The Defendant, who was a former Police Officer, filed a Motion pursuant to CPL 160.59 to seal his criminal record. Prosecution opposed the sealing of the record based upon the seriousness of the Defendant’s crimes and the impact sealing of the record would have upon the public trust in the judicial system. The issue before the court is to what extent should the court seal a felony record of conviction. Prosedural Posture: This matter comes before the Court by way of Defendant’s Notice of Motion and Affidavit in Support requesting his record and conviction under “Sullivan County Indictment # 336-2005″ be sealed pursuant to CPL 160.59. The record contains an Affidavit of Service on the Sullivan County District Attorney, as well as a Certificate of Conviction and the Defendant’s Affidavit in Support of Sealing. The People submitted a letter advising that they are opposed to the granting of the Defendant’s application on the basis, inter alia, that the Defendants’ crimes so violated his duties as a public servant that sealing his record pursuant to CPL 160.59 would severely undermine the public’s confidence in our criminal justice system. On June 27th, 2019 the court rendered a decision granting the Motion to the extent that the matter could move forward for a Hearing on the issue. The matter was heard on July 29th, 2019. HISTORY: Defendant plead guilty on April 10th, 2006 to the Felony charge of Tampering with Public Records in the First Degree pursuant to Penal Law 175.25. Defendant was sentenced on June 20, 2006 to five (5) years’ probation, six (6) months of alternate weekends in the Sullivan County Jail, One Hundred (100) hours of community service, and the surcharge was waived. This Court was the sentencing Court for Defendant’s conviction. Defendant has no other criminal convictions1. Up to the year 2002, the Defendant was a Police Officer for the Fallsburg Police Department where he served as a “beat cop”, warrant officer, Investigator and finally a confidential narcotics officer for the Police Department working also in conjunction with the New York State Police and other Police Agencies. Up until his conviction in 2005, the Defendant had no criminal record. His Conviction in 2005 notwithstanding, the Defendant appears to have established himself as a skilled and experience Contractor. The Defendant has maintained employment since his conviction as owner and operator of his own Construction Company. The Defendant gave no reason why the court should grant his request for a sealing of his record other than to indicate that he wants to put the past behind him and that he may someday need to seek employment other than in the Construction field. The Defendant also testified to his positive community involvement and his donations to community-based food programs. The court notes here that pursuant to CPL 160.59 (3)(g) an application for sealing pursuant to CPL 160.59 may be summarily denied if the defendant failed to provide the court with a sworn statement of the reasons why the court should grant such relief. The Defendant’s sworn statement filed with his motion is completely devoid of any reasons for the granting of this relief. The court however held a hearing on July 29th, 2019 to give the Defendant further opportunity to state his reasons for why his file should be sealed. However, on direct exam, the Defendant’s counsel failed to elicit any testimony from the Defendant regarding why the relief is needed or should be granted by this court. OPINION CPL 160.59 sets forth seven nonexclusive factors for the court’s consideration when deciding whether to seal a Felony record. Weighing heavily in the Defendants’ favor is that ten (10) years have passed since he was convicted of these crimes (CPL 160.59(7)(a). During that time, the Defendant started his own construction business and has led a stable and productive life and involvement in his community (CPL160.59 (7)(d). Since his 2005 conviction and sentencing in 2006, the Defendant has had no further involvement with the criminal justice system (CPL 160.59 (7)(c). The People argue that the Defendant’s conviction includes not only the criminal investigations set forth in this indictment but also his 2004 arrest, for which he was prosecuted before the Town of Liberty Justice Court for Criminal contempt in the Second Degree which was “covered” by this County Court Felony plea. The People argue that had the Defendant not received the benefit of this plea bargain he would not be eligible for conditional sealing as he would have been convicted of multiple, separate felony and misdemeanor crimes. However, this argument is without merit since the Defendant was given the benefit of this plea bargain and as such he plead to a Class D Felony for Tampering with Public Records and the legislature has seen fit to classify such an offense as an offense eligible for sealing as a matter of law. This court held a hearing on July 29th, 2019 to determine whether the Defendant’s 2005 Felony conviction records should be sealed. On direct examination, when asked by his counsel2 “why he needs his record sealed at this time”, the Defendant indicated that he “has not been in any trouble since 2005 and he would like to put that part of his history behind him”. He further testified that he is married and is currently running his own contracting business. He further stated that someday he may no longer be able to do the necessary contracting work and would therefore like to leave his options open. When the Defendant was asked by his counsel if he participated in any community outreach, the Defendant indicated that he did bring turkey to his church at Thanksgiving for the needy but when prompted he could not give the name of the church and stated that he thought it might be the “Methodist church”. The Defense then rested their case. On Cross Examination, Prosecution established through the Defendant’s testimony that the Defendant had resigned from the Fallsburg Police Department in the year 2002. That, subsequent thereto, in or about 2005, it was discovered that the Defendant had taken with him in his personal capacity two official Fallsburg Police Department Case folders, which contained: official Police records, DMV information, DCJS information, NYSPIN information, evidence consisting of narcotic drugs (specifically Cocaine) and approximately 60 Confidential Police Informant and arrest files. On further cross examination, the details of the Defendant’s criminal acts were specifically carried out by the Defendant in an attempt to defraud the Fallsburg Police Department; endanger the informants by exposing their identities by careless handling of their files, and subvert the function of the Fallsburg Police Department by hampering their investigations. The Defendant admitted that he did possess these files at the time and that they were located in the basement of his home and that he did nothing further with them. He also admitted that he had these files without permission and for the sake of safeguarding the confidentiality of “his” informants. He further admitted that these files contained Cocaine, as evidence, although he denied actual knowledge of this substance being in the file. Pursuant to Criminal Procedure Law S 160.59(4), this Court has the discretion to grant the sealing of an eligible offense as defined under the statute, so long as at least ten (10) years have passed since the imposition of the sentence on the defendant’s latest conviction. In considering a defendant’s application to seal his or her conviction, the Court shall consider all relevant factors, including but not limited to the circumstances and seriousness of the offense for which the defendant is seeking relief, the character of the defendant and any steps the defendant has taken towards rehabilitation, including work, schooling, and participation in community service; the impact of sealing the defendant’s record upon his or her rehabilitation; and the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law. In 2017, the New York State Legislature enacted Executive Law 296 (16) to ensure that individuals who had their criminal charges terminated or sealed were not to be discriminated against in the context of licensing, employment or securing credit or insurance (See NY State Assembly Memorandum AO6187.) Confusion resulted shortly thereafter as to what questions could be asked of these people in the context of employment or licensing and how the person would be permitted to respond. The New York State Legislature then enacted Bill number A6187 to effectuate the 2017 laws and to clarify that individuals with sealed convictions pursuant to CPL 160.55, 160.58 or 160.59 can answer in the negative should they be asked if they have ever been convicted of a crime or violation (See Bill A6187). The Legislative proponents of this bill established as their primary concern the consequences a criminal record would have on the Defendant’s reintegration into society. Because of this core concern articulated by the bill’s proponents, the legislature made sure that a court reviewing the sealing application would consider the impact of the sealing upon the Defendant’s rehabilitation and upon his successful reentry and reintegration into society (CPL160.59(7)(f); See also People v. Jaime S. 59 Misc 3d 472). This court has done just that. As indicated herein, the Defendant has run a successful contracting business since his arrest. It does not appear from the record before this court that this Defendant has had any trouble reintegrating into society and there was no evidence presented that would indicate that the Defendant has been discriminated against in the context of licensing, employment, or securing credit or insurance. Defense counsel failed to provide any statement or testimony from the Defendant as to why he needed or wanted his records sealed other than to indicate he wanted to move on from this experience. On the other hand, the People have made a strong showing that this Defendant’s felony conviction exhibited a conscious design for criminality and that placed the Police community and others in jeopardy, and despite his clean record of the past ten years there is important “societal utility” in giving prospective employers and others critical notice regarding the Defendant’s past criminal activity. Of particular relevance here, because the Defendant was a former Police Officer, is that the provisions of CPL 160.59 allowing those with sealed records to answer in the negative when asked if they have been convicted of a crime does not apply to the licensing activities of governmental bodies in relation to the regulations of guns, firearms and other deadly weapons or in relation to an application for employment as a Police Officer or peace officer as those terms are defined in subdivision thirty-three and thirty-four of section 1.20 of the CPL. Therefore, even if the court had granted the Defendants’ Motion to seal his records, which it has not, the Defendant would not be able to answer in the negative when applying for a position in law enforcement or when applying for licensing of a firearm. The court has reviewed the testimony of all parties and all the facts and circumstances and Motions heretofore had herein. Based on the foregoing, it is ORDERED that Defendant’s motion to seal his felony record is denied in its entirety without prejudice. This shall constitute the Decision and Order of this Court. Dated: July 31, 2019 Monticello, New York
