Family Court, Kings County, March 29, 2019

Legal Aid Society, Juvenile Rights Practice, Brooklyn (Lina Del Plato of counsel), Attorney for the Children.

Edward Irizarry, New York City, for respondent.

Alan Sputz, Special Assistant Corporation Counsel, Administration for Children's Services, Brooklyn (Ayo Alston-Moore of counsel), for Administration for Children's Services, petitioner.

Now pending before the court is the Attorney for the Children's (AFC) motion in limine (No. 1) to preclude respondent from entering into evidence a 911 recording, based on the sealing provision of Criminal Procedure Law § 160.50.

The ruling below is contingent upon respondent laying the necessary foundation for admission of a business record. (Family Ct Act § 1046 [a] [iv]; Matter of Leon RR, 48 NY2d 117, 122 [1979].) For the reasons that follow, the motion is denied.

Before the court is a petition filed by Administration for Children's Services on October 19, 2017, alleging that the respondent perpetrated acts of domestic violence in the presence of the children. On November 28, 2018, the fact-finding commenced and respondent's counsel indicated on the record that he would be seeking to admit the 911 recording concerning an October 8, 2017 incident. According to the case file, respondent's criminal court case related to that incident was dismissed and sealed. AFC filed the instant motion to preclude the 911 recording under CPL 160.50.^[FN1]

CPL 160.50 (1) (c) provides in pertinent part that "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." In Matter of Dondi, the Court of Appeals held that the statute should be interpreted to include tape recordings in addition to papers and other records.{**63 Misc 3d at 804} (63 NY2d 331 [1984].)^[FN2] In Matter of Harper v Angiolillo, the Court [*2]of Appeals observed that

"although CPL 160.50 specifies judgments and orders of a court as items 'included' in the category of official records and papers, the statute is otherwise silent on the nature of such 'official' material further supporting the conclusion that bright line rules are not wholly appropriate in this area. Indeed, such records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case." (89 NY2d 761, 765-766 [1997] [citations omitted].)

The present issue is whether 911 recordings fall under the sealing statute. This court finds that in this case they do not. While a call to 911 may have the collateral effect of commencing a criminal investigation, such calls are not initiated by law enforcement action. The purpose of a 911 call is not to commence an investigation, but for anyone who needs emergency assistance by means of medical, fire or police to receive such assistance. Indeed, many calls to 911—even those seeking police as opposed to fire or medical assistance—do not result in a criminal investigation, let alone prosecution. Although the 911 recording may be maintained and used by law enforcement during an investigation, should one commence, the recording is not the work product of law enforcement as is a recording of a police interrogation. It is undoubtedly for this reason that the only appellate court to rule squarely on the question of whether 911 recordings are "official records relating to [a criminal defendant's] . . . prosecution" held that they are not, and that they are thus admissible in a collateral civil proceeding. (Matter of Dockery v New York City Hous. Auth., 51 AD3d 575, 575 [1st Dept 2008].)

Respondent argues that the 911 recording contains exculpatory evidence in that he alleges the maternal grandmother made the 911 call and pretended to be the non-respondent mother. The protective measure in sealing a defendant's criminal record should not be used as a sword preventing respondent from putting on his defense in a related Family Court Act article 10 matter. Certainly the defensive use of a 911 recording by a respondent who is the intended beneficiary of CPL 160.50 sealing is one of the "circumstances" contemplated by {**63 Misc 3d at 805}Harper in which a recording falls outside the statute. If the dismissal and sealing of a criminal case is designed to "restore[ ]" an accused "to the status he occupied before the arrest and prosecution" (CPL 160.60), the problem for Mr. D.M. is that he still faces an article 10 proceeding in Family Court based on the exact same allegations that led to the criminal case. The reasoning in Matter of Carolina K. (Howard K.) (55 Misc 3d 352 [Fam Ct, Kings County 2016]) thus does not apply. Respondent must be permitted to use the 911 recording to defend himself here.^[FN3]

For the foregoing reasons, motion No. 1 is denied.