Michael Spiegel, New York City, for defendant.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Miss Gregory of counsel), for plaintiff.
Michael D. Hess, Corporation Counsel (Deborah E. Seidenberg of counsel), for Board of Education of City of New York.
Arthur M. Schack, J.
The issue before the court is whether the Board of Education
of the City of New York failed to comply with a subpoena duces tecum from March 28, 2001, the date of service, until June 11, 2001, the date the Board finally produced the requested documents, and whether this act constituted an act of civil contempt by the Board of Education and its agent, Jenny Soto, the head of the subpoena unit at the Board of Education's Office of Legal Services. For the reasons stated below, the court holds that the actions of both the Board of Education and Jenny Soto constituted a punishable act of civil contempt from April 26, 2001 through June 11, 2001.
The defendant, Lionel Simplice, was charged with six counts of violating Penal Law § 130.55 (sexual abuse in the third degree) on different dates and one count of violating Penal Law § 240.26 (1) (harassment in the second degree). Defendant Simplice was a teacher at Intermediate School 88, Brooklyn, New York, at the time he was charged with the aforementioned crimes. The complainant is a paraprofessional at the same school.
By his attorney, defendant served and filed a notice of application for a subpoena duces tecum upon the Board of Education on March 14, 2001. The subpoena duces tecum, signed by this court on March 28, 2001, sought the personnel, medical and psychological files of the complainant. This subpoena was returnable on April 25, 2001. The court adjourned the case to May 1, 2001 to determine its compliance. The subpoena stated on page 2, " Failure to comply with this subpoena is punishable as a contempt of court and shall make you liable to the person on whose behalf this subpoena was issued and liable to the punishment provided by law therefor. Appearance is waived if the requested materials are produced on or before the required date at the below address [the address of defense counsel]." The subpoena did not create an excessive or overly burdensome compliance request on the Board of Education.
Jenny Soto, as head of the subpoena unit at the Board of Education's Office of Legal Services, was served with the judicial subpoena at the Board of Education headquarters at 110 Livingston Street, Brooklyn, New York, on March 28, 2001. Thus, Ms. Soto, as agent of the Board of Education, had knowledge of this judicial subpoena.
According to the Corporation Counsel's affirmation in opposition at paragraph 7: " BOE legal [sic] made a decision to move to quash the subject subpoena [emphasis added]. That decision was conveyed to ADA Gregory who placed that determination
on the record in Court when this case was next heard on May 1, 2001. In advertently the motion to quash was never made. However, in the interim, Jenny Soto, the subpoena clerk for the BOE, whose job it is to obtain the materials pursuant to a duly ordered subpoena, was not assigned to collect ...