencement of a criminal prosecution" to "one limited circumstance." (Anonymous, 34 NY3d at 640 n 2.) That is "where the accused has moved for an adjournment [of] contemplation of dismissal in a case involving marijuana charges below felony grade." (Katherine B., 5 NY3d at 205; see also Anonymous, 34 NY3d at 640 [noting the same].) Those are "the only circumstances under which prosecutors may unseal [a person's] records" after they have commenced a case against them. (Jenn Rolnick Borchetta, Curbing Collateral Punishment in the Big Data Age: How Lawyers and Advocates Can Use Criminal Record Sealing Statutes to Protect Privacy and the Presumption of Innocence, 98 BU L Rev 915, 929 [2018].)

The court must apply the sealing statute's plain text in this case. It is well settled that, in construing statutes, courts must look first to the "words and language employed." (McCluskey v Cromwell, 11 NY 593, 601 [1854].) "The text of a statute is the clearest indicator of . . . legislative intent and courts should construe unambiguous language to give effect to its plain meaning." (Matter of Avella v City of New York, 29 NY3d 425, 434 [2017] [internal quotation marks omitted].) "[I]f the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation." (McCluskey, 11 NY at 601.)

Applying the sealing statute's plain text, the DIR at issue here is clearly an "official record[ ]" that is "on file" with the {**76 Misc 3d at 1025}"prosecutor's office," and therefore it "shall be sealed" and "not made available" to anyone. (Joshua F., 73 Misc 3d at 213; see CPL 160.50 [1] [c].) Courts across the city agree—the government may not admit DIRs from sealed cases in other court proceedings. (E.g. People v Blanco, 75 Misc 3d 1207[A], 2022 NY Slip Op 50414[U], *6 [Crim Ct, NY County 2022] ["Similarly, the domestic incident reports that led to the arrest are sealed" and inadmissible]; Joshua F., 73 Misc 3d at 213 ["DIRs . . . are clearly" records that fall under the sealing statute and are inadmissible]; Matter of M.R. [J.R.], 67 Misc 3d 385, 388 [Fam Ct, Bronx County 2020] ["All NYPD records, including domestic incident reports . . . , fall within the sealing statute" and are inadmissible]; Matter of J.G., 2009 NY Slip Op 33477[U], *3 [Fam Ct, Bronx County 2009] ["(T)he DIR was a sealed document unavailable to be entered into evidence when proffered"].)

Moreover, the sealing statute also prohibits the Bronx District Attorney's Office from internally accessing, viewing, and using sealed DIRs. (See R.C., 64 Misc 3d at 376-378 [holding that the same subdivision of the statute prohibits the NYPD from internally accessing and using sealed records]; see also People v Patterson, 78 NY2d 711, 714 [1991] [noting that there was "no authorization" in the sealing statute for the police to internally retain and use the sealed information at issue].) [*3]

This court has no information as to how the People accessed this DIR despite the legal mandates of CPL 160.50. That statute's plain terms clearly prohibit the Bronx District Attorney's Office from maintaining sealed DIRs in such a way that prosecutors can view them; copying those DIRs and disseminating them within their office; and sharing those DIRs with third parties outside of their office. As a result, at a minimum, the sealing statute plainly bars the People from admitting a DIR from a sealed criminal case at a Crawford hearing. (See Blanco, 2022 NY Slip Op 50414[U], *6; Joshua F., 73 Misc 3d at 213; M.R., 67 Misc 3d at 390; J.G., 2009 NY Slip Op 33477[U], *3.)