PEOPLE v. HERRNKIND (2026)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Marina C. Mundy, J.), dated April 25, 2023, which denied, without a hearing, her motion pursuant to CPL 440.47 to vacate her sentence and to be resentenced in accordance with Penal Law § 60.12, to seal the record of the motion, and to make the caption anonymous.

ORDERED that the appeal from so much of the order as denied that branch of the defendant's motion which was pursuant to CPL 440.47 to vacate her sentence and to be resentenced in accordance with Penal Law § 60.12 is dismissed as academic;  and it is further,

ORDERED that the order is affirmed insofar as reviewed.

On November 5, 2001, the defendant and her codefendant, her husband, abused and killed their three-year-old daughter.  In 2004, the defendant was convicted of manslaughter in the first degree and sentenced to a determinate term of imprisonment of 25 years, to be followed by 5 years of postrelease supervision.  On appeal, this Court affirmed the judgment of conviction (see People v Herrnkind, 49 AD3d 555).

In 2022, the defendant moved pursuant to CPL 440.47 to vacate her sentence and to be resentenced under the Domestic Violence Survivors Justice Act (DVSJA) in accordance with Penal Law § 60.12, to seal the record of the motion, and to make the caption anonymous.  In an order dated April 25, 2023, the Supreme Court denied the motion without a hearing, determining, inter alia, that the defendant failed to submit evidence within the definition of the DVSJA corroborating that she was subject to abuse at the time of the offense or that the abuse was substantial.  The defendant appeals.

It is undisputed that during the course of this appeal, the defendant was released from custody and thereafter discharged from parole.  Accordingly, her contentions regarding her entitlement to resentencing under the DVSJA have been rendered academic, as she has already served the challenged sentence (see People v Colon, 129 AD3d 740, 740;  People v Nicholson, 31 AD3d 468, 469).

Civil Rights Law § 50–b provides that the “identity of any victim of a sex offense” shall be confidential.  Further, 22 NYCRR 216.1(a) provides that “[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof.  In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.”  “[T]he party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access” (Maxim Inc. v Feifer, 145 AD3d 516, 517 [internal quotation marks omitted];  see Matter of Cyprium Therapetics, Inc. [Curia Global, Inc.], 223 AD3d 1042, 1044).

Here, the defendant failed to establish that she was the victim of a sex offense as defined by Civil Rights Law § 50–b (see Doe v Good Samaritan Hosp., 65 Misc.3d 987, 990 [Sup Ct, Nassau County];  cf.  People v Nymeen C., ––– AD3d ––––, 2026 NY Slip Op 00144).  In addition, she failed to demonstrate compelling circumstances to seal the record of the motion, as the majority of the information contained therein was already made public during the defendant's criminal trial (see Ava v NYP Holdings, Inc., 64 AD3d 407, 416).  Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to seal the record.

“In determining whether to grant a [party's] request to proceed anonymously, the court must use its discretion in balancing [that party's] privacy interest against the presumption in favor of open trials and against any potential prejudice to [their opponent]” (Doe v Khandker, 221 AD3d 782, 782 [internal quotation marks omitted];  see Roe v Harborfields Cent. Sch. Dist., 212 AD3d 853, 855).  “Among the factors the court should consider are 1) whether the [party] is challenging governmental activity or an individual's actions, 2) whether the [party's] action requires disclosure of information of the utmost intimacy, 3) whether identification would put the [party] [or innocent third-parties] at risk of suffering physical or mental injury, 4) whether the [opponent] would be prejudiced by allowing the [party] to proceed anonymously, and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system” (Doe v Khandker, 221 AD3d at 782–783 [internal quotation marks omitted];  see Roe v Harborfields Cent. Sch. Dist., 212 AD3d at 855).

Here, in support of her motion, the defendant submitted an attorney affirmation that made only a brief statement that the defendant might suffer further mental harm if her identity was revealed, which was insufficient to support the relief requested.  Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to make the caption anonymous (see Twersky v Yeshiva Univ., 201 AD3d 559, 560).

BARROS, J.P., CHAMBERS, LOVE and MCCORMACK, JJ., concur.