Criminal Court of the City of New York, Kings County, January 5, 2023

Eric Gonzalez, District Attorney (Jourdan Thompson and Brooke Cohen of counsel), for the People.

Brooklyn Defender Services (Alexander McHugh of counsel) for defendant.

On November 21, 2022, this court held a hearing pursuant to Matter of Crawford v Ally (197 AD3d 27 [1st Dept 2021]), in order to determine what conditions were necessary in temporary orders of protection that had been issued at the defendant's arraignment in favor of five individuals.

An issue in the hearing was whether two prior domestic incident reports (DIRs) were admissible when they had been prepared in response to allegations that resulted in previous prosecutions that were dismissed.

The matter was initially heard in the morning session, and the court gave counsel a second call until after the lunch break to research the issue. In the afternoon, the court ruled that the prior DIRs were admissible. This decision explains the court's reasoning.

Procedural History

Defendant was arraigned on October 7, 2022, and was charged with four counts of endangering the welfare of a child (Penal Law § 260.10 [1]), and with one count each of criminal obstruction of breathing (Penal Law § 121.11 [a]), assault in the third degree (Penal Law § 120.00 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26 [1]).

The complaint alleged that on October 6, 2022, the defendant pushed his wife, causing her to hit a bed, and then placed both hands around her neck and applied pressure to her neck, all in the presence of four children who ranged in age from five months to 12 years. A full order of protection was issued at arraignment{**78 Misc 3d at 354} for his wife and for the four children who were alleged to have been present during the incident. The matter was adjourned to November 15, 2022.

On November 15, 2022, defense counsel requested a Crawford hearing and the matter was adjourned to November 21, 2022, for that purpose.

At the hearing on November 21, 2022, defendant asserted that at the time of the arrest, he [*2]lived with his wife and the four children, one of whom was his biological child. Defendant asserted that his name was on the lease for the apartment and that he paid utilities, including electricity. The People conceded that the defendant had a substantial property and personal interest at stake.

The People maintained that a full order of protection was nonetheless necessary to ensure the safety of the protected parties during the pendency of the prosecution. People's exhibits 1 and 2, a typed DIR and handwritten DIR for the October 6, 2022 incident, as well as People's exhibits 3 and 4, photographs of the complainant's injuries from the incident, were admitted without objection.

The People also sought to introduce exhibit 5, a DIR dated October 16, 2019, and exhibit 6, a DIR dated November 3, 2020, both of which involved incidents that had resulted in the defendant's arrest. The matters relating to those two incidents were both later dismissed. The defense objected, asserting that both DIRs were subject to sealing under Criminal Procedure Law § 160.50 because the defendant had been arrested for those two incidents and the cases were later dismissed.

The Admissibility of DIRs from Incidents That Result in Prosecutions That are Dismissed

At issue in this Crawford hearing, and in scores of other proceedings where issues such as bail and orders of protection are considered, is whether a prosecutor may rely on, and a court may consider, information maintained on DIRs that were created for an incident that resulted in a prosecution when that prosecution was ultimately dismissed.

CPL 530.12 and Crawford Hearings

CPL 530.12, which authorizes the court to issue orders of protection for victims of family offenses, provides a non-exhaustive list of factors a court must consider when determining the conditions of an order of protection. Those factors include "whether the temporary order of protection is likely to{**78 Misc 3d at 355} achieve its purpose in the absence of [a] condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons." (CPL 530.12 [1] [a].)

In Crawford v Ally, the First Department held that

"when the defendant presents the court with . . . [a] showing that there may be an immediate and significant deprivation of a substantial personal or property interest upon [the] issuance of the [temporary order of protection], the Criminal Court should conduct a prompt evidentiary hearing on notice to all parties and in a manner that enables the judge to ascertain the facts necessary to decide whether or not the [temporary order of protection] should be issued." (197 AD3d 27, 28, 34.)

The Sealing Statute

CPL 160.50 (1) (c) provides broad protections to a defendant when criminal proceedings are terminated in favor of an accused:

"Upon the termination of a criminal action or proceeding against a person in favor of such person . . .

"all official records and papers, including judgments and orders of a court . . . relating to the arrest or prosecution, including all duplicates and copies thereof, on file with . . . any court [or] police agency . . . shall be sealed and not made available to any person or public or private agency."

The Court of Appeals has emphasized the policy considerations that underscore CPL 160.50: avoiding the stigma and other consequences that result from a criminal prosecution. (Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997] ["The sealing requirement was designed to [*3]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"]; Matter of Hynes v Karassik, 47 NY2d 659, 662 [1979] ["The statute serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation. That detriment to one's reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-{**78 Misc 3d at 356}product of even unsuccessful criminal prosecutions" (citation omitted)].)

But the Court of Appeals has also recognized that not all documents or records constitute official records relating to the arrest or prosecution, and thus not all documents or records are subject to the sealing statute. "[A]lthough 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 (see, CPL 160.50 [1] [c])." (Harper, 89 NY2d at 765-766.)

The Court of Appeals notes that the statute's inexplicitness discourages a hardline rule on what constitutes an "official record." "[CPL 160.50 (1) (c)] 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." (Id. at 766; see also People v Anonymous, 34 NY3d 631, 660 [2020, DiFiore, Ch. J., dissenting] ["The words of the statute do not support the conclusion that the protections of CPL 160.50 must be mechanically applied"].)

There is no direct appellate authority as to whether a DIR constitutes an "official record[ ] . . . relating to [an] arrest or prosecution" within the scope of CPL 160.50 (1) (c). While People v Anonymous (76 Misc 3d 1022 [Crim Ct, Bronx County 2022]), as well as several Family Court decisions, have found that DIRs constitute official records within the ambit of CPL 160.50, this court respectfully disagrees. While DIRs may be used in a subsequent prosecution when an arrest is made, that does not render them an official record relating to the arrest or prosecution. See discussion below, CPL 140.10 (5).

Domestic Incident Reports

CPL 140.10 (5) mandates the creation of a DIR any time a law enforcement official responds to an incident involving allegations of violence within a household. It further requires that those records be maintained for a minimum of four years. Enacted in 1994 as part of the Family Protection and Domestic Violence Intervention Act of 1994 (L 1994, chs 222, 224), CPL 140.10 (5) was part of a significant legislative attempt to address domestic violence and provide for the protection of victims of family violence.

The legislative findings recognized the need "to strengthen materially New York's statutes by providing for [the] immediate deterrent action by law enforcement officials and members{**78 Misc 3d at 357} of the judiciary." (L 1994, ch 222, § 1.) In addition to providing domestic violence victims with increased access to both the criminal and the family courts, the legislation created many provisions designed to enhance the protection of victims of domestic violence. (L 1994, chs 222, 224.) CPL 140.10 (5) is one such provision: it requires that, in responding to an allegation of domestic violence, "a law enforcement officer shall prepare, file, and translate . . . a written report of the incident, on a form promulgated pursuant to [Executive Law § 837], including statements made by the victim and by any witnesses."

CPL 140.10 (5) specifies that a DIR "shall be prepared and filed [regardless of] [*4]whether . . . an arrest is made." Despite the fact that it was enacted 29 years after the sealing statute, CPL 140.10 (5) specifically requires that all DIRs "be retained by the law enforcement agency for a period of not less than four years."

In compliance with this statute, the New York Police Department (NYPD) requires that responding officers "complete the NYS Domestic Incident Report Form . . . whether or not an offense was committed or an arrest was made." (New York State Division of Criminal Justice Services, Municipal Police Training Council, Law Enforcement Domestic Incident Model Policy at 5 [Dec. 2010], https://www.criminaljustice.ny.gov/ops/training/other/officer-involved-domestic-violence-incidents-policy/story_content/external_files/MPTC%20-%20Model%20Domestic%20Incident%20Policy.pdf [last accessed Jan. 5, 2023].)

The DIR form used by the NYPD documents extensive information that does not relate to any criminal prosecution. It documents how the complainant responds to six "risk factor" questions that are not necessarily related to the incident but that help the responding officers determine the amount of risk involved or the level of intervention required in a particular situation. These questions include: whether the suspect has ever threatened to kill the complainant or the complainant's children, whether the suspect has ever strangled or choked the complainant, whether the suspect has beaten the complainant while the complainant was pregnant, whether the suspect is capable of killing the complainant or the complainant's children, whether the suspect is violently and constantly jealous, and whether the physical violence has increased in frequency or severity over the last six months. In addition to an evaluation of these risk factors, the DIR requires that the complainant{**78 Misc 3d at 358} be asked whether the suspect has made threats against children or pets or threatened self-harm, and it requires an assessment of whether any report should be made to the NYS Child Abuse Hotline Registry.

In addition, the DIR, a copy of which must be given to the complainant, includes information such as contact information for domestic violence and sexual assault hotlines and a phone number for criminal court information. It also provides the complainant with information about how the police and courts can provide assistance to the complainant, detailing the complainant's rights in both criminal and family court.

In this way, the court notes that DIRs can be analogized to 911 calls: DIRs, like 911 calls, involve a law enforcement response, they may pertain to an incident that results in an arrest, and they may document or constitute evidence in a future prosecution.

The First Department has held that 911 calls are not official records within the meaning of CPL 160.50. (See Matter of Krystal N. [Juan R.], 193 AD3d 602, 602 [1st Dept 2021] ["Family Court properly declined to strike the 911 tapes from the record after his acquittal in Criminal Court because those records were not official recordings relating to respondent's arrest or prosecution and thus were not subject to the sealing statute"]; Matter of Dockery v New York City Hous. Auth., 51 AD3d 575, 575 [1st Dept 2008] ["The 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"].)

While there is no direct appellate decision on whether DIRs are official records within the scope of CPL 160.50, the Third Department has seemed to acknowledge that they are not. In Matter of Groves v State Univ. of N.Y. at Albany (265 AD2d 141 [3d Dept 2000]), the petitioner brought a CPLR article 78 petition seeking to expunge two DIRs, or, in the alternative, to seal them. The DIRs related to two separate incidents. In one incident, there was no arrest; in the other, the petitioner had been arrested and the case was later dismissed in his favor. In affirming the lower [*5]court's denial of the petition, the Third Department notes that, "as for petitioner's alternative request that such reports be sealed," he waived his entitlement to that relief and the Court saw no need to reach the issue in the interests of justice. (Id. at 144-145.) This decision essentially assumes that the DIR did not automatically seal when the{**78 Misc 3d at 359} criminal case was dismissed, further confirming that DIRs are not official records within the meaning of CPL 160.50.

Finally, a further indication that DIRs are not official records relating to an arrest or prosecution is that the data they collect has significant application outside of specific incidents or allegations. DIR data is used to inform policies, best practices, and government reports. For instance, the "2020 Report on the Intersection of Domestic Violence, Race/Ethnicity and Sex" analyzes the New York City Police Department's domestic violence related offenses data. (Mayor's Office to End Domestic and Gender-Based Violence, 2020 Report on the Intersection of Domestic Violence, Race/Ethnicity and Sex at 1 [Sept. 2021], https://www1.nyc.gov/assets/ocdv/downloads/pdf/endgbv-intersection-report.pdf.) DIRs figure prominently in that study. (Id. at 3, 6 [NYPD DIR data from 2017-2019 used to quantify sex, gender, race/ethnicity, and relationship between victims and offenders as well as neighborhood, neighborhood poverty rates, medium household income, and unemployment rates of site of domestic incident].)

[1] Accordingly, this court finds that DIRs are not official records within the ambit of CPL 160.50. They do not seal, and the information contained on them may be considered in Crawford hearings and other proceedings, subject to evidentiary rules relating to admissibility.^[FN1]

This court therefore overruled the defense's objection to People's exhibits 5 and 6 and admitted them into evidence at the instant Crawford hearing.

Application

At the Crawford hearing in this matter, the People conceded and the court found that the temporary orders of protection deprived the defendant of significant personal and property interests.

Next, the court considered what conditions were necessary to ensure that the adult complainant and the four children were not subject to danger of intimidation or injury during the pendency of the case. In addition to the allegations in the complaint, the People asserted that two of the children, those born in 2015 and 2018, had attempted to intervene when the defendant's hands were on their mother's neck; according to{**78 Misc 3d at 360} the People, the defendant then pushed both children, who did not sustain any injuries. On People's exhibit 1, the DIR that was prepared for the incident charged in this matter, the complainant had checked three of the six risk factors, indicating that she told the responding officers that the defendant had strangled or choked her, that he was violently and constantly jealous, and that the physical violence had increased in severity over the last six months. The People further noted what they argued to be visible injuries to the complainant as depicted in People's exhibits 3 and 4, both of which related to the allegations in this matter.

The People then noted that on People's exhibit 5, the DIR from October 16, 2019, the complainant had checked four of six risk factors. In addition to checking the three factors she [*6]reported on People's exhibit 1, the complainant also indicated that the suspect had threatened to kill her or her children and that the suspect was capable of killing her and her children. That DIR indicated that the complainant reported that she had been strangled to unconsciousness and that one of the children had called 911. As to People's exhibit 6, the DIR from November 2, 2020, zero out of six risk factors was checked, and the DIR indicated that the complainant had "refused" to provide any information to responding officers.

The defense contested whether injury was visible in the photographs introduced by the People, and he asserted that the adult complainant wanted the defendant to return to the home. He further stated that the defendant had voluntarily enrolled in parenting classes since his arrest.

[2] The court then applied each of the factors enumerated in CPL 530.12. In light of the serious nature of the allegations in this incident, which included criminal obstruction of breathing in the presence of four children, of the alleged injury here, which the court noted was minimal, and of the past reported allegations of domestic violence, which indicated that police had been summoned to the home at least three times in the previous three years, the court determined that a full order of protection remained necessary to prevent a danger of intimidation or injury to the complainants.^[FN2] The court ordered that the full orders of protection remain in effect but noted that the order{**78 Misc 3d at 361} was subject to modification by the Family Court, such that a Family Court judge could adjust the conditions as that judge believed to be appropriate.