Opinion
NN-xxxx/18
04-12-2019
In the Matter of Estrella G.-C., Yago B.-C., Children under Eighteen Years of Age Alleged to be Neglected by Julio B., 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: Jason Sender, Esq. Legal Aid Society, Juvenile Rights Practice 111 Livingston St., 8th Floor Brooklyn, NY 11201 By: Robin Karasyk, Esq. Attorney for the Children Brooklyn Defender Services—Family Defense Practice 195 Montague Street, 5th Floor Brooklyn, NY 11201 By: Lindsay Long-Waldor, Esq. Attorney for the Respondent Father Charles Lawson, Esq. 26 Court Street, Suite 2410 Brooklyn, NY 11242 Attorney for the Non-Respondent Mother
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: Jason Sender, Esq. Legal Aid Society, Juvenile Rights Practice
111 Livingston St., 8th Floor
Brooklyn, NY 11201
By: Robin Karasyk, Esq.
Attorney for the Children Brooklyn Defender Services—Family Defense Practice
195 Montague Street, 5th Floor
Brooklyn, NY 11201
By: Lindsay Long-Waldor, Esq.
Attorney for the Respondent Father Charles Lawson, Esq.
26 Court Street, Suite 2410
Brooklyn, NY 11242
Attorney for the Non-Respondent Mother Erik S. Pitchal, J.
Now pending before the Court is the Respondent Father's motion in limine (#1) to preclude from fact-finding the following: 1) portions of the Oral Report Transmittal ("ORT"); 2) portions of the Woodhull Hospital records; and 3) the 911 recording and associated Sprint Report. In consideration of this motion, the Court has reviewed Respondent's moving papers, dated March 8, 2019, and Petitioner's response papers dated March 29, 2019. The attorney for the children did not submit papers.
The Court will address the objections in turn. The rulings below are contingent upon Petitioner 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 granted in part.
(1) ORT dated February 12, 2018, Reported by Police Officer, Elizabeth Szalewicz (Respondent's Exhibit A)
a. Call Narrative:
i. There is a history of the father (Julio) being aggressive toward the mother (Beda) . Last week the father choked the mother and threatened to kill both her and the children Estrella (14) and Yago (2). Yesterday (2/11/18) the father and the mother engaged in a verbal altercation in the presence of Estrella and Yago. The father choked and threatened the mother, who was holding Yago in her arms. The father also attempted to pull Yago from the mother's arms and Yago sustained a black eye as a result. Estrella was not injured. The father was arrested for assault. The role of the mother is unknown.
ii. Miscellaneous Information: The father was also arrested in January, 2017 for criminal obstruction of breathing. Estrella called 911 at 10:28pm. Yago's injury is to his left eye.
Respondent seeks to preclude the "Call Narrative" and "Miscellaneous Information" portions of this ORT arguing that they contain inadmissible hearsay in that the source of the information is unclear. Generally, an ORT called in by a mandated reporter is admissible as a business record as a hearsay exception. FCA § 1046; SSL § 413. The exception applies if it is clear that the source of the information in the document came from someone who also had a duty to report. In re Imani O., 91 AD3d 466 (1st Dept. 2012). Pursuant to SSL § 413, police officers are mandated to report suspected cases of child abuse and maltreatment. The underlined portions above cannot be admitted for the truth of the matter because there is no reason to believe the mandated reporter was an eyewitness to the reported allegations. Rather, it seems the information came from a layperson without the duty to accurately report the allegation to law enforcement. However, the underlined portions will be admissible to set the stage for the ACS investigation. Cf. Custody of Michel, 549 N.E.2d 440, 443-44 (Mass. App. Ct. 1990).
The other, non-underlined portions of the ORT are admissible to prove the truth of the matter asserted therein, as they report information concerning which the mandated reporter had first-hand knowledge.
The objection is granted in part.
(2) Woodhull Hospital Records (Respondent's Exhibit B)
a. P. 10: Older half-sibling called the police to home because step-father stated he was going to kill mother of patient and sibling.
Respondent objects to this portion arguing that it amounts to inadmissible hearsay because the source of the information is unknown. However, it is clear that the source of the information is either the non-respondent mother, an EMT, or Estrella. In any event, third party statements within a hospital record are admissible as non-testimonial in character if they are germane to diagnosis and treatment. People v. Ortega, 15 NY3d 610 (2010). "This is true whether the declarant is a family member, an acquaintance, a case worker, another treatment provider, or even a person on the street who might have observed something relevant to a patient's condition, so long as the statement is made directly to a medical provider in response to questions about the patient's condition." Matter of A.M. (Gene M.), 44 Misc 3d 514, 523 (Bronx Co. Fam. Ct. 2014).
If the above statement came from EMTs or the non-respondent mother, it is admissible as those individuals were giving information to hospital staff for the purposes of Yago's medical treatment. If the statement came from Estrella, it is admissible for the same reason, as well as pursuant to FCA § 1046(a)(vi).
The objection is denied.
(3) 911 Recording and Associated Sprint Report (Respondent's Exhibit C)
Respondent objects to the 911 recording and Sprint Report in their entirety arguing that they fall under the sealing statute, CPL § 160.50(1)(c). That statute provides in pertinent part that upon the dismissal of a criminal case in favor of the accused, "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."
Petitioner argues in its response papers that this objection should not be considered as Respondent missed the December 7, 2018 Court Order's deadline directing Respondent to file the motion in limine by February 1, 2019. While this is true, Petitioner has failed to articulate prejudice to ACS based on this delay should the court consider the merits of the motion at this point. For this reason, the Court will consider the objection.
This Court finds that 911 recordings and their associated Sprint Reports do not fall under the sealing statute. Dockery v. N.Y.C Housing Auth., 51 AD3d 575 (1st Dep't. 2008); Matter of Christal D.M., 2019 NY Slip Op. 29087 (Kings Co. Fam. Ct. 2019). Thus, even if Mr. B.'s criminal case (based on the same incident that forms that basis of the pending Family Court matter) was dismissed, the 911 recording at issue here was not sealed and is available for use in the Family Court case.
The Court's conclusion is based in part on the nature of 911 calls and the 911 system itself, a system that was not designed to be a mechanism of law enforcement and one that is not implemented that way either. In 1957, the National Association of Fire Chiefs recommended the establishment of a simple, universal telephone number that could be used in any jurisdiction to report a fire. NENA, "9-1-1 Origin & History," https://www.nena.org/page/911overviewfacts (last accessed Apr. 10, 2019). Ten years later, following the recommendation of a Presidential commission that the nation create a universal mechanism to access any emergency service, the Federal Communications Commission began working with AT & T to develop what became the 911 system. (Id.) The intent was to offer the public fast and easy access to a public safety answering point ("PSAP"). (Id.; see also, Heather Darata, "Adoption of 911," Journal of Emergency Dispatch, https://iaedjournal.org/adoption-of-911/ (last accessed Apr. 10, 2019).
In New York State, the 911 system is housed not in the Division of Criminal Justice Services but rather in the Division of Homeland Security and Emergency Services. State law establishes the State Interoperable and Emergency Communication Board (the "SEIC"). See County L. § 326. Some, but not all, SEIC members are in law enforcement; others are in emergency services or the private sector. See "SEIC — State Interoperable and Emergency Communication Board," http://www.dhses.ny.gov/oiec/siec/ (last accessed Apr. 7, 2019). SEIC has oversight responsibility for the counties, who are ultimately charged with implementing a 911 system locally. County L. § 238. SEIC ensures that each county's system is in compliance with the Board's promulgated standards. Id.
As observed by SEIC in its regulations, "Many emergencies require immediate response from an emergency services provider, whether police, fire, or emergency medical service. This need requires that 911 dispatch facilities must be able to dispatch any and all of such providers to ensure the highest level of service and protection to the community." 21 N.Y.C.R.R. § 5200.1. Indeed, in New York City, since 2012, the public safety answering point is a comprehensive 911 center where NYPD, FDNY, and emergency medical dispatch services are co-located, using universal technology. See Press Release, "Mayor Bloomberg Announces Completion of Major Milestones in 911 System Overhaul Sought by the City for Decades," https://www1.nyc.gov/office-of-the-mayor/news/004-12/mayor-bloomberg-completion-major-milestones-911-system-overhaul-sought-the-city#/0 (last accessed Apr. 7, 2019). The NYPD and FDNY are partners in operating the center. See "Anatomy of a 911 Call," https://www1.nyc.gov/site/911reporting/reports/reports.page (last accessed Apr. 7, 2019).
Thus, 911 recordings are fundamentally different from other types of audio recordings that may be "official records. . .relating to the arrest or prosecution" of a criminal defendant. The audiotape at issue in Matter of Dondi, 63 NY2d 331 (1984) was of a conversation between a police officer and the respondent that was secretly recorded by the officer, and the nature of the tapes at issue in Catterson v. Corso, 244 AD2d 407 (2d Dep't. 2007), were not specified in that decision, other than to note that they were made "in connection with the criminal action." An emergency telephone call captured in a 911 recording, as explained above, is a call made by a member of the public seeking emergency assistance before there is any court activity. Though the individual who answers a 911 call in New York City in the first instance is an employee of the NYPD — and thus the recordings are maintained by the NYPD's custodian of records — the work of an emergency dispatcher is not about law enforcement; it is about first response and scene control. Josh McFadden, "Wearing Many Hats," Journal of Emergency Dispatch, https://iaedjournal.org/wearing-many-hats/ (last accessed Apr. 10, 2019). So, a 911 recording is not made "in connection with [a] criminal action" and is fundamentally different from either of the tapes described in Dondi and Catterson. Thus, to the extent the Family Court in Matter of Carolina K., 55 Misc 3d 352 (Kings Co. Fam. Ct. 2016) relied on those cases, this Court comes to a contrary holding.
Moreover, when a 911 recording generates both a police investigation and a child protective investigation, and when each investigation leads to its own legal proceeding in a separate court with statutory jurisdiction, then the 911 recording should be admissible in each court regardless of case outcome in the other. The burden of proof in a criminal case is much higher than in a Family Court case; just because a criminal matter is terminated favorably to the defendant does not mean that the 911 recording is not probative in a child protective proceeding or that as a normative matter it should be excluded from consideration in such a proceeding.
Granting Mr. B.'s objection here would be to permit respondents in Family Court article 10 proceedings to benefit from having been arrested and prosecuted criminally. After all, not all 911 calls lead to a person's arrest or prosecution. In those situations where the 911 call does not lead to a criminal action, § 160.50 never comes into play and the recording is never subject to sealing. There is no sound policy reason why such 911 recordings should remain unsealed forever whereas a recording that leads to a criminal case that is ultimately dismissed should be sealed.
Indeed, to grant respondent's objection here would be a perverse result, contrary to public policy with respect to the 911 system and the Family Court Act. In 2017, 43.7 percent of criminal matters in which the top charge was a felony were ultimately terminated favorably to the defendant. Division of Criminal Justice Services, "Kings County Adult Arrests Disposed," https://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/kings.pdf (last accessed Apr. 10, 2019). For cases involving a top charge of a violent felony, 53.8 percent resulted in a favorable termination, and 58.7 percent of misdemeanors. (Id.) Thus, depending on the nature of the top charge, the chances that any given arrest will lead to a favorable termination of the matter and the sealing of "official records" is quite high. Preventing the child protective agency from introducing 911 recordings in Family Court matters related to the same incident would do a potential injustice in untold numbers of cases.
The percentages were generated by summing the figures listed for the following dispositional categories: Diverted and Dismissed; Dismissed-ACD; Dismissed-Not ACD; Acquitted; and DA Declined to Prosecute
Simply put, the CPL cannot be used to trump the truth-finding and child protective missions of Family Court. Mr. B.'s objection to petitioner's intended use of the 911 recording and associated Sprint Report at trial is denied.
This ruling only applies to the recording itself, not its contents. The out-of-court statements captured in the recording, if offered to prove the truth of the matter stated therein, are hearsay and are admissible only if an exception to the hearsay rule applies. The Court understands that in this instance, the 911 call was placed by one of the subject children, and thus her statements would be admissible pursuant to FCA § 1046(a)(vi). Other exceptions, such as the excited utterance rule, may be applicable if appropriate foundation is provided. --------
For the foregoing reasons, MOTION #1 is granted in part and denied in part. Dated: April 12, 2019
Hon. Erik S. Pitchal