In re Dillon

171 Misc. 2d 665, 655 N.Y.S.2d 322, 1997 N.Y. Misc. LEXIS 48
CourtNew York County Courts
DecidedFebruary 20, 1997
StatusPublished

This text of 171 Misc. 2d 665 (In re Dillon) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dillon, 171 Misc. 2d 665, 655 N.Y.S.2d 322, 1997 N.Y. Misc. LEXIS 48 (N.Y. Super. Ct. 1997).

Opinion

OPINION OF THE COURT

Zelda Jonas, J.

On February 11, 1997, a criminal proceeding was scheduled for trial before the Honorable Peter B. Skelos in the First District Court, 99 Main Street, Hempstead, New York, under information No. 15390/96 charging the defendant, Jon Christian Sajous, with the crime of criminal solicitation in the fourth degree (Penal Law § 100.05 [1]) and attempted tampering with a witness in the third degree (Penal Law §§ 110.00, 215.11 [1]). The allegations in the information provide in sum and substance that "the defendant, an attorney representing [J.W.] on charges pending in Nassau County Court, attempted to prevent Adolfo Smith from testifying against [J.W.] by engaging Gilbert Pagan to threaten Smith with physical injury should Smith testify.” Attached to the information is a sworn supporting deposition from Gilbert Pagan alleging, insofar as it is pertinent to this application, that: "On May 6, 1996, I went with my attorney, Jon Christian Sajous, to the District Court Courthouse on Main Street in Hempstead, NY. When we left the courthouse, I gave Sajous a ride back to his office. At that time, Sajous asked me to contact a person who is a witness against another client of his, [J.W.]. Sajous told me that he wanted the witness, Adolfo Smith, threatened. Sajous told me that he wanted to be certain that Smith would be so afraid of being beaten up that he would not testify against [J.W.] in [J.W.’s] robbery case.”

On Tuesday, February 11, 1997, the day of trial, the People submitted an ex parte application to this court for an order "directing the unsealing of the files and records of the Nassau [667]*667County Criminal Courts, the Nassau County District Attorney’s Office, and the Nassau County Police Department pertaining to Indictment Number 94814”. The People seek the "unsealing” of indictment No. 94814 which pertains to the youthful offender adjudication of J.W., who is named in information No. 15390/96 as the individual who Jon Christian Sajous allegedly represented prior to indictment and whose representation is the subject of the criminal proceedings in District Court.

The People have made a representation to the court that prior to jury selection "The Honorable Peter Skelos of the Nassau County District Court has ruled that he will preclude the People and their witnesses from mentioning anything about the case” (People’s affirmation, at 3). Accordingly, the People have requested that the following information be disclosed to the People: "the fact that there were criminal charges pending in May of 1996 against the defendant charged under Indictment 94814, the underlying facts of that indictment, the identity of the witness, the fact that the defendant had been arraigned on the indictment, and that Sajous had requested an adjournment of the case to May 22. It is conceivable that there may be additional facts associated with Sajous’ representation of that defendant which may also be required to prove the current charges. In addition, if the defense should allege that the defendant named in Indictment 94814 was not guilty of the charge, the People would then need to be able to introduce the disposition of the case. Also, the prospective jurors would need to be informed of the name of that defendant so that anyone familiar with the person could be excluded from service. To be precluded from using any of this information at trial would cause the People to be unable to prove the charges against Sajous and would result in an unintended miscarriage of justice” (People’s affirmation, at 4).

The People contend that they are entitled to the records containing the information sought since this is information already in the possession of the People; the information that was obtained was public during the proceedings prior to the youthful offender adjudication, citing subdivision (3) of CPL 720.15, and the People assert that the facts remain public. The People have advised the court that: "The People are not seeking to raise the fact of any conviction or to use it against the defendant named in Indictment 94814 in any way. We are merely seeking to use information which was public prior to the youthful offender finding” (People’s reply affirmation, at 4).

Therefore, the People request, in the alternative, that the court "rule that such an unsealing order is not necessary as [668]*668the evidence the People seek to introduce was and remains public” (People’s reply affirmation, at 5).

The People’s papers were served upon the former attorney who represented the youthful offender, John J. Marshall, Esq. Counsel submitted an affirmation on February 13, 1997 opposing any unsealing of the records under indictment No. 94814 since his client, J.W., is not himself on trial in District Court on any criminal matter, and the unsealing of the record would violate his privacy right. Counsel has advised the court that he has spoken with the mother of the youthful offender, and she strenuously objects to the unsealing of his record, and her son felt the same way (defendant’s affirmation, at 1).

The People’s request for a ruling by this court that the records do not have to be unsealed is inappropriate. According to the People, the Honorable Peter B. Skelos has already made a ruling not to allow any information involving the youthful offender adjudication under indictment No. 94814 be admitted into evidence during the trial in District Court without a court order unsealing the records. This court does not have the jurisdictional authority to act as an appellate court to set aside a ruling made by a District Court Judge. However, even if the court was endowed with such authority, the People’s contention that the youthful offender records do not have to be unsealed is incorrect.

While it is hornbook law that the People are clearly allowed to introduce into evidence the underlying acts of a youthful offender adjudication without the necessity of a court order to unseal the youthful offender adjudication (People v Cook, 37 NY2d 591), the remaining information sought to be used by the People is confidential and requires the authorization of the court.

The People’s reliance on subdivision (3) of CPL 720.15 for the proposition that the records remain available to the public is misplaced. Subdivision (3) of CPL 720.15 merely provides that where there is a pending felony involving a youth eligible for youthful offender treatment, the arraignment on the accusatory instrument and all proceedings in the action are not to be conducted in private. The records of an eligible youth are not sealed until there has been a youthful offender adjudication and a sentence (CPL 720.35 [2]; Matter of Capital Newspapers Div. of Hearst Corp. v Moynihan, 71 NY2d 263, 272).

The fact that the proceedings involving a youth eligible for youthful offender adjudication were held in a public forum does not logically lead to the conclusion that all of the official [669]*669records involving the proceedings prior to youthful adjudication remain public. This reasoning does not fit well within the policy framework of the youthful offender statutes.

CPL article 720 embodies the procedures for youthful offender treatment. Youths charged with crimes alleged to have been committed when they were 16 to 19 years old, and persons charged as juvenile offenders are, with some exceptions, eligible for youthful offender status (CPL 720.10 [1], [2], [3]). Eligible youths are tried as criminal defendants.

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Bluebook (online)
171 Misc. 2d 665, 655 N.Y.S.2d 322, 1997 N.Y. Misc. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dillon-nycountyct-1997.