COLD SPRING – More than a year after a village justice refused to seal a man’s criminal case despite prosecutors withdrawing charges, a state judge has ordered a court clerk to seal it.
State Supreme Court Justice Paul Marx’ decision last month has relieved Ray DiFrancesco of Putnam Valley. DiFrancesco had filed a civil action against Village Justice Thomas Costello and Costello’s clerk, requesting the misdemeanor assault case be sealed and law enforcement officials directed to destroy records of his mugshots and fingerprints.
Costello had refused to seal the case after insisting in May 2015 that prosecutors change language in a court filing to reflect that they were withdrawing charges, not dismissing them. The Journal News/lohud highlighted DiFrancesco’s case in an August 2015 article, showing how Costello made the extremely rare decision without specifying reasons as the law requires.
DiFrancesco said he was “extremely pleased” with Marx’ finding in state Supreme Court in Carmel that the case should have automatically been sealed.. He thanked his lawyers, Larry Silverman and John Zarcone, and said, “Without their perseverance, I could not have obtained this result.”
DiFrancesco had been denied a right afforded tens of thousands of other people in New York who have misdemeanor cases dismissed each year, and a legal expert had told The Journal News/lohud that the case should have been sealed because it was a favorable disposition for the defendant. DiFrancesco had been charged with assault, reckless endangerment and making a false statement a month after breaking up a fight outside his stepson’s restaurant, Whistling Willies, in the early hours of New Year’s Day 2014.
What concerned DiFrancesco was that a background check would trigger a hit in a state computer, revealing his mugshot and fingerprints, even though charges were withdrawn. If anyone wanted the police report, they simply needed to file a request with village police. When a case is sealed, those records are not available.
“I thought that our client was finally vindicated, especially after all that he’d been through,” Zarcone said.
It’s unclear whether Costello will appeal. He has said he handled the entire case fairly and could not be reached for comment on Marx’ decision. In May of last year, he wrote to DiFrancesco’s lawyers that “after reviewing the applicable statute, it appears that a withdrawal of the charges by the district attorney does not constitute a termination of a criminal action or proceeding…”
Marx found there was no distinction between dismissal and withdrawal. Sealing of records in criminal actions in favor of the accused is automatic, he noted, unless the district attorney or court moves not to seal the case in the “interests of justice.”
He found that the village court clerk, Catherine Costello, who is the judge’s wife, should have automatically sealed the case.
Marx also ordered that the clerk notify law enforcement agencies that they must send all mugshots and fingerprints to DiFrancesco’s lawyers and not maintain copies.