PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Decision and Order on Oral Motion to Preclude Evidence at Fact-Finding Hearing PROCEDURAL HISTORY The neglect petition in this child protective proceeding pursuant to Article 10 of the Family Court Act was filed on July 26, 2020, and involves neglect allegations based on acts of domestic violence committed by the Respondent father/person legally responsible, Mr. S, against the subject children’s mother in their presence on September 10 and 12, 2020. The Respondent was also arrested and charged criminally for the same incident on October 2, 2020. However, his criminal case was dismissed and sealed on May 19, 2021, and Respondent’s counsel informed Petitioner of this fact. As a result, counsel for Petitioner Administration for Children’s Services (“ACS”), sent the officer ACS documents to review for his testimony rather than any sealed police reports; however, Petitioner still seeks to introduce a 911 recording and body camera footage related to the Respondent’s arrest. This Court was scheduled to commence the fact-finding hearing virtually due to the ongoing COVID pandemic as to Mr. S on June 9, 2021. On that date, Police Officer Rivera was called to testify by Petitioner and, when Respondent’s counsel asked to voir dire, the officer acknowledged having viewed various police reports and the 911 call to refresh his memory in preparation for his testimony. At this point, counsel for Mr. S objected to the officer’s testimony as well as the admission of the 911 call and body camera footage of the arrest. The fact-finding hearing was adjourned for all counsel to submit memoranda of law on the issue of the preclusion motion as to the 911 call and body camera footage. However, counsel for Petitioner no longer seeks to call Officer Rivera but rather indicated his intention to call different witnesses on the next date. All counsel have now filed memoranda, including the Attorney for the Children who supports the Petitioner’s position opposing preclusion of the 911 call and body camera footage, contending that these items are not sealed. Respondent argues that these items are in fact sealed and therefore inadmissible for that reason, and, alternatively, because they are almost entirely hearsay. This Court, among other Family Courts, has previously held that documents from related sealed criminal cases are not admissible in Family Court Article 10 proceedings pursuant to CPL §160.50(1). See In re T.P., 51 Misc 3d 738 [Fam Ct 2016] (arrest documents & DIR were sealed & inadmissible though officer’s memo book was not document intended to be sealed under sealing statute; striking testimony was warranted based on officer’s simultaneous review of both memo book and much more detailed documents); In re Samantha R., 55 Misc 3d 338 [Fam Ct 2016] (holding that documents, DIR and photographs that officer reviewed were legally sealed, photographs were inadmissible, but striking of officer’s testimony was not required because officer had credible independent recollection); Matter of T/R, Fam. Ct. Kings County, May 19, 2016, Barnett, J. Docket nos. NN-22206-9/15 (DIRs, photographs, criminal complaint, arrest report, memo book, and Criminal Court temporary order of protection are sealed); Matter of B/L Children, Fam. Ct., Kings County, Feb. 22, 2011, Gruebel, J., Docket nos. NN-30879-80/10 (DIRs are sealed); In re J G 2009 WL 7292304 [Fam Ct, Bronx County 2009] (DIR sealed). In Matter of Carolina K., 55 Misc 3d 352 [Fam Ct 2016], and Matter of Diyorhjon K., 65 Misc 3d 788 [Fam Ct 2019], this Court applied the same rationale to 911 recordings sought to be introduced by ACS in those cases. In a recent decision in Matter of Kanan O., docket no. NN-20753-4/19, dated June 30, 2021, this Court held that body camera footage is precluded for the same reason. CPL §160.50(1)(c) states in pertinent part, “all official records or 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.” The Court of Appeals has found that the legislature’s “purpose in adding these provisions to the Criminal Procedure Law and the Human Rights Law was to ensure that the protections provided to the exonerated accused be ‘consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law.’” Matter of Joseph M. (New York City Bd. of Educ.), 82 NY2d 128 [1993] (quoting Governor’s Approval Mem, 1976 McKinney’s Session Laws of NY, at 2451). This protection is all the more important today given the increased awareness of the over-representation of indigent people of color in the criminal justice system. This policy is encapsulated in the language of CPL §160.60 which states that an arrest terminated in favor of an accused “shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.” Thus, when a criminal case is dismissed and sealed, ALL documents or other official records relating to that arrest must be sealed as well or the protection applied to these individuals by the sealing statute is rendered meaningless, especially in the age of internet searches where even one unsealed document can be enough to negatively impact the arrested individual. The language of CPL §160.50(1)(c) is mandatory and unequivocal in precluding the provision of “all official records” to any public agency, the only exceptions being contained in paragraph (d), none of which apply here.1 When the language of a statue is plain, courts are required to follow its mandates. Kimmel v. State, 29 NY3d 386, 392 [2017] (Courts should look “first to the plain language of the statute[ ] as the best evidence of legislative intent”); Better World Real Estate Group v. New York City Dept. of Fin., 122 AD3d 27, 35 [2d Dept 2014] (“[C]ourts should construe clear and unambiguous statutory language as to give effect to the plain meaning of the words used”). The sole phrase in the statute whose meaning requires judicial interpretation is “official records.” This Court has previously noted the important guidance provided by the Court of Appeals ruling in Harper v. Angiolillo, 89 NY2d 761 [1997] regarding the issue of which documents constitute “official records” such that they would be accessible to the accused pursuant to CPL §160.50(1)(d). The Court of Appeals noted that “the statute is otherwise [aside from the listed items of "judgements and orders of a court"] silent on the nature of such “official” material…Indeed, such records and papers are not always subject to easy identification.” Id. In reviewing its two prior decisions involving the question of whether tape recordings qualify as “official documents”, Hynes v. Karassik, 47 NY2d 659, and Dondi, 63 NY2d 331 [1984]2, the Court of Appeals stated that “while some recordings may qualify as official records and papers under certain circumstances, not all tape recordings will qualify as an official record in every case.” Id. In this way, the Court of Appeals focuses the inquiry on determining whether, in each case, the particular item at issue constitutes an “official record” which was sealed. While there are no appellate cases as of yet regarding body camera footage specifically, there is a Second Department decision in a case which did not identify the specific type of recordings at issue, but held that the “audio and videocassette tapes made in connection with a criminal action…fall within the scope of ‘official records and papers’ and were therefore properly sealed pursuant to the statute.” Catterson v. Corso, 244 AD2d 407-8 [2d Dept 1997]. A New York County Supreme Court did address the issue of whether body camera footage was sealed in the context of a FOIL request and found that, if the footage was obtained in a traffic stop that resulted in a summons, the footage would be “exempt from disclosure regardless of the outcome”, as proceedings have thereafter concluded pursuant to CPL 160.50 and 55. Time Warner Cable News NY1 v. New York City Police Dep’t, 53 Misc. 3d 657,666; 36 N.Y.S.3d 579 (N.Y. Sup. Ct. 2016), on reargument, (N.Y. Sup. Ct. 2017). Furthermore, as Respondent’s counsel points out, the NYPD itself views this footage as part of the items sealed after a dismissal, as stated by former Commissioner Bratton in a letter to former NYS Senator Daniel Squadron regarding FOIL requests for body camera footage that, [T]here will be times when the New York City Police Department cannot release video from body-worn cameras in order to comply with state law. For instance, the NYPD is required to seal all records that are related to an arrest when a case is terminated in favor of the accused, including footage captured by a body-worn camera. It would be a violation of state law to release it. Letter from William J. Bratton, NYC Police Commissioner, to Hon. Daniel Squadron, State Senator (April, 27, 2016). Accessible at https://www.nysenate.gov/sites/def ault/files/articles/attachments/nypd _body_camera_response.pdf In Matter of Kanan O., this Court recently determined that body camera footage cannot be used by ACS when the underlying criminal case is sealed. Supra. at pp 4-5. While such footage can be obtained for various reasons, where the footage is used to capture evidence of an arrestee’s alleged criminal activity and ACS seeks to use the footage to establish that activity, the plain language of the Criminal Procedure Law mandates that the footage cannot be used when the underlying criminal case is sealed. Additionally, “[i]f a video captures evidence related to a criminal case, the NYPD will turn the video over to the prosecutor with jurisdiction over the matter. Prosecutors will provide video to the defendant(s) in accordance with criminal discovery laws.” NYPD Frequently Asked Questions About Body Cameras, https://www1.nyc.gov/site/nypd/about/about-nypd/equipment-tech/body-worn-cameras.page (Last Accessed June 24, 2021). At least one other Family Court has reached the same decision. Matter of J.P, Docket No. NN-23577-19 (Fam. Ct. Kings Cty. June 4, 2020). As to the 911 recordings, in both Matter of Diyorhjon K., 65 Misc 3d 788 [Fam Ct 2019] and In re Carolina K., 55 Misc. 3d at 355, this Court held that these recordings are also covered by the plain language of CPL §160.50(1)(c ) in that they are “kept on file with…a police agency” and are an “official record…relating to [the respondent's] arrest or prosecution.” Additionally, this Court found that any differences between the origins and uses of 911 recordings and other types of police paperwork were not sufficient to alter their designation as “official records” and did not impact the importance of enforcing the underlying purpose of CPL §160.50 As previously noted, the Court of Appeals decided two cases involving the issue of sealing related to audiotape recordings. Hynes involved a tape recording of a conversation between the former defendant and an operator of a nursing home which was found not to be an official record covered by the sealing statute, Hynes v. Karassik, 47 NY2d 659]. In contrast, Dondi involved a “tape recording of a conversation between [a] respondent and [a] police officer [whom the respondent had previously been accused of bribing], which had been surreptitiously recorded” and “were integral to both appellant’s arrest and prosecution. Matter of Dondi, 63 N.Y.2d 331, 338, 472 N.E.2d 281 [1984]. In Dondi, the Court stated “it is clear that the tapes were subject to the sealing order.” Id. at 337. The implication of these rulings is that when a tape recording is made and kept by the police, the recording is “official” and must be sealed. The only appellate decisions which explicitly dealt with the issue of whether 911 recordings are sealed are from the First Department. Dockery v. New York City Hous. Auth., which found the 911 recording at issue “not official records relating to petitioner’s arrest or prosecution” and therefore not subject to sealing under CPL §160.50. However, the decision provides no factual details or other analysis as guidance for the basis of this conclusion. Dockery v. New York City Hous. Auth., 51 AD3d 575 [1st Dept 2008]. Notably, the First Department immediately follows this interpretation by stating that, even if the 911 recordings were subject to the sealing statute the “mere reception of erroneously unsealed evidence…does not require annulment of the agency’s determination.” Id. In its recent decision, Matter of Krystal N., the First Department repeated the broad statement from Dockery that the 911 recordings are not sealed, again with no analysis given for that conclusion, 193 AD3d 602 [1st Dept 2021](cited as Matter of James R. by Petitioner). However, the facts in Krystal N. are distinguishable in that the criminal case was still pending at the time that the 911 recordings were introduced into evidence in the Family Court fact-finding hearing. Thus, the First Department affirmed the Family Court’s refusal to strike those recordings from evidence when the criminal case was dismissed on a later date while the fact-finding hearing was still pending. Clearly, the recordings were not sealed at the time they were properly introduced into evidence and should not have been retroactively precluded. In the instant case, the criminal dismissal occurred prior to the neglect fact-finding’s commencement. The Third Department cases cited by Petitioner, Matter of City of Elmira v. John Doe and People v. McGurk, are also distinguishable from the facts here. These decisions involve business records that were generated independently of the criminal investigation and which were innocuous on their face as related to the former criminal defendant in those cases. The body camera footage and 911 calls recorded here are “integral” to Mr. S’s criminal investigation and arrest by the police and are clearly inculpatory. Furthermore, Petitioner’s recitation of the holding of In re T.P., 51 Misc. 3d 738, as to memo books is incorrect. In re T.P., 51 Misc 3d 738 [Fam Ct 2016]. This Court found that memo book entries remain unsealed after dismissal specifically because they are kept on the person of the individual officer and therefore do not satisfy the statutory requirement of being “on file” with the police agency. See CPL §160.50(1)(c). The harm to the accused of an arrest and criminal prosecution is not eradicated by the case’s ultimate dismissal. Certainly, the experience of the arrest and liberty infringement and/or incarceration, however brief, that followed, as well as the stigma of the case — both while pending and thereafter, if all records are not sealed — remains. As the Court of Appeals has noted, “a person’s reputation and employment prospects may be adversely affected even from an unsuccessful criminal prosecution.” Harper at 766 (citing Hynes v. Karassik at 662). The legislature seeks to mitigate this harm by mandating sealing of all official records. Petitioner misapprehends the statutory goal of the sealing law as avoiding a negative impact on the individual’s “rights as a criminal defendant.” See Petitioner’s Memorandum of Law, p. 3, P 8. The subject of a dismissed case is no longer a criminal defendant. Rather, at issue are the individual’s due process rights generally in all aspects of life. As this Court has previously noted, Petitioner ACS is fully aware of this statute and the growing body of caselaw concerning the implications to Article 10 proceedings and can address, and even eliminate, any impact by increasing their coordination with the District Attorney’s office, preparing police officers using unsealed records and/or calling any other available witnesses. As long as cases are properly prepared, and given the lower evidentiary standards in Family Court, the impact on the presentment of child protective proceedings will be negligible, if any, especially when balanced against the importance of protecting the due process rights of the subject of the sealed records. Respondent argues in the alternative that both the 911 recording and body camera footage consist primarily of hearsay, specifically the statements of the children’s mother, and should also be precluded for that reason. Respondent contends that ACS cannot establish that these statements are admissible as excited utterances given the delays between the alleged incidents and the mother’s out-of-court statements. Specifically, the 911 call did not occur until September 15th, days after both alleged incidents, and the filmed interview between the mother and the police which took place on September 12th, one-and-a-half hours after one of the alleged incidents and two days after the other. Given the Court’s granting of the preclusion motion on the basis of sealing, the Court is not ruling on the hearsay claim; however, the delay in time does seem likely to vitiate any argument that the excited utterance exception would apply here. Therefore, for the reasons stated above, the fact-finding hearing will continue on August 2, 2021 with any additional evidence Petitioner’s wishes to introduce. Dated: July 20, 2021
