Family Court, Kings County, September 3, 2019

Administration for Children's Services, Family Court Legal Services (Victoria Han of counsel), for petitioner.

Regine Pointdujour Cabane, Brooklyn, for respondent.

Legal Aid Society, Juvenile Rights Practice, Brooklyn (Sara Reisberg of counsel), Attorney for the Children.

This court commenced a contested fact-finding hearing in a child protective proceeding pursuant to article 10 of the Family Court Act on May 22, 2019. The underlying neglect petition was filed on December 28, 2018, and involves neglect allegations based on acts of domestic violence committed by the respondent father, Mr. K., against the subject children's mother in their presence on November 2nd. The respondent was also arrested and charged criminally for the same incident. However, his criminal case was dismissed and sealed prior to the commencement of the fact-finding hearing in this case. Notably, the report to the state central registry was not made until more than one month after the respondent's arrest.

The Administration for Children's Services (ACS or petitioner) called the investigating ACS caseworker, who testified about her investigation including the statements the subject children made to her about the incident during an interview on December 12th. The fact-finding hearing is now continued for the completion of ACS's direct case. The petitioner has requested that the court allow the introduction of the 911 recording generated from this incident despite the fact that the criminal case was dismissed and sealed. This court, among others, has previously held that documents from related sealed criminal cases are not admissible in Family Court Act article 10 proceedings pursuant to CPL 160.50 (1). (See Matter of T.P. [Tony G.], 51 Misc 3d 738 [Fam Ct, Kings County 2016]; Matter of Carolina K. [Howard K.], 55 Misc 3d 352 [Fam Ct, Kings County 2016]; Matter of Samantha R. [Angel R.], 55 Misc 3d 338 [Fam Ct, Kings County 2016]; Matter of T/R, Fam Ct, Kings County, May 19, 2016, Barnett, J., docket No. NN-2206-9/15; Matter of B/L Children, Fam Ct, Kings County, Feb. 22, 2011, Gruebel, J., docket No. NN-30879-80/10; Matter of J G [K G], 2009 WL 7292304 [Fam Ct, Bronx County, Dec. 3, 2009, Drinane, J., docket Nos. N-10689/09, N-10690/09].)

In Matter of Carolina K., this court applied the same rationale to the 911 recording sought to be introduced by ACS in{**65 Misc 3d at 790} that case. However, petitioner has urged this court to reach a contrary ruling based on the facts here as well as subsequent contrary Family Court decisions (see Matter of Estrella G.-C. [Julio B.], 63 Misc 3d 1216[A], 2019 NY Slip Op 50545[U] [Fam Ct, Kings County 2019]; Matter of Christal D.M. [Christopher D.M.], 63 Misc 3d 802, 804 [Fam Ct, Kings County 2019]; Matter of James R., Fam Ct, Bronx County, Dec. 3, 2018, Taylor, J., docket No. NA-12901-2/16), and because the 911 recording in this case is of the subject child's voice and therefore would otherwise be admissible under Family Court Act § 1046 (a) (vi). This application is supported by the Attorney for the Children (AFC). The respondent has orally moved to preclude the 911 call recording based on the sealing statute. The court requested briefing from all parties, which were received and reviewed, and now renders this decision.

CPL 160.50 (1) (c) states in pertinent part, "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."

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 exonerated accuseds 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, 131 [1993], quoting Governor's Approval Mem, 1976 McKinney's Session Laws of NY at 2451.)

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."

The language of CPL 160.50 (1) (c) is mandatory and unequivocal in precluding the provision of "all official records" (emphasis added) to any public agency, the only exceptions being{**65 Misc 3d at 791} contained in paragraph (d), none of which apply here.^[FN1] When the language of a statute is plain, courts are required to follow its mandates. (Kimmel v State of New York, 29 NY3d 386, 392 [2017] [Courts should look "first to the plain language of the statute( ) as the best evidence of legislative intent"]; Matter of 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."

In a prior decision, Matter of Carolina K. (55 Misc 3d at 354, 355), this court held that 911 recordings are 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" (internal quotation marks omitted). Additionally, this court found that any differences between 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. Carolina K. involved an alleged single incident of domestic violence in which the ACS caseworker was able to provide evidence supporting the petitioner's case by testifying to her interviews with the two older teenage subject children who described the incident to her in detail only one day after it took place.

In reaching its decision in Carolina K., this court noted the important guidance provided by the Court of Appeals ruling in Matter of Harper v Angiolillo (89 NY2d 761 [1997]). Harper involved the question 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 'judgments 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. at 766.) In reviewing {**65 Misc 3d at 792}its two prior decisions involving the question of whether tape recordings qualify as "official documents," Matter of Hynes v Karassik (47 NY2d 659 [1979]) and Matter of Dondi (63 NY2d 331 [1984]), the Court of Appeals stated that "while some recordings may qualify as an official record 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.

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. Dondi, in contrast, 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 "was integral to both appellant's arrest and his prosecution." (63 NY2d at 335, 338.) In Dondi, the Court stated "it [was] 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 by the police—a public agency—in the course of its official duties, the recording is "official" and must be sealed.

The Second Department, in a case which did not identify the specific type of recordings at issue, cited all three Court of Appeals decisions in holding 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." (Matter of Catterson v Corso, 244 AD2d 407, 407-408 [2d Dept 1997].) The only appellate decision which explicitly dealt with the issue of whether 911 recordings specifically are sealed is a First Department case 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. (Matter of Dockery v New York City Hous. Auth., 51 AD3d 575, 575 [1st Dept 2008].) However, the decision provides no factual details or other analysis as guidance for the basis of this conclusion. (Id.) Perhaps due to the Court's uncertainty as to the sealing statute's application in that case, 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 {**65 Misc 3d at 793}. . . require annulment of [the agency's] determination." (Id.) Thus, the court finds Dockery to be of limited precedential value in the face of the Court of Appeals case law and the Second Department's decision in Catterson.

ACS and the AFC have requested that the court draw a distinction from its prior holding in Carolina K. in this case because of the fact that it is the subject child whose voice makes up the majority of the 911 recording.^[FN2] However, CPL 160.50 does not provide for this exception. Once an item is determined to be an "official record" subject to the sealing statute, the court must apply that protection across the board regardless of the contents of the record. In this court's view, there can be no escaping the fact that this 911 recording—which was made by a NYC agency,^[FN3] thereby making it {**65 Misc 3d at 794}"official,"^[FN4] and is kept "on file" with the NYC Police Department (NYPD), and which led to the respondent's arrest and prosecution for this same incident—meets the clear, plain requirements of the sealing statute, as interpreted by the Court of Appeals.

Thus, as explained further, this court respectfully disagrees with the decisions of the Family Courts in Matter of Estrella G.-C. and Matter of James R. which find 911 recordings from dismissed criminal cases per se admissible subject to hearsay and other evidentiary objections.^[FN5] This court does not believe that the origins, and various uses, of the 911 system as described in Matter of Estrella G.-C. [Julio B.] (63 Misc 3d 1216[A], 2019 NY Slip Op 50545[U] [Fam Ct, Kings County 2019]) override the fact that such recordings are clearly "relating to the arrest or prosecution" of the accused and, as noted in Estrella G.-C., are maintained by an NYPD custodian of records and thus satisfy the plain language of CPL 160.50 (1) (c) as being "on file with . . . [a] police agency." Matter of James R. reaches the conclusion that the sealing statute was only intended to apply to use in criminal proceedings and to protect the accused from criminal liability. However, there is no such limiting language in CPL 160.50 nor have any of the appellate decisions interpreted the statute in this way. Rather, most of the case law relates to the use of records arguably subject to CPL 160.50 in various other types of proceedings. (See e.g. Matter of Dondi, 63 NY2d 331 [1984] [attorney grievance hearing{**65 Misc 3d at 795} investigation]; Matter of Dockery v New York City Hous. Auth., 51 AD3d 575 [1st Dept 2008] [Housing Authority disciplinary hearing]; Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128 [1993] [Board of Education administrative hearing].)

Another justification made by the Family Court in Estrella G.-C. is a concern that respondents who were arrested, prosecuted and had their cases dismissed somehow derive a "benefit" from that over those who were never arrested in the first place and such benefit is contrary to public policy. This court strongly disagrees with this analysis. The harm to the accused of an arrest and criminal prosecution is not eradicated by the case's ultimate dismissal. (See Harper at 766, citing Hynes v Karassik at 662 ["(A) person's reputation and employment prospects may be adversely affected even from an unsuccessful criminal prosecution"].) 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. The legislature seeks to correct this by mandating sealing of all official records. This is, in fact, a "sound policy reason" why the result should be different when the Family Court respondent's criminal case was dismissed. (Contra Matter of Estrella G.-C. [Julio B.], 63 Misc 3d 1216[A], 2019 NY Slip Op 50545[U], *3 [Fam Ct, Kings County 2019] ["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"].)

Domestic Incident Reports (DIRs) are another type of record that is generated when an incident is reported regardless of whether an arrest is made. There are at least two Family Court decisions that have reached the conclusion that DIRs come under the purview of the sealing statute when they pertain to a criminal case that was dismissed. (See Matter of B/L Children, Fam Ct, Kings County, Feb. 22, 2011, Gruebel, J., docket No. NN-30879-80/10; Matter of J G [K G], 2009 WL 7292304 [Fam Ct, Bronx County, Dec. 3, 2009, Drinane, J., docket Nos. N-10689/09, N-10690/09].) The fact that the same records, 911 recordings and DIRs, exist in cases where the accused party is never arrested, and in those instances are not subject to the sealing statute, does not undermine the importance of the values CPL 160.50 was intended to protect. Rather, the "perverse result" cited in Estrella G.-C. (2019 NY Slip Op{**65 Misc 3d at 796} 50545[U], *3) can easily be rectified by improved coordination between the various district attorney offices and the corresponding city attorneys for ACS in family court.

This court does agree with the underlying concerns raised in Estrella G.-C. about the differential outcomes in domestic violence cases in the criminal and family courts and, of even greater concern, the lack of effective communication between the two prosecuting agencies, both of whom have the same client—New York City. Improved communication and coordination of efforts between these two city legal offices would have the substantial benefit of ensuring that any parent or person legally responsible guilty of domestic violence receives the appropriate treatment and/or punishment and that the victim and/or children are protected both during the proceedings and in the future. At a minimum, coordination could ensure that, where 911 calls or other police records are important to establish the child protective case, the district attorney would not agree to dismissal of the criminal case while the family court trial is still pending or could predicate the dismissal on an order that the necessary records remain unsealed pending resolution in family court. This is the way to preserve the public policy behind the protection of children and truth-telling while also protecting the rights of former criminal defendants who may have been unfairly arrested and charged. (Contra Matter of Estrella G.-C. [Julio B.], 63 Misc 3d 1216[A], 2019 NY Slip Op 50545[U], *3-4 [Fam Ct, Kings County 2019] ["(T)he CPL cannot be used to trump the truth-finding and [*2]child protective missions of Family Court"].)^[FN6]

Therefore, the court stands by its prior decision in Carolina K. and reiterates the importance of preserving the critical protections provided to former criminal defendants through the sealing of all criminal documents generally, including 911 recordings that constitute "official records" and relate to dismissed criminal prosecutions.

The court is sympathetic to the reasons that ACS and the AFC seek to admit the 911 call here, given that it is much more contemporaneous to the incident than the child's statements to the caseworker; however, that delay is due to the failure of the police to call the report into ACS promptly upon making the respondent's arrest.{**65 Misc 3d at 797}

Therefore, for the reasons stated above, the fact-finding hearing will continue on September 16th with any additional evidence petitioner wishes to introduce.

"Each 911 call is answered by a Police call-taker. If the caller is reporting a crime, the Police call-taker will share the details of the call with the Police dispatcher, who mobilizes the unit. The unit travels to the site specified on the call. When the unit arrives, the process is complete.

"If the caller is reporting a fire, the Police call-taker adds a Fire department call-taker to the call. At the same time, a Fire department dispatcher mobilizes the unit who travels to the site. When the unit arrives, the process is complete.

"If the caller is reporting a medical emergency, the Police call-taker adds an EMS call-taker to the call. The EMS call-taker conducts medical questioning and then shares the details with an EMS dispatcher that mobilizes the unit that will travel to the site. When the unit arrives, the process is complete." (Anatomy of a 911 Call, https://www1.nyc.gov/site/911reporting/reports/reports.page [last accessed Aug. 27, 2019].)