Family Court, Kings County, June 30, 2021

Brooklyn Defender Services (Brian Holbrook of counsel) for respondent.

Administration for Children's Services (Darya Olshanetskaya of counsel) for petitioner.

Winsome Rhudd, Brooklyn, for mother.

Jennifer Marshall, Brooklyn, for non-respondent father.

Legal Aid Society, Juvenile Rights Practice (Aurora Curtis of counsel), Attorney for the Children.

This court was scheduled to commence the fact-finding hearing virtually due to the ongoing COVID-19 pandemic as to Mr. F in a child protective proceeding pursuant to article 10 of the Family Court Act on April 12, 2021. The underlying neglect petition was filed on July 26, 2019, and involves neglect allegations based on acts of domestic violence committed by the respondent father/person legally responsible, Mr. F, against the subject children's mother in their presence on June 14, 2019. The respondent was also arrested and charged criminally for the same incident. However, his criminal case was dismissed and sealed on January 31, 2020, more than one year prior to the commencement of the fact-finding hearing in this case.

The Administration for Children's Services (ACS or petitioner) intended to call NYPD Officer Orellana to the stand; however, counsel for Mr. F objected and asked for a voir dire of the officer on what items she had reviewed to prepare for her testimony. The court allowed the voir dire and Officer Orellana acknowledged having reviewed the police reports and body camera footage of the arrest. The fact-finding hearing was adjourned for Mr. F to provide verification that his criminal{**73 Misc 3d at 211} case was sealed; upon doing so, his counsel submitted a memorandum of law in support of his preclusion motion and petitioner responded on the record on May 24th. The court then reserved decision. Although petitioner concedes that the written police reports related to the arrest are now sealed and cannot be used at this fact-finding hearing, ACS is still seeking to admit the domestic incident reports (DIRs) and body camera footage from this incident, contending that these items are not sealed. Petitioner will also seek to call a different police officer whose memory of the events has not been tainted by a review of sealed documents.

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 Matter of T.P. [Tony G.], 51 Misc 3d 738 [Fam Ct, Kings County 2016] [arrest documents and DIR were sealed and 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]; Matter of Carolina K. [Howard K.], 55 Misc 3d 352 [Fam Ct, Kings County 2016] [911 recording sealed]; Matter of Samantha R. [Angel R.], 55 Misc 3d 338 [Fam Ct, Kings County 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 No. 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, [*2]Kings County, Feb. 22, 2011, Gruebel, J., docket No. NN-30879-80/10 [DIRs are sealed]; Matter of J.G., 2009 NY Slip Op 33477[U] [Fam Ct, Bronx County 2009] [DIR sealed].) In Matter of Carolina K. and Matter of Diyorhjon K. (Fazliddin K.) (65 Misc 3d 788 [Fam Ct, Kings County 2019]), this court applied the same rationale to 911 recordings sought to be introduced by ACS in those cases and in Matter of Samantha R. and Matter of T.P. to excluding domestic incident reports when they result in an arrest that is later sealed.

CPL 160.50 (1) (c) states in pertinent part, "all official records and papers . . . relating to the arrest or prosecution, {**73 Misc 3d at 212}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 protection is all the more important today given the increased awareness of the overrepresentation 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 future of the arrested individual.

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 contained in paragraph (d), none of which apply here.^[FN*] When the language of a statute is plain, courts are required to follow its mandates. (Kimmel v State of New York, 29 NY3d{**73 Misc 3d at 213}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."

DIRs, which are required to be completed whenever the police respond to a domestic dispute, are clearly "official records . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or [*3]prosecutor's office." (CPL 160.50 [1] [c].) ACS has argued that the fact that DIRs are required by law even in cases where no arrest occurs renders them different from other arrest-related documents. However, that distinction does not change the importance of enforcing the public policy behind the sealing statute in a case where an arrest does occur and the case is terminated favorably to the accused. (See Matter of T.P. [Tony G.], 51 Misc 3d 738 [Fam Ct, Kings County 2016]; Matter of Samantha R. [Angel R.], 55 Misc 3d 338 [Fam Ct, Kings County 2016]; Matter of B/L Children, Fam Ct, Kings County, Feb. 22, 2011, Gruebel, J., docket No. NN-30879-80/10; Matter of J.G., 2009 NY Slip Op 33477[U] [Fam Ct, Bronx County 2009].)

As to the body camera footage, this court has not previously confronted this issue as body cameras were not commonly used prior to the recent focus on excessive force by the police during arrests. Clearly, this footage can be used for reasons other than proof of an arrestee's illegal activity. However, where such activity is allegedly captured 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." (New York City Police Department, 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., Fam Ct, Kings County, June 4, 2020, docket No. NN-23577-19.){**73 Misc 3d at 214}

This court has previously noted the important guidance provided by the Court of Appeals ruling in Matter of 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 '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 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.

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 the 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].) A New York County Supreme Court did address the issue of whether body camera footage was sealed in the context of a Freedom of Information Law (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 160.55. (Matter of Time Warner Cable News NY1 v New York City Police Dept., 53 Misc 3d 657, 666 [Sup Ct, NY County 2016], rearg granted 2017 NY Slip Op 30707[U] [Sup Ct, NY County 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 then NYS Senator Daniel Squadron regarding FOIL [*4]requests for body camera footage that

"there will be times when the New York City Police{**73 Misc 3d at 215} 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 [Apr. 27, 2016], available at https://www.nysenate.gov/sites/default/files/articles/attachments/nypd_body_camera_response.pdf.)

As noted above, 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. The legislature seeks to mitigate this harm by mandating sealing of all official records. Petitioner ACS is on notice of this statute and the resulting case law and can address the potential impact on their case 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, the impact on the presentment of child protective proceedings will be negligible, if any, especially when balanced against the importance of protecting the privacy rights of the subject of the sealed records.

Therefore, for the reasons stated above, the fact-finding hearing will continue on July 14th with any additional evidence, other than the DIR and body camera footage, that petitioner wishes to introduce.