State of New York Courts of Ontario County William F. Kocher Acting Supreme Court Justice November 16, 2015 Sandra Doorley, Esq. Monroe County District Attorney Timothy Prosperi, Esq. Assistant District Attorney 47 South Fitzhugh Street, Suite 832 Rochester, New York 14614 Brian DeCarolis, Esq. 45 Exchange Blvd., Suite 275 Rochester, New York 14614 RE: PEOPLE vs. CHARLES TAN Index No. 158/2015 Dear Counsel: Enclosed please find a copy of my Decision and Order in regard to the above matter. Very truly yours, \O*F bed William F. Kocher Acting Supreme Court Justice and County Court Judge WEK:m xe: Monroe County Court Clerk ‘Ontario Counly Courthouse, 27 Nor Main Sweat Canandaigua, New Vork 124 ‘Phone (585) 412-5278 Fax (585) 412-5329STATE OF NEW YORK COUNTY COURT COUNTY OF MONROE PEOPLE OF THE STATE OF NEW YORK, DECISION and ORDER v Indictment No. 158/2015 CHARLES TAN, Defendant, PRESENT: Honorable William F. Kocher County Court Judge APPEARANCES: Sandra Doorley, Esq, Monroe County District Attorney Timothy Prosperi, Esq., of counsel for the People Brian DeCarolis, Esq. for the Defendant The People move by Order to Show Cause signed on November 9, 2015 for a stay of the sealing of the record pursuant to CPL 160.50(1). The Defendant has filed a Motion dated November 11, 2015 requesting that the matter be transferred to Monroe County Court Judge James J. Piampiano and further requesting that the People’s Order to Show cause be denied. Both motions were argued on November 13, 2015 after which the Court reserved decision. In open court on November 13, 2015, both the People and Mr. DeCarolis waived the presence of the Defendant. Furthermore, the Defendant waived the five day notice requirement of CPL 160.50(1). As a preliminary mater, the Defendant’s request to have the matter transferred to JudgePiampiano is denied. Criminal Procedure Law § 160.50(1) provides, in relevant part, “Upon the termination of a criminal action or proceeding against a person in favor of such person, as, defined in subdivision three of this section, unless the district attorney upon motion with not less than five days notice to such person or his or her attomey demonstrates to the satisfaction of the court that the interests of justice require otherwise, * * * the record of such action or proceeding shall be sealed.” Unlike the language used in CPL 160.50(4), subdivision one does not specify that a motion to stay the sealing of a record must be made to the trial court. Furthermore, as both Supervising Judge of Felony Criminal Courts in the Seventh Judicial District and as an assigned Monroe County Court Judge, this Court has jurisdiction to sign and hear the People’s Order to Show Cause and to hear the Defendant's motion. ‘Addressing the merits of the People’s application for a stay of the sealing of the record, CPL 160.50(1) requires the sealing of records “upon the termination of a criminal action or proceeding against a person in favor of such person.” As is relevant here, CPL 160.50(3)(4) provides that a criminal action or proceeding is terminated in favor of a person where, “a trial order of dismissal of the entire accusatory instrument against such person pursuant to section 290.10 or 360.40 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people [emphasis added].” Therefore, as is pertinent to this case, in order for the record to be properly sealed, there must be a dismissal of the entire accusatory instrument pursuant to CPL 290.10 and the People must not have appealed from the CPL 290.10 trial order of dismissal. It ccan be said that the People “have not appealed” only after the People’s time to file a notice of appeal has run and there is no notice of appeal filed (see, People v Bowden, 28 Misc3d 1204(A);Matter of Blount, 116 Misc2d 975, 976). ‘The Defendant contends that there can be no appeal from a trial order of dismissal other than a trial order of dismissal pursuant to CPL 290.10(1)(b)'. This Court is not sitting as an appellate court and cannot rule on the viability of any appeal in this case. Here, the Trial Order of Dismissal was issued from the bench on November 6, 2015. Pursuant to CPL 460.10(1), the People’s time to file a notice of appeal has not yet expired and the record should not be sealed until the People’s time to file the notice of appeal has expired. To the extent the record has previously been sealed, it is deemed unsealed, nunc pro tune. Additionally, the People have demonstrated that the interests of justice require that the record remain unsealed for a period of time in excess of the statutory time to file a notice of appeal. As noted above, CPL 160.50(1) provides for the presumptive sealing of records in an action that terminates in favor of the accused, “unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise.” The record will remain unsealed for a period of 90 days from November 6, 20152 In light of the virtually unprecedented nature of the Trial Order of Dismissal issued in this case and the fact that it was issued orally from the bench, the People are entitled to obtain a transcript of the court proceeding in order to review available remedies under the law. Again, this Court is not determining the merits of any future court, proceedings. ‘Inasmuch as the jury did not reach a verdict of guilty in this case, the Trial Order of Dismissal was not issued pursuant to CPL 290.10(1)(b). 2 This 90 day time period in no way extends any statutory deadlines the People may have pursuant to the Criminal Procedure Law or the Civil Practice Law and Rules. 3‘The Court further notes that in response to the People making a prima facie showing that the interests of justice require a stay of the sealing of the record, the Defendant has failed to show prejudice to the Defendant resulting from a stay of the sealing of the record. “The statute serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation. That detriment to one’s reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even ‘unsuccessful criminal prosecutions [citations omitted]” (Hynes v Karassik, 47 NY2d 659, 662). Given the heightened media attention already devoted to this case, there is little chance that allowing the record to remain unsealed for 90 days will in any way prejudice the Defendant. In the event that the People require an extension of the 90 day time period, they may seek an extension by filing a motion with the Monroe County Supreme and County Clerk's Office. ‘Such motion shall be heard on not less than five days notice to the Defendant pursuant to CPL 160.50(1). This shall constitute the Decision and Order of the Court. ENTER: WWE z Hon. William F. Kocher County Court Judge Dated at Canandaigua, New York November 16, 2015.