20.5 - E. Potential Problems, Exceptions And Remedies

• Jurisdiction: New York

E. Potential Problems, Exceptions and Remedies

Once a case is sealed under CPL § 160.50, is there any way its existence may be inadvertently revealed? The answer is a qualified yes. After a case is sealed, the clerk of the court removes all information about the case from the computer that normally contains such records. However, the defendant’s name remains in the computer, followed by the phrase “No Public Record.” Therefore, if those words appear after a person’s name in the computer, anyone familiar with court procedure would know that the person involved was previously arrested and that the case was sealed for one reason or another. This result seems inconsistent with the spirit and purpose of CPL § 160.50. Since a computer will show nothing next to the name of a person with no prior arrests, it would seem fairer and more consistent with § 160.50 for the computer to show nothing next to the name of one whose records were sealed.²⁹⁹⁰

Another interesting issue flows from the provisions of CPL § 160.50: What happens if a court orders the sealing of a defendant’s photographs and fingerprints, but the police retain them nonetheless, and the defendant is then identified as the perpetrator of a later crime through the use of these items? Two early lower court cases addressed the issue. One court ordered the return of the defendant’s photographs on April 14, 1977.²⁹⁹¹ On May 19, 1977, the police showed a photograph (which should have been returned) of the defendant to a witness, who identified the defendant as the perpetrator of a homicide. The court ruled that the five-week interval between the court order and the photo display was not an unreasonable period within which the state was obligated to comply with the court order. In addition, the court held that, even if the police had illegally retained the photograph, the court would not have suppressed an identification based on the use of that picture.

A similar ruling was made in a situation where the defendant’s photographs were returned to him, but the police retained a photograph for their files. When the defendant was identified from that photo, the defendant moved to suppress the identification. The court ruled that even under these facts, the exclusionary rule did not mandate suppression of the identification.²⁹⁹² A series of appellate division cases held that CPL § 160.50 was not designed to immunize a defendant from the operation of a law enforcement official’s investigatory display of a photograph or use of fingerprints where these items had previously been sealed,²⁹⁹³ and so held the Court of Appeals. The legislature did not confer or create a constitutionally derived right under § 160.50 sufficient to warrant the invocation of the exclusionary rule.²⁹⁹⁴ A violation of § 160.50 has “no bearing on the reliability of the identification process and no relevance to the determination of defendant’s guilt or innocence at his trial.”²⁹⁹⁵ While several civil remedies may exist for a violation of § 160.50, there is no comparable remedy in a criminal proceeding.²⁹⁹⁶ Note that the admission of erroneously unsealed evidence in a disciplinary hearing of a police officer did not, without more, require the annulment of a determination to terminate the officer.²⁹⁹⁷ A photograph is a photograph. It is admissible at trial even though it has previously been sealed pursuant to CPL § 160.50.²⁹⁹⁸

While a violation of CPL § 160.50 does not implicate a constitutional cause of action,²⁹⁹⁹ some state courts have recognized a private...