E.C., Matter of

• Decision Date: 22 December 1983
• Citation: 470 N.Y.S.2d 314,122 Misc.2d 232
• Parties: In the Matter of E.C., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 314

470 N.Y.S.2d 314

122 Misc.2d 232

In the Matter of E.C., A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, City of New York New York County.

Dec. 22, 1983.

F.A.O. Schwarz, Jr., Corp. Counsel by Cecilia A. Toole, New York City, for petitioner.

Lenore Gittis, Legal Aid Soc. by Corwin Del Toro, New York City, for respondent.

DECISION

JACK TURRET, Judge:

Incorporating a policy promulgated nearly 10 years ago by the District Attorneys of New York and Bronx Counties to provide for "full disclosure" in criminal matters (see: New York Law Journal, Jan. 10, 1974, p. 1, col. 5), ¹ Corporation Counsel has adopted in Juvenile Delinquency matters their use of a Voluntary Disclosure Form (VDF). The enactment of the new Article 3 of the Family Court Act (L.1982, c. 920) places the Corporation Counsel on the same level as the District Attorney in the prosecution of all delinquency matters not involving a designated felony act. The Corporation Counsel is now a presentment agency ( § 301.2, subd. 12 F.C.A.; Practice Commentary, McKinney's Consolidated Laws of New York, § 301.2 F.C.A., p. 276). The question is: May use of a VDF be employed in Family Court with a copy placed in the court's file?

In the instant case, the VDF was served upon respondent's counsel on the record and a copy filed with the Court. It is the filing with the Court that respondent has objected to by way of a motion seeking the VDF's removal from the Court's file. Respondent argues: (1) "the 'VDF' is not an authorized discovery device under the Family Court Act"; (2) its presence in the file is "highly prejudicial and unfair" and "can only be seen as an attempt by the presentment agency to restructure the voluntary discovery process by involving the Court".

Another Family Court judge in Matter of Lynette L., 121 Misc.2d 530, 468 N.Y.S.2d 325 (Fam.Ct., Kings Co., decided November 2, 1983) granted a similar motion. This Court respectfully disagrees and denies the application.

Guidance as to interpretation and application of the discovery portions of the new Article 3 of the Family Court Act (eff. July 1, 1983) may be found in Article 240 of the C.P.L. and relevant case law ( § 303.1, subd. 2 F.C.A.; Practice Commentary, McKinney's Consolidated Laws of New York, § 331.7 F.C.A., p. 427). Enactment of the new discovery article in the adult system (Article 240 C.P.L.), upon which discovery under Article 3 of the Family Court Act was patterned, codified previously informal pretrial discovery procedures in an attempt to liberalize discovery and avoid unnecessary resort to the courts for resolution of these matters [People v. McLoughlin, 104 Misc.2d 730, 429 N.Y.S.2d 149 (Dist.Co., Nassau Co., 1980); Governor's Memorandum, 1979 Session Laws, p. 1801; Memorandum of Office of Court Administration, 1979 Session Laws, p. 1888]. The Voluntary Disclosure Form serves this purpose.

The Court finds appropriate in its consideration of the instant application the words of the court in People v. Carbonaro, Sup.Ct., Kings Co., NYLJ April 28, 1980, p. 16, col. 1, spoken in the context of an application for a protective order,

C.P.L. 240.50 obviously contemplates having the Court to whom the application for a protective order is made to make a careful review of the subject matter whose discovery is sought. Without a careful review it would be impossible for a court to decide whether to 'issue a protective order denying, limiting, conditioning, delaying or regulating discovery' (C.P.L. § 240.50, subd. 1).

Responses to aspects of a respondent's omnibus discovery motion are often "see VDF, item number ____". Were a court not to have the VDF available, how could it properly decide whether respondent's demands were complied with in deciding such a motion?

It has long been held appropriate for a court to perform an "in camera" inspection of privileged matters and confidential materials to determine the extent of the appropriateness of their discovery and use at trial [see: Kerr v. United States District Court, 426 U.S. 394, 405-406, 96 S.Ct. 2119, 2125, 48 L.Ed.2d 725 (1976); United States v. Nixon, 418 U.S. 683, 714, 94 S.Ct. 3090, 3110, 41 L.Ed.2d 1039 (1974); United States v. Chacon, 564 F.2d 1373, 1375 (9th Cir., 1977); Matter of Roman, 97 Misc.2d 782, 785, 412 N.Y.S.2d 325 (Sup.Ct., New York Co., 1979) ].

The VDF as part of the discovery process often necessarily becomes part and parcel to a decision on a relevant motion (e.g. speedy trial motion, motion for preclusion for lack of proper C.P.L. § 710.30 notice, etc.). The VDF's availability and the knowledge of its contents have been used in this context and the propriety of such never questioned by appellate courts, trial courts and motion parts in the adult system [see: People v. Brown, 56 N.Y.2d 242, 247, 451 N.Y.S.2d 693, 436 N.E.2d 1295, (1982); People v. Pena, 50 N.Y.2d 400, 408, 429 N.Y.S.2d 410, 406 N.E.2d 1347 (1980) cert. den. 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814; People v. Huth, 92 A.D.2d 778, 779, 459 N.Y.S.2d 616 (1st Dept., 1983); People v. Roberto H., 67 A.D.2d 549, 551, 416 N.Y.S.2d 305 (2d Dept., 1979); People v. Vargas, 118 Misc.2d 477, 477- 478, 461 N.Y.S.2d 678 (Sup.Ct., New York Co., 1983); People v. Ebron, 116 Misc.2d 774, 775, 456 N.Y.S.2d 308 (Sup.Ct., New York Co., 1982); People v. Gross, 100 Misc.2d 617, 619, 420 N.Y.S.2d 73 (Sup.Ct., New York Co., 1979); People v. Zagarino, 97 Misc.2d 181, 184, 411 N.Y.S.2d 494 (Sup.Ct., Kings Co., 1978); People v. Merced, 119 Misc.2d 238, 462 N.Y.S.2d 555 (Crim.Ct., New York Co., 1983) ].

Trial judges in non-jury cases may preside even though they have conducted a pretrial hearing on the voluntariness of a confession [People v. Brown, 24 N.Y.2d 168, 299...