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1 To Be Argued By: Christopher Dunn 10Minutes Requested,ßew ~ork '~upreme <!Court ~ppellate 7ßü.1í%íon-jfír%t 7ßepartment CLIVE LINO and DARYL KHAN, on behalf of themselves and all others similarly situated, -v.- Plaintiffs-Appellants, The CITY OF NEW YORK; RAYMOND W. KELLY, New York City Police Department Commissioner, in his individual and official capacities; JANE DOE, New York City Police Lieutenant, in her individual and official capacities; and JOHN DOES 1-3, New York City Police Officers, in their individual and official capacities, Defendants-Respondents. ON APPEAL FROM SUPREME COURT, NEW YORK COUNTY, INDEX NO. 10/ REPLY BRIEF OF PLAINTIFFS-APPELLANTS Dated: April6, 2012 New York, NY CHRISTOPHERDUNN NEW YORI( CIVILLIBERTIESUNION FOUNDATION 125 BROADSTREET,19 TH FLOOR NEWYORI(, NY (212) COUNSEL FOR PLAINTIFFS-ApPELLANTS On the Brief: Scarlet Kim, JD, Admission Pending Reproduced on Recycled Paper

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 THE FACTS BEFORE THE COURT ARE UNDISPUTED 2 ARGUMENT 3 r. THE CITY'S CONTENTIONS ABOUT EXPUNGEMENT, COMPLIANCE WITH THE SEALING STATUTES, AND MR. KHAN'S CLAIMS PROVIDE NO BASIS FOR AFFIRMING THE LOWER COURT 3 A. The City's Contention About Expungement Is Without Merit. - 3.B. That a Factual Dispute Exists About the NYPD's Compliance with the Sealing Statutes Provides No Basis for Affirmance 5 C. The City Makes No Effort to Defend the Lower Court's Dismissal of Mr. Khan's Claims 6 II. THE CITY'S CONTENTION THAT THE PLAINTIFFS CANNOT OBTAIN mdicial RELIEF UNDER CPL SECTIONS AND TO SEAL THEIR RECORDS IS WITHOUT MERIT 7 A. The Plaintiffs Have a Private Cause of Action to Remedy Violations ofcpl Sections and B. The Plaintiffs Have Standing to Remedy Violations of epl Sections and CONCLUSION 15 i

3 TABLE OF AUTHORITIES Cases 35 New York City Police Officers v. City of New York, 34 A.DJd 392 (1st Dept. 2006) 11 Gerel Corp. v. Prime Eastside Holdings, 12 A.D.3d 86 (Ist Dept. 2004) Katherine B. v. Cataldo 5 N.Y.3d 196 (2005) 13 Leon v. Martinez, 84 N.Y.2d 83 (1994) 5-6 People v. Amiger, 109 A.D.2d 1095 (4th Dept. 1985) 10, 12 People v. Anonymous, 7 A.D.3d 309 (1st Dept. 2004). People v. Burns, 428 N.Y.S.2d 588 (City Ct. 1980) 10, 12 People ex rel. Phoenix v. Dist. Attorney of Onondaga County, 407 N.Y.S.2d 790 (County Ct. 1978) :... 10, People v. Gartenberg,432 N.Y.S.2d 785 (Dist. Ct. 1980) 10, 12 People v. Martin c., 436 N.Y.S.2d 524 (Just. Ct. 1981) 10, 12 People v. Robertson, 412 N.Y.2d 982 (City Ct. 1979) 10, 12 Simpson v. New York City Transit Authority, 112 A.D.2d 89 (IstDept.1989) 11 11

4 PRELIMINARY STATEMENT At the heart of this appeal is a Supreme Court ruling eviscerating the state's critically important statutory regime requiring the sealing of records of those charged with but never convicted of crimes. In responding to the plaintiffs' appeal, defendant New York City offers only a cursory -- and meritless -- defense to the lower court's ruling that the courts are powerless to enforce the sealing statutes on behalf of people whose unsealed records threaten to shadow them for the rest of their lives. Rather, the City primarily defends the Supreme Court's decision by asserting that this case actually is about expungement rather than sealing and by asserting that the plaintiffs lack standing. On the expungement point, that this case is and always has been about sealing is apparent from the very first sentence of the City's own brief: "In this class action, plaintiffs... seek an order... to seal 'stop and frisk' records... " As for the City's standing argument, wellestablished law makes clear what should be self-evident: people whose police records are required to be sealed by state law have standing to sue when lawenforcement agencies refuse to seal the records and thus expose those people to the risk of serious harm. 1

5 Finally, with respect to the lower court's dismissal of the false-arrest and related claims of plaintiff Daryl Khan, the City makes no effort to defend that dismissal, and no defense exists. Implicitly conceding the claims must be reinstated, the City contends only that they should be severed from the balance of the case, a position that is without merit. THE FACTS BEFORE THE COURT ARE UNDISPUTED. The City does not dispute any of the facts set out in the plaintiffs' brief. See Respondents' Briefat 2-3 (Mar. 21, 2012). Those facts, which are as alleged in the complaint and must be accepted as true for purposes of the City's motion to dismiss the complaint, are the facts governing this appeal. See Brief of Plaintiffs- Appellants at 2-7 (Jan. 30,2012).1 'To the extent the City's truncated discussion of the facts is intended to suggest that the facts it discusses are the only relevant facts, no basis exists for such a suggestion. On a motion to dismiss, the Court is to consider all the facts alleged in the complaint, and the complaint in this matter alleges facts far beyond those mentioned by the City. See Plaintiffs' Brief at 2-6 (setting out facts of sealing claims); id. at 6-7,25-26 (setting out facts of claims of plaintiff Daryl Khan). 2

6 ARGUMENT In its brief the City offers this Cami five contentions: (1) the plaintiffs seek expungement; (2) the plaintiffs lack standing to enforce the sealing statutes; (3) the sealing statutes do not afford a "private right of action"; (4) there is a factual dispute about whether the NYPD is complying with the sealing statute; and (5) plaintiff Daryl Khan's false-arrest and related claims should be severed. The assertions about expungement, the factual dispute about compliance with the statute, and severance of Mr. Khan's false-arrest claims can be summarily addressed, so the plaintiffs deal with them first. They then tum to the contentions about standing and a private right of action. L THE CITY'S CONTENTIONS ABOUT EXPUNGEMENT, COMPLIANCE WITH THE SEALING STATUTES, AND MR. KHAN'S CLAIMS PROVIDE NO BASIS FOR AFFIRMING THE LOWER COURT. A. The City's Contention About Expungement Is Without Merit. The City opens its argument with the assertion that the plaintiffs' complaint seeks the expungement of stop-and-frisk records rather than the sealing of those records. See Respondents' Brief at Because of this, the City asserts, "the City and the trial court had a fully sound basis to read the complaint as equating 3

7 the statutory sealing requirement with a requirement for complete elimination of the database and as seeking expungement accordingly." Id. at The complete lack of merit to this position is clear from the City's own brief, which opens with the following sentence: "In this class action, plaintiffsappellants... seek an order... to seal 'stop and frisk' records... " Respondents' Brief at 1 (emphasis supplied). This acknowledgment is unsurprising given that, as noted in the plaintiffs' opening brief, the complaint explicitly seeks sealing and never once so much as mentions expungement. See Plaintiffs' Briefat Despite acknowledging this is a case about sealing and despite the express language of the complaint, the City nonetheless contends that the complaint "implicitly endorsed" the notion of expungement. See Respondents' Brief at 10. The language upon which the City relies is nothing more than language from a letter from a City Council member to the police commissioner about the database. See Lino v. City of New York, Complaint ~ 40 (May 19,2010) (R. 27). And that language, which never even mentions expungement, is simply part of the complaint's discussion about the broad public controversy surrounding the stopand-frisk database. See id. ~~ (R ). Nothing about this language's 4

8 presence in the complaint remotely transforms the complaint's express claims for sealing into ones for expungement. B. That a Factual Dispute Exists About the NYPD's Compliance with the Sealing Statutes Provides No Basis for Affirmance. The City asserts that, as a matter of fact, the NYPD is sealing the records at issue in this dispute. At the same time, it recognizes, as it must given the allegations in the complaint, that the plaintiffs have alleged as a matter of fact that the NYPD is not sealing the records: Because the City's motion below was resolved on the strictly legal issue of standing, the City did not have the opportunity to develop an adequate record showing that under the NYPD' s ongoing policy, it fully complies with and and that plaintiffs' records arising from the summons and violations issued, as well as all other records covered by and , are sealed within the meaning of those statutes. Plaintiffs' assertion to the contrary creates an issue of fact that remains unresolved. Respondents' Brief at 20. That a factual dispute exists is immaterial to this appeal, as the City's motion to dismiss must be decided accepting as true the plaintiffs' allegation that the NYPD is not complying with the sealing statute. See, e.g., Leon v. Martinez, 84 N.Y.2d 83,87 (1994) (noting that on motion to dismiss court is to "accept the facts as alleged in the complaint as true [and] accord plaintiffs the benefit of every 5

9 possible favorable inference"). Should this Court reverse the lower court, the City will of course remain free in subsequent proceedings to contest that fact (and any other fact alleged in the complaint). But the existence of a factual dispute on this point provides no support for affirmance. C. The City Makes No Effort to Defend the Lower Court's Dismissal of Mr. Khan's Claims. The third issue that can be summarily resolved is the status of the falsearrest and related claims brought by Mr. Khan and dismissed by the lower cami without discussion. In its brief the City understandably makes no effort to defend this dismissal, see Respondents' Brief at 21, and no basis exists for the dismissal given the complaint's allegations and the well-established law governing such claims, see Plaintiffs' Brief at Instead, the City "requests that those claims should be severed from the class action claims." Respondents' Brief at 21. The issue of severance, however, is not before this Court, the City has not briefed it, and no basis exists for the Court to reach it. Rather, the Court should simply reverse the lower court, 6

10 reinstate Mr. Khan's claims, and leave it to the lower court to address the City's severance assertion (which the plaintiff submits is without merit)." II. THE CITY'S CONTENTION THAT THE PLAINTIFFS CANNOT OBTAIN JUDICIAL RELIEF UNDER CPL SECTIONS AND TO SEAL THEIR RECORDS IS WITHOUT MERIT. In addition to the three contentions addressed above, the City argues that the plaintiffs cannot obtain judicial relief to have their records sealed because, the City claims, the plaintiffs lack standing and the sealing statutes confer no private right of action allowing individuals to enforce them. See Respondents' Brief at Though as meritless as the City's other arguments, these wan-ant more detailed responses, in part because the lower court did not address the issue of standing. Since the plaintiffs addressed the private-cause-of-action issue in their opening brief, they start with that and then turn to standing. 2To the extent the Court wishes to address this issue, the plaintiffs are of course prepared to brief it. 7

11 A. The Plaintiffs Have a Private Cause of Action to Remedy Violations ofcpl Sections and In their opening brief the plaintiffs extensively addressed the issue of whether the sealing statutes create a private right of action by discussing the threepart test governing analysis of the issue, reviewing the decades of cases in which I courts have issued orders enforcing the sealing statutes, and discussing a Cami of Claims case from last year that examined the private-cause-of-action issue in detail. See Plaintiffs Brief at In the one (albeit long) paragraph of its brief responding to these issues, the City addresses only one pmi of the three-part test, fails even to acknowledge any of the cases enforcing the sealing statutes, and cites to only two other cases, both of which address an entirely different statute. See Respondents' Brief at Nothing in the City's brief undermines the position put forward in the plaintiffs' brief. The City does not dispute that the plaintiffs correctly set out the three-part test governing the private-cause-of-action issue. See Respondents' Brief at 17. Rather, the sole argument the City makes in support of its claim that no private cause of action exists under CPL sections and is that the plaintiffs fail the first part of the three-part test: "'whether the plaintiff is one of the class for whose particular benefit the statute was enacted. '" Id. (quoting and citing 8

12 Gerel Corp. v. Prime Eastside Holdings, 12 A.DJd 86, 90 (1st Dept. 2004)). More specifically, the City asserts -- without citing any legislative history or relevant case law -- that "[i]t is inconceivable that the purpose of and was to benefit individuals whose private information has not been improperly disclosed and who thus suffer no injury." Respondents' Brief at 17 (emphasis in original). Yet, as is apparent from the City's failure to cite any authority in support of this contention, the suggestion that the only intended beneficiaries of the sealing statues are those whose records already have been disclosed has no support in the text of the statutes, their legislative history, or in the relevant case law. As an initial matter, the plain text of the statutes precludes thenation that the statutes were intended to benefit only those persons whose records have already been unlawfully released. Both sections require sealing "[u]pon the termination of a criminal action or proceeding against a person." By mandating sealing upon the termination of criminal proceedings, both sections clearly seek to protect individuals against the risk of public disclosure of their records. Here, it is undisputed that the records of plaintiffs are not sealed - and therefore are at risk of disclosure. Thus, the plaintiffs plainly are amongst the class of intended beneficiaries of the statute. 9

13 Beyond the text of the statutes, the legislative histories of the sealing statutes similarly make clear that the purpose of the statutes is to protect people from the release of their criminal records, as the plaintiffs explained in their opening brief. See Plaintiffs' Brief at And in the many cases enforcing the sealing provisions and discussed in the plaintiffs' brief, the courts have never suggested that the statutory protections become enforceable only after records have been unlawfully released. See id. at Moreover, in many of those cases, the courts ordered sealing without any indication that there had been disclosure. See People v. Amiger, 109 A.D.2d 1095 (4th Dept. 1985); People v. Martin C; 436 N.Y.S.2d 524 (Just. Ct. 1981); People v. Gartenberg,432 N.Y.S.2d 785 (Dist. Ct. 1980); People v. Burns, 428 N.Y.S.2d 588 (City Ct. 1980); People v. Robertson, 412 N.Y.2d 982 (City Ct. 1979); People ex rel. Phoenix v. Dist. Attorney of Onondaga County, 407 N.Y.S.2d 790 (County Ct. 1978). The City responds to none of this. Finally, the complaint alleges that the NYPD in fact is disclosing the records by using them in ongoing criminal investigations. See Complaint t f 39 (R ). Thus, even under the City's erroneous view of the sealing statutes, the plaintiff class has standing. 10

14 In support of its position, the only authority the City cites are two cases it characterizes as "analogous": 35 New York City Police Officers v. City of New York, 34 A.D.3d 392 (Ist Dept. 2006) and Simpson v. New York City Transit Authority, 112 A.D.2d 89 (Ist Dept. 1989), discussed in Respondents' Brief at 17. Both cases, however, dealt with an entirely different statute -- section 50-a of the i Civil Rights Law -- and do not and cannot undermine the import of the text and legislative histories of sections and of the Criminal Procedure Law or of the cases enforcing those sections. B. The Plaintiffs Have Standing to Remedy Violations of CPL Sections and The City's final contention is that the plaintiffs lack standing to enforce their sealing rights under CPL sections and See Respondents' Briefat In asserting this, the City relies on the same point it offers about the private right of action. Specifically, the City argues that the plaintiffs have not demonstrated the injury in fact required for standing because, the City claims, the plaintiffs have not shown that their unsealed records have been unlawfully 'Becanse the lower court did not address this issue, the plaintiffs did not address it in their opening brief. 11

15 disclosed. See, e.g., Respondents' Brief at 15 ("[P]laintiffs have not alleged that the City has disclosed such records in a manner inconsistent with CPL "). Setting aside for the moment the fact that the complaint does allege disclosure of the records, the City is simply wrong in suggesting that harm arises not from the failure to seal but only from a subsequent unlawful disclosure of unsealed records. As discussed above, CPL sections and mandate automatic sealing "[u ]pon the termination of a criminal action or proceeding against a person." The very fact that records remain unsealed, as the plaintiffs' records undisputedly are, constitutes injury because it places the plaintiffs at immediate risk that their records will be disclosed. As further discussed above, consistent with this understanding of the statutes, New York courts have routinely enforced CPL sections and without ever suggesting that the statutory protections become enforceable only after the unlawful disclosure of records. See Plaintiffs' Brief at In fact, as noted above, in many of those cases the courts ordered sealing without any evidence of disclosure. See People v. Amiger, 109 A.D.2d 1095 (4th Dept. 1985); People v. Martin c., 436 N.Y.S.2d 524 (Just. Ct. 1981); People v. Gartenberg, 432 N.Y.S.2d 785 (Dist. Ct. 1980); People v. Burns, 428 N.Y.S.2d 588 (City Ct. 1980); People v. Robertson, 412 N.Y.2d 982 (City Ct. 1979); People ex rel. 12

16 Phoenix v. Dist. Attorney of Onondaga County, 407 N.Y.S.2d 790 (County Ct. 1978). The City's reliance on Katherine B. v. Cataldo 5 N.Y.3d 196 (2005), is misplaced." In Cataldo the Court of Appeals in fact granted judicial relief to plaintiffs seeking to enforce the sealing provisions of section The City describes the Cataldo plaintiffs as "challeng[ing] the unsealing of [their] records for the purpose of supporting the prosecutor's sentencing recommendation" and concludes that "[t]he readily apparent prospective injury was the likelihood that the unsealing would result in a more severe sentence than would be imposed otherwise." Respondents' Brief at 16. Though this description is not inaccurate, it does nothing to support the City's standing contention. Cataldo contains no discussion about standing, and nothing in the opinion offers any support for the City's claim that standing to enforce the sealing provisions exists only after unsealed records are unlawfully disclosed. While the fact that the NYPD refuses to seal the plaintiffs' records is alone sufficient to confer standing, the department is also disclosing records in the stop- 4 The City erroneously describes Katherine B. v. Cataldo as "a case relied upon by plaintiffs to show that they have standing." Respondents' Brief at 16. The plaintiffs, however, relied on Cataldo to demonstrate that the Court of Appeals has recognized the enforceability of CPL sections and See Plaintiffs' Brief at

17 and-frisk database for use in criminal investigations, thereby adding to the injury suffered by the plaintiffs. As the complaint notes, Commissioner Kelly has stated that the information collected during stop-and-frisk encounters is "a tool for investigators to utilize in the subsequent location and apprehension of criminal suspects" and that information contained in the database "remains there indefinitely, for use in future investigations." Complaint f 39 (R ). Therefore, the plaintiff class suffers both a primary injury by the NYPD's refusal to seal their records as well as added injury by the NYPD's use of these records in ongoing criminal investigations. The City's assertion that plaintiffs "point to no evidence that their sealed records have been or will ever be improperly disclosed," Respondents' Brief at 16, is simply wrong as a matter of fact. Finally, the City's position that a plaintiff would have to prove injury \ beyond an agency's failure to seal records pursuant to CPL sections and would eviscerate the value of the sealing statutes. As the legislative.history and relevant case law make clear, the purpose of the sections is to protect the accused from the risk of future injury resulting from disclosure of sealed l records. It is for this very reason that both sections automatically trigger sealing "[u]pon the termination of a criminal action or proceeding against a person" without any further showing. To accept the City's position would absolve police 14

18 agencies of their sealing obligations in virtually every case and force individuals to pursue potential damage actions to remedy harms suffered once further injured by an agency's failure to seal. This outcome is contrary to both the language and intent of the sealing provisions. CONCLUSION For the foregoing reasons and for the reasons set out in the plaintiffs' opening brief, the Court should reverse the decision of the Supreme Court, New York County, granting defendants' motion to dismiss and deny the motion. Respectfully submitted, C~L~ - chrïsiópiíer ri NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19 th Floor New York, New York (212) cdunn@nyclu.org Dated: April6, 2012 New York, N.Y. Counsel for Plaintiffs-Appellants On the Brief: Scarlet Kim

19 PRINTING SPECIFICATION STANDARD This brief was prepared using WordPerfect 12, with 14-point Times New Roman font. According to the program, the text in the body of the brief contains 3065 words. ~c