New York Law Journal: Matter of DiFrancesco v. Costello, 1779/2015 – Law Office of John M. Zarcone, Jr., Esq.

Source: New York Law Journal; August 9, 2016

Supreme Court, Putnam County
1779/2015
Justice Paul Marx
For Plaintiff: Attorney for Petitioner: Laurence A. Silverman, Esq., Putnam Valley, NY.
For Defendant: Respondent: Thomas J. Costello, Cold Spring, NY. Attorney for Respondent Catherine Costello: Gregory L. Folchetti, Esq., Costello & Folchetti, LLP, Carmel, NY.

Cite as: Matter of DiFrancesco v. Costello, 1779/2015, NYLJ 1202764513520, at *1 (Sup., PU, Decided July 13, 2016)

CASENAME

In the Matter of the Application of Raymond DiFrancesco, Petitioner, v. Thomas Costello, as Village Justice for the Village of Cold Spring, and Catherine Costello, as the Court Clerk of the Village Court of the Village of Cold Spring, Respondents.

1779/2015

Justice Paul Marx

Decided: July 13, 2016

ATTORNEYS

Attorney for Petitioner: Laurence A. Silverman, Esq., Putnam Valley, NY.

Respondent: Thomas J. Costello, Cold Spring, NY.

Attorney for Respondent Catherine Costello: Gregory L. Folchetti, Esq., Costello & Folchetti, LLP, Carmel, NY.

The following papers numbered 1 through 13 were read in this Article 78 proceeding, brought by Order to Show Cause, seeking a Judgment and Order: (1) directing Respondent Thomas Costello, as Village Justice, to sign an order sealing Petitioner’s records and notify the Office of Court Administration, the Commissioner of the Division of Criminal Justice and the Cold Spring Police Department to destroy or return all of Petitioner’s photographs and fingerprints to him; and (2) directing Respondent Catherine Costello, the Clerk of the Village Court, to seal such records and provide such notifications:

Order to Show Cause/Verified Petition/Affidavit of Raymond DiFrancesco/Memorandum of Law in Support/Exhibits AA and A-L 1-4

Affirmation of Gregory L. Folchetti, Esq. (Attorney for Cathy L. Costello) in Opposition 5

Affidavit of Cathy L. Costello in Opposition 6

Affidavit of Thomas J. Costello in Opposition 6

Memorandum of Law of Thomas J. Costello 7

Reply Affirmation of Lawrence Silverman, Esq. to Thomas Costello’s Opposition Papers/Reply Affirmation of Lawrence Silverman, Esq. to Catherine Costello’s Opposition Papers/Attorney Affirmation Reply of John M. Zarcone, Jr., Esq./Petitioner’s Reply Affidavit of Raymond DiFrancesco to Catherine Costello/Petitioner’s Reply Affidavit of Raymond DiFrancesco to Thomas Costello/Petitioner’s Reply Memorandum of Law/Exhibits A-L 8-13

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

Upon reading the foregoing papers it is ORDERED that the Petition is disposed as follows:

BACKGROUND

Pursuant to this Court’s Decision and Order dated February 11, 2016, Petitioner’s prior Petition, filed on September 16, 2015, was dismissed without prejudice for failing to properly serve Respondent Thomas Costello in his official capacity as Village Justice. The Court granted Petitioner 15 days from the date of its Decision and Order to proceed by order to show cause, providing for personal service upon Respondent Thomas Costello, with a copy to be served upon the attorney general and upon the Village Attorney. Petitioner re-filed his Petition by Order to Show Cause on February 26, 2016.

The Petition arises out of criminal charges that were brought against Petitioner in the Justice Court for the Village of Cold Spring. Respondent Thomas Costello is the Village Justice who presided over the proceedings. Respondent Catherine Costello is the clerk of the Justice Court.

The matter was set for jury trial on May 18, 2015. Prior to commencement of the trial, the Assistant District Attorney (“ADA”) assigned to prosecute the matter informed the court that “based on a comprehensive review of all known witnesses and evidence established that there did not exist a legal or factual basis to prosecute [Petitioner] on this incident.” Exhibit J, Transcript of May 18, 2015 at 6:21-25. The ADA moved to dismiss the charges, claiming her office had done all it could to avoid impaneling a jury. The court took issue with the ADA’s recitation of the facts, stating that it had become aware for the first time on May 13, 2015 that the District Attorney’s Office was proposing dismissal of all charges instead of only two of the three pending charges. The court then accepted the ADA’s written request for dismissal of all the charges against Petitioner. However, upon review of the document, the court requested the ADA to change the wording from “dismissal” to “withdrawal” of the charges. The court then discharged the jury and adjourned the proceedings.

As Petitioner’s counsel was exiting the courtroom, he requested that Petitioner’s records be sealed pursuant to Criminal Procedure Law (“CPL”) §160.50. By letter dated May 20, 2015, the court informed counsel that “[a]fter 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 as defined in CPL 160.50 Subsection three.” Verified Petition, Exhibit L, Letter dated May 20, 2015 from Judge Thomas J. Costello to Laurence A. Silverman, Esq. (Copied to District Attorney).

DISCUSSION

Petitioner seeks a judgment directing Respondents to seal the records pertaining to his arrest and to issue the required notifications to the Office of Court Administration, Commissioner of the Division of Criminal Justice and the Cold Spring Police Department. Petitioner contends that the withdrawal of the charges constitutes a favorable termination of the criminal action against him and required automatic sealing of his records and notifications to the relevant law enforcement agencies, unless either the People, on motion, or the court, on its own motion, with not less than five days notice to Petitioner, determined otherwise and put the reasons on the record. Petitioner argues that since no such motion was made, he is entitled to the relief he now seeks. He contends that the ADA’s withdrawal of all charges against him is equivalent to an order of dismissal under CPL §§170.30 or 170.50.

Respondent Catherine Costello responded, through counsel, contending that the Petition failed to state a cause of action against her because there are no allegations in the Petition which state that she was advised that the action against Petitioner terminated in his favor and that she then refused to take appropriate action.

Respondent Thomas Costello, representing himself, responded to the Petition requesting that it be dismissed. Respondent contends that Petitioner may not bring an Article 78 proceeding to challenge his May 20, 2015 determination because Petitioner failed to appeal to the Appellate Term within the time to appeal. Respondent relies upon Daniels v. Lewis, 95 AD3d 1011 [2nd Dept 2011), which dismissed an Article 78 proceeding brought against a Supreme Court Justice to prohibit her from enforcing an order she entered in an underlying civil action and to compel her to recuse herself from hearing the case. The Appellate Division held that the issues raised in the Article 78 petition could be reviewed only on a direct appeal from the Justice’s order in the civil action.

Respondent also contends that Petitioner should have submitted a written motion to renew or reargue if he believed that he could not appeal from the court’s May 20, 2015 letter. Respondent argues that Petitioner has not claimed that Respondent had a clear legal obligation to issue a sealing order. Respondent asserts that mandamus is not available to Petitioner because the court’s decision under CPL §160.50 whether to seal the proceeding is discretionary. Finally, Respondent states that Petitioner did not establish that the termination of the criminal action against him fell within CPL §160.50(3).

Petitioner argues that he could not appeal from Respondent’s May 20, 2015 letter because it was not appealable. Petitioner also argues that he could not move to reargue or renew because no motion had been made and no order had issued from the court. Petitioner contends that the prohibition on Article 78 review in a criminal matter does not apply because his criminal proceeding had concluded.

“The standards governing the availability of article 78 relief in the nature of mandamus are equally clear. It will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion (Matter of Gimprich v. Board of Educ., 306 NY 401, 406, quoting People ex rel. Hammond v. Leonard, 74 NY 443, 445).” Matter of Crain Communications v. Hughes, 74 NY2d 626, 627-28 [1989] (internal quotation marks omitted). Generally, “courts have the inherent power to control the records of their own proceedings…[and] the decision to initially seal or to later disclose must, by its very nature, involve the balancing of competing interests, an inquiry which obviously involves a measure of discretion and precludes mandamus.” Matter of Crain Communications, supra at 627-28 (citations omitted).

However, in criminal proceedings which are terminated in favor of the accused, the court’s discretion is carefully circumscribed by CPL §160.50. The sealing of the records in criminal actions that terminate in favor of the accused is automatic, unless the district attorney or the court moves to not seal the records “in the interests of justice”.

CPL §160.50(1) provides, in pertinent part, as follows:

Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the record of such action or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and unless the court has directed otherwise, that the record of such action or proceeding shall be sealed.

Section 160.50(1) clearly states that, in the absence of a motion to direct otherwise, the record of a criminal proceeding that is terminated in favor of the accused “shall be sealed and the clerk of the court…shall immediately notify [law enforcement authorities of such termination] and unless the court has directed otherwise, that the record of such action or proceeding shall be sealed.” Where no motion is made by the district attorney or the court that the record not be sealed, sealing and notifying law enforcement is mandated in cases that were terminated, as defined under CPL §160.50(3).

CPL §160.50(3) provides, in part, as follows:

For the purposes of subdivision one of this section, a criminal action or proceeding against a person shall be considered terminated in favor of such person where:

(a) an order dismissing the entire accusatory instrument against such person pursuant to article four hundred seventy was entered; or

(b) an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30, 170.50, 170.55, 170.56, 180.70, 210.20, 210.46 or 210.47 of this chapter was entered or deemed entered, or an order terminating the prosecution against such person was entered pursuant to section 180.85 of this chapter, and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or

(d) a trial order of dismissal of the entire accusatory instrument against such person pursuant to section 290.10 or 360.40 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or

In the instant case, the matter was terminated by motion of the district attorney to dismiss the entire accusatory instrument. Petition, Exhibit I. Respondent granted the motion by dismissing the jury which had been impaneled to try the charges against Petitioner. Notwithstanding Respondent’s insistence on the district attorney changing the word in its motion papers from “withdrawal” to “dismissal”, Respondent’s action constitutes a dismissal of the entire accusatory instrument under the applicable section enumerated in CPL §160.50(3)(b). The change in verbiage, in this instance, is a distinction without a difference.

There was no requirement that the court issue a sealing order. Rather, sealing was automatic. “The 1991 amendment to subdivision one [of section 160.50] eliminated the need for a judicial order to effectuate the sealing of records and return of photographs and prints in cases where defendant is entitled to same. Now the clerk of the court is required to initiate the process automatically on the basis of the disposition. The clerk simply seals the court records and notifies the necessary agencies.” Peter Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL §160.50 at 607. The commentator noted, in passing, that the “amendment introduced [the following] minor procedural inconsistency…[that] while requiring the clerk of the court to take sealing action ‘upon termination of the action or proceeding’, the procedure nevertheless creates a window for the district attorney or the court on its own motion to move to block that action upon five days advance notice to the defendant, which would then require further delay for a ruling.” Id.

It is clear from CPL §160.50, as illuminated in the Practice Commentary, that the sealing action was automatic and it was the obligation of the clerk of the court, in this case Respondent Catherine Costello, to perform it, as well as to send the subsequent notifications. The procedure set forth in CPL §160.50 creates the opportunity for judicial discretion only upon motion by the district attorney or the court on its own motion. No such motion was noticed to Petitioner.

Respondent Thomas Costello’s May 20, 2015 letter did not provide notice to Petitioner that the court, on its own motion, would be moving to block the sealing of the records. Section 160.50 required “not less than five days notice to [Petitioner] that the interests of justice require otherwise”. Moreover, the statute required the court to “state[] the reasons for such determination on the record”, which it did not do. There was no action by the court which triggered anything other than sealing of the records. As a result, the court clerk was required to take the sealing actions set forth in the statute.

This Court need not resolve the issue of whether Petitioner may seek Article 78 relief against Respondent Thomas Costello. Under the circumstances present here, where no motion was made by either the district attorney or the court, such relief was properly sought against Respondent Catherine Costello. A sealing order from the court was not required following the favorable termination of the criminal proceedings against Petitioner. Respondent Catherine Costello, as clerk of the court, was required to seal the records.

Accordingly, the Court grants Judgment to Petitioner and hereby orders Catherine Costello to take the actions required by CPL §160.50 by sealing the records of the proceedings in the Village

Court initially brought against Petitioner and submitting notification to all appropriate law enforcement agencies that the matter terminated in Petitioner’s favor and that all photographs and prints are to be sent to Petitioner’s counsel and no copies are to be maintained by such agencies.

Dated: Carmel, New York

July 13, 2016