DECISION & ORDER AFTER HEARING On February 6, 2023 a hearing was held pursuant to CPL §160.59[6] and the October 19, 2022 Order of this Court directing such hearing. The purpose of the hearing was to allow the Court “to consider any evidence offered by either party that would aid the [undersigned] judge in his decision whether to seal the records of defendant’s conviction” for Unlawful Imprisonment in the Second Degree [Penal Law §135.05] (CPL §160.59[6]). Said judgment of conviction was entered on November 24, 2003 in this Court (Berry, J.). Judge Berry, the sentencing judge, is no longer available, as he has retired. Appearing for the People at the hearing was Andrew R. Kass, Executive Assistant District Attorney for the County of Orange. Appearing for the defendant was Brandon Ozman, Esq. The only witness to testify was the defendant, Dr. Frederick Mourad. Various documents were admitted into evidence by the People. In addition, prior to the commencement of the hearing, the Court was in receipt of the defendant’s Notice of Motion and Affidavit with annexed exhibits as well as Andrew R. Kass, Esq.’s Affirmation in Opposition. The defendant’s conviction for Unlawful Imprisonment in the Second Degree arises out of Orange County Indictment No. 2002-1000 dated December 11, 2002. Said indictment charged the defendant with Sexual Abuse in the First Degree (PL § 130.65[1]), Attempted Sexual Abuse in the First Degree (PL §110/130.65[1]), Unlawful Imprisonment in the Second Degree (PL §135.05), and Harassment in the Second Degree (PL §240.26[1]). On November 24, 2003, the defendant was sentenced to three years of probation, and a mandatory surcharge and crime victim assistance fee were accessed. The defendant now seeks to seal his conviction for Unlawful Imprisonment in the Second Degree. Pursuant to CPL §160.59[7], in considering the defendant’s application to seal, the Court “shall consider any relevant factors, including but not limited to: (a) the amount of time that has elapsed since the defendant’s last conviction; (b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense; (c) the circumstances and seriousness of any other offenses for which the defendant stands convicted; (d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs; (e) any statements made by the victim of the offense for which the defendant is seeking relief; (f) the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and (g) the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.” This Court has considered the factors set forth in CPL §160.59[7], and finds that approximately 19 years has elapsed since the defendant’s last conviction; and while the charge of Unlawful Imprisonment in the Second Degree is an eligible offense for sealing, the defendant was indicted on charges which are not eligible offenses. Further, the circumstances of the offense are especially egregious. The defendant was the treating dentist of the victim – a female, teenage patient. The crime occurred at the defendant’s office while the victim was receiving dental treatment. The defendant used his position of trust as a dentist to unlawfully imprison his young, female patient; and though the defendant was arrested on similar charges after the instant conviction, he was not convicted of any further offenses. The character of the defendant, including any measures taken toward rehabilitation, is poor. Despite having allocuted under oath to the crime at the time of his plea, the defendant testified at the hearing that “it never happened” and denied all guilt. It is clear that the defendant has refused to accept responsibility for his crime and has not taken any measures toward rehabilitation or treatment. Statements of the defendant’s victim are set forth in the transcript of the Grand Jury proceedings and reveal that the victim, when she was finally able to escape from the defendant, literally ran out of the dental office to a church across the street for safety. The victim immediately called the police and stated that she “was really scared” and “didn’t know if he [the defendant] was going to try to find me” (Transcript of Grand Jury Proceedings, pages 16-17). It is clear that the impact of sealing the defendant’s record upon his rehabilitation would be negative. Sealing of the defendant’s conviction would only reinforce and reward the defendant’s refusal to accept responsibility and will continue to embolden him to not seek treatment. The impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law would be negative. The defendant’s occupation as a dentist places him in close contact with patients. Sealing of the defendant’s conviction for a crime committed against a patient during dental treatment would not be in the best interest of public safety. Further, sealing of the defendant’s conviction would serve to diminish the public’s confidence in and respect for the law, especially given the defendant’s persistent and adamant denial that the incident ever happened. By virtue of the defendant now claiming that he is innocent of all wrongdoing he is undermining the criminal justice system and his conviction, despite having received the significant benefit of the plea bargain negotiated by his prior counsel: a result which avoided a potential felony conviction and possible state prison sentence. It is well settled that “the decision of whether to seal an eligible offense is within the sound discretion of the court” (People v. Witherspoon, 211 AD3d 108, 113 [2nd Dept., 2022] citing People v. Shrayef, 181 AD3d 935, 936). After considering all relevant factors, including but not limited to the factors set forth in CPL §160.59[7], it is hereby ORDERED that the defendant’s application to seal his conviction is denied. All other requested relief is denied. The foregoing constitutes the Decision and Order of the Court. So Ordered. Dated: June 6, 2023
