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Clive Lino, et al., Plaintiffs-Appellants, the v. City of New York

December 20, 2012


Lino v City of New York

Decided on December 20, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered June 28, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' cross motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the cross motion denied.

In this class action proceeding brought pursuant to article 9 of the CPLR, plaintiffs challenge the inclusion of their police records in the New York Police Department's (NYPD) "stop and frisk" database. Plaintiffs are a proposed class of 360,000 people who were stopped and frisked by NYPD officers and whose records are required to be sealed pursuant to CPL sections 160.50 and 160.55, which mandate sealing upon favorable dispositions and convictions for non-criminal offenses. The class allegations, however, are not subjects of this appeal.

The two named plaintiffs are individuals who were subject to the "stop and frisk" procedure of the NYPD and who, as a result, were arrested and issued summonses that were subsequently dismissed. Named plaintiff Clive Lino, at the time of the incident, was a 29 year old residing in Harlem where he works full-time at a residential facility for students in crisis. On April 18, 2009, Mr. Lino was stopped by NYPD officers while he was getting into his car in the Bronx. The officers issued Mr. Lino two summonses, both of which were later dismissed. The Bronx Criminal Court issued Mr. Lino a notice of dismissal stating that records of his summonses were to be sealed pursuant to CPL section 160.50. In a separate incident, Mr. Lino paid a fine to resolve a non-criminal violation.

Named plaintiff Daryl Khan, at the time of the incident, was a 35-year-old freelance journalist living in the Clinton Hill neighborhood of Brooklyn. On October 7, 2009, two NYPD officers stopped Mr. Khan while he was riding his bicycle in Brooklyn. The officers issued Mr. Khan two summonses, both of which were later dismissed.

The record establishes that the procedure of NYPD officers when they stop and question individuals on the streets is as follows: the officer must complete a form known as an UF-250 which records information about the encounter, including the name and home address of the individual stopped. In March 2006, the NYPD adopted a practice of compiling this information in a centralized computer database.

In June 2009, in a letter responding to City Council member Peter Vallone, Jr.'s expressed concern about retention of the names in the database, Commissioner Kelly stated that the information collected during "stop and frisk" incidents is "a tool for investigators to utilize in subsequent location and apprehension of criminal suspects." Commissioner Kelly also disclosed that the personal information in the database "remains there indefinitely, for use in future investigations."

On May 19, 2010, plaintiffs commenced the present action seeking a declaration that the NYPD's failure to seal their records violates CPL sections 160.50 and 160.55. In pertinent part, CPL section 160.50(1)(c) states that "[u]pon the termination of a criminal action or proceeding against a person in favor of such a person, [. . .] all official records and papers . . . shall be sealed and not made available to any person or public or private agency." (Section 160.50 is subject to exceptions that are not relevant here.) Additionally, CPL section 160.55 provides similarly where the result is a conviction for a non-criminal offense.

Plaintiffs also sought injunctive relief mandating sealing. Furthermore, plaintiff Khan alleges false arrest, false imprisonment, malicious prosecution, assault and battery, and seeks damages for these common-law torts and for violation of CPL section 160.50. Plaintiff Khan also seeks a declaration that his First, Fourth and Fourteenth Amendment rights under the US Constitution have been violated and that his rights under the Constitution and laws of the State of New York have been violated.

Defendants cross-moved pursuant to CPLR sections 3211(a)(7) and 7804(f) for an order dismissing plaintiffs' complaint on the grounds that the complaint fails to state a cause of action, that the named plaintiffs lack standing to sue, and that plaintiffs' constitutional claims are barred by law and/or by the applicable statute of limitations.

The motion court granted defendants' cross motion to dismiss. Regarding plaintiff Khan's constitutional claims, the court held that "the statute[] grant[s] only a statutory, not a constitutional, privilege to one whose records should be sealed, and thus a statutory violation does not implicate a constitutional right, even if records that should and have not been sealed are used in another proceeding." Additionally, the court held that the statute did not create private rights of action and that plaintiffs lacked standing because ...

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