The following papers numbered 1 to 2 read herein: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1 Opposing Affidavits (Affirmations) 2 Reply Affidavits (Affirmations) Other DECISION & ORDER Introduction This Court determines that pursuant to Judiciary Law Section 2-(b)3 a court of competent jurisdiction has the authority to order a trial or hearing to proceed virtually over the objections of a party even where one of the remedies sought is criminal contempt. This is a proceeding continuing in the midst of an ongoing pandemic emergency inter alia to hold plaintiff-husband in civil and criminal contempt after having been found to have engaged in spoliation of evidence and violation of automatic orders related to the installation of and attempted deletion of iPhone spyware and to consider sanctions against defendant for alleged perjury for making a false affidavit to this Court regarding her knowledge about that spyware. On September 22, 2020, plaintiff-husband, moved by e-filed order to show cause [motion sequence # 33] requesting the following relief: “1) vacating the virtual hearing scheduled for September 30th from 10:00 a.m. to 1:00 p.m. and October 1, 2020, 2:00 p.m. to 4:30 p.m. on the basis that proceeding with a virtual hearing is severely prejudicial to Plaintiff; and 2) postponing an in-person hearing until the Unified Court System determines the most effective protocols and best practices to safeguard the health and safety of litigants and attorneys for in-person matrimonial trials at the Kings County Courthouse and specifically authorizes such trials to take place; and 3) Such other and further relief as may seem just and proper. The Court heard oral argument on September 25, 2020.1 Procedural History This Court has written numerous detailed decisions related to the spyware issue and those written decisions, including the facts and procedural history detailed therein, must be read in conjunction with this decision. This Court expended vast judicial resources related to plaintiff’s actions related to his use of spyware, his invocation of his Fifth Amendment privilege and his subsequent spoliation of evidence. The culminating effect of plaintiff’s actions resulted in the Court by written decision, inter alia, striking plaintiff’s pleadings as to certain equitable distribution relief not related to the children. Those written decisions must be read in conjunction with this decision as they fully outline the procedural history details of this protracted litigation. The Court notes that throughout this litigation plaintiff asserted his Fifth Amendment right in regards to all questions related to his use of spyware; however, after this Court struck his pleadings in the February 5, 2018 decision (58 Misc3d 1221(A) and after the Court issued the financial decision after trial (September 17, 2019), plaintiff subsequently conceded in a sworn affidavit dated November 18, 2019 that he had repeatedly installed and used various spyware applications to monitor and “listen in” on the wife in support of an application to reopen discovery based upon his allegation that defendant knew about his use of spyware during the marriage and that she made a false affidavit to this Court regarding that knowledge. Plaintiff now asserts that the defendant all along knew he had installed the spyware equipment and that she herself has now committed perjury. At this time, all issues between the parties except for the cross-applications seeking awards of counsel fees, defendant’s application that the Court hold plaintiff in both civil and criminal contempt and the issue of whether sanctions again defendant are warranted (see C.C. v. A.R., 66 Misc.3d 1211(A) [January 14, 2020] are resolved. The hearing on these remaining limited issues commenced before this Court on March 4, 2020: defendant represented by counsel and plaintiff was appearing pro se. During this litigation, plaintiff has been represented by two (2) attorneys. This is the third time plaintiff has retained his current counsel to represent him in this matter. During the evidentiary hearing on March 4, 2020, numerous exhibits of evidence were admitted into evidence. At the conclusion of the proceeding that day a dispute arose as to the admissibility of portions of a notebook that plaintiff had included in his list of proposed evidence. Pending a determination as to the admissibility of the notebook in its entirety or just the pages selected by the plaintiff the Court took custody of the notebook. The matter was adjourned to March 20, 2020. On March 16, 2020, in response to the COVID-19 crisis, the Unified Court System in-person court proceedings were temporarily limited to “essential” matters. On March 19, 2020, one day before the scheduled continuation of the evidentiary hearing, plaintiff once again re-retained his current counsel for the third time in this litigation. On June 5, 2020, this Court conducted a virtual status conference in this matter. During that conference, there was a discussion related to the logistics of proceeding. Based upon that discussion, the Court informed counsel that any objections to appearing virtually must be made in a timely manner so as not to further delay the conclusion of this matter. The matter was adjourned, on consent, to continue the evidentiary hearing on September 30, 2020 and October 1, 2020 either in-person or virtually depending on the protocols in place for the Courts inside the City of New York. 1) Plaintiff Objects to Proceeding In-Person or Virtually Plaintiff’s counsel criticizes the court system over the initial actions taken in March 2020 regarding the pandemic emergency which resulted in the cessation of in court operations except for essential applications and affirms that she is “willing to appear for an in-person continuation of the hearing in this case only after I am satisfied that the best practices are in place at the courthouse to ensure my client’s and my health and safety [emphasis added]” and that “ [u]ntil that time, the continued hearing in this matter should be postponed.” At the same time, she also affirms that she believes this Court is prohibited from virtually continuing the ongoing evidentiary hearing. 2) Evidence Objection To Virtual Appearance Plaintiff’s counsel incorrectly asserts that the Kings County Courthouse is and has been “closed” due to the pandemic and that she has been, in effect, prohibited from reviewing the evidence admitted on March 4, 2020, including the “notebook”, prior to her being re-retained and, as such, it would be prejudicial to plaintiff to continue the evidentiary hearing. Plaintiff’s counsel argues in her affirmation in support of the order to show cause that this notebook “contains a critical page of evidence” despite her repeated representations that she has not seen this notebook. She affirms that she is “willing to review that journal in the courthouse if I am granted permission to enter the courthouse in order to do so, however only after being assured that my health will be safeguarded [emphasis added].” It is unclear what assurances plaintiff’s counsel seeks in addition to the Unified Court System’s protocols which are already in place. These are the same protocols that have been in place for months throughout the pandemic emergency as this Court has been performing its duties from the courthouse. Plaintiff’s counsel contends that even if she was able to examine the notebook in advance she would “have no way of entering it in evidence during a virtual hearing”, if it was accepted into evidence by the Court, because the notebook itself is physically in the courthouse. 3) Criminal Contempt Objection To Virtual Appearance Plaintiff’s counsel cites dicta from a decision issued by a court of concurrent jurisdiction in support of her proposition that this Court is not permitted to conduct a virtual hearing on the issue of criminal contempt inasmuch as it could result in a party being imprisoned. Defendant-wife’s counsel’s affirmation, dated September 23, 2020 stated that he and his client “take no position on the relief sought in Plaintiff’s motion, [A.R.] is desirous of bringing this case to resolution in the safest manner possible for the benefit of everyone involved…” The Law Safety Measures For In-Person Proceedings/Review of Evidence The Court notes that court staff, including Justices of the Supreme Court, chambers staff, part clerks, court officers, clerical staff, maintenance personnel and other employees of the court system in Kings County Supreme Court, have been working in the courthouse, observing those established protocols, for months. There have been proceedings conducted in the courthouse on a limited basis and jurors have been summoned for petit jury trials to commence in the next few weeks. While keeping foot traffic at a minimum the Court has provided methods for physical access to the Courthouse to the public on a case-by-case basis. These are unprecedented times: fortunately, global pandemics have not been commonly faced in New York. All aspects of social infrastructure and daily-life face the challenging task of mindfully restarting in-person operations. There are Admistrative Orders available on the Court website which provide guidance and instructions regarding court operations and safety protocols. When there is an individual who tests positive in a courthouse a public notification is made on the website. The Courts are open to serve the people of New York State through a hybrid of virtual and increasingly in-person proceedings, which were regionally adapted to take into account different regions of the State. These protocols and Administrative Orders were disseminated and posted to the New York State Court website. The authority and autonomy of the Unified Court System to establish and implement the appropriate measures for in-person court proceedings was recently recognized by the Southern District of New York Federal Court in Bronx Defenders v. Office of Court Administration (2020 WL 4340967 [S.D.N.Y, July 28, 2020]. In Bronx Defenders, plaintiff challenged the Uniform Court System determination that in-person proceedings could resume and sought an injunction from the Federal Court to halt in-person appearances in New York City Criminal Court. That application was denied and the case was dismissed with a finding by the Southern District of New York Federal Court that the Federal Courts: …cannot, dictate if, when, and how state criminal courts reopen or schedule in-person appearances. To do so would violate fundamental principals of comity and federalism, and would result in federal supervision of state procedures and proceedings in direct contradiction of O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)” (2020 WL 4340967 at *1). Similarly, it is not within the purview of a litigant or counsel to assess whether the protocols established are adequate; however, neither is plaintiff nor his counsel, under the facts and circumstances presented, required to appear in-person for the conclusion of the trial. The Court notes that plaintiff has every interest in seeking to delay the resolution of this matter inasmuch as he faces possible incarceration. This Court has previously made arrangements for others to conduct in-person review of documents in the courthouse that observe social distancing and all protocol guideline procedures adopted by the Unified Court System. The Court notes that it is not the purvey of this Court nor of plaintiff to deem the protocols established and adopted by the Uniform Court System as “sufficient” or not: nor is there a need for plaintiff to reach that determination because there is no requirement for plaintiff to appear in-person. Virtual proceedings are available precisely to fit these situations. To hold otherwise: to deem that any individual could be arbitrarily left to determine for him or herself that she did not believe that courthouses were safe would, in effect, grant any litigant carte blanc to postpone — indefinitely — any proceeding in which he or she did not want to appear. Certainly, such an outcome will not stand. This case need not be an exception. Examination of Evidence Plaintiff and plaintiff’s counsel, knowing about the notebook, chose not to even request an opportunity to review, in person, the record and evidence of this evidentiary hearing. Only, on the eve of the continued hearing, did plaintiff formally raise the issue despite this date being selected nearly three (3) months ago. Under the existing protocols in Kings County Supreme Court, arrangements could have been made for in-person review of a case file in a proper way. Plaintiff’s counsel’s contention that the notebook’s location in the courthouse bars her, logistically, from offering it into evidence is unfounded. If plaintiff’s counsel seeks to admit it into evidence and if the Court grants that application there is no logistical impediment to the notebook being marked into evidence inasmuch as the notebook is, as plaintiff’s counsel points out, already in the courtroom. This Court is, and has been, working in the courthouse for many months and therefore there is no logistical impediment to this Court marking said item into evidence if such a ruling is made.2 This part is participating in the Evidence Pilot program, which was announced in Chief Judge Janet DiFiore’s broadcast on September 28, 2020. Criminal Contempt Not A Bar To A Virtual Hearing Plaintiff’s counsel cites no binding authority on this Court, nor is this Court aware of any, that would prohibit this Court from continuing with the evidentiary hearing on the issue of criminal contempt under the facts and circumstances presented.3 Pursuant to New York Judiciary Law 2-b(3), the Court has the power “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” This authority is vested in the Courts by the New York State Constitution which permits courts latitude to adopt procedures not specified in the statutes where such procedures are consistent with general practice as provided by the law (NY Const, Art VI, 30; see also People v. Ricardo B., 73 NY2d 228, 232 [1989]). The Court of Appeals upheld this authority in People v. Wrotten where it ruled that the Court does not need the consent of parties to fashion “innovative procedures” where “necessary” to effectuate the powers and jurisdiction of the Court (14 NY3d 33, 37 [2009]). In People v. Wrotten, defendant was indicted with first-degree assault and two counts of robbery in the first degree: the Court permitted the complaining witness to testify by live two-way video technology.4 Similar to plaintiff in the case before this Court, the defendant in People v. Wrotten faced the possibility of imprisonment yet the Court of Appeals still found that there was no prejudice to defendant not being able to confront the complainant in-person where complainant appeared by live two-way television feed. As such, in the case at bar, plaintiff’s contention that this Court is prohibited from virtually continuing the evidentiary hearing based upon his possible imprisonment if he is found guilty of criminal contempt is unavailing. The Court further notes that, while not dispositive of this issue, the technology available at this time exceeds the technology available when People v. Wrotten was decided in 2009.5 6 In fact, even prior to People v. Wrotten decision, the United States Supreme Court had determined that even a one-way live, closed-circuit television testimony could satisfy the Confrontation Clause of the Federal Constitution under certain circumstances (Maryland v. Craig, 497 US 836, 850 [1990]) and where the essential safeguards of testimonial reliability were present, specifically, where evidence presented against a criminal defendant was subject to rigorous testing in the context of an adversary proceeding before the trier of fact (Maryland v. Craig 497 US at 845; see also People v. Wrotten, 14 NY3d at 39). In the case at bar, plaintiff has not alleged that a virtual proceeding as available to him before his Court would not satisfy the elements of testimony under oath, the opportunity for contemporaneous cross-examination, the opportunity for the judge and parties to view the witness’s demeanor as he or she testifies and preservation of a record of the witness’s testimony (see generally Maryland v. Craig 497 US at 851; see also People v. Wrotten, 14 NY3d at 39).7 In People v. Wrotten, the New York Court of Appeals noted that live televised testimony is an exceptional procedure to be used “…in exceptional circumstances” as “necessary”. This Court finds that this global pandemic is an “exceptional circumstance” allowing this Court to proceed on all aspects of this proceeding, including the issue of criminal contempt, by virtual means. The Court also finds that plaintiff himself has created the “necessary” element, as detailed in People v. Wrotten, by declining the opportunity to participate in an in-person proceeding. As detailed herein-above, there is no judicial prohibition on this Court continuing the ongoing evidentiary hearing on the issues presented, including criminal contempt, by virtual means. This Court is aware that this is a challenging time with uncertainty for everyone and that it may be perceived by some that a virtual proceeding is not a perfect scenario; however, there are no perfect trials whether in-person or virtually. As the Court of Appeals has noted again and again, “…in this imperfect world, the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal” (People v. Rivera, 39 NY2d 519, 523 [1976]; see also People v. Harris, 57 NY2d 335 [1982]; People v. Parris, 4 NY3d 41 [2004]). Defendant represents that she is prepared to appear in-person or virtually on September 30, 2020 but that she desire this matter to come to a conclusion. Plaintiff asserts that he objects to any means of concluding this proceeding. As much as plaintiff resists a final determination on these issues, defendant is also entitled to a conclusion of this matter. This Court will not allow plaintiff to prolong this litigation. Under the unique facts and circumstances presented, this Court will not direct this plaintiff to participate in an in-person proceeding; however, this Court has found no binding authority that would prohibit this Court from proceed with the virtual proceeding. This Court will not abide plaintiff’s attempt to use a global pandemic as a sword and a shield to further delay the resolution of this proceeding. To provide for an in-person review of the notebook, counsel shall contact chambers so that arrangement can be made for counsel and plaintiff, if he so desires, to enter the Courthouse at a time agreed upon between 10:00 AM and 12 PM on Thursday October 1, 2020. A courtroom on the second floor is available so that there is no need to use an elevator. The plaintiff may bring hand sanitizer or use the newly installed dispensers that are located in the building. Counsel and her client must wear proper face masks at all times when in the courthouse and they may wear gloves when handling the notebook. If defendant wishes to examine the notebook again he may also make arrangements with chambers staff. The Court is also as an accommodation willing to make copies of the notebook for both sides when appropriate. To accommodate this review, the trial will be delayed one (1) day: it will recommence virtually on October 1, 2020 at 2:15 PM by the Teams platform. This one (1) day postponement will also provide counsel additional time to review the current pilot protocols for offering and submitting evidence and the notebook. While breakout rooms for Teams are not yet operational, the Court will accommodate reasonable requests for opportunities for counsel to speak with clients privately via telephone or for a side bar with the Court without clients present. The Teams platform allows parties and counsel to see each other and the Court simultaneously There is no doubt that all of our lives have been impacted by the events around us; however, there are viable alternatives and that is to continue virtually — that provides additional safeguards to all involved. The defendant’s right to conclude cannot be subjugated to plaintiff’s unreasonable position that this Court must indefinitely postpone any continuation of the on-going trial. The Court is willing to accommodate the plaintiff’s counsel as to in person proceeding in a courtroom under these circumstances but will not allow her and her client to oppose any virtual proceeding.
