People v. Price

• Decision Date: 14 June 1979
• Citation: 419 N.Y.S.2d 415,100 Misc.2d 372
• Parties: The PEOPLE of the State of New York v. Alonzo PRICE, Defendant.
• Court: New York Supreme Court

Page 415

419 N.Y.S.2d 415

100 Misc.2d 372

The PEOPLE of the State of New York v. Alonzo PRICE, Defendant.

Supreme Court, Trial Term, Bronx County, Part 19.

June 14, 1979.

New York City Dept. of Probation, Howard W. Yagerman, New York City, for movant.

Harvey A. Kaminsky, White Plains, for defendant.

WILLIAM KAPELMAN, Justice:

The New York City Department of Probation moves to quash a judicial subpoena duces tecum served by the defendant ordering the production of the probation intake records of a juvenile. The issue presented by the motion is one which has never been decided in New York: does the statutory privilege of confidentiality afforded probation intake records, based on the dual public policies of protecting juveniles and encouraging diversion from Family Court procedures, outweigh a criminal defendant's efforts to obtain and utilize exculpatory evidence at trial in accordance with his Sixth Amendment rights of confrontation and compulsory process?

On August 17, 1978, the complainant was robbed by an armed assailant on the street near her apartment building. A few hours after the robbery, the complainant identified her attacker from the files of police photographs. On the strength of that identification, the police arrested a juvenile and charged him with the crime. Because of his age, the juvenile was referred to the Department of Probation intake branch of the Family Court. Pursuant to intake procedures, the Department of Probation conducted a preliminary conference at which relevant information was gathered from the accused juvenile, the complainant, police officers, and others.

On August 26, 1978, while the intake procedures of the Department of Probation were pending, the complainant noticed the defendant on the street near her apartment building and believed that he might have been the perpetrator of the armed robbery nine days before. Two days later, she again saw the defendant in the same vicinity and was now certain that he was the person who robbed her. The complainant quickly alerted a civilian companion who detained the defendant until police officers arrived and arrested him.

The Department of Probation was thereafter notified that the juvenile had been mistakenly identified. Since a juvenile delinquency petition had not yet been filed by the complainant in Family Court, the juvenile was released from custody and no further action was taken against him.

During her testimony before the Grand Jury, the complainant was questioned about her mistaken identification of the juvenile on the date of the robbery, eleven days before the defendant was arrested. Thereafter, the Grand Jury returned the indictment against the defendant now before this Court.

All of the foregoing facts were provided to defense counsel in discovery materials by the prosecution in the well-founded belief that these facts are exculpatory and within the scope of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In preparation for trial, defendant applied for and received a judicial subpoena duces tecum (CPL §§ 610.10(3), 610.20(3), CPLR § 2307(a)), ordering the production of the probation intake records of the juvenile. After service was effected, the New York City Department of Probation moved to quash the subpoena duces tecum (CPLR § 2304) on the grounds that (1) the subpoenaed records, privileged and confidential under statutes and statutorily authorized rules enacted to accomplish compelling public policy considerations, cannot be used as evidence in any court; (2) the defendant has not demonstrated the relevancy and materiality of the subpoenaed records to the criminal proceeding; and (3) the privilege of confidentiality afforded probation intake records of a juvenile cannot be breached by a judicial subpoena duces tecum issued on behalf of a criminal defendant especially where the juvenile is not a party to the criminal proceeding. The defendant contends that the subpoenaed records are essential to his defense because (1) the recorded statements of the complainant concerning her identification of the juvenile as the person who committed the robbery will impeach her credibility at trial and are therefore necessary for effective cross-examination; and (2) the recorded statements of the juvenile may prove to exculpate the defendant and demonstrate that the juvenile actually committed the robbery. He therefore submits that the statutory privilege of confidentiality of the records is outweighed by his Sixth Amendment rights of confrontation and compulsory process.

The Department of Probation provides important services to the Family Court and operates in a unique capacity in the juvenile justice system. Mandated by statute as a service agency designed to assist the Family Court and participate in its proceedings (Family Court Act § 252(d); see Matter of Charles C., 83 Misc.2d 388, 390, 371 N.Y.S.2d 582, 584 (Fam.Ct.N.Y.Co.1975)), the Department of Probation is organized and regulated by statute as well as rules of the Court (Family Court Act § 252(b)). One of the primary service components provided to the Family Court by the Department of Probation is pre-petition intake and adjustment (9 NYCRR 348.1(c); see Practice Commentary, Douglas J. Besharov, McKinney's Cons. Laws of N.Y., Book 29A, Family Court Act § 252, p. 182). Probation intake, a specialized preadjudication proceeding, is an informal preliminary conference held before judicial proceedings are commenced by the filing of a delinquency petition. The intake procedure of the Family Court confers authority on the Department of Probation to offer informal, voluntary discussions supervised by court-sanctioned social workers to settle differences between the complainant-petitioner and the juvenile-respondent. The objectives of the preliminary conference and adjustment at probation intake are (1) to screen from the court those juveniles who, because of age, a good prior history, or other factors, could derive no benefit from court involvement and might be damaged by its stigma; (2) to return the juvenile to the community prior to the initiation of court proceedings through diversion programs; and (3) to shield an overburdened Family Court from those cases which do not require court action (see 9 NYCRR 354.2, 354.3; Matter of Felder, 93 Misc.2d 369, 379, 402 N.Y.S.2d 528, 534 (Fam.Ct.Onondaga Co.1978); Matter of Patrick G., 92 Misc.2d 126, 132, 399 N.Y.S.2d 862, 865 (Fam.Ct.Suffolk Co.1977); Matter of Luis R., 92 Misc.2d 55, 56-57, 399 N.Y.S.2d 847, 848-849 (Fam.Ct.Kings Co.1977); Matter of Edward W., 89 Misc.2d 570, 575, 392 N.Y.S.2d 208, 212 (Fam.Ct.Onondaga Co.1977); Matter of Charles C., supra, 83 Misc.2d at 390-391, 371 N.Y.S.2d at 584-585; Matter of Anthony S., 73 Misc.2d 187, 189, 341 N.Y.S.2d 11, 13 (Fam.Ct.Richmond Co.1973); Matter of Frank H., 71 Misc.2d 1042, 1043, 1047, 337 N.Y.S.2d 118, 120, 123 (Fam.Ct.Richmond Co.1972).

In order to effectuate these important public policies, the statutory and regulatory schemes explicitly govern the procedure of probation intake and adjustment of cases. Thus, the Department of Probation has specific authority to confer with persons seeking to file delinquency petitions, potential juvenile-respondents, and other interested persons concerning the advisability of filing a petition. The Department of Probation also has authority to attempt to adjust suitable cases before a petition is filed (Family Court Act § 734(a); 22 NYCRR 2507.2, 2507.3(a); Matter of Charles C., supra, 83 Misc.2d at 390-391, 371 N.Y.S.2d at 584-585). Of course, the preliminary procedure is entirely voluntary, and the Department of Probation may not compel the appearance of anyone at the conference nor prevent the filing of a petition (Family Court Act §§ 734(b), 734(d); 9 NYCRR 354.4(b); Matter of Luis R., supra, 92 Misc.2d at 57, 399 N.Y.S.2d at 849; Matter of Charles C., supra, 83 Misc.2d at 391, 371 N.Y.S.2d at 585). However, when a conference is conducted, the Department of Probation must ascertain and record a brief narrative statement of the underlying events and other relevant facts from the person who seeks to originate a delinquency proceeding (22 NYCRR 2507.3(c); 9 NYCRR 354.4(e)). After the preliminary conference at probation intake is completed, the staff of the Department of Probation must review the case to determine whether it is suitable for immediate adjustment, diversionary programming, or action by the Family Court (9 NYCRR 354.1(a), 354.4(d), 354.4(h), 354.4(i)). Adjustment of cases must be based on recognized criteria contained in a written report (22 NYCRR 2507.6; 9 NYCRR 354.4(a), 354.4(f), 354.4(h), 354.4(i)).

It is clear that the records kept by the Department of Probation, including those at intake, are engendered by proceedings before the Family Court. Thus, those records are subject to the statutes and rules governing confidentiality and disclosure of records under the jurisdiction of the Family Court (Matter of Dorothy D., 62 A.D.2d 473, 474, 476, 404 N.Y.S.2d 876, 877, 878 (2d Dept. 1978)). Provisions which govern disclosure of records under the control of the Family Court are applicable to the Department of Probation because the Department exists as an advisory and service agency for the Court, and is therefore an arm of the Court (Family Court Act § 252(d)). This relationship is illustrated by numerous statutes and regulations providing for the direct supervision of the Department of Probation by the Court in the conduct of preliminary procedures and adjustment of cases (see, E. g., Family Court Act § 734(a)(ii); 9 NYCRR 354.4(a), 354.4(f), 354.4(1), 354.4(n); Matter of Felder, supra, 93 Misc.2d at 379, 402 N.Y.S.2d at 534). In the case at bar, for example, the case against the juvenile could only have been adjusted upon the prior written approval of a judge of the Family Court, since the juvenile had been accused of the designated felony of Robbery in the First Degree (see Family...