In re Gautho

Full title: In the Matter of Ursula Gautho, A Person Alleged to be a Juvenile…

Court: Family Court, New York County

Date published: Nov 6, 2015

2015 N.Y. Slip Op. 51961 (N.Y. Fam. Ct. 2015)

Opinion

D-45130-15

11-06-2015

In the Matter of Ursula Gautho, A Person Alleged to be a Juvenile Delinquent, Respondent.

Adetokunbo O. Fasanya, J.

At this juncture, this Court is called upon to make a decision on the Respondent's application seeking an order directing the following:

(1) a subpoena duces tecum directing the New York City Police Department ("NYPD") to produce department and command level records in its custody and control, for a pre-trial inspection, in camera, at a session to be held at the courthouse at Judge Fasanya's courtroom, on a date and time this Court deems to be fair and just, relating to the employment of NYPD Police Officer Billendy Delinois (shield number 2694 — 26th Precinct) and Police Officer Karanja Jefferson (shield number 12644 - 26th Precinct), including, but not limited to, 1) command discipline logs; 2) central personnel index; 3) use of force forms; 4) synopses of findings of the Internal Affairs Division; and 5) materials related to investigations done by the Office of the Chief of Department and/or the Civilian Complaint Review Board; and

(2) a subpoena duces tecum directing the New York City Civilian Complaint Review Board ("CCRB") to produce any and all notes, recordings, and transcripts regarding the investigation, initiated on or about July 2, 2015, the CCRB conducted regarding NYPD Police Officer Billendy Delinois (shield number 2694 — 26th Precinct) and Police Officer Karanja Jefferson (shield number 12644 — 26th Precinct).

HISTORY

The Presentment Agency filed a petition against the Respondent on September 11, 2015 alleging acts of juvenile delinquency, specifically Resisting Arrest, in violation of Penal Law § 205.30, Obstructing Governmental Administration in the Second Degree, in violation of Penal Law § 195.05, Criminal Mischief in the Fourth Degree, in violation of Penal Law § 145.00(1), Attempted Assault in the Third Degree, in violation of Penal Law §§ 110/120.00(1). The Petition included a deposition signed by Police Officer Billendy Delinois where he states that his partner, Police Officer Karanja Jefferson, and himself were present inside Respondent's mother's apartment attempting to execute a warrant for the Respondent on July 2, 2015 when the incident constituting the basis for the underlying petition occurred. On October 1, 2015, Respondent, filed a Notice of Motion seeking the aforementioned relief. On October 8, 2015, the Presentment Agency, the New York City Police Department ("NYPD"), and the Civilian Complaint Review Board ("CCRB") filed papers in opposition. On October 19, 2015, the attorneys for the Respondent, the Presentment Agency, the CCRB, and the NYPD were present in Court. The Attorney for the Child made oral argument in support of the Respondent's position. However, upon being informed that the individual police officers concerned had not been served with the application, the Court adjourned the matter to October 23, 2015, prior to hearing from the other parties and directed that the Police Officers, Officer Delinois and Officer Jefferson ("Police Officers") be served with Respondent's application and all answering papers. On October 23, 2015, the matter came up on the Court's calendar. The Police Officers, attorneys for the Respondent, the Presentment Agency, the CCRB, and the NYPD were present in Court. The Police Officers indicated that they had not yet received the Notice of Motion and Response papers from the other parties in person. However, counsel for the Respondent had properly served the papers on the precinct as legally required. The case was adjourned to October 27, 2015 to allow the Police Officers retrieve the papers, consult with counsel of their choice as they indicated, and to take a position regarding the application. On October 27, 2015, Respondent's counsel, counsel for the Presentment Agency, counsel for the NYPD, counsel for the CCRB, Mr. Sterinbach, attorney for the Police Officers, and the Police Officers themselves were all present in Court. Mr. Sterinbach served papers in opposition to the request by the Respondent and all parties made arguments in support of their respective positions. The matter was then adjourned to November 6, 2015 for this Court's decision on the motion.

DECISION

The Court has taken the time to review and consider the papers, arguments, and case law advanced by all of the parties before the Court in support of their respective positions on this matter. After said review, the Court makes the following findings: Civil Rights Law § 50-a states as follows:

(1) All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as

firefighters or firefighter/paramedics and such personnel records under the control of the division of parole for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole except as may be mandated by lawful court order.



(2) Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.



(3) If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.



(4) The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions.

In applying Civil Rights Law §50-a to the instant proceedings this Court agrees with legal precedent that when making the required "clear showing of facts", it would be unreasonable to expect the Respondent to know exactly what will be revealed in the personnel records of the Police Officers and in the records of the CCRB. As stated by the Court of Appeals in Gissendaner, "[t]he thread that runs through these cases does not indicate that a defendant must make a preliminary showing that the record actually contains information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends." 48 NY2d 543, 550 (NY 1979). Additionally, the First Department has found, and this Court finds in this matter, that the clear showing of facts that is put forth by the applicant must be viewed liberally. See Cox v. New York City Hous. Auth., 105 AD2d 663, 664 (1st Dept. 1984), People v. Valentine, 160 AD2d 325, 326 (1st Dept. 1990). The reason for this was stated in Cox, where the Court found that "in the usual case, a party seeking discovery will, of course, not know precisely what pertinent information is within a personnel record . . . ." 105 AD2d at 664 (citing People v. Morales, 97 Misc 2d 733). There is no requirement that an applicant make a "clear showing of facts" beyond a reasonable doubt. Accordingly, this Court finds, the Respondent has made a showing of facts sufficient to warrant this Court to request certain records for review. Specifically, based upon their papers and argument before this Court, the Respondent has made the required factual showing that specific materials in the Police Officers' files would relate to the incident in question from July 2, 2015 and may contain information that would be relevant and material to the proceedings before the Court. See Becker v New York, 162 AD2d 488 (2d Dept. 1990). This Court would note that the CCRB in its responsive papers and during argument conceded that the relevant records of the July 2, 2015 incident involving the Respondent were reviewable by the Court. As previously stated, the instant petition filed against the Respondent contains a deposition signed by Officer Delinois where it is alleged that he entered the home of the Respondent's mother with Officer Jefferson and had some interaction with the Respondent which forms the basis for the charges in the petition. The Respondent alleges in her moving papers and argued to the Court that any physical contact was initiated by the Police Officers. Respondent further stated that the Respondent's mother, who was present during the incident, constitutes an independent witness and she will corroborate the Respondent's version of events, to wit: that the Police Officers initiated the physical contact with the Respondent. Here, as in People v. Morales, this Court finds that the factual predicate has been met by the allegations that (1) the case will hinge on the officers' testimony, (2) the officers initiated the physical contact and (3) the Respondent has independent witnesses who will corroborate Respondent's assertions. See 97 Misc 2d 733, 740 (NY Crim. Ct. 1979) see also People v Jackson, 237 AD2d 179, 180 (1st Dept. 1997) (finding that the requisite showing necessary for the trial court to conduct a review of the police officer's file was made where the officer was the sole source of the prosecution's version of the incident, he had worked at the location of the incident in the past, he was acting as if he was working at the location when the incident occurred, and had been suspended from the force on at least one prior occasion). Here, unlike in Gissendaner, the Respondent has made a showing that the contents of the records sought would "directly bear on the hard issue of guilt or innocence" and the Attorney for the Child has cited the "possible line of inquiry in which they might be employed beyond that of general credibility impeachment." Id. at 550. In addition to the incident from July 2, 2015, any other information relating to the Police Officers using excessive force or instigating the force in an interaction with civilians may show a common scheme or modus operandi that would be directly relevant and material to the Respondent's claims of innocence. This Court would distinguish the instant application from the application in Gissendaner in that in Gissendaner the applicant sought a subpoena for the records and did not request that the Court conduct an in camera review of said records prior to the release of the documents to counsel. Here, the Respondent made the appropriate request of this Court to conduct an in camera review of any records produced subsequent to which the Court will determine what material, if any, will be released to counsel.

ORDER

Accordingly, the Respondent's request for a subpoena duces tecum is granted to the extent that both the NYPD and CCRB are hereby ordered to produce for in camera review those records for Police Officer Delinois and Police Officer Jefferson within their possession and control relating to complaints, investigation, and hearings regarding:

(1) The instant matter, the incident that occurred on July 2, 2015 inside of 366 West 127th Street, Apartment 4R, New York, NY;

(2) Any other matter in which a finding was made and/or a complaint was substantiated that the officer(s) used excessive force; and

(3) Any matter relating to a complaint of excessive use of force in which the officer(s) testified, whether the complaint was sustained or not. The NYPD and the CCRB are to be forwarded under seal to Hon. Adetokunbo O. Fasanya, C/O Brittany DeWire, Esq., 60 Lafayette Street, 10th Floor, New York, New York 10013. As in People v. Kozlowski, the Respondent is not seeking, and this Court is not directing the production of the work product done at the CCRB and/or the NYPD, only the records of the proceeding any audio and video interviews with the police and the decisions rendered in said matters are to be produced for review by the Court. This Court makes clear and parties should be aware that "no uncorroborated complaints or embarrassing but immaterial matter will be directed to be turned over to defense counsel." See Morales, 97 Misc 2d at 740. This Court will examine the records to see whether there are acts contained within the forwarded records that bear peculiar relevance to the circumstances of the Respondent's case, if so the Court may allow examination of the Police Officers on those issues/facts. See Gissendaner, supra. This constitutes the order of the Court. ENTER: _____________________________ Hon. Adetokunbo O. Fasanya Judge of the Family Court Dated: New York, NY November 6, 2015