People v. Witherspoon

211 A.D.3d 108

177 N.Y.S.3d 106

The PEOPLE, etc., appellant,

v.Curtis WITHERSPOON, respondent.

2021–06442

S.C.I. No. 73711/90

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 18, 2022

October 19, 2022

Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley, Kevin C. King, and David L. Glovin of counsel), for appellant.

Collins Gann McCloskey & Barry, PLLC, Mineola, NY (Richard D. Collins of counsel), for respondent (no brief filed).

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

OPINION & ORDER

CONNOLLY, J.P.

This appeal presents the question of whether CPL 160.59(3)(f) requires a court to summarily deny a defendant's motion to seal an eligible offense where the defendant subsequently has been convicted of a crime under the laws of another state. We hold that CPL 160.59(3)(f) does not require summary denial under these circumstances. Instead, a defendant's subsequent conviction under the laws of another state is a factor that the motion court should consider in its discretionary determination as to whether to seal the eligible offense (see id. § 160.59[7] ).

I. Factual And Procedural History

In 1990, the defendant was convicted in Nassau County of attempted grand larceny in the third degree and was sentenced to a term of imprisonment of 90 days, to be followed by 5 years of postrelease supervision.

In April 2021, the defendant moved pursuant to CPL 160.59 to seal his conviction. In support of the motion, the defendant submitted, among other things, an affirmation from his attorney stating that the defendant "has had no subsequent contact with the criminal justice system whatsoever" since his 1990 conviction. The attorney affirmation further stated that the defendant "has not been convicted of any crime after the date of the entry of judgment of his conviction that he requests to be sealed. This conviction is the only crime on his record." The defendant also submitted his own affidavit, in which he averred, among other things, that his conviction made it difficult for him to obtain gainful employment, and that in order to find employment, he relocated to Maryland and then Virginia.

The People opposed the defendant's motion upon the ground that the defendant's motion did not appear to present the defendant's entire criminal history. The People submitted a copy of the defendant's criminal history report, which indicated that a person with a similar name, physical description, and social security number as the defendant was convicted in Virginia in 2018 of falsely summoning or giving false reports to law enforcement officials, a misdemeanor (see Va Code Ann former § 18.2–461 [1996]). The People contended that the defendant's misdemeanor conviction in Virginia required the Supreme Court to summarily deny the defendant's motion to seal his New York conviction of attempted grand larceny in the third degree under CPL 160.59(3)(f).

By order dated July 30, 2021, the Supreme Court, without a hearing, granted the defendant's motion (see People v. C.W., 72 Misc.3d 1082, 1084, 151 N.Y.S.3d 614 ). The court held that CPL 160.59(3)(f) only requires the summary denial of motions to seal where the defendant was subsequently convicted under the laws of the State of New York, and the defendant's conviction of a crime in Virginia did not disqualify him from relief pursuant to CPL 160.59 (see id. ). The court further held that, upon weighing the discretionary factors listed in CPL 160.59(7), the defendant's 1990 conviction should be sealed (see id. ). The People appeal. We reverse and remit for a hearing and a new determination of the defendant's motion thereafter.

II. Statutory Framework

" CPL 160.59 provides that a defendant who has been convicted of up to two eligible offenses (but not more than one felony offense) may apply to the court in which he or she was convicted to have such convictions sealed" ( People v. Shrayef, 181 A.D.3d 935, 936, 122 N.Y.S.3d 63 ; see CPL 160.59[2][a] ; People v. Miranda, 205 A.D.3d 734, 735–736, 167 N.Y.S.3d 183 ; People v. Bugge, 197 A.D.3d 653, 655, 153 N.Y.S.3d 107 ; People v. Esposito, 188 A.D.3d 1092, 1092, 132 N.Y.S.3d 698 ). CPL 160.59(1)(a) defines "eligible offense" as "any crime defined in the laws of this state," with certain exceptions that are not applicable to this case (see People v. Bugge, 197 A.D.3d at 655, 153 N.Y.S.3d 107, 153 N.Y.S.3d ; People v. Shrayef, 181 A.D.3d at 936, 122 N.Y.S.3d 63, 122 N.Y.S.3d ).

CPL 160.59 further provides the requirements for the defendant's application to the court (see id. § 160.59[2][b] ; People v. Bugge, 197 A.D.3d at 655, 153 N.Y.S.3d 107, 153 N.Y.S.3d ). Pursuant to CPL 160.59(2)(b), the defendant's application to the court must include, among other things, a copy of a certificate of disposition or other similar documentation for any offense for which the defendant has been convicted, or an explanation of why such certificate or other documentation is not available, a sworn statement of the defendant as to whether he or she has filed, or then intends to file, any motion to seal any other eligible offense, and a sworn statement of the reason or reasons why the court should, in its discretion, grant the defendant's motion to seal, along with any supporting documentation.

The statute provides that a copy of the motion to seal must be served upon the district attorney of the county in which the conviction, or, if more than one, the convictions, was or were obtained (see id. § 160.59[2][c] ). If the district attorney objects to the motion to seal, the district attorney must notify the court within 45 days (see id. ). Additionally, CPL 160.59(2)(d) provides that when the motion to seal is filed with the court, the court "shall request and receive from the division of criminal justice services a fingerprint based criminal history record of the defendant, including any sealed or suppressed records," and "[t]he division of criminal justice services also shall include a criminal history report, if any, from the federal bureau of investigation regarding any criminal history information that occurred in other jurisdictions."

CPL 160.59(3) provides that the reviewing court must summarily deny the defendant's application when specified conditions are met (see id.; People v. Miranda, 205 A.D.3d at 736, 167 N.Y.S.3d 183, 167 N.Y.S.3d ; People v. Bugge, 197 A.D.3d at 655, 153 N.Y.S.3d 107, 153 N.Y.S.3d ; People v. Shrayef, 181 A.D.3d at 936, 122 N.Y.S.3d 63, 122 N.Y.S.3d ). As relevant to this appeal, CPL 160.59(3) provides that the motion to seal "shall" be summarily denied where "the defendant was convicted of any crime after the date of the entry of judgement [sic] of the last conviction for which sealing is sought" ( id. § 160.59[3][f] [emphasis added]). In addition, CPL 160.59(5) provides that an eligible offense may not be sealed until after the statutorily prescribed 10–year period has passed.

CPL 160.59(6) provides that "[u]pon determining that the application is not subject to mandatory denial pursuant to subdivision three of this section and that the application is opposed by the district attorney, the sentencing judge or county or supreme court shall conduct a hearing on the application in order to consider any evidence offered by either party that would aid the sentencing judge in his or her decision whether to seal the records of the defendant's convictions. No hearing is required if the district attorney does not oppose the application" (emphasis added; see People v. Bugge, 197 A.D.3d at 655, 153 N.Y.S.3d 107, 153 N.Y.S.3d ).

Provided the defendant meets the eligibility requirements, 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" ( CPL 160.59[7][a]-[g] ).

Where the defendant meets the requirements of CPL 160.59, the decision of whether to seal an eligible offense is within the sound discretion of the court (see id. § 160.59[4], [7] ; People v. Shrayef, 181 A.D.3d at 936, 122 N.Y.S.3d 63, 122 N.Y.S.3d ).

Here, it is undisputed that the defendant's 1990 conviction of attempted grand larceny in the third degree qualified as an "eligible offense" ( CPL 160.59[1][a] ). However, as noted above, the People did oppose the defendant's motion to seal.

On appeal, the People reiterate that the Supreme Court was required to summarily deny the defendant's motion to seal pursuant to CPL 160.59(3)(f) because of the defendant's 2018 misdemeanor conviction in Virginia. In the alternative, the People contend that under CPL 160.59(6), the court erred by granting the defendant's application without conducting a hearing.

III. Summary Denial Is Not Required Under CPL 160.59(3)(f) Where The Defendant Was Subsequently Convicted Of A Crime Under Another State's Laws

The issue before this Court—whether CPL 160.59(3)(f) requires summary denial where the defendant has a subsequent conviction under the laws of another state—is one of first impression for an appellate court. Motion courts addressing this issue have...