SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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In the Matter of
:
the Application of the Auto Collection, Inc.,
Steven Lever, and Joshua Lever,
:
Regarding the Sealed Records of
People v. Pinkow, Ind. No. 698N/10.
:
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William C. Donnino, J.:
Decision and Order
Granting in Part
Unsealing Application
For the reasons set out below, the application1 of the petitioners for an order
unsealing the records of the criminal case People v. Pinkow, Nassau County Ind. No.
698N/10, is granted to the extent that the identity of the counts to which the defendant
pled guilty, and the defendant’s factual admissions to those counts during the
allocution of the plea proceeding of September 29, 2010, is unsealed for use in the
civil cases specified below.
Unsealing for use in other cases, or for any other
purpose, is denied.
The Auto Collection, Inc., Steven Lever and Joshua Lever v. Christopher Pinkow, et
al., Supreme Court, Kings Co., Index No. 7847/09
AZTE Inc., ABR Consulting Group Corp, and Budget Autos LLC v. The Auto
Collection, Inc., Steven Lever, Joshua Lever and Christopher Pinkow, Supreme Court,
Kings Co., Index No. 19999/08
US Autoland LLC and LOV Motors, Inc., v. the Auto Collection, Inc., Platinum
Volkswagen LLC, Joshua Lever, Steven Lever, Christopher Pinkow, et al., Supreme
Court, Kings Co., Index No. 16004/09
L & L Auto Distributors and Suppliers Inc. v. The Auto Collection, Inc., Platinum
Volkswagen LLC, Steven Lever, Joshua Lever, & Brian Flynn , Supreme Ct., Kings
Co., Index No. 18728/08
The respondent Pinkow has requested that, in the event the petitioner’s
application for unsealing is granted, the unsealing order be stayed for sufficient time
1
While the parties have captioned the papers in this application “People v. Christopher
Pinkow,” as if it were a criminal proceeding incident to the criminal matter, the application is
actually a civil proceeding that is merely related to the criminal matter, but does not affect the
judgment itself. See Hynes v. Karassik, 47 N.Y.2d 659, 661 n.1 (1979).
117
to permit him to seek relief from the Appellate Division.
Accordingly, this unsealing
order will take effect ten days from the date of this order, absent a stay of the order
issued by the Appellate Division.
Background
This application seeks unsealing of the records of a criminal case for use in
related civil litigation.
As explained below, the defendant in that criminal case
waived his right to the protections of sealing by the positions he took or maintained in
four civil cases.
In addition, in the fourth civil case, the defendant made sworn
allegations that are belied by his subsequent statements in the sealed record of the
criminal case, so that unsealing is also warranted in the fourth case to prevent or
expose a fraud on the court.
The Underlying Criminal Case & the Sealed Plea
In the criminal case, the defendant 2 was a salesman for a company that
specialized in locating and obtaining luxury cars for customers, many of whom in
turned sold the luxury cars to individuals in Russia and Eastern Europe.
Both the
salesman and the company he worked for were accused of defrauding the company’s
customers.
Essentially, the salesman and the company were alleged to have, in many
different instances, sold the same car to multiple customers, and kept the customers’
money without ever delivering the car.
Ultimately, the company pled guilty to a single misdemeanor count of filing a
false business record.
Of the company’s two owners, one was never charged with
any offense, and the other, while initially charged, had all counts against him
dismissed.
The defendant salesman pled guilty to three counts of grand larceny for his
role in defrauding the company’s customers.
While the fact that the defendant pled
to three grand-larceny counts is part of the public record, the plea proceeding itself
was sealed by the Court.
A year later, for reasons stated on a sealed record, the
2
The petitioners in this application to unseal are the company the Auto Collection,
along with its shareholders Steven Lever and Joshua Lever. The respondents are the
defendant in the sealed criminal case, Christopher Pinkow, as well as the District Attorney of
Nassau County.
217
defendant was permitted to withdraw his guilty pleas.
On the public record, the
indictment charging the grand larcenies was then, on the District Attorney’s
application and the consent of the defendant, dismissed with leave to re-present to the
Grand Jury.
In lieu of re-presentation, the defendant consented to prosecution by a
superior court information for lesser crimes, and then pled guilty to one count of
misdemeanor scheme to defraud in the second degree.
The dismissal of the indictment triggered CPL 160.50, which provides for the
automatic sealing of the records of cases that have been dismissed or otherwise
terminated in favor of the defendant.
See CPL 160.50(3)(b) (defining a “termination
in favor” of a defendant as, inter alia, a dismissal of the indictment under CPL
210.20).
Thus, the proceedings of the defendant’s earlier pleas to the grand-larceny
charges were sealed on two grounds: this Court’s sealing order based on its inherent
authority to seal proceedings before it; and by operation of law under CPL 160.50.
The Related Civil Cases
The defendant is now embroiled in several civil lawsuits with the company he
worked for and with its former customers.
In four of these law suits, the defendant
has essentially taken the position that all wrongdoing was the fault of the company,
rather than of himself.
Specifically, in one case, The Auto Collection, et al., v. Christopher Pinkow,
3
et al., in which the company sued the defendant and some of the company’s former
customers, the defendant raised the affirmative defense of fraud.
The company
brought a RICO suit, claiming that the customers actually colluded with the defendant
to commit fraud at the expense of the company.
In his affirmative defense of fraud,
the defendant asserted that the company’s losses were “wholly and solely from the
fraudulent acts of the plaintiffs [the company and its principals] or persons acting at
their direction and behest, for whose acts defendant Pinkow is not liable or
responsible.”4
3
The Auto Collection, Inc., Steven Lever and Joshua Lever v. Christopher Pinkow, et
al., Supreme Court, Kings Co., Index No. 7847/09.
4
Id., Verified Answer of Christopher Pinkow, July 13, 2009, p. 24, ¶ 335, under
section entitled “As and For the Second Affirmative Defense”.
317
In two other cases in which former customers sued the company and the
defendant, the AZTE case and the US Autoland case, 5 the defendant raised a
cross-claim against the company.
The defendant’s theory was that, if he was liable
to the company’s customers, then the company itself owed him indemnification, on
the ground that his acts were made within the scope of his employment with the
company.
In support of his cross-claims, the defendant exculpated himself by
expressly asserting that any losses suffered by the customers were “solely the result of
fraudulent conduct of [the company and its principals.]”6
Significantly, the defendant not only accused the company’s principals of
defrauding the particular customers involved in the case, but also asserted a larger
pattern of fraud by the company’s principals in which they stole money from many
different customers.7 The defendant further asserted that he had discovered the fraud,
confronted the principals about it, resigned in protest, and reported the fraud to law
enforcement officials.8
Finally, the defendant took the position that all wrongdoing was the fault of
the company, rather than himself, in one other case – this time one in which he was
not at the time even a party.
In this case, L & L Auto,9 one of the company’s
5
AZTE Inc., ABR Consulting Group Corp, and Budget Autos LLC v. The Auto
Collection, Inc., Steven Lever, Joshua Lever and Christopher Pinkow , Supreme Court, Kings
Co., Index No. 19999/08; and US Autoland LLC and LOV Motors, Inc., v. the Auto
Collection, Inc., Platinum Volkswagen LLC, Joshua Lever, Steven Lever, Christopher Pinkow,
et al., Supreme Court, Kings Co., Index No. 16004/09.
6
AZTE Inc., Verified Answer & Cross-Claims of Defendant Christopher Pinkow, at ¶
81; US Autoland LLC, Answer & Cross-Claim of Defendant Christopher Pinkow, at ¶ 115.
7
AZTE Inc., Verified Answer & Cross-Claims of Defendant Christopher Pinkow, at ¶
¶ 76-80; US Autoland LLC, Answer & Cross-Claim of Defendant Christopher Pinkow, at ¶¶
111-14.
8
Id.
9
L & L Auto Distributors and Suppliers Inc. v. The Auto Collection, Inc., Platinum
Volkswagen LLC, Steven Lever, Joshua Lever, & Brian Flynn , Supreme Ct., Kings Co., Index
No. 18728/08.
417
customers sued the company, but not the defendant.10 The defendant provided two
affidavits to the customers in support of their motion for a temporary restraining order
against the company.11 These circumstances – that the allegedly defrauded customer
would sue the company, but not the defendant, and that the defendant would provide
the customer with affidavits – are surprising, and the company accounts for them by
accusing the defendant and the customer of collusion.
10
The parties inform the Court that the company has since brought the defendant into
the suit by impleader.
11
Id., Affidavit of Christopher Pinkow, dated June 28, 2008, and Reply Affidavit of
Christopher Pinkow, dated August 13, 2008.
517
In any event, in his affidavits, the defendant again asserted – this time, in
sworn allegations – that it was the company’s principals who defrauded the
company’s customers, and that the defendant himself was innocent of any
wrongdoing.12 The defendant further alleged that the fraud was widespread, and not
limited to the customer involved in the particular suit. 13
He also repeated his
allegation that he discovered the fraud, confronted the principals about it, and resigned
in protest.14
The Litigation in the Civil Cases over the Defendant’s Sealed Plea
In one of the civil cases – the Auto Collection v. Pinkow case, supra – the
company sought to respond to the defendant’s assertions with evidence of his
withdrawn guilty pleas.
The company served a notice to admit demanding that the
defendant admit that he had pled guilty to grand-larceny charges that accused him of
defrauding particular customers.
The defendant refused to admit or to deny the
guilty pleas, but claimed that he was entitled not to answer the notice to admit
because, inter alia, the plea proceedings had been sealed by this Court.
Ultimately, the Honorable Carolyn E. Demarest, who had been assigned to
preside over many of the civil cases, imposed a discovery sanction on the defendant in
the Auto Collection case for refusing to admit the guilty pleas.
of January 13, 2011.
Decision and Order
She did so based in part on her conclusion that the defendant
had waived the protections of the sealing of the plea proceeding.
Justice Demarest
cited two of the cases in which former customers had sued both the company and the
defendant, and in which the defendant had then cross-claimed against the company,
alleging that the fraud was “wholly and solely” on the part of the company.15 The
justice noted that these cases were related to the Auto Collection case, and that the
claims in these cases corresponded to the factual allegations in indictment against the
12
Pinkow Affidavit at ¶¶ 8-19, Pinkow Reply Affidavit at ¶¶ 7-9.
13
Pinkow Affidavit at ¶¶ 8-19, Pinkow Reply Affidavit at ¶ 9.
14
Pinkow Affidavit at ¶¶ 8-19, Pinkow Reply Affidavit at ¶ 9.
15
Butenko v. Auto Collection and Chris Pinkow, Supreme Court, Kings Co., Index
No. 15995/09, and US Autoland, supra, cited in Decision and Order at 2-3.
617
defendant.
Decision and Order at 2-3.
The defendant, by raising cross-claims
against the company in those cases, “places at issue his own conduct and
responsibility for the damages sustained by [the company] and any privilege that
might protect his right of confidentiality has been thereby waived.” Id.
The defendant appealed Justice Demarest’s order, and the Appellate Division
reversed.
2012).
Auto Collection v. C.P.,
A.D.3d
, 939 N.Y.S.2d 541 (2d Dept.
On the issue of whether the defendant had waived the protections of the
sealing of his guilty plea, the Court held that it was not enough that the defendant had
placed his conduct at issue in cross-claims in other cases.
Id. at 543. He had not
raised a cross-claim placing his conduct at issue in the Auto Collection case, and so
had not waived the protections of sealing in that case.
Id.
Notably, the Appellate Division did not have occasion to rule on the
significance of the affirmative defense of fraud the defendant raised in the Auto
Collection case. As noted above, in that affirmative defense of fraud, the defendant
had asserted that the company’s losses were “wholly and solely” due to the fraudulent
acts of the company’s principals.
In the discovery litigation before Justice Demarest,
the company had argued that the defendant had waived the protections of sealing by
raising cross-claims in the related cases, but had not argued that the defendant had
waived the protections of sealing by raising his affirmative defense of fraud in the
Auto Collection case itself. No reference was made to the affirmative defense in
Justice Demarest’s decision, or in the record on appeal before the Appellate Division,
or in the Appellate Division’s decision.
In the instant application, the company seeks to unseal the plea minutes for the
limited purpose of using them to rebut the defendant’s assertions against it in the civil
cases.
The defendant is the respondent in this unsealing application.
He opposes
any unsealing no matter how limited.
The other respondent in this application, the District Attorney of Nassau
County, consents to the unsealing as presently ordered by the Court.16
16
While the District Attorney initially submitted a memorandum of law under seal
opposing any unsealing of the plea proceedings, the District Attorney, as noted in the oral
717
argument of February 21, 2012, ultimately withdrew its opposition and consented to unsealing
to the extent ordered by the Court in this proceeding.
817
Discussion
As noted above, the plea proceedings are sealed both by this Court’s sealing
order based on its inherent authority to seal the proceedings before it, and by operation
of law under CPL 160.50.
As to this Court’s initial sealing order based on its inherent authority, the
factual portion of the defendant’s allocution in the grand-larceny pleas should not
remain sealed.
For the reasons set out in the sealed supplemental decision issued
herewith, in the circumstances of this case, the limited unsealing granted here – which
is consented to by the District Attorney – will not jeopardize the interests that were
protected by the initial sealing by the Court.
16
There remains the issue of CPL 160.50, under which even the factual
allocution remains sealed.
The law is well settled, however, that a former criminal
defendant implicitly waives the protections of CPL 160.50 by placing his alleged
criminal conduct in issue in civil litigation.
693, 700-01 (2001) (surveying cases).
See Green v. Montgomery, 95 N.Y.2d
Here, by the positions he has taken in the four
above-discussed civil suits, the defendant has waived the protections of the sealing
statute, and the factual allocution is unsealed as to each of those cases.
In addition,
in the fourth case, in which the defendant has provided sworn allegations to the civil
Court that are belied by his factual allocution before this Court, unsealing is also
warranted to prevent or expose a fraud on the court.
The Auto Collection Case
Specifically, in the Auto Collection
case, the defendant waived the
protections of the sealing statute by raising the affirmative defense of fraud against the
company.
This is so because “[w]here a party puts into issue in a civil action
16
The sealed supplemental decision is being made available to the defendant’s counsel
in the criminal case, Anthony M. Grandinette, Esq., and to the District Attorney, since both are
already privy to the sealed proceedings, and to the reasons for sealing. The sealed
supplemental decision should also be made available to the appellate court if any application
regarding this Court’s unsealing order is made. Accordingly, it is ordered that any party
making such an application to an appellate court provide to that Court a copy of the sealed
supplemental decision, and that the decision remain sealed as to the other parties, subject to
any order of the appellate court.
917
elements common both to the civil action and to a criminal prosecution, that party
waives the privilege conferred by CPL 160.50.” Lundell v. Ford Motor
Company, 120 A.D.2d 575-76 (2d Dept. 1986) (internal citations omitted).
This principle is not limited to cases in which the former criminal defendant
places facts in the sealed criminal case in issue by bringing suit.
Thus, a former
criminal defendant may waive the privileges of the sealing statute by cross-claiming
against a fellow defendant.
Rodriguez v. Ford Motor Company, 301 A.D.2d 372 (1st
Dept. 2003) (“It does not avail appellants that they are defendants in this action,
not plaintiffs as in Green and Lundell.
As the motion court stated, appellants
effectively made themselves plaintiffs by asserting a cross claim against the
manufacturer (see CPLR 3019[d] ).”). Similarly, a former criminal defendant may
also waive the privileges of sealing by merely seeking to file a notice of claim,
without yet even filing suit.
Ragland v. New York City Housing Authority, 201
A.D.2d 7, 13 (2d Dept. 1994) (“[W]e do not believe that this distinction in the
procedural posture of the instant matter warrants a different result.”).
Likewise, a former criminal defendant may waive the sealing statute just by
applying for unemployment benefits.
In re Wiegand v. Elbridge True Value
Hardware and Hudacs, Commissioner of Labor, 187 A.D.2d 791, 792 (3d Dept. 1992)
(“By applying for benefits, claimant placed in issue the question of whether he
had committed a felony in connection with his employment.”).
Finally, a former
criminal defendant may waive sealing merely by putting facts at issue as witness,
rather than as a party or prospective party.
Green v. Montgomery, 95 N.Y.2d 693,
700-01 (2001) (citing with approval case in which witness waived confidentiality of
records of his Family Court adjudication by giving misleading testimony about it, and
finding that waiver of Family Court confidentiality in that case was analogous to
waiver of sealing of records of criminal proceedings under CPL 160.50).
These cases make plain that the exact procedural posture of the case does not
dictate whether a former criminal defendant has waived the sealing privilege; what
determines waiver is whether the former criminal defendant has affirmatively put in
issue the facts that were at issue in the criminal proceeding.
1017
In his affirmative defense of fraud in the Auto Collection case, the defendant
here did just that.
An affirmative defense, by its nature, affirmatively puts in issue
factual assertions that were not put in issue by the plaintiff’s complaint.
See CPLR
3018 (b) (“Affirmative defenses. A party shall plead all matters which if not pleaded
would be likely to take the adverse party by surprise or would raise issues of fact not
appearing on the face of a prior pleading such as . . . fraud . . .”) (emphasis added);
Siegel, NY Practice, §223 (5th ed.) (defining affirmative defense in practice as one that
puts at issue new facts; “More meaningful is the second standard: that the matter
raises factual issues not introduced by the complaint.”).
Thus, the defendant’s
affirmative defense of fraud constitutes a waiver of the sealing privilege.17
While Justice Demarest also found that the privilege was waived in the Auto
Collection case and the Appellate Division reversed, the Appellate Division’s decision
is not law of the case here.
Justice Demarest grounded her finding of waiver on the
fact that the defendant had put the facts in the sealed record at issue in cross-claims in
related actions.
Decision and Order of January 13, 2011, at 2-3.
The Appellate
Division, however, held that “[t]he cross-claims were not asserted in the action at
issue on this appeal [i.e., the Auto Collection case], and thus, the appellant has not
placed his conduct at issue in this action through the assertion of any cross-claims,
since he has not asserted any.” Auto Collection v. C.P.,
A.D.3d
, 939
N.Y.S.2d 541 (2d Dept. 2012) (internal citations omitted).
But, as noted above, neither Justice Demarest nor the Appellate Division ruled
on or even considered the issue of whether the defendant’s affirmative defense in the
Auto Collection case itself constituted a waiver of the sealing privilege. Thus, the
Appellate Division’s conclusion that there was no waiver arising from the
17
While it is not apparent from the public record, the sealed plea proceedings make
clear that the defendant’s affirmative defense and his sealed guilty pleas concern the same
customers. Not all of the counts in the indictment concern customers who are parties in the
Auto Collection case. Further, while the fact that the defendant pled guilty to three of the
seven counts of the indictment is public knowledge, the precise counts to which he pled guilty
is not. The Court, however, has reviewed the guilty plea minutes in camera, and two of the
pleas involve customers in the Auto Collection case. Consequently, the defendant’s
affirmative defense in the Auto Collection puts at issue his guilty pleas.
1117
cross-claims in the related cases is not law of the case on whether there is waiver
arising from the affirmative defense here, and this Court concludes that there is.
Accordingly, the identity of the counts to which the defendant pled guilty, and
the defendant’s factual admissions to those counts during the allocution of the plea
proceeding of September 29, 2010, is unsealed for use in the Auto Collection case.
The US Autoland and AZTE Cases
The defendant also waived the protections of the sealing statute in the two
cases in which he raised a cross-claim against the company, US Autoland and AZTE.
See Rodriguez v. Ford Motor Company, 301 A.D.2d 372 (1st Dept. 2003) (former
criminal defendant may waive sealing protections of CPL 160.50 by raising
cross-claim).
As discussed above, in these cases, former customers sued both the
defendant and the company, and the defendant cross-claimed for indemnification
against the company.
The defendant supported his claim with factual assertions that
went beyond the particulars of the customers who sued in those cases.
He not only
accused the company’s principals of defrauding the specific customers involved in
those cases, but also asserted a larger pattern of fraud by the company’s principals in
which they stole money from many different customers.18 The defendant further
asserted, essentially, that he was entirely innocent of this fraud.
According to the
defendant, it was he who discovered the fraud, confronted the principals about it,
resigned in protest, and reported the fraud to law enforcement officials.19
The defendant’s assertions in US Autoland and AZTE place at issue the same
facts that were the subject of the grand-larceny charges to which he pled guilty.
Each of the seven grand-larceny counts in the indictment charged the defendant with,
while acting in concert with the company, defrauding customers.
A guilty plea to
any of these counts – not just to those involving the specific customers involved in the
US Autoland and AZTE cases – would thus contradict the defendant’s assertions that
the company engaged in a wide-ranging pattern of defrauding its customers, and that
18
AZTE Inc., Verified Answer & Cross-Claims of Defendant Christopher Pinkow, at
¶¶ 76-80; US Autoland LLC, Answer & Cross-Claim of Defendant Christopher Pinkow, at ¶
¶ 111-14.
19
Id.
1217
he himself was entirely innocent of this.
Therefore, the defendant’s assertions in his
cross-claims in US Autoland and in AZTE put squarely in issue the conduct alleged in
the grand-larceny counts in the indictment, and so waive the protections of the sealing
statute with respect to those two cases.
See Rodriguez at 372 (former criminal
defendant’s conduct by denying his own fault entirely and blaming company
co-defendant in civil suit waived sealing).20
Accordingly, the identity of the counts to which the defendant pled guilty, and
the defendant’s factual admissions to those counts during the allocution of the plea
proceeding of September 29, 2010, is unsealed for use in the Autoland and AZTE
cases.
The L & L Auto Case
20
The defendant also raised a cross-claim of indemnification against the company in
another case, Butenko v. Auto Collection and Chris Pinkow, Supreme Court, Kings Co., Index
No. 15995/09. But in that case, the defendant limited his factual assertions to the customer
who was the plaintiff, and that customer was not the complainant in any of the grand-larceny
counts with which the defendant was charged.
Cf. Butenko, Verified Answer &
Cross-Claims of Defendant Christopher Pinkow, at ¶ 37, with Indictment No. 698N/10, Cts.
1-7. Consequently, the defendant’s more modest assertions in his cross-claim in Butenko do
not put at issue the facts alleged in the criminal case, and his cross-claim therefore does not
constitute a waiver of the sealing statute as to Butenko.
1317
Finally, unsealing is warranted in the L & L Auto Distributors and Suppliers
Inc. case, as well. In this case, a former customer sued the company, but not the
defendant.
The defendant, although not at the time a party, provided the customer
with two affidavits in which he again asserted – this time, in sworn allegations – that
it was the company’s principals who had defrauded the company’s customers, and that
the defendant himself was innocent of any wrongdoing.21 The defendant further
alleged that the fraud was widespread, and not limited to the customer involved in the
particular suit.22 He also repeated his allegation that he had discovered the fraud,
confronted the principals about it, and resigned in protest.23
As noted above, the Court of Appeals has recognized that a former criminal
defendant may waive the protections of sealing merely by putting facts at issue as a
witness, rather than as a party or prospective party.
Green v. Montgomery, 95
N.Y.2d 693, 700-01 (2001) (citing with approval case in which witness waived
confidentiality of records of his Family Court adjudication by giving misleading
testimony about it, and finding that waiver of Family Court confidentiality in that case
was analogous to waiver of sealing of records of criminal proceedings under CPL
160.50).
Here, the defendant’s factual allocutions in any of his grand-larceny pleas
would belie the exculpatory account that he gave, under oath, to the Court in his
affidavits in the L & L Auto case.
21
Pinkow Affidavit at ¶¶ 8-19, Pinkow Reply Affidavit at ¶¶ 7-9.
22
Pinkow Affidavit at ¶¶ 8-19, Pinkow Reply Affidavit at ¶ 9.
23
Pinkow Affidavit at ¶¶ 8-19, Pinkow Reply Affidavit at ¶ 9.
1417
While the defendant pled guilty after, rather than before, he swore out the
suspect affidavits in L & L Auto, this does not change the waiver analysis.24 The
defendant apparently provided false sworn statements to a court.
stand.
He cannot let them
Although not a party to the L & L Auto case until recently,25 the defendant
has nonetheless been free at any time to retract his earlier false affidavits.
But the defendant has not done so, allowing statements that are necessarily
false to stand before either this Court or the L & L Auto Court.
He has thus put in
issue the statements he made in the affidavits in L & L Auto, and so has waived the
protections of the sealing statute in that case.
See Green v. Montgomery, 95 N.Y.2d
at 700-01.
In any event, the sealing protections set out in CPL 160.50 were not intended
to permit a fraud on the court.
The defendant’s contrary allegations in his affidavits
warrant unsealing of his admissions in the plea proceeding to prevent or expose such
fraud.
See United States v. Watkins, 623 F.Supp.2d 514 (S.D.N.Y. 2009) (plaintiff
in civil action made certain allegations about his financial status that were belied by
his claims of indigence in earlier federal criminal case; federal pre-sentence report and
probation records unsealed to prevent fraud on the court).
Accordingly, the identity of the counts to which the defendant pled guilty, and
the defendant’s factual admissions to those counts during the allocution of the plea
proceeding of September 29, 2010, is unsealed for use in the L & L Auto case.
In summary, the unsealing application is granted to the extent that the identity
of the counts to which the defendant pled guilty, and the defendant’s factual
24
This is true of the other cases in which this Court is granting unsealing – Auto
Collection, US Autoland,and AZTE – but there, the chronology plainly does not matter. In
those cases, the defendant, as a party rather than a witness, was free to withdraw his
cross-claims and his affirmative defense. He has chosen instead to maintain them, even after
his grand-larceny pleas were sealed. Consequently, he continues to put the subject of the
sealed pleas at issue, and so waives the protections of the sealing statute.
25
The parties inform the Court that, at the time of oral argument, the submissions
impleading the defendant into the case had been filed, but had not yet been served on him.
1517
admissions to those counts during the allocution of the plea proceeding of September
29, 2010, is unsealed in the foregoing cases.
To be clear, the remaining portions of
the allocution and plea proceeding, including the reasons for this Court’s initial
sealing order, are not unsealed.
1617
The defendant has requested that, in the event this unsealing application is
granted, the order directing unsealing be stayed for sufficient time to permit him to
seek relief from the Appellate Division.
Accordingly, the order to unseal will take
effect ten days from the date of this order, absent a stay of the order issued by the
Appellate Division.
Dated: April 11, 2012
______________________
William C. Donnino, J.S.C.
cc:
Karl C. Seman, Esq.
Grunwald & Semen, P.C.
100 Garden City Plaza, Ste. 203
Garden City, New York 11530
Leo K. Barnes, Jr., Esq.
Barnes & Barnes, P.C.
445 Broadhollow, Road, Ste. 229
Melville, New York 11474
Anthony M. Grandinette, Esq.
Grandinette & Serio
114 Old Country Road, Ste.420
Mineola, New York 11501
Andrew Multer, Esq.
Bahn Multer & Gold, LLP
555 Fifth Avenue, 14th Floor
New York, New York 10017
Assistant District Attorney Teresa Corrigan
Street Narcotics and Gangs Bureau
Nassau County District Attorney’s Office
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