Gomelskaya v. United States of America
Filing
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ORDER denying 1 Motion to Expunge. See attached. Ordered by Judge Sterling Johnson, Jr on 8/18/2015. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
10-CR-460 (SJ)
– against –
MARIYA GOMELSKAYA,
Defendant.
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MARIYA GOMELSKAYA,
Petitioner,
– against –
14-MC-1170 (SJ)
UNITED STATES OF AMERICA,
Respondent.
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APPEARANCES
KELLY T. CURRIE
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Michael Warren
Attorneys for the Government
MARIYA GOMELSKAYA, Pro Se
2955 West 29th Street
Apartment 161
Brooklyn, NY 11224
JOHNSON, Senior District Judge:
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On May 24, 2011, Mariya Gomelskaya (“Gomelskaya”) pled guilty to one
count of health care fraud before this Court. She had a minor role in the offense
and did not gain from the misstatements submitted to Medicare by the office that
employed her as a part-time medical billing assistant. A Pre-Sentence Report
(“PSR”) was prepared in anticipation of sentencing. The PSR calculated a total
offense level of 8 under the United States Sentencing Guidelines and a criminal
history category of I. The corresponding guideline sentence was 0 to 6 months
incarceration. On February 24, 2012, Gomelskaya was sentenced to one month
imprisonment to be followed by 3 years supervised release.
Her sentence is
complete, her period of supervision ended without incident, and restitution has been
fully paid. Pending before the Court is Gomelskaya’s pro se motion to expunge the
record of conviction, which the government opposes. Based on the submission of
the parties, and for the reasons below, the motion is DENIED.
DISCUSSION
While the decision to expunge a defendant’s criminal record is within the
discretionary power of the District Court, “[t]he power to expunge is a narrow one
. . . and should be reserved for the unusual or extreme case.” United States v.
Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) (citing United States v. Rosen, 343 F.
Supp. 804, 807 (S.D.N.Y. 1972)). This Court must determine whether the required
“extreme circumstances” exist by balancing the “equities between the right of
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privacy of the individual and the right of law enforcement officials to perform their
necessary duties.” Schnitzer, 567 F.2d at 539. In this case, Petitioner failed to
demonstrate extraordinary circumstances which could outweigh the government’s
interest in effective law enforcement.
Courts have routinely rejected motions to expunge “where the movant does
not even challenge the legality or validity of the conviction for which expunction of
records is sought.” Holmes v. United States, No. 99 MC 106 (MDG), 2005 WL
1320149, at *2 (E.D.N.Y. Jun. 2, 2005) (citations omitted); see also United States
v. Noonan, 906 F.2d 952, 957 (3d Cir. 1990) (despite presidential pardon, court
refused to expunge records where defendant did not challenge conviction itself);
United States v. Byrde, 914 F. Supp. 38, 40 (N.D.N.Y. 1996) (quoting United
States v. Sherman, 782 F. Supp. 866, 870 (S.D.N.Y. 1991)) (declining to expunge
records of convicted defendant who had “not challenged the circumstances or fact
of that conviction.”).
Here, Gomelskaya does not question the validity of the conviction itself but
argues that she continues to fail background checks performed by potential
employers and as a result is receiving unemployment compensation and food
stamps; this despite earning a Bachelor of Arts degree, magna cum laude, in
Psychology from Touro College since her release from custody.
The Court
recognizes Gomelskaya’s scholarship and rehabilitation but unfortunately, a
criminal record’s adverse effects on a person’s employment do not constitute
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grounds for expungement. See, e.g., Moss v. United States, No. 09 MC 495 (JFB),
2011 WL 1706548, at *3 (E.D.N.Y. May 4, 2011) (collecting cases and denying
motion to expunge wire fraud conviction where teacher feared fingerprinting
process would reveal her criminal record); see also United States v. Robinson, No.
04 CR 580 (VVP), 2007 WL 2077732, at *2 (E.D.N.Y. Jul. 18, 2007)
(“[C]onsequences attendant to possessing a criminal record, such as loss of
financial or employment opportunities, do not fall within the narrow bounds where
expungement has been declared appropriate.”).
While the Court is concerned that Gomelskaya remains on public
assistance, she was also employed at Frank Patruno Law Offices while she attended
college and left that job “because there was no potential for career growth.”
Therefore, the Court is hesitant to find that she is unemployable. Moreover, in
Gomelskaya’s pre-sentence interview, she reported three bank accounts totaling
$197,414.09 in assets. Gomelskaya’s mother, a home health care attendant and
United States Permanent Resident, resides with her and provides financial
assistance to her as well. While the ideal goal is for Gomelskaya to be “able to
participate as [a] productive member[] of society by working and paying taxes,”
she has not demonstrated a situation so extraordinary as to warrant expungement.
Cf. Doe v. United States, No. 14 MC 1412 (JG), 2015 WL 2452613, (E.D.N.Y.
May 21, 2015) (granting motion to expunge where 17 years elapsed since
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conviction and the petitioner, a single mother of four, lost six jobs and was in dire
financial straights, struggling even to make $25 monthly restitution payments).
The reality is that post-conviction employment issues present an ongoing
challenge in our society. The Court will note that New York State Law prohibits
denying employment unless there is a “direct relationship” to the offense of
conviction. See N.Y. Exec. Law § 296(15); N.Y. Correct. Law §§ 750 to 753.
Even then, the employer must consider: time elapsed since the offense, proof of
rehabilitation or good conduct, age, and other factors. See N.Y. Correct. Law §
753; N.Y. Corrections Law, Article 23–A. In addition, the potential employee is
entitled to a written statement of why employment was denied. See N.Y. Correct.
Law § 754. Lastly, employers are required, under New York Law, to “give
consideration to a certificate of relief from disabilities” since the “certificate shall
create a presumption of rehabilitation.” See N.Y. Correct. Law § 753(2). If, as
Gomelskaya alleges, she has been denied employment opportunities in New York
solely on the basis of her previous conviction, she is entitled to a written
explanation of why employment was denied within thirty days, upon her request.
Going forward, Gomelskaya might demand a timely explanation for denial
of employment in order to demonstrate that (a) her educational and employment
history is more important than a four-year old conviction, or (b) the denial of
employment solely on the basis of a prior conviction unrelated to the employment
sought is contrary to New York State law.
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While medical billing and
Gomelskaya’s chosen field of psychology are not entirely unrelated, the work she
seeks is with disabled infants and toddlers and does not appear to have a direct
relationship with the offense committed.
Despite the fact that her conviction and sentence were federal, Gomelskaya
may seek a Certificate of Relief from Civil Disabilities in New York State Supreme
Court, according to New York Law. See N.Y. Correct. Law 704; see also In re
Helmsley, 152 Misc. 2d 215, 575 N.Y.S.2d 1009, 1012 (N.Y. Sup. Ct. 1991)
(petitioner can seek certificate of relief from civil disabilities from federal
conviction in New York State Supreme Court).
CONCLUSION
For the foregoing reasons, the motion is denied. The Clerk of the Court is
directed to close the case styled Gomelskaya v. United States, No. 14 MC 1170.
Dated: August 18, 2015
Brooklyn, NY
___________/s_______________
Sterling Johnson, Jr., U.S.D.J.
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