People v Doe

[*1] People v Doe 2018 NY Slip Op 28324 Decided on October 18, 2018 Supreme Court, Queens County Zayas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 18, 2018
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

John Doe, Defendant.



XXXX/85 & YYYY/85



For the People: Richard A. Brown, District Attorney of Queens County (Anastasia Spanakos, Esq., of counsel)

For Defendant: Indira Khan, Esq.
Joseph A. Zayas, J.

In 1985, when he was nineteen years old, defendant John Doe [FN1] was arrested twice in the span of a month and a half for selling cocaine to undercover police officers. Defendant ultimately resolved both cases by pleading guilty to criminal sale of a controlled substance in the third degree, a class B felony, in exchange for an aggregate prison sentence of one to three years. In 1995, defendant began a two-decade career with the New York City Department of Sanitation. In the aftermath of the September 11, 2001, terrorist attacks, he participated in the clean-up and rescue efforts at the site of the fallen World Trade Center towers. Defendant is a husband, proud father and grandfather, and active member of his church; he has had no contacts with the criminal justice system for over thirty years. He now moves, pursuant to CPL 160.59, to seal his convictions. He asserts, among other things, that if he seeks employment in the future, he would like to be able to do so without the stigma of a criminal record. The People oppose defendant's motion. They contend that, as a two-time convicted felon, defendant is not among the sealing statute's intended beneficiaries. The People are correct and the Court, therefore, is constrained to [*2]deny defendant's motion.

On August 31, 1985, defendant was arrested for selling cocaine to an undercover police officer, in front of 109-18 Farmers Boulevard. He was charged with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39 [1]), two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [1]), and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) ("the first indictment"). At his arraignment, defendant was released on his own recognizance. But, a few weeks later, on October 8, 1985, he was arrested again — this time with a co-defendant — for selling cocaine to an undercover officer near the corner of Farmers Boulevard and 109th Avenue. Defendant was charged with third-degree criminal sale of a controlled substance and Criminal Facilitation in the Fourth Degree (Penal Law § 115.00 [1]) in connection with this second incident ("the second indictment").

Several months later, on July 14, 1986, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and criminal facilitation in the fourth degree to resolve the case brought under the second indictment. Four days later, he pleaded guilty to another count of third-degree criminal sale of a controlled substance in full satisfaction of the charges contained in the first indictment. Defendant was thereafter sentenced, in connection with the first indictment, to one to three years of imprisonment. That sentence was run concurrently with a sentence of the same length that was subsequently imposed in connection with the second indictment. Defendant now moves to seal all three convictions.

Section 160.59 of the Criminal Procedure Law, which took effect in October of 2017, provides a mechanism for defendants to move to seal up to two "eligible offenses" (CPL 160.59 [2] [a], [4]). The ameliorative purpose of the statute, as Governor Cuomo indicated at the time of its enactment, is to "eliminate unnecessary barriers to opportunity and employment that form[erly] incarcerated individuals face and to improve the fairness and effectiveness of the state's criminal justice system" (Press Release, "Governor Cuomo Announces Raise the Age Law that Seals Non-Violent Criminal Convictions Takes Effect October 7," Oct. 6, 2017 [https://tinyurl.com/y8ljq22t]). To this end, individuals who meet certain criteria can move to seal their convictions, as long as they do not fall within several categories of offenses — such as sex offenses defined in article 130 of the Penal Law, homicide offenses, and violent felony offenses — once ten years have passed (excluding any periods of incarceration) since the imposition of sentence (CPL 160.59 [1] [a], [5]). Individuals who have been "convicted of two or more felonies or more than two crimes" are not eligible for relief under the statute (CPL 160.59 [3] [h]).

In this case, defendant was convicted, under two separate indictments arising from conduct that occurred five weeks apart, of two counts of criminal sale of a controlled substance in the third degree, a class B felony offense (Penal Law § 220.39). Thus, the law makes clear that he is unable to have any of his three convictions sealed (see CPL 160.59 [3] [h]).

Defendant nevertheless contends that his two felony convictions should be treated as only one because the sentences imposed for each were run concurrently with each other. In support of this position, defendant argues that the sealing statute is unclear about how to treat multiple felony convictions for which concurrent sentences were imposed and, therefore, he suggests, it is instructive to look to the persistent felony offender statute (Penal Law § 70.10) for guidance. That statute provides that, in determining how many previous felony convictions a defendant has, multiple convictions arising from crimes "that were committed prior to the time the [*3]defendant was imprisoned under sentence for any of such convictions shall be deemed only one conviction" (Penal Law § 70.10 [1] [c]).

But there is a problem with this argument: the sealing statute is not silent about when multiple felony convictions can be treated as a single conviction. In fact, the sealing statute explains that doing so is permissible only when a defendant has been convicted of multiple offenses that were committed during the course of "the same criminal transaction," as that concept is defined in subdivision two of section 40.10 of the Criminal Procedure Law (CPL 160.59 [1] [a]).[FN2] And that definition provides that a "criminal transaction" can consist of multiple acts, "or a group of acts," but the conduct must be "so closely related and connected in point of time and circumstances of commission as to constitute a single criminal incident, or . . . [be] so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture" (CPL 40.10 [2]).

That was not the case here. Defendant sold drugs on two separate dates, five weeks apart. Clearly, then, the two sales were not "so closely related and connected in point of time and circumstances of commission" as to compel the conclusion that they amounted to one criminal incident (see People v Lynch, 25 NY3d 331, 334—35 [2015] ["separate sales of drugs to the same person at the same place, separated by 48 hours," not the same criminal transaction under CPL 40.10 (2) (a)]). Nor, on this record, is there any basis for concluding that these two seemingly discrete drug sales were the kind of "integrated, interdependent acts" that the Court of Appeals has held can sustain a finding of a "single criminal venture" (see Lynch, 25 NY3d at 344 [holding that CPL 40.10 (2) (b) generally only applies to "ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings" (internal quotation marks omitted)]). In short, defendant's two felony drug sale convictions were separate criminal transactions and thus preclude him from seeking relief under the sealing statute.

The facts of this case, though, are not unsympathetic. Defendant has, for all that appears, led a productive, law-abiding life for at least the last two decades. He was a long-time civil servant, who did important work after the September 11th attacks that exposed him to hazardous conditions. And, according to the pastor of his church, he contributes to his community by regularly volunteering with the church's soup kitchen and food pantry and serving as a mentor for its Men's Ministry. But defendant is now retired from the Sanitation Department, due to an injury he sustained on the job, and he is concerned that, if he seeks employment in the future, his options will be limited because of his criminal record. This, of course, is a valid concern, and one that the sealing statute is meant to alleviate. However, because defendant has two felony drug convictions, instead of one felony and one misdemeanor (see Penal Law 160.59 [2] [a]), the statutes excludes him from its purview. Defendant's criminal record is certainly not unusual.[FN3] [*4]The notion that drug dealers and drug addicts "are often the same people" (Kathy Casteel, FiveThirtyEight, "A Crackdown On Drug Dealers Is Also A Crackdown On Drug Users," https://tinyurl.com/y969ua47 [Apr. 5, 2018]) is now widely accepted. And one of the consequences of this is that individuals with substance abuse problems are likely to accumulate multiple criminal convictions — for both sale and possession offenses — and do so relatively quickly, until they successfully address their underlying addiction issues.

New York law recognizes this reality by, for example, giving defendants who are charged with felony drug sale offenses the chance (subject to certain eligibility requirements) to participate in a substance abuse treatment program [FN4] and, upon successful completion of the program, the possibility of conditionally sealing not only the records related to the case that led to the diversion — which can ultimately be disposed of in several ways, including dismissal of the indictment — but three prior drug-related misdemeanor convictions as well (see CPL §§ 160.58 [2], 216.00 [1], 216.05 [10]). A defendant with more than one felony narcotics indictment is eligible for diversion into treatment (see People v Jordan, 28 Misc 3d 708, 713 [Sup. Ct., Bronx County 2010, Fabrizio, J.] ["[t]he legislature did not specifically deem an individual ineligible for judicial diversion where such person has more than one indictment"]). And a defendant who has been diverted to a treatment program once is not precluded from being diverted a second time (see CPL § 216.00 [1]). So, conceivably, a defendant could have more than one felony case dismissed and then sealed under the diversion program, in addition to the three prior misdemeanor convictions.

Defendants whose cases predate the widespread use of judicial diversion programs,[FN5] but [*5]have nevertheless demonstrably extricated themselves from any involvement with drugs, are entitled to significantly less relief. CPL 160.59 as noted, only allows for the sealing of one felony and one misdemeanor conviction, and categorically bars relief to individuals with two or more felony convictions or convictions of more than two crimes. This creates an unfortunate — and, in the Court's view, unintended — disparity between those individuals who were accepted into,[FN6] and then completed, judicial diversion programs and those who did not, but who ultimately overcame their addictions to lead law-abiding lives. Indeed, it is hard to understand why defendants who have completed diversion programs should be entitled to the sealing of three misdemeanor drug offenses, while an individual with a similar criminal record — regardless of any potentially mitigating circumstances — is excluded completely from CPL 160.59 relief. Surely there are individuals who, for myriad reasons (including, most simply, the timing of the conviction), were unable to participate in judicial diversion but could nevertheless establish that they are deserving of equivalent sealing benefits.

The Legislature, then, should consider whether broadening the sealing statute to encompass cases like this one would further advance the statute's laudable goals without having a deleterious effect on public safety or society's respect for the law. This could be accomplished expeditiously by: amending subsections (2) (a) and (4) to allow for the sealing of as many as three drug-related convictions, including up to two felony [FN7] convictions, when the offenses were committed within a two-year period (or a one-year period, if the Legislature were to conclude that a shorter time-period is more likely reflective of the convictions being attributable to drug abuse, as opposed to drug dealing); and amending subsection (3) (h) so that individuals with two felony or three misdemeanor drug convictions are not barred from seeking relief under the statute. Alternatively, a more limited expansion of the statute could be achieved by doing what defendant proposed in this case: applying sequentiality principles (see People v Morse, 62 NY2d 205 [1984]) so that multiple drug convictions would be treated as a single eligible offense, when the underlying crimes were all committed prior to the defendant being sentenced for any of the cases.[FN8] Until such reform, however, the Court must deny defendant's motion.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the defendant and to the District Attorney.

Dated: October 18, 2018

JOSEPH A. ZAYAS, J.S.C. Footnotes

Footnote 1:Although the Court is denying defendant's sealing motion, it has chosen to refer to him as "John Doe" in this published decision so as not to draw any further public attention to his criminal record.

Footnote 2:See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 160.59 (noting that the statute mandates denial of a sealing application if the defendant has convictions of "two or more felonies," but observing that "[t]hat provision . . . should be subject to the subdivision (1) (a) provision which would . . . treat the conviction of two or more felonies arising out of the same criminal transaction as the conviction of one felony").

Footnote 3:In United States v Dossie, 851 F Supp 2d 478 (EDNY 2012), Judge Gleeson explained why this is so. The defendant in that case, Jamel Dossie, was "a young, small-time, street-level drug dealer's assistant." Id. at 481. He had a difficult upbringing in Brownsville, Brooklyn, and was already abusing drugs and alcohol in high school. Dossie had what Judge Gleeson characterized as "a typical criminal history for a young man with his background," that is, "a low-level addict selling drugs on the street": he had state convictions of misdemeanor marijuana and controlled substance possession offenses. And, when he was twenty years old, he sold drugs four times during a seven-month period to a confidential informant, which led to federal charges and, ultimately, a conviction of conspiracy to distribute crack cocaine. Id. at 482—83. Dossie's case, in short, illustrates how individuals with substance abuse issues can accumulate multiple drug-related convictions very quickly.

Footnote 4: See People v Jordan, 28 Misc 3d 708, 713 (Sup Ct., Bronx County 2010, Fabrizio, J.) (describing CPL Article 216, the judicial diversion statute, as a legislative effort "to encourage courts and prosecutors to consider placing individuals who commit certain felony narcotics possession and sale crimes in order to financially support their drug or alcohol addictions into a substance abuse program, rather than sending them to jail").

Footnote 5:Defendant's case, of course, far predates the 2009 enactment of CPL Article 216. And although convictions that predate the statute have been deemed eligible for sealing under CPL 160.58, as long as the defendant completed a qualifying drug treatment program and successfully served his sentence (see People v M.E., 121 AD3d 157, 160—61 [4th Dept 2014]), diverting defendants into drug treatment simply was not the norm in the mid-1980s. In fact, the first drug treatment court in the United States, which was established in Miami-Dade County, Florida, did not open until 1989. And New York's first drug treatment court would not open until several years later, in 1995, in Rochester (see Rockefeller Institute of Government, "An Analysis of Drug Treatment Courts in New York State," May 23, 2018, at p. 7 [https://tinyurl.com/y9zx6z26]).

Footnote 6:The decision whether to permit a defendant to participate in a diversion program is a discretionary one made by the court (see People v Pittman, 140 AD3d 989, 989 [2d Dept 2016]).

Footnote 7:The sealing statute's prohibition on sealing class A felony offenses (CPL 160.59 [1] [a]) would, of course, still apply to the most serious drug offenses.

Footnote 8:The statute already includes among the factors that should be considered in determining whether a sealing application should be granted, "any measures that the defendant has taken towards rehabilitation, such as participating in treatment programs" (CPL 160.59 [7] [d]). And that factor would be of particular relevance in these sorts of cases.