People v Kenny

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[*1] People v Kenny 2018 NY Slip Op 28375 Decided on December 3, 2018 District Court Of Nassau County, First District Engel, 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 December 3, 2018
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,


Kelly Kenny, Defendant.


Madeline Singas, Nassau County District Attorney

Attorneys: Lavallee Law Offices, PLLC
Andrew M. Engel, J.

Papers Submitted:

Notice of Motion 1

Affirmation in Support 2

Memorandum of Law in Support 3

Affirmation in Opposition 4

Reply Affirmation 5



On November 24, 2016, following her arrest the prior day, the Defendant was arraigned on charges of driving while intoxicated per se, aggravated driving while intoxicated and common law driving while intoxicated, in violation of VTL § 1192(2), 1192(2a) and 1192(3), respectively. Thereafter, as the result of the Defendant's motion for such relief, by Decision and Order dated June 14, 2017, this court (Engel, J.) dismissed the entire docket, pursuant to CPL § 170.30(1)(a), due to the facial insufficiency of the accusatory instruments. Specifically, the court found that the instruments failed to properly allege an essential element of the crimes charged, to wit: operation. This matter was then automatically sealed, pursuant to CPL 160.50(1).

On July 21, 2017, the People refiled new accusatory instruments charging the Defendant with the same offenses listed hereinabove, under Docket No. CR-018751-17NA. At the same time, the People filed what they titled a Certificate of Readiness. After failing to secure the Defendant's voluntary surrender on the newly filed charges, on July 25, 2017 the People obtained a warrant for the Defendant's arrest.

On October 6, 2017 the Defendant was arraigned before Hon. Paul Meli on the newly [*2]filed accusatory instruments. The matter was then adjourned to Part 7, for October 20, 2017.

On October 20, 2017 the Defendant was re-arraigned before Hon. Eric Bjorneby on the newly filed accusatory instruments. The matter was then adjourned, at the Defendant's request, to December 5, 2017, for voluntary disclosure.

On December 5, 2017 the People served voluntary disclosure; and, the court set a schedule for the Defendant to make her omnibus motion. The matter was then adjourned to January 19, 2018.

On January 19, 2018 all papers were submitted on the Defendant's omnibus motion; and, the matter was adjourned to March 13, 2018 for decision. On March 6, 2018 the court (Lerose, J.) granted the Defendant a Mapp/Huntley/Dunaway [FN1] hearing.

On March 13, 2018 the matter was adjourned to April 17, 2018.

On April 17, 2018, at the Defendant's request, the matter was adjourned to May 22, 2018, for the ordered hearing.

On May 22, 2018 the People were not ready to proceed with the ordered hearing and requested the matter be adjourned to May 29, 2018. At the Defendant's request the hearing was instead adjourned to July 10, 2018.

On July 10, 2018 Part 7 was closed and the matter was adjourned, off calendar, by stipulation of the parties, to July 24, 2018.

On July 24, 2018 the People were ready to proceed with the ordered hearing. The Defendant was not present on that date; and, at the request of defense counsel, the matter was adjourned to September 4, 2018.

On September 4, 2018 the Defendant waived the hearings ordered by Judge Lerose and filed a motion to dismiss pursuant to CPL § 30.30 and 170.30(1)(e).

The People now move, pursuant to CPL § 160.50, to have the records of this matter, Docket No. CR-030306-16NA, unsealed. In so doing, the People argue that the records under this docket were improperly sealed, that the Defendant has waived any protection afforded by CPL § 160.50 by filing a motion to dismiss pursuant to CPL §§ 170.30(1)(e) and 30.30, under Docket Number CR-108751-17NA, and that the records must be unsealed in the interests of justice, pursuant to CPL § 160.50(1)(d)(ii). The court shall address these arguments seriatim.


The People argue that "the defendant's case was not terminated in the Defendant's favor by this Court's dismissal order, and the Records (sic) for Docket CR-030306-16NA were improperly sealed." (Memorandum of Law 9/18/18, p.8) More particularly, the People argue:

Although Docket CR-030306-16NA was dismissed for facial insufficiency, the criminal action against the defendant was never terminated as termination is defined in C.P.L. § 160.50 as the People are permitted to cure defective accusatory instruments that are insufficient. When the People filed a new accusatory instrument under Docket CR-018751-17NA, said instrument derived from the first accusatory instrument and is thus part of the same criminal action."

The People confuse the "relation back" doctrine in speedy trial litigation, [See: People v. [*3]Sinistaj, 67 NY2d 236, 501 N.Y.S.2d 793 (1986); People v. Osgood, 52 NY2d 37, 436 N.Y.S.2d 213 (1980); People v. Lomax, 50 NY2d 351, 428 N.Y.S.2d 937 (1980)] with the sealing of actions or proceedings against a person in favor of such person.

CPL § 160.50(1) provides, in pertinent part, "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, the record of such action or proceeding shall be sealed." Note the mandatory language employed by this section. See: Matter of Joseph M, 82 NY2d 128, 603 N.Y.S.2d 804 (1993); Wilson v. City of New York, 240 AD2d 266, 659 N.Y.S.2d 8 (1st Dept. 1997)

CPL § 160.50(3)(b) explicitly and unequivocally provides, in pertinent part:

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: an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30 of this chapter was entered or deemed entered, and the people have not appealed from such order .

As is clear from the foregoing, in defining the phrase "terminated in favor of such person," strictly "[f]or the purposes of subdivision one of this section," the Legislature specifically included any order to dismiss pursuant to CPL § 170.30. This definition in no way affects the "relation back" doctrine as applied in speedy trial litigation, nor impacts one's double jeopardy rights. It is merely an unequivocal Legislative mandate that for sealing purposes, a criminal action or proceeding dismissed pursuant to CPL § 170.30 shall be a termination in favor of the accused. See: People v. Blackman, 90 Misc 2d 977, 979, 396 N.Y.S.2d 982, 984 (Crim. Ct. Queens Co. 1977), wherein the court appropriately noted: Once the Legislature has explicitly and specifically set forth the circumstance under which a proceeding can be deemed terminated favorably to a defendant, there is no longer any room for judicial interpretation or to seek the intent of the Legislature. The intent is specifically set forth in this case in 160.50(2)[FN2]CPL. In such case the Legislature has mandated the meaning of "terminated in favor os such person" and the court is bound by such mandate. If the Legislature was guilty of an oversight, it is up to that body to correct it.

Given the fact that the accusatory instruments filed under this docket were dismissed due to their facial insufficiency, pursuant to CPL § 170.30(1)(a), this proceeding was terminated in favor of the Defendant; and, the file was properly sealed.


The People correctly note that "a criminal defendant can waive the statutory sealing privilege by placing at issue the conduct underlying the sealed records, which is common or related to the terminated prosecution." (Memorandum of Law 9/18/18, p. 10) See generally: Lundell v. Ford Motor Company, 120 AD2d 575, 502 N.Y.S.2d 63 (2nd Dept. 1986); Kalogris v. Roberts, 185 AD2d 335, 586 N.Y.S.2d 806 (2nd Dept. 1992) The People then, however, try to squeeze a square peg into a round hole by arguing that "[s]ince the defendant has alleged in her motion to dismiss that the People's speedy trial began to run from the filing of the accusatory [*4]instrument under Docket CR-030306-16NA, she waived the statutory protection of C.P.L. § 160.50 ." (Memorandum of Law 9/18/18, p. 12)

As the court made clear in Best v. 2170 5th Avenue Corporation, 60 AD3d 405, 873 N.Y.S.2d 631 (1st Dept. 2009), cited by the People, a waiver of sealing will occur when an individual "affirmatively places the underlying conduct at issue by bringing a civil suit ." (emphasis added) See also: Green v. Montgomery, 95 NY2d 693, 723 N.Y.S.2d 744 (2001)

By moving to dismiss Docket Number CR-018751-17NA, pursuant to CPL § 170.30(1)(e), alleging a denial of her speedy trial rights, the Defendant is in no way placing at issue her alleged underlying conduct in Docket Number CR-030306-16NA. What the Defendant is actually putting in issue is the People's conduct, or lack thereof, in allegedly failing to timely move her case to trial pursuant to CPL § 30.30.

Under the circumstances presented herein, there has been no waiver of the Defendant's sealing rights.


Here the People argue, "pursuant to C.P.L § 160.50(1)(d)(ii), the Records (sic) of Docket CR-030306-16NA should be made available to the People because said Records (sic) are necessary for the Nassau County District Attorney's Officer to perform its legal mandate, to wit: investigate and prosecute crimes that occur within the jurisdiction of Nassau County." (Memorandum of Law 9/8/18, p. 15) The People specifically aver that "it is in the interests of justice to unseal the [records] so that the People can use them in support of its opposition to defendant's motion to dismiss, or, if they do not support that position, consent to dismissal due to a violation of the defendant's speedy trial rights." (Memorandum of Law 9/8/18, p. 15)

CPL § 160.50(1)(d)(ii) provides, in pertinent part,

(1) Upon the termination of a criminal action or proceeding against a person in favor of such person the record of such action or proceeding shall be sealed Upon receipt of notification of such termination and sealing: (d) such records shall be made available to the person accused or to such person's designated agent, and shall be made available to (ii) a law enforcement agency upon ex parte motion in any district court provided that such court sealed the record, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it .

In Katherine B. v. Cataldo, 5 NY3d 196, 204, 800 N.Y.S.2d 363, 367 (2005) the Court of Appeals specifically addressed "whether the 'law enforcement agency' exception in CPL 160.50(1)(d)(ii) is broad enough to encompass an ex parte request by a prosecutor to unseal records ." In answering this question in the negative, the Court noted the contrast between CPL § 160.50(d)(1) and CPL § 160.50(1)(d)(ii), recognizing that:

The former authorizes disclosure to a 'prosecutor' in a 'proceeding'; the latter simply to a 'law enforcement agency"; the word 'proceeding' does not appear in clause (ii). Thus, the Legislature has limited a court's authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the singular circumstance delineated in CPL 160.50(1)(d)(i) — where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade, a benefit that an accused may obtain only once.

Consistent with this distinction, the Court further noted that "[t]he statute's provisions strongly [*5]suggest that its primary focus is the unsealing of records for investigatory purposes[;]" (emphasis added) Katherine B. v. Cataldo, supra. at 205, 800 N.Y.S.2d 363, 368 (2005) "and, even then, was only available before the commencement of a criminal proceeding." (emphasis added) People v. F.B., 155 AD3d 1, 63 N.Y.S.3d 314 (1st Dept. 2017); See also: Albany County District Attorney's Officer v. William T., 88 AD3d 1133, 931 N.Y.S.2d 154 (3rd Dept. 2011)

Clearly, "the Nassau County District Attorney's request does not fall under the 'law enforcement agency' exception to the general proscription against releasing records (citations omitted)." In the Matter of Akieba MC, 72 AD3d 689, 897 N.Y.S.2d 656 (2nd Dept. 2010)

Once again, if the People believe that the Legislature should have clarified that prosecutors were to be included in the exception provided in CPL § 160.50(1)(d)(ii), their remedy lies with the Legislature. In this regard, it should be noted, as detailed in People v. F.B., supra. at 8, 63 N.Y.S.3d 314, 319 (1st Dept. 2017):

In 2011, several years after Matter of Katherine B. was decided, an amendment was proposed in the Legislature to address the difference between CPL 160.50(1)(d)(i) and (ii) and 150.55(1)(d)(i) and (ii), as highlighted in Katherine B., by adding a seventh exception that would allow 'a party in a criminal proceeding' to unseal records if 'the moving party demonstrates to the satisfaction of the court that justice requires that the records be made available to such party in connection with the criminal proceeding' (Sponsor's Mem. 2011 AB 7389). The Sponsor's Memorandum in support of the legislation argued that the Court of Appeals in Matter of Katherine B. had 'inappropriately narrowed the situations where the Court may unseal records' including limiting the prosecutor's ability to unseal records pursuant to CPL 160.50(1)(d)(ii) and CPL160.55(1)(d)(ii) to situations which the records are sought for an investigatory purpose, and then, only before the commencement of the criminal proceeding. The memorandum went on to argue that the Court 'limited prosecutorial access to sealed records after commencement [of a criminal proceeding] to the 'singular circumstance' where a defendant requests an ACD in low level marijuana cases (citation omitted).

The court thereafter went on to appropriately note, "Despite these arguments, the Legislature rejected the proposed amendment. Consistent with the Legislature's commitment to limit the instances in which records may be unsealed pursuant to CPL 160.55, we too decline to expand the District Attorney's ability to do so." This court likewise declines to do so.

Finally, even if, in the circumstances presented herein, the District Attorney's Office was deemed to be a "law enforcement agency," the People have failed to demonstrate any facts which would require Docket No. CR-030306-16NA to be unsealed. The People's representation that "it is in the interests of justice to have the minutes of each calendar call that occurred in the course of the action made available to the People, so it may investigate the accuracy of — and respond to — defendant's speedy trial claim" (Memorandum of Law 9/8/18, p. 18), is demonstrably incorrect.

It should first be noted that, contrary to the People's argument, it is irrelevant whether the People declared themselves ready for trial on the Court's record at the time of the Defendant's arraignment under Docket No. CR-030306-16NA, on November 24, 2016. As previously indicated, this court (Engel, J.) dismissed the prior docket due to the facial insufficiency of the prior accusatory instruments. As such, any declaration of readiness at the time of arraignment thereon would have been illusory. See: People v. Caussade, 162 AD2d 4, 560 N.Y.S.2d 648 (2nd [*6]Dept. 1990) lv. den. 76 NY2d 984, 563 N.Y.S.2d 772 (1990); People v. Van Hoesen, 12 AD3d 5, 783 N.Y.S.2d 89 (3rd Dept. 2004) lv. den. 4 NY3d 804, 795 N.Y.S.2d 179 (2005)

The second thing that should be noted is that the People do not need any information from Docket No. CR-030306-16NA to oppose the Defendant's speedy trial motion under Docket No. CR-018751-17NA. As will be discussed below, the success or failure of the Defendant's speedy trial motion is in no way dependent upon any adjournments which occurred under Docket No. CR-030306-16NA. While this decision will not determine the Defendant's speedy trial motion, by way of explanation, it will generally discuss the dates in question.

The Defendant's speedy trial motion raises four (4) specific adjournments which are alleged to be chargeable to the People: November 23, 2016 to December 12, 2016 [18 days], June 14, 2017 to October 6, 2017 [114 days], October 6, 2017 to October 20, 2017 [14 days] and May 22, 2018 to May 29, 2018 [7 days]. As can be seen, the Defendant alleges that the People are to be charged with a total of one hundred fifty-three (153) days, only eighteen (18) of which are alleged to have transpired under the sealed docket.

The longest adjournment in issue in the Defendant's speedy trial motion is the one hundred fourteen (114) days from the dismissal of Docket No. CR-030306-16NA, on June 16, 2017, until the Defendant's arraignment on Docket No. CR-018751-17NA, on October 6, 2017. It is this period which is dipositive of the Defendant's speedy trial motion.

If, for some reason, this entire period is chargeable to the People, it is irrelevant whether the eighteen (18) days in question under Docket No. CR-030306-16NA are charged to the People, as more than ninety (90) days will be chargeable to the People without them. On the other hand, if the period from the issuance of the arrest warrant under Docket No. CR-018751-17NA, on July 25, 2017, until the Defendant's arraignment on Docket No. CR-018751-17NA, on October 6, 2017, a period of seventy-three (73) days, is excluded pursuant to CPL § 30.30(4)(i), then, even if the People are charged with all of the remaining eighty (80) days, the Defendant's speedy trial motion would be without merit. Either way, the eighteen (18) days which have lead the People to bring this motion to unseal Docket No. CR-030306-16NA are irrelevant.

Accordingly, the People's motion to unseal Docket No. CR-030306-16NA is denied.

This constitutes the decision and order of this court.

Dated: December 3, 2018

Hempstead, New York



J.D.C. Footnotes

Footnote 1:Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); People v. Huntley, 15 NY2d 22, 255 N.Y.S.2d 838 (1965); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)

Footnote 2:As the People note, CPL § 160.50(2), as it previously existed is the same as CPL CPL § 160.50(3) today.