DECISION AND ORDER Defendant is charged with Assault in the Third Degree and related charges. The Prosecution moves for a protective order pursuant to Criminal Procedure Law (CPL) §245.70(1) and Social Services Law (SSL) §§422 and 422-a to limit possession, exhibition, and use of discovery of all materials and information created and maintained by the New York City Administration for Children’s Services (ACS) relating to the complaining witness, Althea Herbert. Specifically, the Prosecution requests that the materials remain in the custody of the attorney of record, Jessica Brierly-Snowden, Esq.; that the materials only be exhibited to Defendant, the attorney of record, counsels for Brooklyn Defender Services, and those employed by Defense Counsel or appointed to assist in the defense; and that the materials be used solely for the purpose of preparing a defense in this criminal action. Defendant opposes only the last provision of the Prosecution’s motion, that use of the materials be limited solely to defense in the instant criminal case. For the foregoing reasons, the Prosecution’s motion is GRANTED. PROTECTIVE ORDERS CPL §245.70(1) provides in pertinent part, “upon a showing of good cause…the court may at any time order that discovery or inspection of any kind of material or information under this article be denied, restriction, conditioned or deferred…” CPL§245.70(4) provides guidance as to how the court may determine what constitutes good cause. The Prosecution argues that a protective order is required to comply with SSL §§422 and 422-a, which limit disclosure of ACS records. The Prosecution further contends that a protective order is appropriate to prevent emotional harm such as may befall the child witness if the ACS records were to be disseminated beyond their use in this case. SSL 422(4) states that, “Reports made pursuant to this title as well as any other information obtained, reports written or photographs taken concerning such reports in the possession of the office or local departments shall be confidential and shall only be made available to…” an enumerated exhaustive list of individuals and agencies. SSL §422-a(b) permits disclosure of information regarding abuse or maltreatment of a child to law enforcement officials, district attorneys, state or local investigative agencies, and judges of the unified court system. In his opposition, Defendant argues that limiting the use of the ACS records solely to his defense in this criminal case is unduly burdensome, impractical, and violative of his constitutional rights to effective assistance of counsel, to present a defense, and to confront witnesses against him. Defendant cites his counsel’s duty to conduct factual investigation and to collaborate with his family court attorney to zealously defend him in both pending matters. However, Defendant does not explain how or why his counsel’s ability to investigate his criminal case would be limited should Defendant not be permitted to use the ACS records for purposes beyond the criminal case. The Court recognizes the need for broad disclosure and free-flowing information to effectively defend in any action. The Court credits Defense Counsel’s attestation of professional discretion as an officer of the court. However, the Court is strictly limited by SSL §422(4). “The Legislature has specifically directed, however, that records of child-abuse investigations are to be kept strictly confidential except as expressly permitted by statute” (Lamot v. City of New York, 297 A.D.2d 527, at 528 [2002]). Beyond the plain language of the statute, the Court is guided by similar court rulings (see Matter of W.[E.S.], 50 Misc. 3d 1220(A) (N.Y. Fam. Ct., 2014) (holding that, although a litigant was permitted to access ACS records pursuant to a family court case, he was not permitted to share the records with his defense attorney in a concurrent criminal proceeding). The Court lacks authority to override the SSL§422(4), especially where Defendant has not been denied access to the records. This constitutes the decision and order of the court. Dated: March 13, 2024
