Opinion
Investigation No. 422781-2023
10-13-2023
Matter of Grand Jury Investigation No. 422781-2023
For the People: Assistant District Attorney Katherine Demartini, Of Counsel, New York County District Attorney's Office For Covenant House: Argirios J. Nickas, Esq.
For the People: Assistant District Attorney Katherine Demartini, Of Counsel, New York County District Attorney's Office
For Covenant House: Argirios J. Nickas, Esq.
Althea E.M. Drysdale, J.
Covenant House, being the recipient of a subpoena duces tecum in which the People of the State of New York requested interior and exterior video footage from their place of business at 460 West 41st Street in relation to a slashing that occurred in front of the location, moves to partially quash the subpoenas, arguing that they are prohibited from releasing the interior video surveillance footage from the shelter pursuant to the New York State Runaway and Homeless Youth Act (hereinafter, "NY Exec. Law § 532-E(e)"). The recipient further argues that the subpoena should be quashed due to improper service. The People filed a response in opposition, arguing that the requested materials fall outside the intended scope of the statute and are particularly relevant to an ongoing criminal investigation. Covenant House filed a reply in response. For the reasons stated herein, the recipient's motion to quash is denied and the recipient is ordered to turn over the requested video surveillance depicting the interior of Covenant House as well as the requested incident reports.
Summary of Facts
The subpoenas in question relate to a June 10, 2023 altercation that occurred in front of Covenant House, a shelter for runaway youth and adolescents experiencing homelessness. At around 1:17pm, officers responded to the shelter, located at 460 West 41st Street, New York, NY in response to a 911 call placed by a Covenant House staff member regarding an individual who was suffering from a 15-centimeter-long laceration that spanned the length of his upper arm and elbow. The complainant stated that he was a resident at the shelter and had an ongoing dispute with the perpetrator, a former resident at the shelter. The complainant further reported that the perpetrator swung a large butcher knife at the complainant, causing the injury to his arm. The complainant retreated inside Covenant House immediately after the attack, where he received medical treatment from a staff member on-site while awaiting emergency medical services.
Procedural History
Later that same day, the detective assigned to the case contacted the assigned Assistant District Attorney in order to obtain a subpoena duces tecum for video from Covenant House that was likely to depict images relevant to this investigation as well as any incident reports completed by Covenant House in relation to this incident. A subpoena was then e-mailed to Covenant House requesting said materials. A representative from Covenant House responded a few hours later stating that the subpoena would be reviewed by their legal team. Two days later, Covenant House's Chief Officer of Planning and Performance responded stating that the facility would provide the footage depicting the outside of the facility but was prohibited from providing footage depicting the inside of the facility pursuant to NY Exec. Law § 532-E(e). Later that day, the People spoke with the Chief Legal Officer for Covenant House. Four days later, the external video was provided to the assigned detective, as requested, but the internal video was not.
On June 22, 2023, the People served a so-ordered subpoena on Covenant House via e-mail, again requesting that the shelter provide the internal video surveillance in relation to the incident, as well as any incident reports in relation to the complainant and the perpetrator. The materials were again not provided.
On July 10, 2023, Covenant House filed a motion to quash the subpoena, arguing that the shelter was not permitted to disclose the video surveillance pursuant to NY Exec. Law § 532-E(e) and further arguing that the subpoenas were improperly served. The People filed a response in opposition, and Covenant House filed a reply in response.
Memorandum of Law
A. Impact of the Runaway and Homeless Youth Act on Covenant House's Ability to Comply with the Subpoena
"In its role as parens patriae, New York is under a powerful duty to protect its domiciliaries from harm." Matter of Sayeh R., 91 N.Y.2d 306, 313, (NY Ct. App. 1997) citing NY Const., art. XVII, § 3. Executive Law § 532-e enumerates some of the powers and duties of the Office of Children and Family Services, namely that the Office will oversee approved runaway programs and transitional housing facilities, certify private residential facilities, maintain a leger of runaway programs, submit annual reports to the legislature regarding youth experiencing homelessness, ensure the education of runaway and homeless youth, and "develop and promulgate in consultation with county youth bureaus and organizations or programs which have had past experience dealing with runaway and homeless youth, regulations concerning the coordination and integration of services available for runaway and otherwise homeless youth and prohibiting the disclosure or transferal of any records containing the identity of individual youth receiving services [ ], without the written consent of the youth." NY Exec. Law § 532-e (emphasis added).
As an initial matter, it is unclear whether the internal video surveillance from Covenant House depicting the complainant or the perpetrator would constitute "records containing the identity of individual youth receiving services," as intended by the statute. The language of the Runaway and Homeless Youth Act clearly demonstrates that these bars on disclosure are meant to protect the privacy of youths seeking housing and services from youth shelters. The nondisclosure requirement undoubtedly serves an important end: many of the youth that utilize such establishments are fleeing difficult situations that could involve maltreatment, abuse, and neglect, often by family members. The safeguarding of such information ensures that the youth can obtain housing and services confidentially, without fear of being found by their abusers. Nondisclosure is clearly relevant as it relates to medical treatment records, housing records, counseling records, and the like, but its application to video surveillance relating to a crime and incident reports relating to altercations between the complainant and the suspect does not seem to fit within the legislative intent. Quite the opposite, construing the Runaway and Homeless Youth Act to include the video surveillance from inside the shelter and related incident reports would lead to contradictory results, as the requested video surveillance and incident reports are necessary evidence in the prosecution of a suspect who brutally slashed a youth resident of Covenant House while they were in front of the premises.
Even if the video surveillance is considered a "record containing the identity of a youth receiving services," as intended by the Runaway and Homeless Youth Act, its disclosure would still not be barred in this set of circumstances. Covenant House cites to several prior decisions to justify the nondisclosure of the requested internal video surveillance and requested incident reports. In each of the cases cited by Covenant House, the subpoenas requested records relating to youths who were either complainants or defendants in the cases at hand. But in those cases, none of the crimes were alleged to have occurred on the premises of the youth shelters, and none requested video surveillance relating to an alleged crime.
Specifically, Covent House relies on Matter of Sonya M., 115 Misc.2d 207 (Fam. Ct. Nassau County, 1982); People v. Garcia, 128 Misc.2d 810 (Crim. Ct. Kings County, 1985); People v. Feijoo, 131 Misc.2d 980 (Sup. Ct. NY County, 1986); and In the Matter of Covenant House/ Under 21, 169 A.D.2d 723 (2nd Dept., 1991).
This case is distinguishable as there is a showing of relevance and a factual predicate that requires the disclosure of the video surveillance and corresponding incident reports, and the People have met their burden of providing clear reasons why that information would be invaluable to the prosecution of this criminal investigation. Video surveillance from inside of Covenant House would arguably show the complainant fleeing from the alleged attack and could possibly show the complainant receiving medical attention from staff members. The People also contend that the video could reveal possible interactions between the complainant and others before the alleged assault occurred, therefore providing relevant context for the alleged assault. The complainant also alleges that the complainant and the perpetrator, who is a former resident of the shelter, have had a tumultuous relationship in the past, therefore providing a factual predicate and establishing the relevance of any incident reports relating to prior altercations between the complainant and the perpetrator.
For these reasons, the recipient's motion to quash the subpoena due to an inability to disclose the requested information is denied.
B. Issue of Proper Service
CPL § 610 provides the strictures under which a citizen, or in this case a business, can be required to appear in court and provide the specified physical evidence that is requested. CPL § 610.10. The People are permitted to issue subpoenas in relation to the investigation of a criminal action, and the Court is permitted to issue a so-ordered subpoena in any criminal action pending before the court. CPL § 610.20(1) and (2). The subpoena issued must request either testimony or evidence that is reasonably likely to be relevant and material to the proceedings at hand and must not be overly broad or unreasonably burdensome. CPL § 610.20(4).
A subpoena originating from New York City criminal courts may be served anywhere in the state. CPL § 610.25(3). "Service must be made in the manner provided by the civil practice law and rules for the service of subpoenas in civil cases." CPL § 610.40. According to the civil practice law, "where the attendance at trial of a party or person within the party's control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with subdivision (b) of rule 2103 to the party's attorney of record." CPLR § 2303-A. Among other methods, proper service may be effectuated, "by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the party's written consent." CPLR § 2103(7). "'Electronic means' means any method of transmission of information between computers or other machines designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce the information transmitted in a tangible medium of expression." CPLR § 2103(7)(f)(2).
Here, the People, by way of the case detective, initially served the subpoena upon Covenant House via e-mail to several staff members at Covenant House, including their chief legal counsel, with the assigned Assistant District Attorney cc'd. Covenant House replied to the e-mail almost immediately and indicated that they would discuss the matter with their legal counsel and respond to the People. It is important to note that, outside of phone calls that were pre-arranged via e-mail communication, all communications between the parties to date, including inquiries to this Court, have occurred via e-mail.
The recipient's motion to quash the subpoena due to improper service is without merit. The communications throughout the pendency of this matter have been almost exclusively via e-mail, thus establishing a pattern of service. Knopf v. Sanford, 150 A.D.3d 608, 610 (1st Dept. 2010) (holding that e-mail service was proper when there was an established pattern of communication between the parties). At no point during these communications did Covenant House object to service via e-mail. In fact, once the subpoena was received via e-mail, Covenant House sent several replies based on that initial e-mail and partially complied with the subpoena by sending the People the exterior footage that had been requested. Covenant House did not challenge service of the subpoena until July 10, 2023, well after the subpoena was served, discussions were had amongst the parties, and the subpoena was partially complied with. Furthermore, the detective assigned to this case detailed via an affirmation attached to the People's response that he has almost exclusively served subpoenas on Covenant House via e-mail in the past, in part due to the fact that staff members would seemingly thwart his attempts to serve physical subpoenas in-person by (1) refusing service, (2) stating that the individual that the detective was looking to serve was not present, and even (3) refusing to allow the detective to enter the shelter to serve the subpoena. The case detective also affirms that subpoenas served on Covenant House in the past had also been sent via e-mail, furthering the People's argument that there is an established pattern of e-mail communication between Covenant House and law enforcement officials in these instances. Therefore, the recipient's motion to quash the subpoena due to improper service fails.
Conclusion
For these reasons, the recipient's motion to quash the subpoena is denied. Covenant House is ordered to turn over the remaining interior video surveillance and requested incident reports to the District Attorney's Office.
This constitutes the Decision and Order of the Court.