New York Family Law Blog
M.D. (hereafter “Daughter”) moves this Court by way of notice of motion for leave to reargue this Court’s decision dated September 16, 2005, which denied her motion to seal her arrest record and also denied her request on her alternative argument to do so in the interests of justice.
The Court notes that the County Attorney’s Office “does not oppose” the instant motion for leave to reargue, even though it did oppose the initial application by the Daughter.
Although the affidavit by the Mother adds nothing legally to the Daughter’s instant motion for leave to reargue, since the Mother submitted nothing to this Court upon the original motion; nevertheless, the Daughter’s instant argument apparently is that this Court overlooked or misapprehended the alleged applicable case law with respect to the original motion. In this, the Daughter submits two cases, which she alleges mandate that the records be sealed in this matter.
The first case submitted is Schwartz v. Schwartz, 94 Misc 2d 1071. That matter involved a family offense proceeding in which a misdemeanor information commenced a criminal action against the Defendant/Respondent. The matter was then transferred to the Family Court for hearing, and eventually was dismissed for failure of prosecution. The Respondent then moved to seal the records, including the arrest record, and the court granted that request.
The Schwartz court held that the then applicable Criminal Procedure Law section was “triggered” by termination of the criminal proceeding. The court admitted that the CPL is applicable to criminal proceedings only, and a family offense is of course a civil matter. Nevertheless, the court held, in effect, that to decide otherwise would be a blatant disregard of the legislative direction of practical help’ which is alluded to in section 811 of the Family Court Act. The District Attorney’s office took no position with respect to that motion, and this Court notes that FCA §811 has since been repealed. The Court further admitted that there was “no case in point,” i.e. no authority for its reasoning.
The second case submitted by the Daughter is In the Matter of Tony W., 91 Misc 2d 700. That case involved a juvenile delinquency matter in which the proceeding terminated in the Respondent’s favor and the Respondent then moved to seal his arrest record pursuant to Criminal Procedure Law § 160.50(1). The court held that the records should be sealed; however, and in accordance with the CPL, it granted Corporation Counsel 20 days to submit a motion opposing the sealing and if the motion were not made, then the sealing would be granted.
It should be noted that the Tony W. case was decided in 1977, prior to the enactment of Family Court Act § 375.2, which specifically allows a Respondent to move to seal after a finding in his favor. Therefore, the legislation necessary to move to seal a juvenile delinquency matter, was not in existence in 1977, and the Tony W. Court found it necessary to apply the CPL to that matter. Even assuming that the Tony W. Court was correct in its decision, the fact that as of 1982 the Family Court Act specifically permitted a motion to seal after a finding in Respondent’s favor, makes the Tony W. argument academic.
This Court has the highest regard for its sister Family Courts in Suffolk County and New York County. However, the two authorities cited by the Daughter are not binding upon this Court. Neither matter was appealed nor does the Daughter submit no authority whatsoever from any higher court.
As this Court stated in its decision of September 16, 2005, the Family Court is a court of limited jurisdiction; it may exercise only those powers specifically granted to it by the State Constitution as more fully specified in the Family Court Act.
This Court’s prior decision further reviewed CPL §160.50(1) and CPL §160.50(3)(j). As set forth in those two statutory sections, there are conditions precedents which must be complied with in a criminal case, before a motion is submitted or the sealing of the records themselves can be accomplished. In fact, the Daughter herself recognizes this, which also discusses CPL §160.50(3)(i)). There is no proof whatsoever that any condition precedent has been accomplished. However, this is not to say that even if the condition precedent were accomplished, that this Court would rule in the Daughter’s favor.
As set forth in this Court’s decision of September 16, 2005, it was this Court’s firm belief that it was without jurisdiction to entertain the Daughter’s application to seal the records. This Court greatly sympathizes with the Daughter in her current efforts to “clear” her record, which record is apparently a severe impediment to her securing an advancement in her career as a social worker for the State of New York. However, this Court cannot fashion what should be a legislative remedy, where no such remedy currently exists.
The matter at bar is no different from Aloi v. Aloi, decided by this Court on October 15, 2003. In that matter, a family offense proceeding was settled on consent, with the order to be in effect for a period of one year. Subsequent to the expiration of that order, the Respondent moved for a return of his weapons which had been previously seized by the Sheriff, pursuant to Court order, at the commencement of the proceeding. This Court denied the Respondent’s application, for a lack of jurisdiction, and that order was affirmed.
The Respondent then proceeded in the Supreme Court against the Nassau County Sheriff’s Department, in accordance with the direction of the Appellate Division as cited above. In her decision, the Justice granted the Respondent’s petition for return of the firearms, but reviewed the applicable law, and stated strongly that, in her opinion, the Family Court should in fact have jurisdiction over such a matter. She stated that “it appears to be a legislative oversight in not providing the Family Court judge with continued jurisdiction” over such a matter. She concluded her decision as follows: “Accordingly, this Court strongly urges legislation to amend section 842-a of the Family Court Act to provide Family Court judges with not only the authority to seize firearms pursuant to an order of protection but also the discretion to determine when or if said firearms should be returned.”
Lastly, in a recent matrimonial action where the Plaintiff attempted to prove grounds for matrimonial fault, based upon a new theory not addressed by statute, the Court refused to “step into a legislative void and craft new or alternative grounds for divorce.”
Although this Court greatly sympathizes with the Daughter and her current predicament, it cannot grant the relief she seeks, as there is no statute applicable to this situation before this Court, and this Court is therefore without jurisdiction to decide such a motion in her favor.
Litigation may affect social and economic standing of the parties thereto. However, in some cases, remedies available under the law may in effect obliterate these effects through the proper sealing of ones record and by keeping it confidential.
In case you find yourself within the confines of litigation dilemma, consult Stephen Bilkis & Associates.