M.S. Hous. Assoc. v Williams

[*1] M.S. Hous. Assoc. v Williams 2006 NY Slip Op 52105(U) [13 Misc 3d 1233(A)] Decided on November 3, 2006 Civil Court Of The City Of New York, New York County Martino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2006
Civil Court of the City of New York, New York County

M.S. Housing Associates, Petitioner,

against

Donnell Williams, et al., Respondents.



251390/06

Ruben A. Martino, J.

Petitioner commenced this summary holdover proceeding against respondent for illegal drug activity in the apartment. Respondent made a motion to preclude the use of any documentary or physical evidence created or seized in connection with the arrest of respondent. He also moves to dismiss the petition. Respondent filed a notice of motion and petitioner responded with an affirmation in opposition.

Facts

Respondent Darnell Williams resides at 107-123 East 129th St., Townhouse No.5, New York, NY According to petitioner, the respondent was involved in alleged illegal drug activity at his residence. The police conducted a search pursuant to a warrant and recovered various items from the residence. Respondent was arrested and charged with criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fifth degree and criminally using drug paraphernalia in the second degree. Subsequently, on March 9, 2006, all charges against respondent were dismissed by motion of the District Attorney and the case was sealed.

Discussion

The question before the court is whether petitioner is precluded from using the evidence obtained in connection with the criminal arrest after such charges were dismissed and the case sealed. The procedure for unsealing and using criminal records is contained in CPL 160.50 which states in part that:

(d)such records shall be made available to the person accused or to such person's designated agent and shall be made available to (i) a prosecutor in any proceeding which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii)a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, [*2]when the accused has made application for such a license, or (iv)the New York state division of parole when the accused is on parole supervision as a result of conditional release or a parole release granted by the New York state board of parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision or (v) any prospective employer of a police officer or peace officer as those terms are defined in subdivision thirty three and thirty four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto, or (vi) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision.

This court does not have the power to unseal criminal records. Only a superior court can entertain such an application (see People of the State of New York v Wilson Hurd, 130 Misc 2d 949, 498 NYS2d 94 [NYC Crim Ct 1986]). The civil court is not a superior court. Additionally, pursuant to CPL 160.50, the petitioner is not a law enforcement agency and does not fall under any of the enumerated categories allowing for the use of the records. However, under CPL 160.50 (d), the petitioner, through the District Attorney, may make a motion in the supreme court to have the records unsealed. Absent an order from a superior court, the petitioner may not use the sealed records in this holdover proceeding.

Even if the Court did have the authority to unseal the records and allow petitioner to use the information from the records, it would not do so because petitioner has not shown that the information in the sealed records may not be obtained through other means.

In the Matter of Phillip P. Dondi, 63 NY2d 331, 482 NYS2d 431 (1984), the Court of Appeals discussed the standard for unsealing criminal records. In that case, the respondent was an attorney charged with bribing a potential witness in a civil matter. The charges were dismissed and the record was ultimately sealed. Soon after, the Grievance Committee made an ex parte application to the Supreme Court for an order permitting the unsealing of the court's and the District Attorney's files. In Dondi, the Court of Appeals held that unsealing was unjustified as the "request set forth no facts indicating that other avenues of investigation had been exhausted or thwarted or that it was probable that the record contained information that was both relevant to the investigation and not otherwise available by conventional investigative means" (Id. at 338-339). The court also held that its discretionary power to permit the unsealing of criminal records may be invoked "upon a compelling demonstration . . . that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline of an attorney cannot be accomplished" ( Id. at 338).

In People v Canales, 174 Misc 2d 387, 664 NYS2d 228 (Sup Ct Bx Co 1997), a case similar to the instant proceeding, the defendant was the target of a police investigation and was arrested along with her son in her apartment and was charged with felony narcotics possession. Subsequently, the criminal charges against the defendant were dismissed and the record sealed. The court held that the compelling need for sealed criminal records in relation to eviction proceeding was not shown to justify the extraordinary remedy of unsealing the criminal record for use in a civil proceeding. It was not shown that information in the records could not be obtained through other means including testimony of officers who executed the search warrant. The court noted that the special prosecutor could have brought the issue of the need for the [*3]records to the judge's attention before the criminal case was sealed.

In this summary holdover proceeding, petitioner has not shown compelling need for the sealed records. The petitioner has not demonstrated that the desired information could not be obtained through other measures. For example, petitioner could use other evidence such as witness to the alleged drug activity and or the police involved in the criminal investigation who would be able to testify based on their recollection. Without a showing that there is no other way to get the information, petitioner has not met its burden for unsealing the records.

Conclusion

Accordingly, the motion to preclude the use of evidence created or seized in connection with respondent's arrest is granted. The motion to dismiss is denied as petitioner may use other evidence to prove its case. This matter shall appear on the Court's calendar for resolution on December 4, 2006 in Part U.

__________________________________

Hon. Ruben Andres Martino

A.S.C.J.

Dated: November 3, 2006

Harlem, New York