In The News – Law Office of John M. Zarcone, Jr., Esq.

The Journal News: Judge seals Cold Spring case, ends legal battle

Date August 21, 2016

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Source: The Journal News; Lee Higgins, 6:57 p.m. EDT August 21, 2016

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.

WITHDRAWN: Man fights to get criminal case sealed

ARREST: Bar manager charged with assault

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check would trigger a hit in a state computer, revealing his mugshot and fingerprints, even though charges were withdrawn.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.

New York Law Journal: Matter of DiFrancesco v. Costello, 1779/2015

Date August 9, 2016

Posted by admin

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

The Journal News: Charges withdrawn, but judge won’t seal man’s case

Date August 17, 2015

Posted by admin

Source: The Journal News; Lee Higgins, 12:14 p.m. EDT August 17, 2015

Mugshot, fingerprints available, although no crime will be prosecuted

They could even learn his date of birth, religion and where he has scars and tattoos.

But DiFrancesco has committed no crime.

In fact, prosecutors withdrew all charges. The records are only available because Village Justice Thomas Costello refused to seal the case, making the extremely rare decision without specifying reasons as the law requires. DiFrancesco has been denied a right afforded to tens of thousands of other people in New York who have misdemeanor cases dismissed each year.

That break from standard practice by Costello is improper, legal experts say. Bennett Gershman, a professor at Pace University School of Law in White Plains, said any case resulting in a favorable disposition for the defendant should be sealed.

“I think withdrawal is clearly a basis for sealing,” Gershman said. “If the judge is looking for a hook to keep the defendant under a cloud of criminal suspicion, the judge is acting in complete bad faith and should be sanctioned for something like this.”

Costello said he stands by his decision not to seal the file and wasn’t biased. In fact, he said, he released DiFrancesco at his arraignment on a promise to appear. “I think anyone who sees the record will find that I was fair and impartial all the way through,” he said.

DiFrancesco’s legal odyssey began in the early hours of New Year’s Day 2014. A brawl erupted outside his stepson’s restaurant Whistling Willies, a cozy, hip joint on Main Street, and he was called outside to break it up. He was arrested a month later on misdemeanor charges of assault, reckless endangerment and making a false statement. DiFrancesco said Costello made biased comments throughout the case and seemed to want it to go to trial.

“The understanding I had was the district attorney was not going to proceed with prosecuting the case,” said DiFrancesco. “That it was going to be sealed. That it’s over like it never happened and I’m going to walk out a free man with this 800-pound gorilla off my back. … All the charges were dropped. Why should I have a mugshot? Why should I have fingerprints?”

Costello, he said, has “made it personal.”

“He has a vendetta against me because he didn’t get his way,” DiFrancesco said.

Costello refused to seal the case after insisting prosecutors change language in a court filing in May to reflect that they were withdrawing misdemeanor charges against DiFrancesco, not dismissing them.

“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…” Costello wrote to DiFrancesco’s lawyer, Larry Silverman on May 20, two days after Silverman asked for the sealing order.

At one point, prosecutors proposed a deal that would have required DiFrancesco stay out of trouble for a period of time, but Costello rejected it. Putnam County Chief Assistant District Attorney Chana Krauss said in a statement: “The Putnam D.A.’s Office has no further comment on this matter.”

DiFrancesco is weighing filing a complaint with state Commission on Judicial Conduct, which investigates allegations of judicial misconduct. It was bad enough, he said, to pay legal fees for 15 months, be humiliated in the local newspapers and have parents not wanting school fundraisers held at his stepson’s restaurant. Some families he knew from when he coached Little League didn’t want to associate with him after the arrest, he said. Local bands had second thoughts about playing at Whistling Willies.

The curious legal drama is playing out among the scenic village’s some 2,000 people, where hiking, kayaking and cycling are more commonplace than courtroom maneuverings. Just 50 miles north of New York City, it sports a variety of eateries and shops in less than one square mile and is listed on the National Register of Historic Places. Singer and songwriter Don McClean called it home when he penned at least part of the iconic “American Pie” ballad. Scenes from “War of the Worlds” starring Tom Cruise were filmed here. The town’s police department has a little more than a dozen officers who work part-time.

“It’s embarrassing,” said DiFrancesco, a retired carpenter who lives in Putnam Valley. “I’m a father. To be accused of doing something like that … It’s terrible. I lost a lot of nights sleep for something I didn’t do.”

Judge Costello’s decision was a rare one. In 2012, the state Division of Department of Criminal Justice Services reported 308,864 misdemeanor dispositions. The department tracks all crimes for which fingerprints are taken. Of those cases, only 1,119 or just .36 percent were eligible to be sealed, but not sealed according to court order. DiFrancesco wonders if Costello remains upset from a case several years ago, when DiFrancesco spoke up on behalf of his son who had some traffic tickets.

“He didn’t like that,” DiFrancesco said.

The disposition of the case — sent to the Office of Court Administration on July 27, three days after the newspaper spoke to Costello — was that the case was dismissed, not sealed, OCA spokesman David Bookstaver said. Court rules require the disposition be sent within a maximum of 48 hours, OCA confirmed.

Silverman, DiFrancesco’s lawyer, pledged to never return to Costello’s courtroom, saying, “This was the last thing he (Judge Costello) could do to prejudice the defendant.”

Rules of judicial conduct dictate that judges be impartial. Lawyer John Zarcone, who represented DiFrancesco for one hearing and reviewed transcripts of court proceedings in the case, said Costello was anything but impartial.

For instance, Zarcone pointed to a hearing May 18 when DiFrancesco was in front of a jury, prior to the case being dismissed. Assistant District Attorney Chana Krauss said there was no “legal or factual basis to prosecute the defendant…” Costello said it was within the discretion of the district attorney’s what to prosecute and, “The fact that a crime is committed does not put any obligation upon him to prosecute it,” the transcript shows.

DiFrancesco interpreted the comment to mean Costello was saying he committed a crime, even though the charges were being withdrawn.

Costello said he doesn’t recall saying that, but stands by anything he said in court.

Zarcone pointed to another hearing, on May 4, when Costello said, upon rejecting the deal prosecutors proposed, “If Mr. DiFrancesco did not commit these assaults, he certainly knows who did and certainly not cooperating with the police or anybody else today.”

When asked about the case by a reporter, Richard Grayson, a White Plains lawyer who represents judges and lawyers investigated or charged with professional misconduct, said, “Based on what you’ve told me, I question whether the judge has acted impartially as required.”

The bar fight

The case centered around a fight at about 2 a.m. New Year’s Day 2014. David Kinnaird, whose family DiFrancesco has known for years, returned to Whistling Willies to pay his tab and ask for a ride home through the restaurant’s Safe Ride program, which is offered as a courtesy.

Safe Ride driver Jason Aber agreed to give him a lift, but Kinnaird said he had to use the bathroom, Aber’s statement to police says.

“I said, ‘fine, go ahead,’ but then he never went to the bathroom and he started harassing the customers again,” Aber said in the statement. “Then I went up to him and said you have to leave now … We got him outside and (he) started to say that he runs Cold Spring and he will call 17 people to come kick my ass.”

Kinnaird had been drinking for hours that night, he would later tell police. The two got into a heated argument, a restaurant surveillance video shows, and Aber pushed Kinnaird down. Kinnaird got up, threw a punch and a fight ensued.

DiFrancesco, who stopped by the restaurant a couple hours earlier to help out as a second Safe Ride driver, went outside to break it up. He grabbed hold of Kinnaird who punched him, the video shows.

“He threw me over a table,” DiFrancesco said. “He assaulted me … I was just trying to break something up.”

Kinnaird stumbled, the video shows, as DiFrancesco pushed him to the ground. Police alleged DiFrancesco punched Kinnaird several times and kicked him repeatedly. The police also claim that DiFrancesco and several others carried Kinnaird up the street and left him out in the extreme cold while he was highly intoxicated. Kinnaird was allegedly left with an injured knee that required surgery, a police report says. He said in his statement that he remembers telling police he was hit with a baseball bat.

DiFrancesco said he helped Kinnaird that night. “If anything, I helped save his life because he fell…and cars were going by,” he said.

Kinnaird was not charged. Prosecutors would not discuss anything about the outcome of a case that was brought against Aber. Kinnaird and Aber could not be reached for comment.

DiFrancesco’s lawyers have written Supervising Judge Charles Apotheker and asked he review Costello’s decision and conduct, arguing Costello was biased and disrespectful, not only to DiFrancesco, but prosecutors as well. Apotheker declined to comment through a spokeswoman.

The lawyers said once the case is sealed, DiFrancesco can legally say he’s never been arrested.

“This case is far from over,” DiFrancesco said.