Tuesday, August 30, 2011

Court Weighs in On the Availability of Conditional Sealing Following a Dismissal Upon Completion of Judicial Diversion

Earlier this month, Supreme Court Judge Eduardo Padro issued a written decision in People v. Smith, (New York County) regarding an issue that has plagued defendants in some jurisdictions, particularly Manhattan, since the Judicial Diversion Program went into effect in October, 2009.  In 2009, Ms. Smith was allowed to participate in the Judicial Diversion Program, with the promise that if she completed her out-patient substance abuse treatment, her plea would be vacated and the case would be dismissed in its entirety.  The Court also promised to consider sealing the arrest and prosecution records pursuant to CPL § 160.58.  This section of law specifically allows courts to conditionally seal cases of defendants who have completed the Judicial Diversion Program as well as other judicially sanctioned treatment programs. 

Upon her successful completion of the Judicial Diversion Program, Ms. Smith applied to the court for conditional sealing pursuant to CPL § 160.58.  The prosecution opposed, claiming that CPL § 160.58 only applies to defendants who have been convicted and sentenced.  Since Ms. Smith’s case had ultimately been dismissed, the prosecution claimed that she was never sentenced and therefore was ineligible for conditional sealing.  The prosecution also claimed that Ms. Smith was not eligible for full sealing under CPL §160.50 since completion of the Judicial Diversion Program is not specifically listed in §160.50(3) as a “termination in favor of the defendant.”  Of course, taken to its logical conclusion, the prosecution’s hyper-technical interpretation of the two sealing statutes means that defendants like Ms. Smith would be better off with a conviction and CPL §160.58 sealing than having their cases dismissed altogether.  Surely, in enacting CPL §160.58, the Legislature never intended such an absurd result.    

Luckily, Judge Padro refused to adopt the prosecution’s overly narrow interpretation of the term “sentence,” and instead reasoned that CPL § 160.58 must be examined, “within the context of the entire statutory scheme implemented by the legislature and as a corollary statute to Article 216.”  Judge Padro further stated that CPL § 160.58 was, “passed granting the court additional authority to fully carry out the purpose of Article 216.”  As with many Judicial Diversion cases, there was no “final sentence” as Ms. Smith’s case was ultimately dismissed.  However, in refusing to narrowly interpret the term “sentence” within CPL § 160.58, Judge Padro reasoned that Ms. Smith was subjected to a “conditional sentence” as she entered the Judicial Diversion program following her guilty plea.  Judge Padro ultimately ruled that the since Ms. Smith had successfully completed the Judicial Diversion Program, she was eligible to have her case conditionally sealed.  

            Unfortunately, the two other Manhattan judges in the Judicial Diversion part – Judge Coyne and Judge Nunez – have previously held that sealing under either CPL § 160.50 or  §160.58 is not available to defendants who have their cases dismissed after successful completion of the Judicial Diversion Program.  Nonetheless, People v. Smith provides defense counsel an effective tool to argue that CPL § 160.58 sealing should be available in such cases.  Of course, in many counties, courts are sealing such dismissals pursuant to CPL § 160.50, as dismissals in the interests of justice, which is specifically included in CPL § 160.50(3) as a “termination in favor of the defendant.”    

The possibility that either CPL § 160.50 or CPL § 160.58 sealing may be available raises the question: is one sealing better than the other?  Since the benefits of each type of sealing are slightly different, the answer depends on the particular circumstances of your client.  While sealing under CPL § 160.50 is permanent, sealing under § 160.58 is only conditional, meaning the records will be automatically unsealed if the defendant is subsequently arrested for a criminal offense.  However, CPL § 160.58 sealing does allow for up to three prior misdemeanor drug offenses to be sealed in addition to the instant offense. For some clients, the benefit of sealing these prior misdemeanors may outweigh the conditional nature of CPL § 160.58 sealing.        

(The copy of People v. Smith that is linked to this blog has been redacted to fully honor the sealing that was afforded Ms. Smith.  Attorneys who require an unredacted copy to advocate on behalf of their clients should contact Jeff Leibo at CCA)

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