In New York, when you beat a criminal case, the criminal record is “sealed”. This effectively should mean that no records relating to the arrest- including photographs- should be available to view, subject to fairly strict exceptions.
But the NYPD has done both formal and informal illegal end runs around the statutory sealing provisions of Criminal Procedure Law Section 160.50 for years. Informally, detectives take pictures of suspects and hold them in their files in their squads as their own private database, with no lawful oversight. During Occupy Wall Street protests, police took multiple photos of every arrestee, with no oversight.
More formally, the police have kept names in the “Stop and Frisk” database. (“Stop and Frisk” itself is a phrase I really take issue with, the phrase alone lends a veneer of legitimacy to a consistently unlaful practice.)
In our role as both New York criminal defense lawyers and New York civil rights lawyers, we have often explored ways to sue for failure to properly seal criminal records. The class action our firm has filed in Federal Court arising from the Occupy Wall Street arrests raises statutory sealing violations as part of the action.
A brand new ruling in the Appellate Division, First Department, however, Lino and Khan v. City of New York, et al, has completely recognized that an individual can in fact sue for damages related to failure to seal their dismissed criminal case. The court observed that even the mere failure to seal alone is a harm, stating “there can be an injury under the statute even where a plaintiff merely fears the prospect of an adverse effect before his record is ever unlawfully disclosed”, and thus the “statute’s mandatory sealing requirements demonstrate that the statute seeks to protect individuals against the risk of public disclosure of their records prior to an actual unlawful disclosure”. Finally, “no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law”.
This ruling has important implications to both our New York criminal defense practice, and our New York civilrights practice. We congratulate and thank our friends at the New York Civil Liberties Union and the Community Service Society of New York for their impportant victory.
Andrew B. Stoll
Stoll, Glickman & Bellina, LLP
475 Atlantic Avenue
Brooklyn, NY 11217