State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 8
The People &c.,
Respondent,
v.
Anonymous,
Appellant.
Katherine M. A. Pecore, for appellant.
Julia P. Cohen, for respondent.
The Legal Aid Society, amicus curiae.
RIVERA, J.:
A court is without authority to consider for sentencing purposes erroneously
unsealed official records of a prior criminal action or proceeding terminated in favor of the
defendant. Where violation of the sealing mandate of CPL 160.50 impacts the ultimate
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sentence, the error warrants appropriate correction. Such is the case here, where the court
imposed on defendant a higher sentence than promised at his plea, based on its finding that
the unsealed trial record—which the court mistakenly believed it could consider—
established defendant’s violation of a pre-sentence condition of his plea. The order of the
Appellate Division should therefore be reversed, and the matter remitted for resentencing
without reference to or consideration of the contents of the sealed record.
I.
Defendant pleaded guilty to fourth-degree criminal possession of a controlled
substance in exchange for a four-year sentence of imprisonment followed by three years of
post-release supervision. As relevant to this appeal, after defendant pleaded guilty, the
court adjourned sentencing and imposed as a condition to the promised sentence that
defendant “stay out of trouble.”
Before sentencing, defendant was arrested and prosecuted for a crime allegedly
committed after entering his plea. At defendant’s request, the sentencing court agreed to
adjourn defendant’s sentencing pending resolution of the matter. The jury acquitted
defendant of the new charge and the official record, including the trial transcript, was sealed
in accordance with CPL 160.50.
The day following that acquittal, the prosecutor informed the court which had
accepted defendant’s criminal possession plea that the People would be requesting an
enhanced sentence on the criminal possession conviction because defendant violated a pre-
sentence condition of the plea by engaging in criminal conduct during the sentencing
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adjournment, as made clear by defendant’s trial testimony in the other case. The prosecutor
then moved to unseal the records in the prior criminal action terminated by acquittal,
arguing “justice requires” unsealing because the trial testimony was relevant to defendant’s
request to be sentenced under the terms of his plea. The court granted the motion.
Thereafter, the prosecutor submitted defendant’s unsealed trial testimony in support
of the People’s argument that defendant should be sentenced to the maximum nine-year
sentence (see Penal Law § 70.70 [4] [b] [ii]). Defense counsel objected to the unsealing
and to the court’s consideration of the trial testimony for purposes of sentencing, citing this
Court’s decision in Matter of Katherine B. v Cataldo (5 NY3d 196 [2005]). Counsel argued
the court should sentence defendant to the four years, as promised.
The court found, based on defendant’s trial testimony in the sealed proceeding, that
defendant violated the condition of his plea that he not commit any further crimes, i.e., he
“stay out of trouble.” Accordingly, the court determined it was not bound by its promised
four-year sentence and imposed an eight-year term of incarceration.
The Appellate Division affirmed the judgment (People v Anonymous, 161 AD3d
401, 402 [1st Dept 2018]). A divided Court concluded that Katherine B. controlled and it
was error to unseal the records, but a unanimous court held that, under People v Patterson
(78 NY2d 711 [1991]), the violation of the sealing statute “without more” did not require
resentencing or a reduced sentence (Anonymous, 161 AD3d at 402; id. at 403 [Tom, J.,
concurring]). A Judge of this Court granted defendant leave to appeal (People v
Anonymous, 32 NY3d 1063, 1063 [2018]).
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II.
Defendant argues that the sentencing court erred by unsealing the records and then
relying on his unsealed trial testimony to deviate from the court’s promised sentence.
Defendant maintains that the court’s unsealing and reliance on the unsealed records for
sentencing purposes (1) violates the statutory scheme of CPL 160.50 and the prescriptive
holding in Katherine B., and (2) undermines the legislative goals of preserving the
presumption of innocence and ensuring that an individual suffers no consequences as a
result of unsubstantiated accusations. The People respond that the court properly unsealed
the records to determine whether defendant violated the plea. Alternatively, the People
contend that even if it was error to unseal the records, under the reasoning of Patterson, the
error does not require defendant to be resentenced without consideration of the unsealed
records.
We conclude that the court erroneously granted the prosecutor’s motion to unseal
the records of the proceeding terminated by acquittal and improperly considered
defendant’s trial testimony in deciding not to adhere to the promised sentence. Further,
because the court’s sentence is based on that testimony, the proper remedy is to remit for
defendant’s resentencing without reference to the contents of the sealed records.
III.
Whether the sealing was improper turns, foremost, on the language of CPL 160.50.
“As the clearest indicator of legislative intent is the statutory text, the starting point in any
case of interpretation must always be the language itself, giving effect to the plain meaning
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thereof” (People v Golo, 26 NY3d 358, 361 [2015], quoting Majewski v Broadalbin–Perth
Cent. School Dist., 91 NY2d 577, 583 [1998]). This is not the first time we have considered
the sealing mandate of CPL 160.50 and thus we are bound and guided by the Court’s
previous exposition on the statute’s scope and legislatively specified exceptions, as well as
the salutary purposes of the sealing regime.
A.
CPL 160.50 (1) provides, in relevant part:
“Upon the termination of a criminal action or proceeding
against a person in favor of such person, . . . unless the district
attorney upon motion with not less than five days notice to such
person . . . demonstrates to the satisfaction of the court that the
interests of justice require otherwise, . . . the record of such
action or proceeding shall be sealed . . . .”
“[T]he Legislature’s objective in enacting CPL 160.50 . . . was to ensure that the
protections provided be ‘consistent with the presumption of innocence, which simply
means that no individual should suffer adverse consequences merely on the basis of an
accusation, unless the charges were ultimately sustained in a court of law’” (Patterson, 78
NY2d at 716, citing Governor’s Approval Mem, 1976 McKinney’s Session Laws of NY,
at 2451). In other words, “[t]he sealing requirement was designed to lessen the adverse
consequences of unsuccessful criminal prosecutions by limiting access to official records
and papers in criminal proceedings which terminate in favor of the accused” (Katherine B.,
5 NY3d at 202 [citation omitted]). The “articulated rationale for the enactment of the
sealing statutes—the ‘presumption of innocence’ . . . [—]directed usually at pending
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charges can surely have been viewed by the Legislature as even more germane in relation
to favorably terminated matters” (Matter of Alonzo M. v New York City Department of
Probation, 72 NY2d 662, 668-669 [1988]). At its core, “[t]he statute serves the laudable
goal of [e]nsuring that one who is charged but not convicted of an offense suffers no stigma
as a result of [the accused] having once been the object of an unsustained accusation”
(Hynes v Karassik, 47 NY2d 659, 662 [1979]).
The sealing mandate of CPL 160.50 (1), in combination with CPL 160.60—which
provides that “the arrest and prosecution shall be deemed a nullity and the accused shall be
restored, in contemplation of law, to the status the [accused occupied] before the arrest and
prosecution”—requires more than a court’s acknowledgment that the arrest and
prosecution ended favorably. The 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.
As the Court summarized in Matter of Alonzo M.,
“when an action is favorably disposed of in an adult proceeding
the records are sealed under CPL 160.50, the arrest and
prosecution are deemed a nullity, the accused is restored to the
status occupied before arrest and unless specifically required
by statute, or directed by a superior court, the accused is not
required to divulge information regarding the favorably
terminated action. This statutory safety net protecting adults
ensures that records and materials generated from an arrest and
a favorably terminated proceeding are eliminated as facets of
the accused’s criminal pedigree” (72 NY2d at 667–668
[citations omitted]).
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B.
In CPL 160.50 (1) (d), the legislature identified a restricted list of six exceptions to
the sealing mandate’s prohibition on access, including (d) (ii), relied upon by the People
here.1 That exception allows access to sealed records by “a law enforcement agency upon
ex parte motion . . . , 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]).
1
The six exceptions to the general bar on disclosure of sealed records provide access to:
“(i) a prosecutor in any proceeding in which the accused has
moved for an order pursuant to section 170.56 or 210.46 of this
chapter, or (ii) a law enforcement agency upon ex parte motion
in any superior court, or in any district court, city court or the
criminal court of the city of New York provided that such court
sealed the record, if such agency demonstrates to the
satisfaction of the court that justice requires that such records
be made available to it, or (iii) any state or local officer or
agency with responsibility for the issuance of licenses to
possess guns, when the accused has made application for such
a license, or (iv) the New York state department of corrections
and community supervision when the accused is on parole
supervision as a result of conditional release or a parole release
granted by the New York state board of parole, and the arrest
which is the subject of the inquiry is one which occurred while
the accused was under such supervision, or (v) any prospective
employer of a police officer or peace officer . . . in relation to
an application for employment as a police officer or peace
officer; provided, however, that every person who is an
applicant for the position of police officer or peace officer shall
be furnished with a copy of all records obtained under this
paragraph and afforded an opportunity to make an explanation
thereto, or (vi) the probation department responsible for
supervision of the accused when the arrest which is the subject
of the inquiry is one which occurred while the accused was
under such supervision . . . .” (CPL 160.50 [1] [d]).
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“These six statutory exceptions are precisely drawn. This underscores the
Legislature’s commitment to prohibiting disclosure of sealed records—once initial sealing
has not been forestalled by the court in the interest of justice—except where the statute
explicitly provides otherwise” (Katherine B., 5 NY3d at 203). In Katherine B. this Court
rejected an expansive reading of the exception relied upon by the People here and held that
a superior court is not authorized under CPL 160.50 (1) (d) (ii) “to make sealed records
available to a prosecutor for purposes of making sentencing recommendations” (id. at 199).
Contrary to the position advocated by the People and adopted by the dissent (dissent op at
10), there is no analytically meaningful distinction between the respective prosecutors’
intended use of the sealed records in Katherine B. and in defendant’s case, and the holding
and logic of Katherine B. applies with equal force to the instant appeal.
The petitioners in Katherine B. were tried and convicted of one count each of
obstructing governmental administration. To aid in sentencing, the court directed the
People to supply it with updated criminal histories in support of their sentencing
recommendations. The People moved in Supreme Court under, as relevant here, CPL
160.50 (1) (d) (ii) to unseal records of prior criminal cases involving petitioners. The court
granted the motion.
In holding that the records should not have been unsealed, this Court explained that
“consistent with th[e] design and the ‘plain intendment of the statutory scheme,’ the
‘general proscription against releasing sealed records and materials [is] subject only to a
few narrow exceptions’” (id. at 202-203 [emphasis and citation omitted]). Noting that the
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term “law enforcement agency” as it appears in CPL 160.50 always appears with the terms
“police department” or “the division of criminal justice services,” except in CPL 160.50
(1) (d) (ii), the Court found that the term “law enforcement agency” includes agencies such
as police departments and the Division of Criminal Justice Services, a view supported by
CPL 160.50’s legislative history (id. at 204). Because, however, CPL 160.50 (1) (d) (i)
specifically authorizes disclosure to a “prosecutor” in a “proceeding,” the Court held that
CPL 160.50 limits a court’s authority to unseal records at the request of a prosecutor after
commencement of a criminal proceeding (id. at 205). Therefore, providing access to the
prosecutor to make a sentencing recommendation was error because the “primary focus”
of CPL 160.50 (1) (d) “is the unsealing of records for investigatory purposes” (id. at 205).
Indeed, as made clear by the statutory scheme and text, “the [l]egislature has limited a
court’s authority to make sealed records available to a prosecutor after commencement of
a criminal proceeding to the singular circumstance delineated in CPL 160.50 (1) (d) (i)—
where the accused has moved for an adjournment in contemplation of dismissal in a case
involving marijuana charges below felony grade” (id.).
Here, the prosecutor sought access to the sealed records to present defendant’s trial
testimony to the court in support of the prosecutor’s argument that defendant violated a
pre-sentence plea condition, warranting imposition of an enhanced sentence, specifically
the maximum sentence—more than double the incarceratory time promised by the court
upon defendant’s plea. The prosecution sought the sealed material it already knew to exist
as evidence in support of his argument for an enhanced sentence. The court granted the
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motion to unseal for that exact purpose. Thus, as in Katherine B., it was error for the court
here to unseal the criminal proceeding records for the noninvestigatory purpose of
presenting a sentencing recommendation and determining defendant’s sentence.2
The People argue Katherine B. does not stand for what it holds, and, in any event,
that there are good reasons for us to narrow its reach. The People’s argument proceeds
along two paths, but both turn on their view of the court’s sentencing obligation. We are
unpersuaded as the first path is no more than a reformulated version of the argument
rejected in Katherine B. and the second is analytically unsound.3
First, the People argue that the District Attorney’s Office is a law enforcement
agency with access to sealed records under the authority of CPL 160.50 (1) (d) (ii) when a
2
The dissent’s attempt to analogize the People’s use of the trial materials here to the
“investigatory function exercised by [DOCCS] and the probation department” (dissenting
op at 10) is unpersuasive and unsupported by the record as the People were not seeking to
investigate defendant. Moreover, Katherine B. rejected the prosecution’s attempt to go on
a fishing expedition dressed up as an investigatory mandate (see 5 NY3d at 205). In any
case, the point is irrelevant. The People may seek to unseal the record only as provided by
the sealing statute, and, as Katherine B. made clear, the statutory language limits the
prosecutor’s access to such records post-commencement of a criminal prosecution in one
limited circumstance not applicable here (see CPL 160.50 [1]). The dissent merely
attempts legislation by judicial pronouncement.
3
In another version of this same attempt to recharacterize the prosecutor’s actions here, the
People and the dissent argue that unsealing was proper because the prosecution sought the
transcript not for purposes of making a sentencing recommendation, but merely so the
sentencing court could conduct a hearing and evaluate defendant’s compliance with the no-
new-crimes condition of his plea agreement. However, the prosecutor’s in court-
representations and motion papers make clear that the prosecutor’s sole purpose in
requesting unsealing was to present defendant’s testimony in support of the People’s
argument that the court should impose an enhanced sentence of nine years rather than the
agreed to four years’ incarceratory period. In other words, the prosecutor unquestionably
wanted the testimony as evidence to support his sentencing recommendation. As we will
discuss, that is no different from the intended use of unsealed materials in Katherine B.
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court has continuing jurisdiction over a defendant for sentencing. According to the People,
the “broad range of law enforcement entities” and the “variety of law enforcement
purposes” that fall within the law enforcement exception cannot be squared with what they
view as an overly narrow reading of Katherine B. (5 NY3d at 204). The People further
assert that a court may grant such a motion under CPL 160.50 (1) (d) (ii) upon the
prosecution showing “justice requires” unsealing. That view is untenable given the holding
in Katherine B., which makes clear that the People cannot seek the records under CPL
160.50 (1) (d) (ii) for post-criminal-proceeding purposes and, specifically the purpose
sought here—namely, to recommend a sentence based on sealed court records.4 Moreover,
as the Court explained therein, the interest of justice ground set forth in CPL 160.50 (1)
only applies when the People seek to stay the sealing of records, not to unseal them
(Katherine B., 5 NY3d at 203; see also CPL 160.50 [1] [“Upon the termination of a criminal
action or proceeding(,) . . . unless the district attorney upon motion . . . demonstrates to the
satisfaction of the court that the interests of justice require otherwise, . . . the record . . .
shall be sealed . . . .”]), or when a “law enforcement agency”—which the People are not
under Katherine B.—seeks to unseal (CPL 160.50 [1] [d] [ii]).
4
The dissent deploys this flawed analysis to argue that our reading of Katherine B. is
inconsistent with a prosecutor’s continuing duty to ensure against the wrongful accusation
and prosecution of a defendant, which does not cease once a criminal action commences
(dissenting op at 9 n 4). The point does not affect the analysis here. The prosecutor’s duty
is not a novel one. It is certainly a duty understood by the legislature, as well as this Court
when it decided Katherine B. The legislature has determined that certain materials cannot
be used in support of a sentencing recommendation, and we are obligated to adhere to this
legislative determination.
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“Where a statute describes the particular situations in which it is to apply and no
qualifying exception is added, ‘an irrefutable inference must be drawn that what is omitted
or not included was intended to be omitted or excluded’” (Matter of Alonzo M., 72 NY2d
at 665-666, quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205,
208-209 [1976]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 240 at 412-
413 [“(W)here a statute creates provisos or exceptions as to certain matters the inclusion
of such provisos or exceptions is generally considered to deny the existence of others not
mentioned.”]). Here, the sealing mandate of CPL 160.50 (1) applies by its plain terms, and
the legislature did not provide broad authority in CPL 160.50 (1) (d) for the release of
sealed records to prosecutors, instead choosing to confine post-proceeding access to
narrowly-defined circumstances. As we may not “legislate under the guise of [statutory]
interpretation,” we reject the dissent’s arguments that would require us to expand CPL
160.50 beyond its plain language (People v Finnegan, 85 NY2d 53, 58 [1995]).
The People’s second brand of argumentation is based on what they assert is an
independent source of judicial authority: the court’s constitutional and statutory mandates
to impose a sentence based on reliable and accurate information. More specifically, the
People maintain that the trial court properly unsealed the transcript to effectuate
defendant’s due process rights and the court’s statutory obligation under CPL 400.10 (4).
As to the constitutional claim, they ignore that due process requires that a defendant be
sentenced in accordance with the law, and the law here does not permit unsealing for
sentencing recommendation purposes. The People’s reliance on CPL 400.10 (4) fares no
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better because that provision merely states that “the court shall take into consideration the
defendant’s record of compliance with pre-sentence conditions ordered by the court.”
Here, there is no question that the court may consider defendant’s compliance with pre-
sentence conditions. However, the question is what constitutes defendant’s history for that
purpose. For the reasons we have discussed, a sealed record is simply not available for
consideration at sentencing. It is a nullity and the court cannot rely on it to impose a
sentence.
Put a slightly different way, the court’s continuing jurisdiction for purposes of
sentencing—the sentencing court’s rationale here—did not provide an independent basis
to unseal defendant’s testimony in a previous, favorably terminated criminal prosecution.
The Court long ago rejected the view that a court’s inherent authority over its proceedings
grants power to unseal because that “would subvert the plain intendment of the statutory
scheme—to establish, in unequivocal mandatory language, a general proscription against
releasing sealed records and materials, subject only to a few narrow exceptions” (Matter of
Joseph M. [New York City Bd. of Educ.], 82 NY2d 128, 134 [1993] [emphasis in original];
see also Matter of Alonzo M., 72 NY2d at 668 [expressing concern that courts’ inherent
authority over their own records would be “dubious authority (upon which) to override so
clear a legislative policy” set forth in a sealing statute]). In accordance with our settled
rules of statutory interpretation, we have eschewed efforts to rewrite the statute to achieve
what a court or advocate perceives to be a better outcome, because “if there is to be an
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exception to the general rule proscribing the release of sealed records . . . it should be
created by the [l]egislature, not by the courts” (Matter of Joseph M., 82 NY2d at 134).5
The legislature has also rejected this very basis for the unsealing of records. In
1977, the legislature eliminated a provision that automatically stalled sealing when another
action was pending against the defendant, replacing it with the current language that allows
a court to stay sealing upon a determination that “the interests of justice” require it. The
legislature determined “the existence or non-existence of another pending action is really
irrelevant” (Governor’s Program Bill Mem, Bill Jacket, L 1977 ch 905). Where the action
“has been determined favorably to the defendant, [the defendant] is entitled to have the
record thereof sealed” because any pending action, should there be one, “will eventually
be resolved, in terms of section 160.50 on its own merits” (id.). The prosecutor here failed
to pursue this option, instead choosing the next day to inform the court that it would move
to unseal the record.
Notably, more recently, the legislature rejected an attempt to amend the statute in
the way the People advocate the current version should be interpreted. Legislation
introduced in 2011 proposed a seventh enumerated exception permitting a party in a
5
Contrary to the dissent’s opinion, we do not undermine judicial control of sentencing or
“erect unreasonable barriers” (dissenting op at 18), nor is the result in this appeal “absurd”
(dissenting op at 18). Notwithstanding the dissent’s hyperbole, our holding merely
emphasizes a court’s obligation to apply CPL 160.50 as written. The dissent ignores that
the prosecutor may object to sealing in the first instance (CPL 160.50 [1]). Once the record
is sealed, the prosecutor may present evidence from an independent source to establish
defendant’s noncompliance with sentencing conditions (see infra Part IV). Thus, properly
understood and applied, the legislative scheme seamlessly protects a defendant’s and
society’s interests.
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criminal proceeding to move for unsealing upon notice to the adverse party, if it
“demonstrates to the satisfaction of the court that justice requires that the records be made
available to [it] in connection with the criminal proceeding” (2011 NY Assembly Bill
A7389). The amendment was intended to address the holding of Katherine B., which the
sponsor considered to have “inappropriately narrowed the situations where the Court may
unseal records” (Sponsor’s Mem, 2011 NY Assembly Bill A7389). Although “[l]egislative
inaction, because of its inherent ambiguity, affords the most dubious foundation for
drawing positive inferences” (Clark v Cuomo, 66 NY2d 185, 190–191 798 [1985] [internal
quotation marks and citation omitted]), “[w]e have distinguished [] instances in which the
legislative inactivity has continued in the face of a prevailing statutory construction”
(Desrosiers v Perry Ellis Menswear, LLC, 30 NY3d 488, 497 [2017], quoting Brooklyn
Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90 [1976]
[internal quotation marks omitted]; see also Matter of NYC C.L.A.S.H., Inc. v New York
State Office of Parks, Recreation & Historic Preserv., 27 NY3d 174, 184 [2016] [looking
to “whether the legislature has unsuccessfully tried to reach agreement on (an) issue, which
would indicate that the matter is a policy consideration for the elected body to resolve”]).
“When the Legislature, with presumed knowledge of the judicial construction of a statute,
for[]goes specific invitations and requests to amend its provisions to effect a different
result, we have construed that to be some manifestation of legislative approbation of the
judicial interpretation” (Matter of Alonzo M., 72 NY2d at 667). Thus, the rejection of a
legislative attempt to adopt the People’s argument reinforces the correctness of the
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interpretation pronounced in Katherine B. and supports our reading of CPL 160.50 as
applied to the facts of defendant’s appeal.6
The People mistakenly rely on Matter of New York State Commission on Judicial
Conduct v Rubenstein (23 NY3d 570 [2014]) as suggesting that courts have independent
authority to unseal. There, we clarified that “absent ‘extraordinary circumstances’ [], a
specific grant of power [], or the existence of a legal mandate the nature of which would
be impossible to fulfill without unsealing criminal records,” such records may be obtained
only in accordance with CPL 160.50 (1) (d) (id. at 581). There are no extraordinary
circumstances here, where the prosecutor did no more than seek to use a sealed court record
to support a sentence recommendation—that was the case in Katherine B.
There is neither a specific grant of power nor a mandate that cannot be fulfilled
without the sealed records within the meaning of our holding in Rubenstein. Indeed, in
applying the standard in that case, we held that the constitutional authorization of the
Judicial Commission and Judiciary Law § 42 (3) provided separate sources for access to
sealed records because without such access, it would be impossible for the Commission to
fulfill its legal mandate, which included “ensuring the integrity of the judiciary”
(Rubenstein, 23 NY3d at 582). The integrity of the court is not at issue here. Quite the
6
The dissent maintains that ensuring a sentence in accordance with the plea should
outweigh the mandates of the sealing statute (dissent op at 13). Although the dissent might
have it otherwise, the legislature has weighed these interests and rejected the dissent’s view
by enacting the sealing statute, which “strikes the balance by requiring sealing in a wide
variety of contexts and providing for the disclosure of sealed files in only limited
circumstances” (Harper v Angiolillo, 89 NY2d 761, 767 [1997]), none of which permit
unsealing for sentencing purposes.
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contrary, as the statutory purpose and limited exceptions to sealing are intended to preserve
the presumption of innocence and protect the defendant from the type of general
justifications for access deployed here by the People. Therefore, the fact that the court
retained jurisdiction over defendant does not provide authority independent of CPL 160.50
to access the records once sealed. The People’s remaining claim that unsealing was not
error, namely that the court did not rely on the charged crime but rather on defendant’s
testimony revealing conduct that violated the sentencing condition, is essentially an
argument that his testimony does not fall within the scope of CPL 160.50. This ignores the
Court’s prior acknowledgement that the “ambit of the sealing requirement is broad” by its
plain text (Harper, 89 NY2d at 766), which does not contain within its “narrow exceptions”
a carveout for any particular class of materials. Instead, “the sealing covers ‘all official
records and papers . . . relating to the arrest or prosecution’” (Katherine B., 5 NY3d at 202,
quoting CPL 160.50 [1] [c]). The broad statutory coverage includes trial testimony
provided in defense of the charges. Moreover, the purpose of the sealing statute is to
“lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access
to official records and papers in criminal proceedings which terminate in favor of the
accused” (Harper, 89 NY2d at 766). Here, but for the unsuccessful prosecution, there
would be no trial testimony by defendant about his involvement in another crime. Indeed,
defendant’s testimony was integral to his defense.
Apart from the analytic flaws in the People’s and dissent’s arguments, we cannot
ignore the potential impact on the legislature’s carefully designed statutory framework if
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we stamp our imprimatur on the unsealing of defendant’s trial testimony because the
sentence was conditional. It is not uncommon for courts to impose terms on a sentence
promised in exchange for a defendant’s guilty plea. The condition at issue here—“stay out
of trouble” —is in no way unique or exceptional (see e.g. People v Reynolds, 117 AD3d
478, 478 [1st Dept 2014], affd 27 NY3d 1099 [2016] [“The court properly determined that
defendant violated the ‘no-arrest’ condition of his plea agreement . . . .”]; People v Bracy,
131 AD3d 538, 539 [2d Dept 2015] [same]; People v Fink, 97 AD3d 974, 976 [3d Dept
2012] [same]; People v Bennett, 4 Misc3d 287, 288 [Sup Ct, Kings County 2004]
[imposing a no-new-arrest requirement]).7 Adopting any of the People’s or the dissent’s
arguments would permit unsealing in every case where the People challenge a defendant’s
compliance with the terms of a plea, rendering CPL 160.50 ineffective and turning the
sealing of records into the exception rather than the rule. We must be “careful when
considering whether to permit access to sealed records so that we do not undermine the
legislative goals of CPL 160.50, and make unsealing of records the rule rather than a
narrowly confined exception” (Rubenstein, 23 NY3d at 581).
7
Our conclusion that the terms of the plea agreement are not “unique or exceptional” bears
no relation to the alleged criminal propensities of the “average” defendant (dissenting op
at 13). Likewise, contrary to the dissent’s assertion, there is nothing exceptional about
application of the sealing mandate to all the records in defendant’s prosecution upon his
acquittal, and holding the court to the legislative intendment as set forth in CPL 160.50 and
affirmed by Katherine B.
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IV.
The Appellate Division wrongly concluded that defendant was not entitled to a
remedy for this violation of CPL 160.50, relying, as the People and the dissent do here, on
this Court’s decision in Patterson (Anonymous, 161 AD3d at 402–403; id. at 403 [Tom, J.,
concurring]). However, Patterson is distinguishable and no bar to defendant’s request that
he be resentenced without consideration of the erroneously unsealed record.
In Patterson, the police department failed to return defendant’s photograph taken in
connection with an unrelated proceeding, which was dismissed and the file sealed. The
photograph was later used in an identification procedure in connection with the defendant’s
prosecution in an unrelated criminal matter. The defendant argued that suppression of in-
court identification testimony was mandated in order to protect a “substantial right” that
“relate[s] rather closely” to Fourth Amendment protections conferred by CPL 160.50 and
to “further the underlying purposes of the exclusionary rule” (78 NY2d at 714-715). The
Court rejected this argument, holding “there is nothing in the history of CPL 160.50 or
related statutes indicating a legislative intent to confer a constitutionally derived
‘substantial right’, such that the violation of that statute, without more, would justify
invocation of the exclusionary rule with respect to subsequent independent and unrelated
criminal proceedings” (id. at 716). In so holding, the Court explained that defendant did
not challenge the identification procedure or otherwise question its reliability, nor did he
claim the photograph was unlawfully taken or that the use of the photograph affected the
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- 20 - No. 8
determination of his guilt or innocence (id. at 714). In other words, the defendant in
Patterson did not claim that the failure to seal the photograph affected the conviction.
Patterson involved a challenge on direct appeal to in-court identification testimony
supported by pre-trial use of an unsealed photograph of the defendant in a photographic
array. In contrast, defendant here seeks a limited post-unsealing remedy in a different
context for a different violation—the court’s post-conviction use of unlawfully obtained
records to determine defendant’s noncompliance with the sentencing conditions.
Defendant seeks to correct a sentence imposed by the court based on its finding that
defendant violated the condition of his plea agreement as established by his unsealed trial
testimony.8
In arguing against defendant’s request to be resentenced in a manner that comports
with the goals of CPL 160.50, the People place undue significance on Patterson’s
conclusion that CPL 160.50 does not confer a constitutionally derived substantial right.
The People and the Appellate Division understood that language to mean that reliance on
erroneously unsealed materials for sentencing results in an injury without remedy.
8
Katherine B. involved a civil action to prevent unlawful unsealing (5 NY3d at 201 n 1).
We have no occasion to consider such preemptive conduct here, except to note that the
CPL permits defendant’s challenge to the misuse of the erroneously unsealed court record
on his direct appeal (see CPL 450.10 [2] [a defendant may appeal “(a) sentence . . . unless
the appeal is based solely upon the ground that a sentence was harsh or excessive when
such sentence was predicated upon entry of a plea of guilty and the sentence imposed did
not exceed that which was agreed to by the defendant as a condition of the plea and set
forth in the record or filed with the court . . . .”]; CPL 450.30 (1) [“An appeal by the
defendant from a sentence, as authorized by subdivision two of section 450.10, may be
based upon the ground that such sentence either was (a) invalid as a matter of law, or (b)
harsh or excessive” (emphasis added)]).
- 20 -
- 21 - No. 8
Patterson does not support such a sweeping proposition. Rather, the relief sought in that
case—application of the Fourth Amendment exclusionary rule to suppress an in-court
identification of the defendant premised upon the use of defendant’s photograph in an
earlier photo array—was unavailable because the defendant established what the majority
called a “technical” violation of CPL 160.50 without more. Here, there is more than the
erroneous unsealing of the court record; there is the improper reliance by the court on the
sealed testimony to enhance defendant’s sentence. The trial testimony persuaded the court
that defendant violated a pre-sentence condition of his plea and supplied the grounds for
the court to deviate from its promised sentence. This direct impact on the sentence satisfies
the requirement that a defendant show more than a “technical” statutory violation. 9 Thus,
on Patterson’s own terms, the holding and analysis of that case support rather than foreclose
resentencing of defendant here. Contrary to the dissent’s characterization (dissent op at
15), the remedy we recognize is not suppression of evidence obtained in violation of the
Fourth Amendment, as was the case in Patterson, where the Court rejected application of
the exclusionary rule on the facts of that case (Patterson, 78 NY2d at 718). Nor is the
remedy invoked against the sentencing court (dissenting op at 17). Instead, the remedy
9
The dissent unpursuasively attempts to distinguish this appeal from Katherine B. by
arguing that here, the court did not unseal the transcript of the criminal action terminated
favorably in defendant’s favor for the purpose of sentencing defendant based on the factual
allegations that gave rise to the acquitted charge. As stated above and expressly in the
statute, CPL 160.50 protects the “record” of an “action or proceeding” terminated in favor
of the accused, not only the “factual allegations” related to the crime for which the
defendant was acquitted.
- 21 -
- 22 - No. 8
here is intended to ensure the sentencing court has access only to information permitted
under the legislature’s carefully drafted sealing framework (see CPL 160.50).
In the post-Patterson cases relied upon by the People we have taken a similar view
of the need for a connection between the statutory violation and the alleged harm sought to
be corrected. In Matter of Charles Q. v Constantine (85 NY2d 571 [1995]), the Court
rejected the petitioner’s request to annul the decision to terminate his employment as a state
trooper because evidence sealed under CPL 160.50 was submitted at his disciplinary
hearing. The Court held annulment was not required based on the “mere reception” of
erroneously unsealed evidence, “without more” (id. at 575). The Court explained that the
respondent’s determination was supported by the petitioner’s own testimony and “there is
no indication that the admission of the erroneously unsealed evidence operated to deprive
petitioner of a fair hearing” (id. at 576). In other words, consideration of the unsealed
records was not outcome-determinative and the decision to terminate employment was
supported by independent evidence. Here, the People did not present independent evidence
that defendant violated the conditions of his plea, but instead sought to avoid their burden
by relying on the contents of the unsealed record.
Similarly unhelpful to the People is People v Greene (9 NY3d 277, 280 [2007]), a
case that does not even involve CPL 160.50. The Court there held that a violation of the
physician-patient privilege that ultimately led to the defendant’s conviction did not require
suppression of erroneously obtained medical information (id. at 280). As the Court
explained, “the privilege does not apply to ‘such ordinary incidents and facts as are plain
- 22 -
- 23 - No. 8
to the observation of any one without expert or professional knowledge’” (id., quoting
Klein v Prudential Ins. Co. of Am., 221 NY 449, 453 [1917]). Therefore, when police
learned from hospital personnel that the defendant had sought treatment for a knife wound
on his face, and this information ultimately lead to his conviction for second degree
manslaughter, the Court found, consistent with Patterson, that violation of the statutory
privilege “without more” did not require suppression of the information obtained in
violation of the privilege (Greene, 9 NY3d at 280). Even if there was a violation of the
physician-patient privilege, because of the independent evidence supporting the
defendant’s conviction, violation of the privilege did not affect the outcome of the
proceeding (see id. at 280-281).
Defendant here seeks to be sentenced without consideration of the unsealed record
because the use of his testimony at sentencing was the sole basis for the enhanced sentence.
This appeal seeks a remedy for the injury flowing from an erroneous sentencing process
and ultimate sentence determination. The only remedy for that error—indeed the only way
to restore defendant “to the status occupied before arrest” on the acquitted charge—is to
remit for resentencing without consideration of the trial testimony obtained in violation of
the sealing statute (Matter of Alonzo M., 72 NY2d at 667). This would ensure the
legislative intent that the sealed matter remains a nullity (see id.).10
10
Unlike the dissent, we do not opine or engage in speculation about possible outcomes
concerning the People’s strategy upon remittal (dissenting op at 18). In any case, as the
dissent acknowledges, the provision of the statute that allows for a stay of sealing within
five days of termination of the proceeding in favor of the accused (CPL 160.50 [1]) is a
legislative choice, not a judicial rule.
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- 24 - No. 8
Of course, upon resentencing, the People may present evidence not obtained from
the sealed record to establish that defendant violated the pre-sentence plea conditions,
supporting a longer sentence than promised at the plea. We take no position on the
permissible source or nature of such evidence.
V.
In sum, the Appellate Division properly concluded that the sentencing court
erroneously unsealed the court record of the proceeding in which defendant was acquitted
because, as explained in Katherine B., CPL 160.50 (1) (d) (ii) does not permit the
prosecutor access to sealed records for sentencing purposes in another matter. However,
the Appellate Division incorrectly held defendant has no remedy when the sentencing court
relied exclusively on the unsealed record to enhance his sentencing. Instead, the court
should have ordered the sentence vacated and the case remitted for resentencing without
reference to or consideration of the sealed records.
Accordingly, the order of the Appellate Division should be reversed and the case
remitted to Supreme Court for further proceedings in accordance with this opinion.
- 24 -
-1-
People v Anonymous
No. 8
DiFIORE, Chief Judge (dissenting):
Defendant pleaded guilty and, in exchange for the court’s promise setting forth the
range of sentences to be imposed depending upon his compliance with certain conditions,
agreed that he would stay out of trouble while awaiting sentencing. Four months later,
defendant was arrested and indicted for new criminal activity. He proceeded to trial on the
-1-
-2- No. 8
new case and, while testifying under oath, admitted that he engaged in postplea drug
activity – a clear violation of the plea conditions. The majority, claiming that CPL 160.50
was intended to shield this type of information, now prohibits the sentencing court from
considering defendant’s testimony and performing its duty to impose a proper sentence in
accordance with the express terms of the plea bargain agreement.
The CPL 160.50 sealing statute generally commands that where a criminal action is
terminated in favor of an accused, the official records are sealed to protect the individual
who was the subject of prosecution, particularly in his or her pursuit of future prospects
untainted by any stigma resulting from a criminal action. The statute, however, provides a
clear path to obtain the records in the interests of justice by the prosecutor and the court
and also contains an express exception that, here, authorized the sentencing court to access
the transcript of defendant’s testimony in order to obtain evidence that he violated the terms
of his plea agreement. Even assuming the trial court’s unsealing order violated CPL 160.50
– and it did not – defendant is not entitled to the drastic remedy of suppression. Therefore,
I would affirm the Appellate Division order.
I
Defendant was convicted, upon his negotiated guilty plea, of the reduced charge of
criminal possession of a controlled substance in the fourth degree, in satisfaction of the top
count of the indictment – a class A-II drug felony. Pursuant to the plea deal, defendant
faced a maximum prison term of nine years, but was given a promise of four years’
imprisonment – the legal minimum, given defendant’s predicate violent felony conviction
-2-
-3- No. 8
– to be followed by three years’ postrelease supervision (PRS). The court expressly
instructed defendant that the promised sentence was conditional and that, in order to
receive the four-year term, he would be required to comply with three conditions. As
relevant here, defendant was advised that he had to stay out of trouble and he could not be
arrested for a new offense. The court informed defendant that, upon a violation of the
terms of the guilty plea agreement, it would not be bound by the four-year minimum term
and defendant would, instead, face up to a maximum of nine years in prison. Defendant
confirmed that he understood the terms of the plea agreement and its conditions. The court
adjourned sentencing for several months.
Approximately four months later, and prior to sentencing on the drug conviction,
defendant was arrested and indicted on robbery charges. Although the court could have
held an immediate hearing and found defendant in violation of the terms of his plea
agreement if it determined that there was a legitimate basis for the arrest (see People v
Outley, 80 NY2d 702, 713 [1993]), the court agreed to further adjourn sentencing until
prosecution of the new indictment concluded. The court also rejected the People’s request
to vacate defendant’s entire plea agreement based on the new criminal activity.
At trial on the robbery indictment, defendant elected to testify in his own defense
and denied his guilt of the factual allegations of the charged offenses. However, in open
court, under oath, defendant admitted to participating in drug activity in the period
following his guilty plea. The jury acquitted defendant of the crimes charged, which did
not include a drug offense.
-3-
-4- No. 8
The following day, defendant, defense counsel and the prosecutor appeared before
the court presiding over the drug conviction. In light of the acquittal, defendant made an
application to be released on bail. The People opposed the request and represented to the
court that, during the trial, defendant testified under oath that he had committed large scale
drug crimes while out on bail awaiting sentencing on his drug conviction. Relying on the
express terms of the plea agreement, the People stated that they would be seeking an
enhanced sentence – the maximum nine-year term – based on defendant’s violation of the
court’s presentence conditions. After defense counsel disputed, in minor part, the People’s
factual account of defendant’s trial testimony, the court directed the People to particularize
the information in support of their assertion that defendant engaged in postplea criminal
conduct in violation of his plea agreement. In response to the prosecutor’s inquiry, the
court indicated that it would sign an order unsealing the record of the robbery trial, but that
it would allow both sides to be heard before it determined whether an elevated sentence
was warranted. Defendant interposed no objection.
The People then applied for an unsealing order pursuant to CPL 160.50 (1) (d) (ii),
invoking the statute’s law enforcement agency exception and arguing that the court should
consider defendant’s trial testimony in determining whether he had violated the court’s
conditional promise. After the court unsealed the records, the People urged the court to
consider defendant’s admission of postplea criminal conduct in imposing an appropriate
sentence.
In response, defense counsel did not dispute the content of defendant’s trial
testimony, but asserted that defendant had previously related the substance of that
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-5- No. 8
testimony to the prosecutor prior to the trial – essentially, defendant asserted that he had
been candid with the People about his involvement in the drug transaction and the reasons
therefor, which he viewed as mitigating factors for his new criminal activity. About six
weeks later, defense counsel provided a supplemental submission arguing that the
unsealing order ran afoul of Matter of Katherine B. v Cataldo (5 NY3d 196 [2005]).
Defendant asserted that Katherine B. prevented the prosecutor from making a CPL 160.50
request to unseal the record of a favorably terminated criminal action for purposes of
making a sentencing recommendation.
The People countered that Katherine B. was distinguishable, particularly given
defendant’s admission to committing new crimes postplea – separate from the factual
allegations of the charges for which he was acquitted. They further posited that there was
an alternative method for the court to obtain defendant’s trial testimony pursuant to CPL
160.50 – through an application by the police department – or that the trial prosecutor in
the robbery case, who was a witness to the admissions, would be able to recount the
testimony.
At the sentencing proceeding/Outley hearing on the drug conviction, the court
concluded that Katherine B. was inapplicable because defendant remained under the
court’s jurisdiction until sentence was imposed in the pending plea case and the court had
the concomitant obligation to determine whether defendant complied with the terms of his
plea agreement. Defense counsel, arguing that defendant should be sentenced to the
minimum four-year term of imprisonment, conceded that defendant engaged in conduct
that violated the plea agreement, but maintained that his postplea criminal conduct was
-5-
-6- No. 8
limited to the single day from which the robbery charges had stemmed and was defensible
in light of defendant’s motivations unrelated to the robbery allegations.
Based on defendant’s trial testimony, in which he admitted to participating in a drug
transaction, the court found defendant in violation of the conditions of his plea agreement,
vitiating the promise of the four-year minimum sentence. The court then sentenced him to
a term of eight years’ imprisonment, to be followed by three years’ PRS. The record is
unequivocal that the court did not consider the robbery allegations for which defendant was
acquitted. Defendant contends, and the majority now agrees, that CPL 160.50 bars the
sentencing court from viewing the trial transcript containing evidence of a clear violation
of the plea agreement, despite the sentencing court’s core function in the adjudicatory
process and the law enforcement purpose in accessing that record in the interests of justice.
I disagree.
II
When a criminal action is terminated in favor of the accused, CPL 160.50 provides
that the record shall be sealed unless, in the five-day period following the termination, there
is a forestalling of the sealing when the People demonstrate, or the court on its own motion
determines, that “the interests of justice require otherwise” (CPL 160.50 [1]).11 The sealing
requirement applies to “all official records and papers . . . relating to the arrest or
prosecution” (CPL 160.50 [1] [c]). Once sealed, the statute sets forth six enumerated
exceptions where the records must be made available, including a broadly worded “law
11
The People do not argue that their request, within 24 hours of the acquittal, for the court
to consider an unsealing order for defendant’s trial testimony fits within this provision.
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-7- No. 8
enforcement” exception. That provision specifies that sealed records “shall be made
available to . . . a law enforcement agency” so long as “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]). We have recognized that the statutory “exceptions are precisely drawn”
and that the legislative intent is to preclude disclosure of sealed records unless specifically
authorized by the statute (Katherine B., 5 NY3d at 203).
The statute’s delineated exceptions are reflective of the legislature’s
acknowledgement of “countervailing considerations to the sealing of such records and
papers” (Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997]). Accordingly, the
statute “balances the rights of a former defendant to restrict and obtain access to official
records and papers in favorably terminated criminal proceedings, against the interests of
various law enforcement agencies and representatives in the same materials” (89 NY2d at
767).12 While commanding the sealing of official records, the statute does not grant
immunity to a defendant on the underlying factual allegations. On the other hand, a
defendant is protected from reprosecution for the same offense by the Double Jeopardy
Clause of the United States Constitution (see US Const Fifth Amend; see also NY Const,
art I, § 6; CPL art 40).
It is well-settled that CPL 160.50 “serves the laudable goal of insuring that one who
is charged but not convicted of an offense suffers no stigma as a result of his having once
12
Likewise, we have observed that whether a particular record is an “official record”
subject to the sealing requirement is not suitable for a bright line rule and may differ based
on the circumstances of the particular case (89 NY2d at 765-766).
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-8- No. 8
been the object of an unsustained accusation” (Matter of Hynes v Karassik, 47 NY2d 659,
662 [1979]) and was designed to “remove the punitive collateral consequences of an arrest
where such person has been accorded treatment other than a conviction” (Introducers’
Mem in Support, Bill Jacket, L 1976, ch 877). A particular impetus for the sealing
protection was to enable a former accused to “pursue employment, education, professional
licensing and insurance opportunities untainted by the stigma of a criminal prosecution”
(Harper, 89 NY2d at 766). To accomplish that end, the statute prohibits adverse action –
e.g., employment, housing, credit – against an individual on the basis of a criminal action
terminated in the individual’s favor (see Executive Law § 296 [16]).
III
In concluding that the court improperly unsealed the transcript here, defendant and
the majority believe that this case is controlled by our interpretation of CPL 160.50 in
Katherine B. – an interpretation provided in the narrow context of a prosecutor’s use of
sealed records for a sentencing recommendation. There, the petitioners were convicted
after trial of obstructing governmental administration and disorderly conduct. In response
to the court’s request for updated criminal histories, the People moved ex parte, pursuant
to CPL 160.50 (1) (d) (ii),13 to unseal the petitioners’ official records, terminated in their
favor, in order to make a sentencing recommendation. Based on information in the
unsealed records, the People advised the court that the petitioners had been involved in
13
The People also obtained unsealing orders pursuant to CPL 160.55 (1) (d) (ii), but
those unsealing orders were not challenged by the petitioners on the appeal and therefore
were not before the Court (see 5 NY3d at 201 n 3).
-8-
-9- No. 8
previous acts of civil disobedience and recommended a harsher sentence based on the
allegations taken from the complaints in those unsealed records (see 5 NY3d at 200).
In analyzing CPL 160.50, the Court concluded that the “primary focus” of most of
the statutory exceptions “is the unsealing of records for investigatory purposes” (5 NY3d
at 205) and that various law enforcement agencies are authorized to use such records.
“[I]nvestigatory purposes” is not a statutory term, but we referenced, “[b]y way of
analogy,” ex parte applications for eavesdropping warrants (CPL 700.10 [1]) and pen
register or trap and trace devices (CPL 705.15 [1]) – applications for court orders which
can be made by a District Attorney’s Office (see also People v Losinno, 38 NY2d 316, 318
[1975] [“There is no question but that the District Attorney is a law enforcement officer”];
CPL 700.05 [5]; Executive Law § 838-b). However, given that the term “law enforcement
agency” was also not defined in the statute and that the word “proceeding” did not appear
in the law enforcement exception, we opined that “the Legislature has limited a court’s
authority to make sealed records available to a prosecutor after commencement of a
criminal proceeding to the singular circumstance delineated in CPL 160.50 (1) (d) (i)” (5
NY3d 204-205).14 The opinion’s emphasis on the investigatory purpose of the law
enforcement exception, coupled with the procedural posture of the People’s request,
informed the decision, on the question presented, that courts are not authorized “to make
14
There is no restriction in the Criminal Procedure Law that forecloses continued
investigation by a District Attorney once a criminal action commences. Aside from
investigatory measures necessary to address defenses raised by notice filed by a defendant
after arraignment (see CPL 250.20), the continuing duty of the prosecutor to ensure the
prosecution has not wrongfully accused a defendant is completely at odds with any
declaration that all investigation suddenly ceases once a criminal action commences.
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- 10 - No. 8
sealed records available to a prosecutor for purposes of making sentencing
recommendations” (5 NY3d at 199). This narrow determination is consistent with the
statutory intent to protect a defendant against the use of unsubstantiated allegations from a
sealed record in further proceedings absent an exception in CPL 160.50.
Katherine B. is readily distinguishable, as the postverdict unsealing motion was
made to place before the court unsubstantiated allegations in an action terminated in favor
of the accused in connection with the People’s initial sentencing recommendation (see 5
NY3d at 200). Here, by contrast, the unsealing application was singularly focused on
gathering information to enable the sentencing court to determine whether defendant had
in fact violated the conditions of his still-pending plea agreement by engaging in criminal
activity separate from the allegations for which he was acquitted. This case implicates the
court’s core authority to execute the specific plea agreement binding on the parties, as well
as the People’s ability to demonstrate that defendant violated that agreement. In this vein,
the People’s investigatory role in seeking the unsealed records is akin to the investigatory
function exercised by the Department of Corrections and Community Supervision and the
probation department, permitted under CPL 160.50 (1) (d) (iv) and (vi), in accessing
records of an action terminated in a defendant’s favor. Such access was contemplated by
the legislature to allow enhanced supervision, and even permits revocation “for the very
act underlying the arrest which resulted in sealing” (Matter of Alonzo M. v New York City
Dept. of Probation, 72 NY2d 662, 668 [1988]). To accomplish that permissible goal, an
investigation of the facts is necessary.
- 10 -
- 11 - No. 8
The overarching concern in Katherine B. was that CPL 160.50 was used to permit
the sentencing court to consider the precise factual allegations underlying the crimes of
acquittal, which are generally irrelevant to the issue of punishment. By contrast, here,
defendant, who was found not guilty of the robbery charges, retains the presumption of
innocence on those offenses, which were not used against him in the sentencing
determination (compare United States v Watts, 519 US 148, 151-152 [1997], with
Apprendi v New Jersey, 530 US 466 [2000]). Unlike Katherine B., the process engaged in
by the sentencing court below is entirely in keeping with the protective purpose of the plain
language of the statute – ensuring that an individual does not face adverse consequences
based on charges that are resolved in his or her favor, while balancing the need for the court
and law enforcement to access materials for determinations necessary to perform their
duties and functions.15
IV
Even if Katherine B. should be broadly interpreted to prohibit a sentencing
court from obtaining, on the prosecutor’s motion, information relevant to an Outley hearing
– which it should not – the sentencing court should nonetheless be permitted to exercise
15
In this regard, the primary purpose of the statute – to eliminate stigma – becomes clear
when CPL 160.50 is considered with CPL 160.55. CPL 160.55 (1) (c) is substantially
similar to CPL 160.50 (1) (c), except that it does not specifically provide for the sealing of
court records (see also 5 NY3d at 201 n 3). While CPL 160.50, which applies to criminal
actions terminated in favor of a defendant, including actions dismissed prior to verdict,
plainly was intended to provide protections “consistent with the presumption of
innocence,” (Governor’s Approval Mem, 1976 McKinney’s Session Laws of NY, at 2451),
such protections would not apply to records sealed under the nearly identically worded
CPL 160.55, which addresses records sealed upon conviction of a noncriminal offense.
- 11 -
- 12 - No. 8
its authority to determine whether a defendant, in a postplea posture, complied with his
negotiated plea agreement before imposing sentence (see CPL 400.10 [4]; Outley, 80
NY2d at 712). Significantly, it is not necessary to prove that a defendant committed the
postplea offense that led to the arrest in order to satisfy due process concerns under Outley
(see 80 NY2d at 713). Rather, the sentencing court must conduct a hearing “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” (80 NY2d at
713). The majority’s contrary holding that a sentencing court cannot consider a
defendant’s admissions made under oath in open court in this context undermines judicial
control in the sentencing process (see People v Selikoff, 35 NY2d 227 [1974]) and hinders
the court in the performance of its fundamental sentencing function – “[t]o comply with
due process . . . [and] assure itself that the information upon which it bases the sentence is
reliable and accurate” (80 NY2d at 712).
A limited exception to allow unsealing in this situation would be consistent with our
similar holdings in Matter of New York State Commn. on Jud. Conduct v Rubenstein (23
NY3d 570 [2014]) and Matter of Dondi (63 NY2d 331 [1984]). As we recognized in
Rubenstein, “‘a former defendant’s interest in preventing the disclosure of official records
and papers . . . is not absolute,’” as “‘countervailing considerations’” are present in CPL
160.50’s statutory exceptions (23 NY3d at 580, quoting Harper, 89 NY2d at 766-767).
Moreover, despite our recognition that the statutory exemptions are meant to be narrowly
construed, “[o]ur inquiry does not commence and end with CPL 160.50, for we have
recognized that there may be other sources of authority permitting access to sealed records”
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- 13 - No. 8
– in particular, where there are “extraordinary circumstances,” a specific grant of authority
or a legal mandate that would otherwise be impossible to accomplish (23 NY3d at 580-
581). Thus, in Rubenstein, based on the broad investigatory powers accorded to the
Commission on Judicial Conduct under the Judiciary Law and its constitutional duty to
“ensure the integrity of the judicial system,” we held that the Commission could obtain
sealed documents under CPL 160.50 (23 NY3d at 581). That holding was in keeping with
Matter of Dondi (63 NY2d 331 [1984]), wherein we concluded that “the Appellate Division
may exercise its discretion, pursuant to inherent authority over records and its oversight
and disciplinary power over attorneys and counselors at law, to permit the unsealing of
criminal records,” in “extraordinary circumstances” and “only upon a compelling
demonstration, by affirmation, that without an unsealing of criminal records, the ends of
protecting the public through investigation and possible discipline of an attorney cannot be
accomplished” (63 NY2d at 338).
In the extraordinary circumstances presented by this case, the court’s paramount
concern – that a defendant, who receives a favorable plea deal and is released into the
community based on a promise not to engage in criminal activity, is sentenced in
accordance with the terms of his plea agreement – outweighs sealing protection for the very
record wherein defendant openly admitted that he violated the plea condition. The
majority’s dismissal of this concern rests on the contention that the factual circumstances
here are not “unique or exceptional” (majority op at 18), due to the common nature of the
imposition of a conditional plea agreement. That premise, however, assumes a pronounced
criminal propensity on the part of the average defendant who has just been convicted on a
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- 14 - No. 8
guilty plea. It also ignores the remarkable nature of what transpired in this case –
defendant’s admission to postplea criminal conduct under oath in open court – as well as
the indisputable fact that the sentencing court did not consider the factual allegations of the
charges for which defendant was acquitted.
The statutory history of CPL 160.50, invoked by the majority, actually undermines
its position. As the majority notes, CPL 160.50, as originally enacted, provided that records
would not automatically be sealed where “another criminal action or proceeding is pending
against [the defendant]” (L 1976, ch 877, § 1). In other words, the statute itself
contemplated that the People and the court might need access to sealed records in order to
pursue a pending case. While that automatic bar on sealing was later eliminated (L 1977,
ch 905, § 1), the legislative history demonstrates that amendment was intended to address
the difficulty courts were having – in an era where computerized criminal records were not
yet common – in determining whether a defendant had an open case and because the mere
existence of a pending action was deemed “irrelevant.” Courts were, in an abundance of
caution, refusing to seal cases, even where a defendant was entitled to the benefit of the
sealing provision, simply because “there may be an action pending against the defendant”
(Governor’s Program Bill Mem, Bill Jacket, L 1977, ch 905). Nowhere does the legislative
history indicate that the amended statute categorically bars the People from accessing
sealed records for the law enforcement purpose of investigating a defendant’s compliance
with a court’s plea conditions. The relevancy of the sealed material to the Outley hearing
is more than evident and defendant’s attempt to block court access to the information is
- 14 -
- 15 - No. 8
designed solely to unfairly bind the court to a promise of a lenient sentence that was
violative of the plea agreement.
The majority’s conclusion that the sealing provision operates to render anything
that transpires between arrest and a favorable disposition a “nullity” is also seriously flawed
(see majority op at 13). Although the statute provides for the sealing of records in an
attempt to restore an individual to prearrest status after charges have been terminated in his
or her favor, that protection is limited by the express terms of the statute, which plainly
contemplate disclosure of information to the court, the District Attorney, and other law
enforcement agencies where authorized by statute or the court (see CPL 160.60). The
majority’s seemingly endless references to what it views as the legislative intent animating
the sealing statute overlook a key tenet of statutory interpretation – “courts normally accord
statutes their plain meaning, but ‘will not blindly apply the words of a statute to arrive at
an unreasonable or absurd result’” (People v Santi, 3 NY3d 234, 242 [2004], quoting
Williams v Williams, 23 NY2d 592, 599 [1969]). The words of the statute do not support
the conclusion that the protections of CPL 160.50 must be mechanically applied to
encompass sworn admissions to criminal conduct in open court, unrelated to the offenses
of which defendant was acquitted, and to obstruct the court’s obligation to impose a
sentence consistent with the plea agreement.
V
Even if the unsealing of the trial transcript violated CPL 160.50, defendant is not
entitled to the remedy of suppression of the sealed testimony (see People v Patterson, 78
NY2d 711 [1991]). In Patterson, CPL 160.50 was violated when the police improperly
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retained the defendant’s photograph, obtained in connection with a prior dismissed charge,
and used the photograph, in the absence of a court order, in a photo array from which the
victim identified the defendant (see 78 NY2d at 713). We observed that a defendant does
not have a constitutional right to the return of arrest photographs when charges are
dismissed and concluded that the legislature afforded a civil remedy for violations of CPL
160.50 – i.e., a complaint for an unlawful discriminatory practice under Executive Law §
296 or an action under 42 USC § 1983 (see 78 NY2d at 715-716). “[T]here is nothing in
the history of CPL 160.50 or related statutes indicating a legislative intent to confer a
constitutionally derived ‘substantial right,’ such that the violation of that statute, without
more, would justify invocation of the exclusionary rule with respect to subsequent
independent and unrelated criminal proceedings” (78 NY2d at 716). We went on to point
out that “in limited circumstances . . . the violation of a statute may warrant imposing the
sanction of suppression” but observed that we have only recognized such a remedy “where
a constitutionally protected right was implicated” (78 NY2d at 716-717; see also People v
Johnson, 27 NY3d 199, 207 [2016]; People v Greene, 9 NY3d 277, 280-281 [2007]; People
v Taylor, 73 NY2d 683, 690-691 [1989]).
Conspicuously absent from the majority’s unsuccessful attempt to distinguish
Patterson is any effort to identify a constitutional right of defendant’s that was infringed by
the unsealing order in this case. The majority concludes, instead, that use of the unsealed
information warrants the drastic remedy of suppression because the court’s action resulted
in the imposition of a harsher sentence based solely upon that unsealed testimony (see
majority op at 21). Given that defendant at sentencing disputed only his motivations for,
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but not the fact of, his new criminal conduct in violation of the plea conditions, the record
supports no claim of an erroneous Outley determination. Moreover, the majority’s
reasoning is not supported by Matter of Charles Q. v Constantine (85 NY2d 571 [1995]).
In that case we observed that “[h]aving concluded [in Patterson] that evidence obtained in
violation of a CPL 160.50 sealing order need not be suppressed in a criminal proceeding,
we discern no basis for excluding from a disciplinary hearing evidence obtained through
an erroneous unsealing order” (85 NY2d at 575). The majority’s conclusion that the
“more” contemplated by Patterson is satisfied when the unsealing error has an effect on the
proceeding turns our suppression jurisprudence on its head. In a similar vein, the majority
misperceives the import of Patterson’s statement that the use of the photograph did not
affect the determination of the defendant’s guilt or innocence. This was merely another
way of saying that there must be some underlying constitutional violation – not merely the
use of sealed information in violation of CPL 160.50 – to warrant the remedy of
suppression.
Effectively, the majority holds that the exclusionary rule should be invoked against
the sentencing court – as a penalty for seeking to fulfill its function by obtaining reliable
evidence prior to concluding that defendant violated his negotiated plea agreement and
imposing a sentence consistent with the agreement. The exclusionary rule is meant to
“‘deter[] lawless conduct’” by police and to preclude the use in court of evidence that was
“‘unconstitutionally obtained’” (Brown v Illinois, 422 US 590, 599 [1975], quoting Wong
Sun v United States, 371 US 471, 486 [1963]; People v Boodle, 47 NY2d 398, 404-405
[1979]). Apparently, the goal to be achieved by suppressing the testimony under the
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circumstances of this case – where defendant admitted to uncharged criminal conduct in
open court – is to strictly enforce the five-day rule of CPL 160.50, authorizing a court to
forestall the placement of a seal on court records. It cannot seriously be argued that this
result is in keeping with the statute’s purpose to protect a defendant in his future endeavors
from a stigma flowing from an acquittal of different criminal activity. Indeed, the end
result here, after a remittal for a new sentencing proceeding, is likely to be the same. The
majority tacitly recognizes as much in its observation that the People are free to pursue
other available means of introducing this information upon remittal (see majority op at 24),
as well as its acknowledgement that the People immediately advised the court of the nature
of the issue here the day after defendant’s acquittal, when the People or the court sua sponte
could have sought to forestall the sealing of the record in the interests of justice within the
statutory five-day window (CPL 160.50 [1]; majority op at 14, 23 n 10 [mischaracterizing
this motion as a motion for a “stay”]).
In sum, this case is distinguishable from Katherine B. in that the official court record
was unsealed to allow the sentencing court – in the context of an Outley hearing – to access
information that defendant testified in open court to a violation of his plea conditions. The
court was well within its fundamental duties to consider defendant’s postplea criminal
conduct in imposing a sentence consistent with the negotiated plea agreement. We
certainly should not distort a straightforward statute to erect unreasonable barriers to the
court’s discovery of the truth at the cost of the integrity of the criminal justice system. CPL
160.50 does not require the absurd result countenanced by the majority’s decision – a result
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all the more unreasonable given that defendant did not dispute the postplea criminal
conduct at sentencing. Accordingly, I would affirm the Appellate Division order.
* * * * * * * * * * * * * * * * *
Order reversed and case remitted to Supreme Court, New York County, for further
proceedings in accordance with the opinion herein. Opinion by Judge Rivera. Judges
Stein, Fahey and Wilson concur. Chief Judge DiFiore dissents and votes to affirm in an
opinion in which Judges Garcia and Feinman concur.
Decided February 18, 2020
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