90 Misc. 2d 977 | N.Y. City Crim. Ct. | 1977
The defendant moves for an order pursuant to CPL 160.50 directing the sealing of the defendant’s record and the return of her fingerprints and photographs. She had originally been charged with a violation of subdivision 3 of section 1192 of the Vehicle and Traffic Law of the State of New York, driving while intoxicated. Thereafter, and for purposes of disposition, the charge of disorderly conduct, a violation of section 240.20 of the Penal Law, was added to the information and the defendant entered a plea of guilty to the added charge of disorderly conduct, a violation, to cover the information. The sentence was a conditional discharge. The defendant contends that since the defendant entered a plea of guilty to a non-printable offense, the violation of disorderly conduct, she is entitled to the benefit of CPL 160.50 and the return of her fingerprints and photographs which were both taken when she was charged with the misdemeanor printable offense of driving while intoxicated. The posture of the defendant therefore is that the above facts of this case indicate that the termination of the criminal action or pro
The fact that CPL 160.50 has been in effect less than one year (it became effective September 1, 1976) has apparently prompted my colleagues to seek to interpret its provisions in opinions in the Flores case (supra, opn by Judge Brown), the Miller case (supra, opn by Judge Golden) and in People v Casella (90 Misc 2d 442). In the last-mentioned case, the application for a return of fingerprints and photographs was denied. A study of the logic and reasoning reflected in the opinions in these cases leads this court to reject the conclusions reached in the Flores and Miller cases and adopt that reached in the Casella case. The crux of the issue in each of these cases is the interpretation to be given to the term "in favor of such person” as that phrase is contained in the subdivisions of CPL 160.50. The Legislature, however, seems to have removed from the court the need to interpret that phrase. CPL 160.50 (subd 2) specifically sets forth under what circumstances "a criminal action or proceeding against a person shall be considered terminated in favor of such person.” This subdivision lists seven such instances, none of which include a plea to a reduced and. lesser charge than that with which the defendant was initially charged. In this respect this statute differs from section 79-e of the Civil Rights Law which was the forerunner of CPL 160.50 and which was repealed upon the enactment of CPL 160.50. Section 79-e of the Civil Rights Law did not define under what circumstances a proceeding or action would be considered as being terminated in favor of a defendant. The Dwyer and Flores cases (supra), can be distinguished from the case at bar just as Judge Golden in the Miller case indicates that they are distinguishable from the Miller case. In Dwyer and Flores, it appears that the dockets and/or accusatory instruments on which prints and photographs were taken were dismissed and guilty pleas entered on separate non-printable accusatory instruments. Therefore it could be said that the dismissal of such accusatory instruments resulted in the proceedings on
It should also be noted that prior to the adoption of CPL 160.50 there was authority for denial of the relief provided under section 79-e of the Civil Rights Law where a defendant pleaded guilty to a violation of section 240.20 of the Penal Law, disorderly conduct, a non-printable offense, after being charged with the printable offense of a violation of section 220.05 of the Penal Law. (See Galenson v Kirwan, 67 Misc 2d 535.)