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In re Carolina K.

Family Court, Kings County

May 13, 2016

In the Matter of Carolina K. and Lisbeth B. Children Under Eighteen Years of Age Alleged to be Neglected by Howard K., Respondent.

          Dania Nassar, Esq., Administration for Children's Services, Family Court Legal Services

          For the Petitioner Sophia Bernhardt, Esq. Brooklyn Defender Services, Family Defense Practice

          For the Respondent Jaclyn Goodman, Esq. Legal Aid Society, Juvenile Rights Practice

          For the Subject Children Susan Smith

          For the Non-respondent Mother

          Jacqueline B. Deane, J.

         This proceeding began with the filing of a neglect petition against the Respondent father, pursuant to Article 10 of the Family Court Act, alleging that he perpetrated a single incident of domestic violence against the non-respondent mother and subject children on April 5, 2015, in which the Respondent father was alleged to have been drinking alcohol while subject children were present. This fact-finding hearing commenced on October 26, 2015 and continued over several adjourn dates, finally concluding on April 21, 2016. Petitioner ("ACS") called Caseworker R. who responded to an oral report transmittal ("ORT") which was introduced into evidence as Petitioner's Exhibit 1 with the hearsay portions redacted. Petitioner attempted to introduce the tape recording of the 911 call leading to the Respondent father's criminal arrest and prosecution but the recording was precluded by the Court pursuant to CPL § 160.50 since the underlying criminal case was dismissed and sealed. The Respondent, Mr. K, testified on his own behalf. The Attorney for the Child ("AFC"), who opposes a finding, rested without introducing any evidence. Counsel then made their summations and this Court reserved decision.

         The Court has reviewed the exhibits and considered the credibility of the two witnesses. Taken in total, this evidence is not sufficient for the Court to find, by a preponderance of the evidence, that the Respondent father neglected the subject children as defined by Family Court Act ("FCA") § 1012 based on the alleged incident of domestic violence against the non-respondent mother, Ms. M., and subject children.

         The first issue this Court had to address is whether the 911 tape was legally "sealed" pursuant to the operation of CPL §160.50(1)(c), which states in pertinent part, "all official records or papers relating to the arrest or prosecution including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency."

         While ACS argues that 911 tapes are different than other criminal court related documents, that distinction does not change the importance of enforcing the public policy behind the sealing statute in a case that is terminated favorably to the accused. The Court of Appeals has found that the legislature's "purpose in adding these provisions to the Criminal Procedure Law and the Human Rights Law was to ensure that the protections provided to exonerated accused's be 'consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law.'" Matter of Joseph M. (New York City Bd. of Educ.), 82 N.Y.2d 128, 131 [1993] (quoting Governor's Approval Mem, 1976 McKinney's Session Laws of NY, at 2451).

         While the CPL refers to "official records and papers, " case law has applied the statute to audio and video recordings as well. In People v Dondi, the Court of Appeals held that the "broad and inclusive statement (contained in CPL § 160.50) should be read to include a tape recording that was integral to both appellants arrest and his prosecution." 63 N.Y.2d 331 (1984). The Second Department applied Dondi in Matter of Catterson v. Corso where it held that "all audio and videocassette tapes made in connection with the criminal action" fell "within the scope of 'official records and papers' and were therefore properly sealed." 244 A.D.2d 407 (1997). It is clear that 911 tapes are kept "on file" with "a police agency." Therefore, the 911 tape at issue here fits both the dictates of Dondi and the statutory language precisely and consequently was sealed when the criminal case was dismissed. While the Court of Appeals decision in Hynes v. Karassik ruled that the audiotapes at issue (which were not 911 tapes) were not sealed as part of the criminal case, the Court has reconciled these cases in its subsequent holding in Harper v. Angiolillo. In Harper, the Court stated that "bright line rules are not wholly appropriate" in the area of what constitutes "official records, " and that, "while some tape recordings may qualify as an official record under certain circumstances, not all tape recordings will qualify as an official record in every case." Since the Court of Appeals case law does not provide any further guidance for making this determination, this Court is relying on the language in Dondi and Catterson in making this ruling. The Court finds that this holding will serve the purpose of CPL § 160.60 which states that an arrest terminated in favor of an accused "shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution."

         The Petitioner's case at trial consisted primarily of statements allegedly made by the two teenage subject children to the ACS caseworker, admitted pursuant to FCA § 1046(a)(vi). The Respondent's case, in contrast, consisted of his first-hand account of the event. The Court found the Respondent to be a credible witness as to both the incident itself and the events leading up to it. Those preceding events shed light on the incident itself and place it in a different context than that presented by the Petitioner.

         Caseworker R. testified that, when she went to the home on April 6th, she interviewed each child privately in a separate room. According to Carolina, who was 16 at the time, the incident began when her father came home and she went to pick up a cup that had been left on the floor. Carolina told the caseworker that her father kicked the cup and that she then pushed the Respondent father which caused him to grab her arms in response. This resulted in her mother and Lisbeth grabbing the Respondent father. Ms. M. then pushed the Respondent father off of Carolina and they ran into the other room. Carolina said her mother's finger got caught in the door when they closed it to block the Respondent from entering. Carolina never said the Respondent hit either her or her sister nor scratched their mother. Carolina admitted to the caseworker that she had not been getting along well with her father because she was not doing well in school and was in counseling in school because of conflicts there. Carolina said that the way her father usually disciplines her is to take away privileges and talk to her. Carolina also stated to the caseworker that she felt her father favored Lisbeth over her. As to any prior domestic violence, Carolina said her parents mainly have verbal arguments and she had never seen any physical fights between them.

         Lisbeth, who was 17 years old at the time of the incident, told the caseworker a variation of the same story - that her step-father was annoyed that the cup was on the floor and they had a verbal argument over who left it there. Her mother said, "if you kick the cup, I will leave you." Lisbeth said her father was pointing his finger at C.K and she, her sister and her mother threw themselves at Mr. K. with all of them hitting the Respondent father in the back. At that point, according to Lisbeth, the Respondent fought back, cursed at the two girls and put his hands around her mother's neck but did not apply any pressure. Lisbeth, her sister and her mother then ran into another room and threatened to call the police. Lisbeth said she was scared to live with the father after this incident and stated that about once per month her parents engage in a physical altercation where her father hits her mother on the arm. Lisbeth also told the caseworker that although the Respondent is not her biological father, she had known him for sixteen years and he treated her like a daughter. Lisbeth said she loves the Respondent, they have a good ...

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