Relates to unsealing criminal records involving orders of protection.
Ayes (57): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Nozzolio, O'Mara, Peralta, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Nays (3): Montgomery, Parker, Perkins
Excused (1): Oppenheimer
TITLE OF BILL: An act to amend the criminal procedure law, in relation to unsealing criminal records involving orders of protection
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.
This measure would amend the Criminal Procedure Law to authorize a court to unseal records of an order of protection where necessary to prosecute a defendant for violating that order of protection.
This measure is proposed in response to recent cases that have uncovered a serious issue concerning orders of protection contained in a sealed file (see People v Marcus A, 28 Misc 3d 667 [Sup Ct, NY County 2010]); see also Matter of Akieba Mc, 72 AD3d 689 [2d Dept 2010]). When a criminal contempt prosecution is commenced, and the basis for the charge is that the defendant knowingly violated a lawful order of a court (see PL §§ 215.50, 215.51 or 215.52), a prosecutor must obtain a copy of the underlying order of protection alleged to have been violated. A certified copy of the order is most often used to replace a misdemeanor complaint with an information (see CPL 170.65), or as evidence before the grand jury in felony contempt prosecutions. It also is admissible as trial evidence to establish that the order was issued and in effect at the time of the contempt. Because in most cases an order of protection is a public document, a prosecutor simply obtains a certified copy from the clerk of the court (Judiciary Law §255).
However, where the underlying order of protection has been issued in connection with a case that has terminated in favor of the defendant, both the court record and the District Attorney's records are sealed pursuant to CPL 160.50. Nonetheless, even where the criminal action in which the order of protection arose is dismissed, there is no bar to prosecution where a defendant violating the order of protection while the action was pending. However, once the underlying criminal case is dismissed and sealed, there is no provision in the Criminal Procedure Law that allows a court to unseal the order of protection so that a certified copy of the order defendant is charged with violating may be obtained.
The Court of Appeals has repeatedly held that the "general proscription against releasing sealed records and materials (is) subject only to a few narrow exceptions" (Matter of Katherine B v Cataldo, 5 NY3d 196, 203 , quoting Matter of Joseph M., 82 NY2d 128, 134 ). Although CPL 160.50(1)(d) sets forth those exceptions, the Court has limited the unsealing of records by a District Attorney after commencement of a criminal action to the "singular circumstance" where a defendant requests an adjournment in contemplation of dismissal in low level marijuana cases (5 NY3d at 205; CPL 160.50(1)(d)(i). Thus, no matter how viable a contempt prosecution might otherwise be, a District Attorney's Office is effectively hamstrung from obtaining an underlying order of protection that had been issued in a sealed case.
We believe that a court should be permitted to unseal a record to allow a prosecutor to obtain a copy of an order of protection when necessary to prosecute a defendant for willful disobedience of a lawful court mandate. This measure is narrowly tailored to meet this individualized need and is necessary to protect both victims of domestic violence and the integrity of the judicial process.
This measure, which would have no meaningful fiscal impact on the State, would take effect immediately, and shall apply to all criminal actions commenced on or after such effective date.
LEGISLATIVE HISTORY: None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 6676 IN SENATE March 8, 2012 ___________Introduced by Sen. SALAND -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to unsealing criminal records involving orders of protection THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraph (i) of paragraph (d) of subdivision 1 of section 160.50 of the criminal procedure law, as amended by section 73 of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows: (i) a prosecutor in any proceeding (A) in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (B) WHERE THE RECORDS CONSIST OF AN ORDER OF PROTECTION AND THE PROSECU- TOR DEMONSTRATES TO THE SATISFACTION OF THE COURT THAT THE RECORDS ARE NECESSARY TO THE PROSECUTION OF THE ACCUSED FOR VIOLATING OR ATTEMPTING TO VIOLATE SUBDIVISION THREE OF SECTION 215.50, SECTION 215.51 OR 215.52 OF THE PENAL LAW, OR S 2. This act shall take effect immediately, and shall apply to all criminal actions commenced on or after such effective date.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14170-01-2