Family Court, Bronx County, January 27, 2020

The Bronx Defenders, Family Defense Practice, Bronx (Janae Hunte of counsel), for J.R., respondent father.

Administration for Children's Services, Family Court Legal Services, Bronx (Zachary Sachs of counsel), for petitioner.

Law Office of Lisa M. Licata, Bronx (Lisa M. Licata of counsel), for M.O., nonparty mother.

Legal Aid Society, Bronx (Madeleine Mercer of counsel), Attorney for the Child.

The Administration for Children's Services filed a petition against respondent father J.R. on behalf of the subject child M.R. on June 18, 2019. The petition alleges that respondent J.R. perpetrated domestic violence against the non-respondent mother in the presence of the subject child and that respondent J.R. misuses alcoholic beverages to the extent that he loses control of his actions and is not voluntarily and regularly participating in a rehabilitative program. On November 22, 2019, counsel for respondent J.R. filed a motion in limine, arguing that pursuant to Criminal Procedure Law § 160.50, all New York City Police Department (hereinafter NYPD) records, including the various domestic incident reports, follow-up{**67 Misc 3d at 387} reports and 911 tape, should be precluded, as the criminal case against respondent J.R. was dismissed and sealed. In the alternative, if the records are admissible, respondent J.R. argues that all inadmissible hearsay and irrelevant evidence in both the NYPD records and the oral report transmittal (hereinafter ORT) should be excluded. The Administration for Children's Services (hereinafter ACS) filed a response on December 17, 2019, arguing that the records should not be precluded under CPL 160.50 and that hearsay exceptions exist which allow for the admission of statements in both the NYPD records and ORT. Counsel for respondent J.R. replied to ACS on January 8, 2020.

Criminal Procedure Law § 160.50 states:

"1. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the record of such action or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and unless the court has directed otherwise, that the record of such action or proceeding shall be sealed. Upon receipt of notification of such termination and sealing: . . .

"(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, 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."

{**67 Misc 3d at 388}[1] In Matter of Harper v Angiolillo (89 NY2d 761, 766 [1997]) the Court of Appeals noted that "[t]he sealing requirement was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused." All NYPD records, including domestic incident reports, DVO DV home visit, DV closing, DV arrest, arrest and complaint reports, ARAS UF61 follow up, transfer conferral, and the ICAD log response, fall within the sealing statute. It is uncontroverted that the criminal case against respondent J.R. was dismissed and sealed; therefore, the court finds that the NYPD records are sealed pursuant to CPL 160.50. Without a proper unsealing order from the Criminal Court, as outlined in CPL 160.50 (1) (d), the NYPD records are sealed and precluded from being offered at fact-finding.

The 911 call is admissible because it is not subject to the sealing law. In Matter of Dockery v New York City Hous. Auth. (51 AD3d 575, 575 [1st Dept 2008]), the First Department held that "911 recordings were properly admitted into evidence at [a] disciplinary hearing since they were not official records relating to petitioner's arrest or prosecution, and thus were not subject to the sealing statute." This court is persuaded by the analysis in Matter of Estrella G.-C. (Julio B.) (63 Misc 3d 1216[A], 2019 NY Slip Op 50545[U] [Fam Ct, Kings County 2019]) that 911 recordings were not designed for the purpose of criminal prosecution and law enforcement. Instead, "[a]n emergency telephone call captured in a 911 recording . . . is a call made by a member of the public seeking emergency assistance before there is any court activity." (Estrella G.-C. [Julio B.], 2019 NY Slip Op 50545[U], *3.) The court in Estrella further notes that "the work of an emergency dispatcher is not about law enforcement; it is about first response and scene control."^[FN*] (Estrella G.-C. [Julio B.], 2019 NY Slip Op 50545[U], *3.) Therefore, this court finds that the 911 tape and Sprint report do not fall within the records sealed pursuant to CPL 160.50.

Although not covered by CPL 160.50, 911 recordings are admissible only if the statements therein fall within a hearsay{**67 Misc 3d at 389} exception: present sense impression or excited utterance. In People v Brown (80 NY2d 729, 734 [1993]) the Court of Appeals held that 911 recordings are an exception to hearsay under the theory of present sense impression when "spontaneous descriptions of events [are] made substantially contemporaneously with the observations" and "if the descriptions are sufficiently corroborated by other evidence." In Brown, the Court found sufficient corroboration of the present sense impression in the testimony from police that they arrived on scene shortly after the call and "apprehended two suspects fitting the description . . . given by the caller." (Id. at 736-737; see also People v Buie, 86 NY2d 501 [1995].)

Similarly, statements made spontaneously and under the stress and excitement of an external event are known as excited utterances. "Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy." (People v Edwards, 47 NY2d 493, 497 [1979]; see also People v Johnson, 1 NY3d 302, 306 [2003], quoting Edwards.)

This court has not reviewed the 911 tape at issue in this matter, so no determination has been made as to the ultimate admissibility of this 911 tape.

This court does not find that a Sprint report is independently admissible when a 911 call is available. Admission of the Sprint report, essentially a transcript of the 911 call, would constitute improper bolstering. In matters where the 911 tape is acquired by the petitioner, it constitutes the best evidence. In cases where the 911 tape cannot be acquired, the Sprint report would then be the best evidence. Here, the presence of a 911 tape likely renders the Sprint report inadmissible. However, should the Sprint report contain evidence which is not duplicative of the 911 recording, the court will entertain further applications concerning its admissibility.

[2] In considering the admissibility of the narrative and miscellaneous sections of the ORT, the court turns to Family Court Act § 1046 (a) (v), which states "any report filed with the statewide central register of child abuse and maltreatment by a person or official required to do so pursuant to section four hundred thirteen of the social services law shall be admissible in evidence." Counsel for respondent J.R. argues that under Matter of Imani O. (Marcus O.) (91 AD3d 466 [1st Dept 2012]),{**67 Misc 3d at 390} the narrative and miscellaneous statements in the ORT are inadmissible hearsay. In Imani O., the First Department held that "all the participants in the chain must be under a duty to report and be acting within the scope of that duty." (Id. at 467.) However, the court analyzed this issue only under the business records exception to the hearsay rule, and did not refer at all to Family Court Act § 1046 (a) (v), which specifically allows an ORT into evidence if it is made by a reporter mandated under the Social Services Law. Imani O. is therefore distinguishable from this case. Although the source of the ORT is redacted, an attached case note identifies the source as an assistant district attorney, a mandated reporter. Pursuant to Family Court Act § 1046 (a) (v), the narrative and miscellaneous sections of the ORT are admissible. This court, of course, has not yet decided what weight it will give to the ORT.

For the reasons described above, the respondent's motion in limine is granted in part and denied in part. The NYPD records are sealed pursuant to CPL 160.50 and therefore precluded from evidence absent an unsealing order. That request by respondent J.R. is granted. The 911 tape and Sprint report are not sealed pursuant to CPL 160.50; therefore that portion of the motion is denied. The ORT is admissible pursuant to Family Court Act § 1046 (a) (v) and therefore that portion of the motion is denied.