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People v. Olsen

January 30, 2009


The opinion of the court was delivered by: Valerie Alexander, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

If William Shakespeare were writing this decision, he would no doubt have entitled it "Much Ado About Nothing."

The defendant herein is charged with Assault in the third Degree, a Class A misdemeanor, and three (3) counts of Harassment in the Second Degree, a violation. It is alleged that at 4:00 PM on October 6, 2007, in the vicinity of 2696 W. Alder Road, Bellmore, New York, the defendant punched and choked the complainant, his live in girlfriend, causing her substantial pain and difficulty in swallowing. The People move to quash a subpoena issued by defense counsel to CVS Pharmacy for the complainant's pharmacy records. The defense opposes the motion and cross-moves for an order by this Court recusing itself from this case for reasons of bias and, upon assignment to another judge, dismissing the charges on constitutional and statutory speedy trial grounds as well as for the alleged violation of his due process rights and his rights under Brady v. Maryland.

The issues presented in these motions arise from the following events. On or about November 2007, defense counsel served a subpoena upon CVS Pharmacy for the complainant's prescription records. The subpoena was not So-Ordered and was not HIPAA compliant, an issue the Court will address later in more detail. CVS nevertheless forwarded the requested records to the Court where they were received by the Clerk's Office. At about the same time, the People served a So-Ordered subpoena upon South Nassau Communities Hospital for the complainant's medical records regarding a hospital admission on October 8, 2007, two (2) days after the alleged assault. The admission lasted two (2) days, until October 10, 2007, when the complainant was discharged. That subpoena called for the hospital records to be delivered to the Clerk of the District Court. Apparently, upon receipt of these two (2) sets of records, the Clerk forwarded both sets of records to the prosecutor handling the case. In scanning the CVS records, the prosecutor realized that the CVS records were provided in response to a defense subpoena and brought the matter to the attention of the Court and defense counsel. Both sets of records are now in the possession of the Court. Thereafter, numerous conferences took place at which the defense claimed to be entitled to access to both sets of records. The Court expressed concern that the CVS records were improperly obtained in that defense counsel's subpoena was not HIPAA compliant. After some delay without resolution of this issue, the Court suggested the prosecution file a motion to quash so that the matter could be properly briefed. That motion was filed on August 8, 2008, and the cross-motion with opposition and reply were subsequently filed and the matter was submitted to the Court for decision on December 15, 2008.

Turning first to the cross-motion to recuse, defense counsel alleges that the Court is biased against the defendant in violation of Judiciary Law §14 and Canons 1, 2, and 3 of the Canons of Judicial Ethics. In support of that contention, and by way of example, counsel argues that the Court erred in:

1. Wrongly believing that defense counsel's subpoena was unenforceable.

2. Permitting the plaintiff to review the records in question while denying the sameopportunity to the defense.

3. Delaying in concluding its own pre-motion research regarding the HIPAA issue.

4. Not allowing the defense counsel to make a record regarding its position in this matter. 5. Advising the prosecution to make the instant motion to quash.

Judiciary Law §14 provides in relevant part:

A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.

Canon 1 is entitled: "A judge shall uphold the integrity and independence of the judiciary." Canon 2 is entitled: "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. (Commentary (2.2)(2A) to Canon 2 notes that "[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.") Canon 3 is entitled: "A judge shall perform the duties of judicial office impartially and diligently."

This court has not violated either the Judiciary Law or the Canons of Judicial Ethics. As will be discussed shortly, the Court was entirely correct in fearing that the defendant's subpoena was improper and unenforceable in that it failed to comply with HIPAA and the Code of Federal Regulations enacted pursuant to it. The Court did not "permit" the prosecutor to review any medical records herein. Any such review occurred prior to the matter being brought to the Court's attention. There was some delay engendered by the Court's initial efforts to research the HIPAA issue which could have easily been limited by legal input from defense counsel. The Court then ultimately, in order to properly rule on the matter, suggested the instant motion to quash which at the same time provided the Court with some assistance in its research and gave the defense its opportunity to make as full and complete a record as it desired. (In this regard, the Court notes that the defense did not take this opportunity, despite a twenty-nine (29) Page cross-motion and a twenty-one (21) page reply, to provide the Court with a single case or statutory citation in support of its position on the HIPAA issue.) Finally, the Court did not err in suggesting the prosecutor make the instant motion to quash. It is appropriate for the Court to interject itself into the proceedings to the extent necessary to resolve disputes between counsel or to clarify important issues and keep the proceedings on track (People v. Mees, 47 NY2d 997; People v. Moulton, 43 NY2d 944; People v. DeJesus, 42 NY2d 519).

Absent a legal disqualification under Judiciary Law §14, which in this case does not exist, a Trial Judge is the sole arbiter of its recusal to avoid the appearance of impropriety, and the decision is left to the personal conscience of the court(People v. Moreno, 70 NY2d 403; People v. Gallagher, 158 AD2d 469). This Court holds no bias whatsoever against this defendant. Neither does the Court believe that a fair reading of the record to date could or would lead a reasonable person to conclude otherwise. Accordingly, the motion to have this court recuse itself from further proceedings is denied.

Nearly a decade ago, congress passed the Health Insurance Portability and Accountability Act (HIPAA). In part, this legislation seeks to protect a patient's right to privacy regarding medical information. The requirements of the federal law have been incorporated into our state discovery procedures. For instance, CPLR §3122 was amended in 2002, effective September 1, 2003, to provide in relevant part:

A medical provider served with a subpoena duces tecum requesting the production of a patient's medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient. Any subpoena served upon a medical provider requesting the medical records of a patient shall state in conspicuous bold-faced type that the records shall not be provided unless the subpoena is accompanied by a written authorization by the patient.

HIPAA compliant authorizations are now required for health care provider compliance with a subpoena duces tecum ( CPLR §3122[a]; In re Will of Ettinger, 7 Misc 3d 316). The portion of the regulatory scheme which addresses disclosure in judicial proceedings is found in 45 CFR §164.512, entitled: "Uses and disclosures for which an authorization or opportunity to agree or object is not required." The regulations state:

A covered entity may use or disclose protected health information without the written authorization of the individual, as described in §164.508, or the opportunity for the individual to agree or object as described in §164.510, in the situations covered by this section, subject to the applicable requirements of this section. When the covered entity is required by this section to inform the individual of, or when the individual may agree to, a use or ...

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