People v. F.M.

2023 NY Slip Op 50554(U)

The People of State of New York, v. F.M., Defendant.

Ind No. 2002-1000

County Court, Orange County

June 6, 2023

Unpublished Opinion

OZMAN LAW OFFICES Attorney for Defendant F.M.

DAVID M. HOOVLER District Attorney of Orange County Attorney for the People

CRAIG STEPHEN BROWN, J.

On February 6, 2023 a hearing was held pursuant to CPL §160.59[6] and the October 19, 2022 Order of this Court directing such hearing. The purpose of the hearing was to allow the Court "to consider any evidence offered by either party that would aid the [undersigned] judge in his decision whether to seal the records of defendant's conviction" for Unlawful Imprisonment in the Second Degree [Penal Law §135.05] (CPL §160.59[6]). Said judgment of conviction was entered on November 24, 2003 in this Court (Berry, J.). Judge Berry, the sentencing judge, is no longer available, as he has retired.

Appearing for the People at the hearing was Andrew R. Kass, Executive Assistant District Attorney for the County of Orange. Appearing for the defendant was Brandon Ozman, Esq. The only witness to testify was the defendant, Dr. F.M. Various documents were admitted into evidence by the People. In addition, prior to the commencement of the hearing, the Court was in receipt of the defendant's Notice of Motion and Affidavit with annexed exhibits as well as Andrew R. Kass Esq.'s Affirmation in Opposition.

The defendant's conviction for Unlawful Imprisonment in the Second Degree arises out of Orange County Indictment No 2002-1000 dated December 11, 2002. Said indictment charged the defendant with Sexual Abuse in the First Degree (PL §130.65[1]), Attempted Sexual Abuse in the First Degree (PL §110/130.65[1]), Unlawful Imprisonment in the Second Degree (PL §135.05), and Harassment in the Second Degree (PL §240.26[1]). On November 24, 2003, the defendant was sentenced to three years of probation, and a mandatory surcharge and crime victim assistance fee were accessed. The defendant now seeks to seal his conviction for Unlawful Imprisonment in the Second Degree.

Pursuant to CPL §160.59[7], in considering the defendant's application to seal, the Court "shall consider any relevant factors, including but not limited to: (a) the amount of time that has elapsed since the defendant's last conviction; (b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense; (c) the circumstances and seriousness of any other offenses for which the defendant stands convicted; (d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs; (e) any statements made by the victim of the offense for which the defendant is seeking relief; (f) the impact of sealing the defendant's record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and (g) the impact of sealing the defendant's record on public safety and upon the public's confidence in and respect for the law."

This Court has considered the factors set forth in CPL §160.59[7], and finds that approximately 19 years has elapsed since the defendant's last conviction; and while the charge of Unlawful Imprisonment in the Second Degree is an eligible offense for sealing, the defendant was indicted on charges which are not eligible offenses. Further, the circumstances of the offense are especially egregious. The defendant was the treating...