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When Conviction Records Can Be Sealed


When Andrew Alexander turned 17 on January 3, 2006, the Queens high school senior did not expect that he would be arrested later that day. And he definitely did not expect that his arrest would ultimately bring about a change in New York's procedures for making information about convictions public. But a policy change resulting from Andrew Alexander's birthday arrest, conviction and subsequent lawsuit will affect thousands of defendants in New York City Criminal Court every year.

Alexander was charged with criminal mischief, creating graffiti and possessing graffiti instruments (paint), all misdemeanors. After negotiations, he pled guilty in Queens Criminal Court to disorderly conduct. This was a typical "plea bargain," where a defendant, who has committed a simple misdemeanor and has had little or no prior contact with the criminal justice system, admits guilt and does not go to trial. Alexander’s sentence, a conditional discharge, required him to do community service and avoid being arrested for at least one year.

Disorderly conduct, or "discon," which is used to cover a multitude of acts, is a violation, or an offense, rather than a crime and does not result in a criminal record.

One year later, Alexander applied for a job as a cashier at Sears. The application asked, "Have you been convicted of a crime within the last seven (7) years?"

Alexander answered, "No." He believed that was truthful. When he pled guilty to disorderly conduct, he was advised that the offense was a violation, not a crime, and that he would not have a record of a criminal conviction.

Sears retained USIS, a private screening and background search company, to investigate applicants. As part of its investigation of Alexander, USIS contacted the New York State Office of Court Administration and, providing Alexander's name and date of birth, requested his criminal history, if any.

The next day, for a fee of $52.00, the office emailed USIS "Criminal History Search Results," and disclosed that Alexander had been charged with the three graffiti-related misdemeanors and pled guilty to the violation of disorderly conduct.

Based upon this information, Sears rejected Alexander's job application.

Alexander sued the Office of Court Administration and Jonathan Lippman, who was then chief administrative judge, claiming that his rights had been violated since findings or pleas of guilt to violations are supposed to remain sealed. The lawsuit was brought by Stuart Lichten of the Manhattan firm of Schwartz, Lichten and Bright. The suit was based on criminal procedure law, which provides that, when someone is convicted of disorderly conduct or another violation, no statewide search by the Office of Court Administration of electronic records can be disseminated to the public. A person who is convicted, by plea or trial, of a violation is entitled to have the record sealed and fingerprints and any photographs returned. Disorderly conduct is a "non-printable" charge for which fingerprints are not required.

The state took the position that, while Alexander was entitled to the return of fingerprints and "mug shots," sealing did not apply. The counsel for the Office of Court Administration, Michael Colodner, argued that the sealing does not apply to court records, but only to records of arrest and prosecution in the files of the Division of Criminal Justice, police agencies and prosecutors' offices. He further argued that paper (i.e. non-electronic) records kept in the courts also did not have to be sealed.

The dispute arose at least partly because the original charges against Alexander were misdemeanors. As a result, the records of the violation also went along into the state system. But according to Lichten, the release of the information violated his client's rights to sealing. That is, the search made available to USIS should not have included anything about the violation; any reference should have been deleted.

Under the Criminal Procedure Law that governs the confidentiality of records, where the criminal action ends in a violation conviction, the Office of Court Administration is not permitted to disseminate to the public, statewide records kept electronically. A person who is convicted is entitled to have that statewide record kept confidential. However, the actual paper records kept in New York City Criminal Court are not sealed, and the public does have access to the physical record in the clerk's office. The intended balance is that there is a public record in the office of the Clerk of the Criminal Court, but not in the statewide database made available to investigators for a fee.

As a result of the suit, the Office of Court Administration agreed to change its policy on disseminating information. If that agreement -- which is not formally written -- is violated, the lawsuit can be reopened. Justice Joan A. Madden of New York State Supreme Court issued an order discontinuing the lawsuit "based on the office’s agreement to change its policy."

A separate lawsuit brought against Sears has also been settled, but due to a confidentiality agreement the terms are not known.

Emily Jane Goodman is a New York State Supreme Court Justice 

Protecting New York's Teens


Every New Yorker has seen it happen. A group of teenagers enters a subways car, talking loudly, perhaps cursing or using other epitaphs. Once in the car they expand to fill all space, sprawling across available seats, extending their arms as they hang onto the poles. The other passengers stare at the ground, peer resolutely at their newspapers, trying to avert their eyes from what many see as a threatening presence in their midst.

For decades if not longer, many older New Yorkers have viewed teenagers, particularly those of a different ethic or racial group, as dangerous. The youth gangs of the 1950s, the reports of so-called wilding in the late 1980s and the often-profane shouting of today’s teenagers have reinforced that notion.

For their part, teenagers complain of being harassed by police and others for simply being there. School guards shoo students away from their own schools upon dismissal. Community boards debate how to keep them off the sidewalks (see related story) , and parents of younger children wish the older ones would stay away from playgrounds and even parks. Stores post signs warning students away, particularly during schools hours.

STOP, FRISK AND ARREST

Conflicts and Resolutions

Police in the Schools:
A uniformed presence has made schools safer – but at what cost?

Hanging Out and Hurting Business:
Teens on the street scare away customers.

Breaking the Cycle of Violence:
A program in East New York tries to stop the mayhem by helping young people respect themselves.

Taking A.C.T.I.O.N. at The Point:
In Hunts Point, young people do not just complain about problems in their community, they try to solve them.

Cutbacks After School:
Reductions in government funds will force shutdowns of programs that keep young people active and occupied.

While this tension has long existed, a number of recent incidents have focused attention on it.

--About 30 students on their way to a wake for a murdered teen, a gang leader, police said, were arrested in May in Brooklyn. Police said they feared the gathering would lead to violence and more gang activity, but the young people charged the police acted only because they were young and black or Latino. Later Brooklyn District Attorney Charles Hynes said the young people jumping on cars and being generally rowdy. He has not yet produced any evidence to this effect.

--Police arrested more than 200 people, many but not all young, at this year’s Puerto Rican Day parade. Many said they were picked up simply for wearing yellow and gold, the colors of the Latin Kings gang. Police denied it, saying people were stopped for their conduct, not what they wore.

--Following a string of robberies police last October reportedly stopped any all male black teenagers at the 7th Avenue subway station in Park Slope Brooklyn.

--A 13-yearold middle school student in Dyker Heights, Brooklyn, was handcuffed and arrested, reportedly for writing on her classroom desk.

At the same time, a number of studies and reports have documented the sometimes tense relationship between teens and police. The New York Civil Liberties Union issued a study last spring charging that policies designed make New York City schools safer have "transformed New York City classrooms into hostile and dysfunctional environments that damage students and disempower educators.” (See related story.) In particular, the report found that 93,000 of the city’s approximately 1 million public school students had to go through extreme security – metal detectors, searches and so on -- because they attend schools the Department of Education considers dangerous. Further the report found that, with more than 4,600 school safety agents, “the NYPD's School Safety Division alone constitutes the tenth largest police force in the country.”

Stop and frisk data released by the New York City police department found the police stopped five times as many people in 2006 as in 2002 and that half of those stopped were black – and young black men say they are disproportionately the targets of such searches. The City Council has asked for more information, which it says the police department has not furnished.

A series of columns by Bob Herbert of the New York Times focused on the intense policing of young people in the city in the schools and on the streets.

CRIME CONCERNS

While most teenagers—like most people of any age – are not criminals, police and others have reason to be concerned about illegal acts committed by young people. Crime statistics for the fiscal year ending June 30, 2006, found a rise in crime, including murder, committed by young people in New York City.

Last summer saw a spate of teenage violence across the country leading Sarah Karnasiewicz to write in Salon, “The story of summer 2006 has been one of kids and killing,” although she added that most of the deaths were in middle-sized cities, rather than New York or Los Angeles. But in one large city – Chicago – some 32 students were killed in the school year that ended in June.

People who work with young people, such as Waddell Parks in East New York (see related story), confirm that an increasing number of young people settle any difference, however minor, with a gun. And while gangs are a less serious problem here than in some other cities, they do exist.

Then there are the incidents that, while they may be far less common than they once were, remain chilling: The teenagers who killed a Brooklyn teenager for his iPod or the high school conflict that spilled out into busy Union Square shortly before Christmas, leaving one youngster dead of stab wounds and two other seriously injured.

The current crackdown in schools was instituted in 2004 after a series of well-publicized incidents prompted politicians and the press to condemn the Bloomberg administration for not doing more to keep schools safe. Further, while some teens say police, schools officials and others monitor their activity too closely, statistics show that teen violence may fester because adults do too little. A study conducted in the late 1990s, based on interviews with young, violent offenders in New York City, found that 100 percent of them said adults ignored older youths fighting in the street, 74 percent said they ignored young people selling drugs, and 37 percent ignored property being vandalized.

LOOKING FOR SOLUTIONS

Few people would argue that police have no role in guarding against youth violence or that schools do not need some kind of security. Disagreements, though, arise over when such measures infringe on the rights of teenagers who, of course, are entitled to the constitutional protections of other people living in the United States. In addition many who work with teens say security measures can only do so much. To address the problem in a more fundamental way, they maintain, teenagers need to have more respect for themselves and for others and must to be actively involved in their communities in a constructive way.

This week, Gotham Gazette, examines several aspects of this issue, including the situation in the schools, programs to address the problem – and the funding difficulties afflicting some of those programs.  

Police in Schools


Police at Curtis High School on Staten Island

For students who attend one of New York City's 86 public schools with permanent metal detectors, simply getting through the door can pose one of the day's biggest challenges. The metal detectors are just the beginning. In its increased efforts to make its schools safe, the Department of Education also uses bag checks, hand-held wands, ID scanners and the watchful eyes of school safety agents, uniformed civilian members of the New York City Police Department.

Since a series of well publicized crimes in schools in 2003, the Bloomberg administration has ratcheted up security in middle schools and high school across the city. While statistics say the programs have reduced violence, and some student reports feeling safer, critics charge that the presence of security devices and uniformed guards unfairly stigmatizes many of the city's more than 1 million public school students.

METAL DETECTORS, AGENTS AND POLICE

Conflicts and Resolutions

Police in the Schools:
A uniformed presence has made schools safer -- but at what cost?

Hanging Out and Hurting Business:
Teens on the street scare away customers.

Breaking the Cycle of Violence:
A program in East New York tries to stop the mayhem by helping young people respect themselves.

Taking A.C.T.I.O.N. at The Point:
In Hunts Point, young people do not just complain about problems in their community, they try to solve them.

Cutbacks After School:
Reductions in government funds will force shutdowns of programs that keep young people active and occupied.

The Bloomberg administration has shown that it will pull no punches when it comes to school safety in New York City's 1,200 public high schools. In 2004, the mayor launched his Impact Schools Initiative, which greatly increased the police presence in schools. Since then, good news and rosy numbers have flowed out of City Hall.

"We launched the Impact School initiative in order to put a stop to the culture of crime and disorder that was ruining the educational opportunities for our students, and the results have been promising," said Bloomberg in a 2005 press conference. The following year, Bloomberg reported violent crime in New York schools was down 11 percent from the previous year, and according to the city's numbers, the rate has continued to fall -- except for a rise in the number of thefts of electronic items, like pricey laptop computers, it would seem that the mayor's plan is working.

While everyone wants safe schools, some see the security as having a cost. Many students, teachers and others are deeply troubled by the increased police presence in the city's schools. Some 4,625 school safety agents patrol the city's approximately 1,100 schools, according to the New York Civil Liberties Union, along with at least 200 New York City police officers, who, unlike the safety agents, carry firearms. More than a fifth of the city's public middle and high schools now have permanent metal detectors, and any public school can receive a surprise visit from the police department's "roving" metal detector program. The Department of Education did not return repeated phone calls to confirm these numbers.

Students, teachers, administrators and civil liberties groups express concerns that some of the tactics used to police the schools are overzealous and even abusive. A report released in March by the New York American Civil Liberties Union entitled, "Criminalizing the Classroom: The Over-policing of New York City's Public Schools," suggests that misconduct by the police and especially safety agents -- from verbal assault to the unjustified arrest of students, teachers and principals -- is not uncommon. In once case a police officer said he arrested a student for a "smart-aleck." The student had been waiting outside the school for his mother, who had agreed to pick up his cell phone for him, since it would otherwise be confiscated.

CHANGING ATTITUDES AT MARTIN LUTHER KING

While students understandably chafe at such treatment, the city clearly has had a school safety problem. At Martin Luther King Jr. High School on Manhattan's Upper West Side, for example, the security measures are more than precautionary. In 2002, two students were shot at King on the civil rights leader's birthday. Five years later, after the restructuring of the King campus into a cluster of smaller high schools and the addition of school safety agents to the already permanent fixture of metal detectors, many students say they feel safe at their school.

The school safety agents on the King campus seem to have developed some semblance of a working relationship with students and faculty. On a warm day in June, the students huddled in small groups on and around school grounds talking among themselves and hanging out. "Keep it moving," one agent says to a group of teenage girls on the street corner outside the school. "You can hang out across the street, but not here."

"They're pretty nice. I don't have any problems with them, really," said Staring Jones, a 15-year-old first-year student.

"Everyone gets treated the same," said Fancellys Alvarado, a first-year student. Fourteen-year-old Veronica Taylor agreed. "There's not a problem here. They're nice," she said of the agents.

CREATING A CULTURE OF RESPECT

The kind of working relationship between school safety and the students and faculty found at King, however, is not a given, but a constant work in progress. Jamaal Bowman, dean of Martin Luther King, Jr. High School of the Arts and Technology on the King campus, said he personally watches all his students enter school every morning to make sure everything goes smoothly and no students are mistreated by safety agents. Bowman said that outrageous behavior by school safety teams is rare at schools where the administration is vigilant about protecting its students' civil liberties as well as their safety.

"We have a different sergeant this year," said Bowman, referring to the NYPD sergeants that are in charge of school safety agents at every school. Last year, he said, the sergeant insulted students, using sexual and racial epitaphs, and, according to Bowman, "even got into a couple of fights with students," he said. "This year [the agents are] more nurturing than in past years. They'll let us deal with infractions because we know [the kids] and their families."

UNEQUAL TREATMENT?

Some King students, particularly black male students, still have problems with the agents. One, 17-year-old Aaron Flournoy, said the agents have an attitude. "They curse, they yell. And they get violent for no reason," he said as a uniformed agent walked outside the high school and encouraged students to "get going" and move away from the school grounds.

Despite the police presence, Deron Gates, also 17, said he does not feel safe at the school. "It's MLK for God's sake," said Gates. "My 10th grade year people got jumped for no reason. If someone wants to hurt you they're going to hurt you," he said.

In general, the civil liberties union and Bowman say, the city's minority students, who comprise two-thirds of all public school children, are more likely than their white or more affluent counterparts to be humiliated and treated like criminals. "I think black males feel disenfranchised already," said Bowman, who starting a support group for black males on the King campus.

Bowman sees discrepancies between the treatment given his students and those at LaGuardia High School, a prestigious public arts high school across the street from King. "Being right next door to LaGuardia, it's like a slap in the face," he said, shaking his head. "When our kids go over there for summer school they put up the metal detectors. It's blatant discrimination. And blatant racism."

LaGuardia has no metal detectors to speak of and, according to John H. Lewis, a teacher there, school safety agents there are not an overbearing presence. "The kids are much more savvy [at LaGuardia]. They have a clear idea of what their rights are," he said. Asia Fisher, a 17-year-old LaGuardia senior from Brooklyn, said that at LaGuardia "security guards can be your friends."

In contrast, at the poorer school in Brooklyn where he used to teach, Lewis said, "The kids were treated like criminals and humiliated. At LaGuardia kids get treated better in every respect. It's sort of like the gloves are on."

David Bloomfield, the president of the Citywide Council on High Schools, said there was a "consensus" among educators speaking at a recent council hearing on school safety that the school safety agents are disrespectful. But he also said it was possible -- and vital - to foster a closer relationship between the agents and school administrators.

STUDENTS, NOT CRIMINALS

Special police officers outside Martin Luther King Jr. High School following a shooting there in 2002

Even courteous careful safety agent and police can pose a problem simply by being in the school building, according to some critics. Udi Ofer, field director for the civil liberties union's legislative council, says the Department of Education relies too much on police to deal with issues that could be handled by school administrators. "This is not just about metal detectors. This is about the extraordinary presence of the NYPD in public schools. New York City now has more school safety agents per student than most cities do per citizen," said Ofer.

"The police department has no business in the schools. They're used to dealing with criminals," said Lewis

When students believe a school safety agent or police officer has treated them unjustly, there is very little they, their parents or their teachers can do to press a complaint. Deputized by the police department, school safety agents are not accountable to the administrators, principals, parents, or communities of the schools they are commissioned to protect.

If there is a mechanism in city government to report misconduct, "the city hasn't made anyone aware of it," said Bowman. He said a city official suggested he call the city's all-purpose 311 non-emergency help line to lodge a complaint. In general, he said, if faculty and parents want a problem to be taken seriously, they should call the civil liberties union.

 



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