People v. Silkworth

• Decision Date: 21 February 1989
• Docket Number: AP-5
• Citation: 538 N.Y.S.2d 692,142 Misc.2d 752
• Parties: PEOPLE of the State of New York, Plaintiff, v. Bob SILKWORTH, 1 Defendant-Probationer
• Court: New York City Court

Page 692

538 N.Y.S.2d 692

142 Misc.2d 752

PEOPLE of the State of New York, Plaintiff, v. Bob SILKWORTH, ¹ Defendant-Probationer.

Criminal Court of the City of New York New York County, Part AP-5.

Feb. 21, 1989.

Robert M. Morgenthau, Dist. Atty., New York City Dept. of Probation; Timothy McFarland, of counsel and Office of the Dist. Atty.; Neil Eisenstadt, Esq., of counsel, New York City, for the People.

Legal Aid Soc.; George Dunn, Criminal Defense Div., of counsel, New York City, for defendant-probationer.

Kelley Drye & Warren; Gretchen Walsh, Esq., of counsel, New York City, for respondent Mary Immaculate Hosp.

MARCY L. KAHN, Judge:

This case of apparent first impression in this jurisdiction involves a clash of two socially important statutory schemes. The first of these is the body of laws of this State governing sentences of probation and imposing certain conditions upon persons serving such sentences, including the obligation to report to one's probation officer and, if required, to the court, on one's compliance with the terms of probation. (C.P.L. Art. 410; Penal Law 65.00, 65.10). In direct conflict with these laws are the provisions of the Federal Drug Abuse Office and Treatment Act of 1972, 42 U.S.C. § 290ee-3 ("the Act"), and the regulations thereunder, 42 C.F.R. 2.1 et seq. ("the Regulations"), created to assure the confidentiality of persons participating in any federally assisted drug or alcohol treatment program which prohibit disclosure of any records relating to such treatment, absent the patient's consent.

Where a probationer is mandated by the court and his or her probation officer to attend a drug treatment program, but withholds his or her consent to the disclosure of pertinent treatment records, can the court order release of such records without violating federal law? I conclude that it can.

Background of the Case

Defendant was convicted by a plea of guilty to the class A misdemeanor of criminal trespass in the second degree (P.L. 140.15) and on October 20, 1986 was sentenced to three years' probation. On July 27, 1987 the New York City Department of Probation ("Probation" or "the Department") advised the court that it had reasonable cause to believe that probationer had violated the conditions of his probation. A statement of specified alleged violations was thereupon filed with the court and the probationer was declared delinquent and notified to appear before the court. (C.P.L. 410.50; 410.40).

Probationer appeared in court on August 13, 1987. At that time, he was informed of the alleged violations, which included allegations that probationer failed to report to his probation officer commencing in April 1987; that he was arrested on class A misdemeanor charges in November 1986; that he was found guilty of the violation of trespass in February 1987; and that on two occasions in early 1987 his father had reported that probationer was using drugs, stealing from the home and exhibiting violent behavior toward other family members. The matter was then adjourned for 60 days for an updated report from Probation.

Thereafter, further adjournments were ordered and on November 17, 1987 a probation violation hearing was scheduled to proceed. On that date, and subsequently, on January 20, 1988, the matter was further adjourned on consent to enable the defendant to report to T.A.S.C., a nonprofit agency which conducts assessment and referral services for probationers and others seeking to enter drug treatment programs. After missing two scheduled appointments with T.A.S.C., defendant was terminated from that program.

On April 11, 1988, when the Department again appeared in court ready for the probation violation hearing, defendant told the court that he had plans to enroll in a drug program and requested a postponement of the proceedings so that he could demonstrate his progress in the program to the court and to his probation officer. An adjournment was granted until May 24, 1988.

On May 24, defendant advised the court that he had been accepted for enrollment in the K.E.E.P. Methadone Maintenance Program at Mary Immaculate Hospital ("the Hospital"), and probationer requested and received a further adjournment until July 5, 1988 for an update on his progress in that program.

On July 5, Probation informed the court that it had been informed by the Hospital that defendant had not reported to its K.E.E.P. Program subsequent to May 11, 1988. ² The Department thereafter filed an additional specification of Silkworth's violation of probation based upon his failure to participate in the Mary Immaculate Hospital K.E.E.P. Program. The hearing on all violations was scheduled for July 11, 1988.

On July 6, at the request of Probation, the court issued a judicial subpoena duces tecum returnable at the hearing which required the Hospital to produce all records in its possession reflecting the attendance, participation, and termination of probationer in its K.E.E.P. Program. Upon the Hospital's failure to respond to the subpoena, the Department obtained an order compelling the Hospital to show cause why it should not be held in contempt for its failure to comply with the subpoena duces tecum.

The Hospital thereafter appeared in opposition to the Department's application and cross-moved to quash the subpoena on the ground that its compliance would violate the confidentiality provisions of the Act and the Regulations. The Department argued that it needs the records solely in the context of performing its official duties in supervising Silkworth's probation, and specifically as evidence in his probation violation hearing. Probationer also opposed the Department's application, urging that his rights to privacy under the Act and regulations would be violated by the disclosure, and that disclosure would have a chilling effect on the willingness of persons such as himself to enter drug treatment facilities. During argument on both motions, the Hospital offered by way of compromise to furnish the Department and the court with a letter reflecting the dates of Mr. Silkworth's attendance, participation and termination in the K.E.E.P. Program. (See State v. White, supra n. 2). Probationer opposed even this compromise proposal.

Legal Analysis

The Department, correctly, takes the position that it is responsible for properly supervising the probationer's sentence and assuring that any violations of same are brought to the court's immediate attention. (9 NYCRR 352.1 et seq.). To perform its duty, the Department contends it must have access to the Hospital's records on probationer's participation in K.E.E.P.

By virtue of Mr. Silkworth's status as a probationer, he is in the legal custody of this Court pending the expiration of the period of his sentence. (C.P.L. 410.50[1] ). During this period, the Department of Probation has a continuing duty to supervise the probationer (C.P.L. 410.50[2] ), and he, in turn, is required to comply with the terms of his probationary sentence. (P.L. 65.10). The court is given broad discretion to modify or enlarge the conditions of a probationary sentence prior to its expiration. (P.L. 65.00[2] ).

In this case, once sentence was imposed, Mr. Silkworth was required to report to his probation officer on a regular basis and to answer all of the officer's reasonable inquiries. During the course of his probation, Mr. Silkworth was required to participate in a drug treatment program, first through T.A.S.C., and then through the Mary Immaculate K.E.E.P. Program. Without reaching the question, not now before the Court, of whether or not Mr. Silkworth violated these requirements, it is indisputable that these conditions are proper conditions of a sentence of probation. (P.L. 65.10[2](e); 65.10[3](a), (c)).

It should be equally clear that the Legislature intended that information regarding a probationer's progress, or lack of it, in a drug treatment program to which he or she was sent pursuant to the sentencing court's direction should be readily available to the supervising probation officer and to the court. In fact, at the time the Legislature last amended P.L. 65.10[2](e), which authorizes a court to impose, as a condition of a sentence of probation or conditional discharge, participation in an alcohol or substance abuse treatment program, it also amended the provisions of P.L. 65.05[2], the sentencing law relating to conditional discharges, to provide specifically that when such a requirement is imposed as part of a conditional discharge sentence, the court must require the administrator of the substance abuse program to provide written notice to the court of any violation of the program participation by the defendant. (Laws of 1981, ch. 742[2], eff. Sept. 1, 1981). Although no similar provision was enacted at that time amending the provisions of P.L. 65.00, the sentencing law relating to sentences of probation, the Legislature could very well have assumed that such a provision was unnecessary in light of the provisions of P.L. 65.10[3](c) requiring probationers to answer all reasonable inquiries by their probation officers. It is inconceivable that the Legislature intended to give probationers the right to withhold information relating to mandated drug treatment from their probation officers, particularly when that right was expressly denied to defendants serving sentences of conditional discharge.

The Hospital, quite properly, points out that the Act and the Regulations were adopted in order to maintain the confidentiality of the records of patients participating in drug treatment programs. The Act's legislative history demonstrates the intent of Congress to assure the privacy rights of patients undergoing drug treatment in order to enhance the success of the treatment program:

[T]he strictest adherence to the provisions of this section is absolutely essential to the success of all drug abuse prevention programs. Every patient and former patient must be assured that his...