The defendant is charged with criminal contempt in the second degree. The defendant moves for dismissal on the ground that the pleadings are facially insufficient.The allegations are that the defendant, in violation of a Family Court stay away Order of Protection in favor of her husband, went to Burgher King where he works, went to the front counter and requested condiments, saw her husband there and left quickly.An Information, signed by a deputy sheriff who did not witness the incident, was filed on November 15, 2017. The defendant was arraigned on December 13, 2017. On January 24, 2018 the Information was dismissed for facial insufficiency because no supporting deposition of the husband had been filed.The day after the dismissal and on January 25th a copy of the Information was filed together with the husband’s supporting deposition. Arraignment was scheduled for February 14th but the defendant came to court late after defense counsel had left the courtroom, so the matter was adjourned to February 28th. On that date the People filed a copy of the Order of Protection, the defendant was arraigned and the case was adjourned to March 28th for argument of defendant’s motion. In anticipation of a second motion to dismiss for facial insufficiency, the Court provided counsel with a copy of the unreported decision in People v. Bartell (Justice Court, Town of Greece 10/7/12).Criminal Procedure Law, section 160.50, provides that upon the termination of a criminal action in favor of a defendant the record shall be sealed. Subsection 3.b. provides that where an accusatory instrument is dismissed for facial insufficiency, pursuant to CPL 170.30, termination in favor of the defendant occurs (1) upon the entry of an order of dismissal, or when such an order is deemed entered, which in the case of an oral order occurs immediately upon the issuance of the order, People v. Cooper, 19 NY3d 501, and (2) where the people have not appealed from the order, which typically is 30 days from the date of entry. Matter of Blount 116 Misc 2d 975 (Sup. Ct., NY Co. — 1982); People v. Bowden, 28 Misc 3d 1204(A) (Sup. Ct., Bronx Co. — 2010). Thus, prior to a lapse of 30 days from the date of an oral order, the case is not yet sealed and the people are free, during such period, to make use of any and all documents, including copies, in the file of the dismissed action.I disagree with the analysis in People v. Bartell, supra, and People v. Cordeiro, 24 Misc 3d 526 (Justice Ct., Town of Webster — 2009). In both cases the courts took the position that a dismissal for facial insufficiency results in an automatic sealing as of the date of the dismissal. That position was made clear in Bartell when the court stated, “…the People had 30 days…to appeal the oral decision…but did not do so. The fact that the People refiled charges against the defendant within 30 days is no longer relevant in this case.” The 30-day time to appeal was not even mentioned in Cordeiro. The difficulty with the rationale in Bartell and Cordeiro is that, once a dismissal order is issued, the people would have no opportunity to refile charges, despite the fact that a dismissal for facial insufficiency must always be without prejudice to refile. Of course, the people would have the option, pursuant to subsection 1 of the statute, of making a formal motion at any time, whether before or after a case is sealed, on five days notice to the defendant, for an order directing that the file not be sealed, but such an application would require the people to demonstrate “to the satisfaction of the court that the interests of justice require otherwise” (no sealing).The court notes that, once a case is sealed, then, but for success on a formal motion, the people would be barred from using any documents, including copies, in the dismissal case file. This would include using information and data contained in the file to create new documents. However, this is not entirely clear from the current state of case law.The statutory language in CPL 160.50(1)(c) covers “all official records and papers…relating to the arrest and prosecution, including all duplicates and copies thereof….” No case law was uncovered applying this language of the statute where the issue had to do with the reuse of accusatory documents. In Matter of Harper v. Angiolillo 89 NY2d 761, 765-766 (1997), the Court of Appeals made the following general observations:…[A]lthough CPL 160.50 specifies judgments and orders of a court as items “included” in the category of official records and papers, the statute is otherwise silent on the nature of such “official” material (see, CPL 160.50[1][c]) further supporting the conclusion that bright line rules are not wholly appropriate in this area. Indeed, such records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case (Matter of Dondi, 63 NY2d 331, 337).”The particular set of facts and the issue addressed in Matter of Harper and the cases cited therein by the Court of Appeals had nothing to do with accusatory documents but rather with evidentiary documents that the People desired to use at trial in the second action. Until there is further development at the appellate level, this Court takes the position that the sealing statute, once it takes effect, creates a virtual absolute bar to the use of the sealed papers for any purpose unless access is obtained by a written order in response to a formal motion on notice as noted above.In the instant matter, as the people filed an executed copy of the original Information as well as the supporting deposition of the husband one day after dismissal of the first action, they acted within the 30-day window period and therefore the Court must consider the substance of those documents on this motion. Filing of the Order of Protection on February 28, 2018 was not subject to the 30-day time limit because it had not been filed with the Court in the dismissed action and thus it must also be considered by this Court.Considering all three documents now before the Court, the pleadings are unquestionably facially sufficient. The Order of Protection on its face establishes that the defendant was aware of its existence on the date of the alleged offense. The allegations contained in the Information and supporting deposition, together with the Order of Protection, which the court must consider as true on this motion, establish a prima facie case of criminal contempt in the second degree as well as reasonable cause to believe that the defendant committed such offense.For the foregoing reasons, the defendant’s motion to dismiss for facial insufficiency is dismissed. This constitutes the decision and order of the Court.Dated: May 23, 2018
