
    Ronald L. Diorio, Petitioner, v City of Utica et al., Respondents.
    City Court of Utica,
    February 11, 1976
    
      
      Longeretta & Longeretta (John A. Longeretta of counsel), for petitioner. Richard D. Enders, District Attorney (Kurt Hamelin of counsel), for respondents.
   Harold H. Hymes, J.

The petitioner moves here to expunge all records of his arrest on September 12, 1975.

It appears from his petition, with no denial entered by the respondent, that the petitioner was arrested on that date, pursuant to an information charging him in the City Court of Utica with "unauthorized use of a motor vehicle”, in violation of subdivision 1 of section 165.05 of the Penal Law. He was brought to the police station, where an arrest sheet was completed and fingerprints, palmprints and photographs were taken. On September 15, 1975, when he appeared in City Court, and before he was arraigned, an informal conference was held, from which it was learned that the complaint and the arrest were the result of a mistake. It appeared that there were two similar vehicles parked side by side and the petitioner-defendant thought he was taking his brother’s automobile when, in fact, he was taking the automobile which, it turned out, was owned by a friend. The next day, when he realized his mistake, he proceeded to return the vehicle and in the process of so doing, he was arrested by an officer of the Utica Police Department pursuant to a warrant of arrest.

The defendant was never arraigned in City Court and the charge was withdrawn and the defendant was discharged.

It appears that the petitioner-defendant is a school teacher, presently employed by BOCES, and formerly employed by the Utica School District. He has no prior record of any kind, nor has he ever been arrested or charged with any other offense. He believes that when he made application for another position and was rejected, in some way the prospective employer may have learned of his arrest on September 12. He therefore asks that the record of arrest be expunged.

The question of expunging records and removing the stigma of an arrest has been presented to the Legislature for consideration. The courts have been reluctant to exercise their power to expunge arrest records and their powers in that regard are not spelled out by any statute.

However, a court has control of its own records and may consider a particular situation and act in the interest of justice. This court feels that such a situation is now presented to it and, therefore, in the interest of justice it will order that the information and complaint now on file in the City Court of Utica be destroyed, and that any other entry thereof in the books of the City Court be removed and expunged, and the court will further order that the records of the Utica Police Department will be expunged of any criminal arrest record made in the name of the petitioner herein for this arrest, and that his name be erased from the police arrest book, and that the arrest sheet be destroyed and any other records of this arrest will be returned or destroyed and any fingerprints, palmprints or photographs made of the defendant as a result of this arrest, or any copies thereof in the possession of the Utica Police Department or any of its officers, shall be returned to the petitioner-defendant.  