Matter of New York State Commn. on Jud. Conduct v Rubenstein
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.
Decided on February 5, 2013
Saxe, J.P., Moskowitz, Freedman, Richter, JJ.
Appeal from order, Supreme Court, New York County (Fern A. Fisher, J.), entered on or about May 25, 2012, which denied respondent Seth Rubenstein's motion to, among other things, vacate a prior order releasing certain records and papers to petitioner New York State Commission on Judicial Conduct, unanimously dismissed, without costs, as moot.
Respondent appeals an order releasing to the Commission records and papers, including transcripts, of a criminal matter in which he was acquitted on all counts after a jury trial. He contends that the order violated CPL 160.50(1), which provides for sealing of records in a criminal proceeding following termination in favor of the person accused. The trial court ordered the release based on Judiciary Law § 42(3), authorizing the Commission to request and receive data or information from any public authority that would enable it to carry out its function. Mr. Rubenstein was tried jointly with a judge, and the Commission sought the records in connection with its investigation of the judge.
The Commission now moves to dismiss the appeal, as the Commission no longer has any use for the records because, the judge has agreed to a penalty, and thus any further proceeding by this Court would be purely academic. In other words, this appeal has been rendered moot. Mr. Rubenstein opposes dismissal as moot, in part because the Commission has published some documents which have been released and are on the Commission's website, and because "of the importance of the questions involved, the possibility of recurrence, and the fact that orders of this nature . . . typically evade review."
We find that the matter has been rendered moot and decline to pass on whether the release order was justified. However, we direct that all documents contained in the previously sealed records that were furnished to the Commission be returned forthwith to the court and be resealed for all purposes.
M-5529 - NYS Comm on Judicial Conduct v Rubenstein
Motion to dismiss appeal granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 5, 2013