Opinion
#
03-29-2019
In the Matter of Christal D.M. ALORA D.M. Children under Eighteen Years of Age Alleged to be Neglected by Christopher D.M., Respondent.
Alan Sputz, Esq. Special Assistant Corporation Counsel Administration for Children's Services Family Court Legal Services 330 Jay St., 12th Floor Brooklyn, NY 11201 By: Ayo Alston-Moore, Esq. Lina Del Plato, Esq. Legal Aid Society, Juvenile Rights Practice 111 Livingston St., 8th Floor Brooklyn, NY 11201 Attorney for the Children Edward Irizarry, Esq. 260 Madison Ave., 8th Floor New York, NY 10016 Attorney for the Respondent Father
Alan Sputz, Esq. Special Assistant Corporation Counsel Administration for Children's Services Family Court Legal Services 330 Jay St., 12th Floor Brooklyn, NY 11201 By: Ayo Alston-Moore, Esq. Lina Del Plato, Esq. Legal Aid Society, Juvenile Rights Practice 111 Livingston St., 8th Floor Brooklyn, NY 11201 Attorney for the Children Edward Irizarry, Esq. 260 Madison Ave., 8th Floor New York, NY 10016 Attorney for the Respondent Father Erik S. Pitchal, J.
Now pending before the Court is the Attorney for the Children's ("AFC") motion in limine (#1) to preclude Respondent from entering into evidence a 911 recording, based on the sealing provision of Criminal Procedure Law ("CPL") §160.50. In consideration of this motion, the Court has reviewed AFC's moving papers, dated February 1, 2019, Respondent and Petitioner's response papers, dated February 22, 2019 and March 4, 2019, respectively, and AFC's reply papers dated March 1, 2019.
The ruling below is contingent upon Respondent laying the necessary foundation for admission of a business record. FCA §1046(a)(iv); Matter of Leon RR., 48 NY2d 117, 122 (1979). For the reasons that follow, the motion is denied.
Before the Court is a petition filed by ACS on October 19, 2017, alleging that the Respondent perpetrated acts of domestic violence in the presence of the children. On November 28, 2018, the fact-finding commenced and Respondent's counsel indicated on the record that he would be seeking to admit the 911 recording concerning an October 8, 2017 incident. According to the case file, Respondent's criminal court case related to that incident was dismissed and sealed. AFC filed the instant motion to preclude the 911 recording under CPL §160.50.
In its response papers, Petitioner does not take a position on the admissibility of the 911 recording and only addresses issues of timely discovery.
CPL §160.50(1)(c) provides in pertinent part that "all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency." In Matter of Dondi, the Court of Appeals held that the statute should be interpreted to include tape recordings in addition to papers and other records. 63 NY2d 331 (1984). In Harper v. Angiolillo, the Court of Appeals observed that "although CPL 160.50 specifies judgments and orders of a court as items 'included' in the category of official records and papers, the statute is otherwise silent on the nature of such 'official' material further supporting the conclusion that bright line rules are not wholly appropriate in this area. Indeed, such records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case." 89 NY2d 761, 766-767 (1997) (internal citations omitted).
The tape recording in Dondi was of a conversation between the police officer and the respondent that was secretly recorded by the officer.
The present issue is whether 911 recordings fall under the sealing statute. This Court finds that in this case they do not. While a call to 911 may have the collateral effect of commencing a criminal investigation, such calls are not initiated by law enforcement action. The purpose of a 911 call is not to commence an investigation, but for anyone who needs emergency assistance by means of medical, fire or police to receive such assistance. Indeed, many calls to 911 — even those seeking police as opposed to fire or medical assistance — do not result in a criminal investigation, let alone prosecution. Although the 911 recording may be maintained and used by law enforcement during an investigation, should one commence, the recording is not the work product of law enforcement as is a recording of a police interrogation. It is undoubtedly for this reason that the only appellate court to rule squarely on the question of whether 911 recordings are "official records related to [a criminal defendant's] prosecution" held that they are not, and that they are thus admissible in a collateral civil proceeding. Dockery v. N.Y.C. Housing Auth., 51 AD3d 575 (1st Dep't. 2008).
Respondent argues that the 911 recording contains exculpatory evidence in that he alleges the maternal grandmother made the 911 call and pretended to be the non-respondent mother. The protective measure in sealing a defendant's criminal record should not be used as a sword preventing Respondent from putting on his defense in a related Article Ten matter. Certainly the defensive use of a 911 recording by a respondent who is the intended beneficiary of CPL §160.50 sealing is one of the "circumstances" contemplated by Harper in which a recording falls outside the statute. If the dismissal and sealing of a criminal case is designed to "restore []" an accused "to the status he occupied before the arrest and prosecution," CPL §160.60, the problem for Mr. D.-M. is that he still faces an Article Ten proceeding in Family Court based on the exact same allegations that led to the criminal case. The reasoning in Matter of Carolina K., 55 Misc 3d 352 (Kings Ct. Fam Ct. 2016), thus does not apply. Respondent must be permitted to use the 911 recording to defend himself here.
Even if the Court were to hold that the 911 recording in this case is covered by the sealing statute, which it does not, it would further hold that disclosure of the otherwise sealed recording to the defendant for use by him in a Family Court proceeding is authorized by CPL §160.50(1)(d), as his request is far more narrow than the relief sought by petitioner in Harper and he has a bona fide, due process-grounded basis for it. --------
For the foregoing reasons, MOTION #1 is denied. Dated: March 29, 2019
ENTER