Opinion
# 2018-044-536 Claim No. 130397 Motion No. M-92066 Cross-Motion No. CM-92132
06-08-2018
T.G. v. THE STATE OF NEW YORK
JONATHAN S. FOLLENDER, P.C. BY: Jonathan S. Follender, Esq., of counsel HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Motion for judicial subpoenas and cross-motion to compel discovery in malicious prosecution claim.
Case information
| UID: | 2018-044-536 |
| Claimant(s): | T.G. |
| Claimant short name: | T.G. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130397 |
| Motion number(s): | M-92066 |
| Cross-motion number(s): | CM-92132 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JONATHAN S. FOLLENDER, P.C. BY: Jonathan S. Follender, Esq., of counsel |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 8, 2018 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
After receiving permission from this Court to late file (T.G. v State of New York, UID No. 2017-044-559 [Ct Cl, Schaewe, J., Aug. 8, 2017]), claimants filed this claim on October 12, 2017 to recover for damages based upon a cause of action for malicious prosecution. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves for the issuance of judicial subpoenas to obtain records from the Delaware County Department of Social Services and the Delaware County Probation Department in order for this Court to conduct an in camera review of the records. Claimant cross-moves to compel disclosure. Defendant opposes the cross motion. Claimant replies.
Before addressing the merits of these motions, some factual background is necessary. On December 17, 2015, Cynthia Bogdan-Cumpston, a Delaware County Child Protective Service case worker, interviewed a six-year old female child (the Child) who was alleged to have been neglected. The Child apparently indicated that claimant had touched her in her genital area. Bogdan-Cumpston contacted the State Police who dispatched two investigators (collectively, the Investigators). The Investigators interviewed the Child in the presence of her mother, and received "negative results" pertaining to the alleged inappropriate touching. Nevertheless, and allegedly "in violation of all state of the art child forensic interviewing techniques and recommendations found in New York Social Services Law," Bogdan-Cumpston re-interviewed the Child alone and then told the Investigators that the Child stated that claimant had inappropriately touched her when she was in kindergarten.
Claim, ¶ 3 at 2.
id.
The Investigators interviewed claimant at the State Police barracks, and after consulting with a Delaware County Assistant District Attorney, arrested claimant. A felony complaint was filed, charging him with one count of sexual abuse in the first degree (Penal Law §130.65). Approximately four months after his arrest, a felony hearing was held to determine if there was probable cause to hold claimant for action by the Grand Jury. The Investigators were unable to re-interview the Child to reconfirm the inappropriate touching, and thus had only hearsay evidence to support the charge. Accordingly, Justice Court dismissed the felony charge. Claimant filed this claim alleging that by abdicating their investigation to Bogdan-Cumpston and then adopting her flawed conclusion that claimant had abused the Child, the Investigators did not have probable cause for his arrest.
The Court notes that claimant had also commenced an action in Supreme Court against, among others, the Investigators in both their individual and official capacities. The Supreme Court action was thereafter removed to Federal Court and will be referred to as the Federal Court Action.
With respect to the merits of defendant's motion, claimant does not object to the issuance of subpoenas. However, claimant additionally requests that "this Court carefully review the unsealed probation records in camera with counsel present to determine whether claimant's statements to probation differed in any substantial way from his statements to the State Police and whether the same information regarding claimant is available from alternate sources." Defendant's motion is granted and this Court will conduct an in camera review of the documents received pursuant to subpoenas from both the Department of Social Services and the Probation Department. The Court finds no basis or need for counsel to be involved in the review. Moreover, the purpose of the in camera review is to determine whether there is relevant information concerning this claim which should be provided to defendant. The Court is not required at this stage in the litigation to determine whether the information is available elsewhere, whether it is admissible, or what weight to give it.
Affirmation of Jonathan S. Follender, Esq., dated Apr. 16, 2018, in Support of Cross Motion, ¶ 9. Claimant also requests that the Court review the records for objectionable hearsay. During the in camera review, the Court will determine whether the records are relevant and discoverable. It is not necessary to determine whether any hearsay is present at this time, as a determination of the admissibility of the records will be made if they are offered into evidence.
Id. (emphasis omitted).
Once this Decision and Order has been filed, the Court will execute the appropriate subpoenas and return them to defense counsel for appropriate service.
To the extent that claimant's counsel seeks to be present on an ex parte basis, such a request would be wholly inappropriate and denied accordingly.
The Court will now address claimant's cross motion to compel disclosure and for a conditional order of preclusion. Claimant argues that because defendant's response to the notice for discovery and inspection dated November 16, 2017 (the Demand) was untimely served in April 2017, all objections have been waived as a matter of law. Conversely, defendant contends that the documents which have not been provided to claimant are protected by Civil Rights Law §§ 50-a and 50-b.
Regardless of whether defendant's response was timely, defendant is not barred from objecting to a discovery demand which seeks privileged material or that is palpably improper (see e.g. Briand Parenteau, Inc. v Dean Witter Reynolds, 267 AD2d 576, 577 [3d Dept 1999]). "A disclosure request is palpably improper if it seeks information [which is either] of a confidential and private nature that does not appear to be relevant to the issues in the case" (Titleserv, Inc. v Zenobio, 210 AD2d 314, 315-316 [2d Dept 1994]) or is "irrelevant, overbroad and burdensome" (Jefferson v State of New York, 60 AD3d 1215 [3d Dept 2009] [internal quotation marks omitted]).
In Demand No. 3, claimant seeks the Investigators' training records which pertain to forensic child abuse interviewing, including certificates of completion, awards, attendance records and curriculum content. Defendant initially refused to provide the material, arguing that it is protected by Civil Rights Law §50-a. Counsel for defendant now represents that after consultation with claimant's counsel, counsel for the State Police, and counsel for the Investigators in the Federal Court Action, defendant has agreed to provide the training records. The Court finds this further response to be acceptable.
Reply Affirmation of Assistant Attorney General (AAG) Joseph F. Romani, dated Apr. 24, 2018, ¶ 13.
Demand No. 4 requests that all records pertaining to previous forensic child abuse interviews conducted by the Investigators. Defendant's response is, among other things, that the material is protected by Civil Rights Law § 50-b as it would contain identifying information of victims of sex offenses. In Demand No. 9, claimant seeks "documents pertaining to the creation and/or operation of a 'multi-disciplinary' task force whose purpose is to coordinate law enforcement response, including the response and investigation by the . . . State Police, with any third-party agency(ies) in the investigation, and prosecution, of incidents involving allegations of child sexual abuse." Defendant's response is that the information pertaining to child sex abuse investigations is privileged pursuant to Civil Rights Law § 50-b. In Demand No. 11, claimant requests all records pertaining to previous forensic child abuse interviews performed or assisted by the Investigators which took place at a child advocacy center. Defendant again objects that such information is protected by Civil Rights Law § 50-b.
Affirmation of Jonathan S. Follender, Esq., dated Apr. 16, 2018, in Support of Cross Motion, Exhibit 2 at 4.
Civil Rights Law § 50-b (1) provides, in pertinent part, that:
[t]he identity of any victim of a sex offense, as defined in article one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law . . . shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim.
The exceptions allowing release of such information contained in Civil Rights Law § 50-b (2) are not applicable in this instance.
The material sought in Demand Nos. 4 and 11 could clearly identify the victims of a sex offense. Further, the issues to be determined in this claim are whether there was probable cause to arrest claimant and whether the criminal proceeding was initiated with malice (Martinez v City of Schenectady, 97 NY2d 78 [2001]). Any information obtained during such other forensic child abuse interviews - regardless of whether they took place at a child advocacy center - is of a private and confidential nature not relevant to issues in this matter. Moreover, the manner in which the Investigators conducted any prior interview is also not relevant to how they conducted the interview with the Child in claimant's case and whether the information they obtained constituted probable cause for his arrest. In a similar manner, information concerning the operation of a coordinated law enforcement task force in investigating and prosecuting other allegations of child sexual abuse is not relevant to this claim. The Court finds defendant's responses to be appropriate and defendant is not required to provide any documentation with respect to Demand Nos. 4, 9, and 11.
To the extent that claimant is seeking this material to establish that the Investigators deviated from the accepted interviewing techniques on other occasions, and thus they must have done so on this occasion, it is generally not proper "to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion" (see Matter of Brandon, 55 NY2d 206, 210-211 [1982]).
In Demand No. 5, claimant seeks the training curriculum and/or manual on conducting a forensic child abuse investigation and interview used by either the State Police or any third-party instructors (presumably on behalf of the State Police). Defendant responds by indicating that the material is potentially privileged, confidential, and proprietary information. As set forth previously, claimant alleges that there was no probable cause for his arrest, in part, because the Investigators did not properly conduct a forensic child abuse interview. The Court finds that the information sought could be relevant to prosecution of this claim. However, because such material could contain privileged, confidential, or proprietary information, the Court will conduct an in camera review. Accordingly, defendant is directed to provide the documentation responsive to Demand No. 5 to the Court within 30 days of the filing of this Decision and Order. Defendant is also directed to submit a duplicate copy of the documentation containing proposed redactions, if any, to protect privileged, confidential, or proprietary information.
In a section of the Demand entitled "Disciplinary History and/or Commendations, Certificates," claimant essentially demands the entire personnel files of both investigators. Defendant has responded by stating that the material is privileged and confidential pursuant to Civil Rights Law § 50-a. Defendant further contends that pursuant to the statute, a court order and subsequent in camera review would be required prior to releasing any material to claimant.
Civil Rights Law § 50-a (1) provides, in pertinent part, that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order." Moreover, Civil Rights Law § 50-a (2) requires that a party seeking disclosure of the personnel records of a police officer must make "a clear showing of facts" sufficient to warrant a request for the records and must give all interested parties an opportunity to be heard.
In the notice of cross motion, claimant's counsel indicates that the cross motion papers were sent to AAG Romani and Delaware County Attorney Amy Merklen. Any indication that the Investigators were served with the cross motion is strikingly absent. Claimant's failure to provide notice to the Investigators is fatal to his demand for production of their personnel files. Accordingly, the Court finds defendant's answer to be acceptable and defendant is not required to provide any further response at this time.
In the section of the Demand entitled "Other Actions," claimant requests "copies of any transcripts in any criminal or civil proceedings in which the [Investigators] . . . gave testimony or were called as witnesses, whether direct witnesses or character witnesses, and identify the proceeding's full caption." Defendant objects to the demand as being, among other things, overbroad and unduly burdensome. It is unclear how any prior testimony by the Investigators in any proceeding other than claimant's criminal action can be even remotely relevant to the issues present in this claim. Moreover, it is reasonable to infer that the Investigators have testified in numerous proceedings which would make this demand unduly burdensome. Accordingly, the Court finds that this demand is palpably improper and defendant is not required to provide any further response.
Affirmation of Jonathan S. Follender, Esq., dated Apr. 16, 2018, in Support of Cross Motion, Exhibit 2 at 6.
As a final matter, counsel for claimant represents that he submitted the State Police videotape of claimant's interrogation to a certified CSR (presumably certified shorthand reporter) to obtain a transcript. Counsel asserts that the reporter was unable to transcribe the interrogation "due to the relative 'inaudibility' of the video." Claimant requests that the Court conduct an in camera review of the video and then direct defendant to provide a written transcript.
Affirmation of Jonathan S. Follender, Esq., dated Apr. 16, 2018, in Support of Cross Motion, ¶ 31.
Claimant is in essence requesting an audibility hearing frequently conducted in criminal cases to determine the admissibility of an audio or video recording (see e.g. People v Bailey, 12 AD3d 377, 377 [2d Dept 2004], lv denied 4 NY3d 741 [2004]; People v Harrell, 187 AD2d 453 [2d Dept 1992], lv denied 81 NY2d 789 [1993]). "An audiotape recording should be excluded from evidence if it is so inaudible and indistinct that a jury must speculate as to its contents" (Bailey, 12 AD3d at 377 [internal quotation marks omitted]). "Even where tape recordings are inaudible in part, so long as the conversations can be generally understood by the jury, such infirmities go to the weight of the evidence and not to its admissibility" (People v McCaw, 137 AD3d 813, 815 [2d Dept 2016)], lv denied, 27 NY3d 1071 [2016]). Further, where additional evidence concerning the content of the recording, such as testimony from the persons involved is present, there is little danger that the factfinder will be left to speculate as to what transpired (Bailey, 12 AD3d at 378; People v Morgan, 175 AD2d 930, 932 [2d Dept 1991], lv denied 79 NY2d 861 [1992]).
This claim will be litigated before this Court as the trier of fact. Accordingly, the recording's admissibility may be decided at the time of trial if (or when) it is offered as evidence. Further, claimant's reliance on Gross v Lunduski (304 FRD 136, 159 [WD NY 2014]) for the proposition that defendant should be directed to provide a transcript for the partially inaudible videotape is misplaced. The Magistrate Judge in Gross did find that "[d]efendant's concern for preserving the integrity of the original tape [was] outweighed by [p]laintiff's need for an audible copy and the fully accurate transcript that [could] then be produced for subsequent use in the further litigation" (id.). However, claimant has taken this quotation out of context. After making this finding, the Magistrate Judge granted the plaintiff's motion solely to the extent that the defendant was directed to produce the original tape in order for it to be enhanced in accordance with certain protocols set forth by the plaintiff's expert (id.). The Magistrate Judge did not require defendant to perform the enhancement or to later provide a transcript.
Lastly, to the extent that claimant seeks to have defendant identify the portions of the recording where claimant allegedly made admissions, claimant is free to conduct further discovery in order to obtain this information. For example, claimant may conduct depositions of the Investigators, mark the recording as an exhibit, and ask any pertinent questions while reviewing it.
id., ¶ 32. --------
In conclusion, defendant's motion for judicial subpoenas to be issued to the Delaware County Department of Social Services and the Delaware County Parole Department is granted. The subpoenas will be issued forthwith and provided to counsel for defendant for service. Once the records have been received in Chambers, the Court will conduct an in camera review and issue a further Letter Decision and Order. Claimant's cross motion is granted solely to the extent that defendant is directed to provide two copies of the documentation which is responsive to Demand No. 5, one unredacted and one with proposed redactions (if any). The copies shall be submitted directly to the Court within 30 days of the filing date of this Decision and Order.
June 8, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on defendant's motion and claimant's cross motion: 1) Notice of Motion filed March 29, 2018; Affirmation of Joseph F. Romani, AAG, dated March 27, 2018, and attached exhibits; Memorandum of Law dated March 27, 2018. 2) Notice of Cross Motion filed April 17, 2018; Affirmation of Jonathan S. Follender, Esq., dated April 16, 2018, and attached exhibits. 3) Affirmation in Response of Joseph F. Romani, AAG, dated April 24, 2018. 4) Reply Affirmation of Jonathan S. Follender, Esq., dated April 25, 2018. Filed Papers: Claim filed October 12, 2017; Verified Answer filed November 6, 2017.