Opinion
O-34422-17
07-29-2019
In the Matter of a FAMILY OFFENSE PROCEEDING UNDER ARTICLE 8 OF THE FAMILY COURT ACT, NORA S., Petitioner, v. OMAR S., Respondent.
The NYPD was represented by Samuel A. Yee, Esq., NYPD Department of Advocate's Office, One Police Plaza, Room 402, New York, NY 10038, (646) 610-6414; the Father was represented by Shiva Bahmani, Esq, Karasyk & Moschella, LLP., 225 Broadway, 32nd Floor, New York, NY 10007, Phone: (212) 233-3800; and the Mother did not appear and was pro se.
The NYPD was represented by Samuel A. Yee, Esq., NYPD Department of Advocate's Office, One Police Plaza, Room 402, New York, NY 10038, (646) 610-6414; the Father was represented by Shiva Bahmani, Esq, Karasyk & Moschella, LLP., 225 Broadway, 32nd Floor, New York, NY 10007, Phone: (212) 233-3800; and the Mother did not appear and was pro se.
Javier E. Vargas, J.
Upon the foregoing papers and for the following reasons, the Motion by non-party New York City Police Department (hereinafter "NYPD"), for the release of the court file on the above-captioned proceeding, is granted.
By Petition dated December 21, 2017, Petitioner Nora S. (hereinafter "Wife") commenced a family offense proceeding against her husband, Respondent Omar S. (hereinafter "Husband") in Kings County Family Court, seeking a full stay away Order of Protection against him, alleging that he has been cheating on her with another woman and had attempted to asphyxiate her on two separate occasions during her pregnancies. In the first incident of 2014, the Wife alleged that the Husband "placed a pillow over her face and attempted to asphyxiate her," and that, in 2016, he "attempted to choke her" while she was pregnant with their children. The Wife revealed that her Husband is currently a Sergeant for the NYPD. After carefully listening to her sworn statements on the record in open court, on December 21, 2017, the Family Court (Vargas, J.) issued a Temporary Order of Protection in the Wife's favor excluding the Husband from their marital residence, ordering him to stay away from here wherever she may be and refrain from harassing, menacing, assaulting, stalking, choking or committing any other criminal offense against her. The New York State Sheriff's Department was directed to assist the Wife in removing the Husband from the premises and serve him with process.
On the return of process date of January 2, 2018, the Husband appeared with his attorney, but the Wife failed to appear. The same scenario repeated itself on the adjourned date of January 8, 2018. Despite this Court then mailing a Notice of Appearance to Wife, on January 17, 2018, she again failed to appear in Court prompting this Court to dismiss the Proceeding for her failure to appear and prosecute, and vacate the Temporary Order of Protection against Husband. It appears that the family has reconciled, and they are again residing together.
By NYPD Charges and Specifications dated June 4, 2018, the NYPD commenced internal disciplinary proceedings against the Husband charging that "while off-duty, [he] engaged in conduct prejudicial to the good order, efficiency, or discipline of the Department, in that said Sergeant wrongfully was involved in a physical altercation with his Wife." In furtherance of its proceedings, on August 20, 2018, the NYPD served a Subpoena Duces Tecum upon the Clerk of the Kings County Family Court to obtain "certified copy of the court minutes," transcripts and a "certified copy of the Family Court File." On August 29, 2018, the NYS Office of Court Administration's Counsel's Office wrote a letter in response to the subpoena providing a roadmap for the NYPD to properly obtain the requested materials from Family Court and notifying it about the possible fees associated with obtaining the court records.
As a result, by Notice of Motion dated March 4, 2019, the NYPD moves the Kings County Family Court for an order pursuant Family Court Act § 166 releasing for discovery and inspection a copy of the court file and transcription of the minutes recorded in the above-captioned Proceeding. Faced with the Wife's reluctance to cooperate with the investigation, the NYPD would like to investigate the details of the incidents alleged by her against the Husband to follow and perhaps add departmental disciplinary charges against him. The NYPD wishes to pursue such an investigation maintaining that it impinges upon the public's safety and welfare.
In his Affidavit and Affirmation in Opposition, the Husband opposes the release of the records claiming that the Wife's allegations are false, baseless and have not been substantiated. He further argues that the NYPD has subpoena power over the Wife and can move forward with their own internal investigation without the Family Court records, but have failed to proceed accordingly. Despite service of the Motion upon the Wife, she has failed to appear, support or oppose the NYPD application. Oral argument by counsel was had on July 12, 2019, and this Court reserved for a written decision and hereby grants the Motion.
"The Family Court has, of course, inherent power over its own records" ( Matter Richard S. v. City of New York , 32 N.Y.2d 592, 595-96, 347 N.Y.S.2d 54, 300 N.E.2d 426 [1973] ; see Matter of Hecht, 90 Misc. 2d 308, 310, 394 N.Y.S.2d 368 [Sup. Ct., N.Y. 1977] ). Pursuant to Family Court Act § 166, entitled Privacy of Records:
The records of any proceeding in the Family Court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records. Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation to be had and may in the discretion of the court obtain a copy of the whole or part of such record.
(see Harris v. City of Buffalo , 197 A.D.2d 918, 919, 602 N.Y.S.2d 271 [4th Dept. 1993] ). Likewise, the Family Court Rules of Practice provide that: "Any person or agency having a legitimate purpose may for good cause shown and in the discretion of the court, have access to the records of any Family Court proceedings" (22 NYCRR 2501.3 [b] [emphasis added]; see Holmes v. DeVincenzo , 163 A.D.2d 594, 595, 559 N.Y.S.2d 35 [2nd Dept. 1990] ). In interpreting these statutes, Family Courts have granted discretionary access to its court records when governmental and other agencies "having a legitimate purpose" show "good cause" to access the records with assurances that such access would not cause indiscriminate public inspection, opprobrium or embarrassment to the subject individuals or their families (see Gray v. State of New York , 130 Misc. 2d 65, 66, 494 N.Y.S.2d 971 [Fam. Ct., Monroe County 1985] ; Matter of J. Children , 101 Misc. 2d 479, 421 N.Y.S.2d 308 [Fam. Ct., Kings County 1979] ; People v. Johnson , 90 Misc. 2d 777, 395 N.Y.S.2d 885 [Sup. Ct., N.Y. County 1977] ). The cardinal rule is that "undue dissemination of minutes of proceedings in Family Court can be avoided through an appropriate court order and through reliance upon the integrity of attorneys involved in proceedings" ( Matter of J. Children , 101 Misc. 2d at 481, 421 N.Y.S.2d 308 ). Applying these principles to the matter at bar, the NYPD has sufficiently shown good cause that the release of the Family Court records would be for the legitimate purpose in furtherance of the Husband's internal disciplinary proceeding. In the case of Gray v. State of New York , the State defendant applied for the release of Family Court documents including predispositional reports, investigations and court orders pertaining to the decedent in a wrongful death matter (see 130 Misc. 2d at 66, 494 N.Y.S.2d 971 ). The State successfully argued that juvenile records serve a "legitimate purpose" in the litigation providing "material" and "relevant" information of the decedent's background and possible future earning capacity in calculating compensatory damages ( id. at 67, 494 N.Y.S.2d 971 ; see Schwahl v. Grant, 47 A.D.3d 698, 850 N.Y.S.2d 159 [2nd Dept. 2008] ; but see Holmes v. DeVincenzo , 163 A.D.2d at 594, 559 N.Y.S.2d 35 [Family Court files not relevant to establish marital problems in medical malpractice matter] ). In Matter of J Children , 101 Misc. 2d at 480, 421 N.Y.S.2d 308, the Family Court permitted review of past neglect/abuse court files "for good cause" at the request of a District Attorney's Office for possible criminal charges against the parents in the death of their child ( id. at 481, 421 N.Y.S.2d 308 ). Similarly, in People v. Johnson , 90 Misc. 2d 777, 395 N.Y.S.2d 885, the Supreme Court permitted the records of a Family Court juvenile delinquency proceeding to be admitted in a criminal prosecution for the purpose of impeaching a defense witness (see also Matter of Department of Social Servs. v. Land, 110 Misc. 2d 665, 443 N.Y.S.2d 351 [Fam. Ct., Nassau 1981] ).
These cases provide support for the release of the Family Court records pertaining to the Wife and Husband in the present case. Just like the State and the District Attorney in those cases, the NYPD in this case has established a "legitimate reason" to release the respective records in pursuance of its investigation and possible additional charges to be logged against the Husband, an alleged abuser. The NYPD has attempted to obtain the Wife's cooperation, but those attempts have been unsuccessful. The Wife's lack of cooperation leaves the NYPD with limited options, making the Family Court file and transcripts necessary to ensure a fair and complete disciplinary investigation of the alleged domestic violence incidents. Such records may reveal whether the Wife testified to any additional details or information about the incidents. The records that the NYPD seeks would appear to be "material" and "relevant" for its investigation of "conduct prejudicial to [its] good order, efficiency and discipline" against the Husband. Because the NYPD's integrity and reputation are at stake in dealing with the protection of domestic violence victims - not only the Wife, the records should be released.
Moreover, the alleged assaultive actions by the Husband against the Wife could constitute serious crimes for which he may be criminally liable, and may show his unfitness or a need for retraining in anger management in order to continue being a member in good standing of the NYPD. Although the Husband argues that it would be inequitable and essentially unfair if the Court were to grant the NYPD's motion, he would have a full opportunity to challenge the Wife's allegations and provide evidence of his purported innocence during his private and internal disciplinary proceeding. While not to be "open to indiscriminate public inspection" as assured by the NYPD to this Court ( Family Court Act § 166 ), the release of these records would ultimately preserve the NYPD's ability to fight crime and protect the safety of the public. When balancing the equities in using its discretion, this Court finds that the NYPD has a legitimate purpose for seeking the court file, petition and minutes of the proceedings and has demonstrated good cause for their release.
In accordance with the foregoing, the Court grants the NYPD motion, and hereby orders that the underlying Family Court file and the transcription of the minutes of the court proceedings be released to the NYPD. It is further ordered that these documents and transcriptions shall remain with the NYPD, its administrators and defense counsel and are not to be released to any other person or agency. The foregoing constitutes the Decision and Order of this Court.