Court of Appeals vacates sentence

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In a 4-3 split decision, New York state’s highest court has vacated a sentence because the judge used information that should not have been unsealed.

New York State Court of Appeals Judges Jenny Rivera, Leslie Stein, Eugene M. Fahey, and Rowan D. Wilson voted to reverse a First Department decision. Chief Judge Janet DiFiore, Michael Garcia and Paul G. Feinman were in the minority.

Rivera wrote the majority opinion, while DiFiore wrote a dissent.

The defendant, identified only as Anonymous in the decision, pleaded guilty to fourth-degree criminal possession of a controlled substance in exchange for a sentence of four years in prison and three years of post-release supervision.

The defendant pleaded guilty and the judge imposed the condition that he “stay out of trouble.” But before sentencing, Anonymous was arrested and prosecuted for a crime allegedly committed after he entered the plea.

At the defendant’s request, sentencing on the first crime was postponed until after the second case was resolved. He was acquitted of the new charge and the records of that case were sealed under New York State Criminal Procedure Law 160.50.

After the trial, the prosecutor requested a stiffer sentence for the defendant in the first case because he testified in the trial over the second case that he had been involved in illegal drug activity, although he was not charged with a drug-related offense.

The judge granted a prosecution request to unseal the record of the defendant’s testimony in that trial. Based on the unsealed testimony, the judge changed the sentence to eight years in prison.

The defendant appealed, but the Appellate Division of state Supreme Court, First Department, affirmed the sentence, even though it found that the judge should not have unsealed the records.

“The Appellate Division incorrectly held defendant has no remedy when the sentencing court relied exclusively on the unsealed record to enhance his sentencing. Instead, the court should have ordered the sentence vacated and the case remitted for resentencing without reference to or consideration of the sealed records,” Rivera wrote.

“We conclude that the court erroneously granted the prosecutor’s motion to unseal the records of the proceeding terminated by acquittal and improperly considered defendant’s trial testimony in deciding not to adhere to the promised sentence. Further, because the court’s sentence is based on that testimony, the proper remedy is to remit for defendant’s resentencing without reference to the contents of the sealed records,” Rivera wrote.

In the dissenting opinion, DiFiore argued that the judge had authority to unseal the records under an exception to CPL 160.50. Even if the judge should not have unsealed the records, the defendant is not entitled to a new sentence, she wrote.

“Defendant’s attempt to block court access to the information is designed solely to unfairly bind the court to a promise of a lenient sentence that was violative of the plea agreement,” DiFiore wrote.

“The words of the statute do not support the conclusion that the protections of CPL 160.50 must be mechanically applied to encompass sworn admissions to criminal conduct in open court, unrelated to the offenses of which defendant was acquitted, and to obstruct the court’s obligation to impose a sentence consistent with the plea agreement,” she wrote.

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