           SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

803
CA 14-00009
PRESENT: SMITH, J.P., CENTRA, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                  OPINION AND ORDER

M.E., DEFENDANT-APPELLANT.


HIGBEE & ASSOCIATES, SALT LAKE CITY, UTAH (RAYMINH L. NGO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (LAURIE M. BECKERINK OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Chautauqua County Court (John T. Ward,
J.), entered July 31, 2013. The order denied the motion of defendant
for conditional sealing pursuant to CPL 160.58.

     It is hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs and the matter is remitted to Chautauqua
County Court for further proceedings in accordance with the following
Opinion by WHALEN, J.:

     The issue before us in this case of first impression at the appellate
level is whether criminal records are eligible for conditional sealing
under CPL 160.58 even if they relate to convictions that predate the
statute. We conclude that they are eligible for conditional sealing.

                                    I

     In 1996, defendant pleaded guilty in County Court to criminal
possession of a controlled substance in the fourth degree (Penal Law '
220.09), a class C felony. She was sentenced to a three-year conditional
discharge, which she served without incident. Defendant also
successfully completed an inpatient drug treatment program in
Pennsylvania. By all accounts, defendant has turned her life around since
becoming drug-free. She is now married, a homeowner, and licensed as
a registered nurse in both New York and Pennsylvania.

     In 2013, defendant moved to Aconditionally seal@ her criminal records
pursuant to CPL 160.58, a provision enacted as part of the 2009 Drug Law
Reform Act (L 2009, ch 56, part AAA, ' 3). Under CPL 160.58 (1), the
specific subdivision at issue on appeal,

          A[a] defendant convicted of any offense defined in
          [Penal Law] article [220] . . . who has successfully
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                      completed a judicial diversion program under [CPL]
                      article [216], or one of the programs heretofore known
                      as drug treatment alternative to prison or another
                      judicially sanctioned drug treatment program of
                      similar duration, requirements and level of
                      supervision, and has completed the sentence imposed
                      for the offense . . . , is eligible to have such offense
                      . . . sealed pursuant to this section.@1

The People took no position on the motion, noting only that defendant
Ais eligible for a Conditional Seal Order and the granting of the seal
order is within the discretion of the court.@ The court denied the motion,
however, reasoning that CPL 160.58 could not be invoked to seal criminal
records relating to convictions entered prior to the 2009 effective date
of that statute. Defendant appeals, and we conclude that the order should
be reversed.

                                                                          II

     AInitially, we note that the authority for a direct appeal of this
order is not set forth in Article 450 of the Criminal Procedure Law@ (People
v Purley, 297 AD2d 499, 501, lv denied 99 NY2d 503). Nevertheless, Aa
court=s ruling on a [record-sealing] motion is a civil matter[,] >for
although it relates to a criminal matter, it does not affect the criminal
judgment itself, but only a collateral aspect of itCnamely, the sealing
of the court record= @ (People v Anonymous, 7 AD3d 309, 310, quoting Matter
of Hynes v Karassik, 47 NY2d 659, 661 n 1; see Matter of Katherine B.
v Cataldo, 5 NY3d 196, 201 n 1). As such, Athe order [on appeal] was
an exercise of the [motion] court=s civil jurisdiction@ (Purley, 297 AD2d
at 501; see CPL 10.10 [7]; see generally NY Const art VI, ' 11 [a], [b])
and, because defendant is an Aaggrieved party@ under these circumstances
(CPLR 5511), her appeal is properly before us pursuant to CPLR 5701 (a)
(2) (v) (see e.g. Anonymous, 7 AD3d at 310).

                                                                         III

      In determining that criminal records may not be conditionally sealed
under CPL 160.58 if they relate to a conviction that predates the statute,
the court reasoned that the application of CPL 160.58 to such records
would constitute an improper Aretroactive@ application of the statute.
 We conclude, however, that applying CPL 160.58 under these circumstances
Adoes not render [the] statute >retroactive= in any true sense of that term@
(Forti v New York State Ethics Commn., 75 NY2d 596, 609). CPL 160.58
simply creates a mechanism for restricting future access to existing
records. It does not contemplate any alteration of the underlying
criminal judgment reflected in those records, nor does it potentially
invalidate or rescind any prior disclosures thereof (cf. Matter of County
of Herkimer v Daines, 60 AD3d 1456, 1457, lv denied 13 NY3d 707).

          1Conditional sealing is not automatic for any eligible criminal record, however.     Rather, the ultimate decision is committed to
the motion court=s sound discretion (see CPL 160.58 [3] [listing several nonexclusive factors to consider in determining whether to grant
conditional sealing]).
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                                                              CA 14-00009


     The fact that the records at issue here relate to events occurring
prior to the statute=s effective date is immaterial. As the Court of
Appeals has repeatedly recognized, A[a] statute is not retroactive . .
. when made to apply to future transactions merely because such
transactions relate to and are founded upon antecedent events@ (Matter
of Raynor v Landmark Chrysler, 18 NY3d 48, 57 [internal quotation marks
omitted]; see Matter of St. Clair Nation v City of New York, 14 NY3d 452,
456-458; Matter of Miller v DeBuono, 90 NY2d 783, 790-791). AThus,
contrary to [the People=s] arguments [and County Court=s conclusion], the
principles of statutory construction [that] require clear expression of
a legislative intention to make a new provision retroactive . . . are
inapplicable here@ (Forti, 75 NY2d at 610).

     Our conclusion is bolstered by the legislative history of CPL 160.58,
which reveals that the legislature explicitly limited the operation of
12 other sections within the same part of the relevant enacting chapter
Ato offenses committed on or after the [effective] date . . . and . .
. to offenses committed before such date provided that sentence upon
conviction for such offense has not been imposed on or before such date@
(L 2009, ch 56, part AAA, ' 33 [f]). Section (3) of part AAACthe section
that created CPL 160.58Cis not among the 12 sections whose retroactive
effect was specifically restricted in the legislation. Indeed, the
legislation does not prescribe any particular retroactivity rule for
section (3) nor would it; because section (3) regulates only future (i.e.,
post-effective date) access to existing criminal records, there was no
potential retroactivity for the legislature to address.

     Finally, nothing in the text of CPL 160.58 itself suggests that it
does not apply to criminal records relating to antecedent convictions
(see generally Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d
577, 583). Defendant was Aconvicted of an[] offense defined in [Penal
Law] article [220],@ she Ahas completed the sentence imposed for the
offense,@ and there is no dispute that she Ahas successfully completed@
a qualifying drug treatment program (CPL 160.58 [1]). Thus, under the
plain text of the statute, defendant Ais eligible to have such offense
. . . sealed pursuant to this section@ (id.; see e.g. Matter of K., 35
Misc 3d 742).

                                   IV

     Accordingly, inasmuch as the records relating to defendant=s 1996
drug conviction are facially eligible for conditional sealing under CPL
160.58 (1), we conclude that the order should be reversed and the matter
should be remitted to County Court for its consideration of the
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                                                          CA 14-00009

discretionary factors enumerated in CPL 160.58 (3).




Entered:   August 8, 2014                      Frances E. Cafarell
                                               Clerk of the Court
