Terry D., Matter of

• Decision Date: 07 April 1992
• Parties: , 74 Ed. Law Rep. 266 In the Matter of TERRY D., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 681

582 N.Y.S.2d 681

182 A.D.2d 406, 74 Ed. Law Rep. 266

In the Matter of TERRY D., Respondent.

Supreme Court, Appellate Division,

First Department.

April 7, 1992.

Before MURPHY, P.J., and CARRO, ROSENBERGER, WALLACH and ROSS, JJ.

MEMORANDUM DECISION.

The Decision and Order of this Court entered on March 24, 1992 is hereby recalled and vacated.

Order, Family Court, New York County (Leah Ruth Marks, J.), entered March 6, 1991, which only conditionally granted the motion of appellants non-party witnesses, the New York City Board of Education and Linda Marks, Assistant Principal of Louis Brandeis High School, to quash a subpoena duces tecum served upon them in this Family Court Act article 3 juvenile delinquency proceeding, affirmed, without costs.

ROSENBERGER and WALLACH, JJ. concur each in a separate memorandum, in both of which MURPHY, P.J. concurs.

CARRO and ROSS, JJ. dissent in a memorandum by CARRO, J., all as follows:

ROSENBERGER, Justice (concurring).

I concur in the result, which affirms the Family Court order partially granting the motion to quash a subpoena duces tecum. The first part of the Family Court's order states "(t)he names and other identifying information need not be provided" if the person to whom the subpoena was directed "is willing to produce the persons whose names were requested by respondent at a time and place to be chosen together by [respondent's attorney] and [the person to whom the subpoena was directed]". Although, as the dissent observes, the parties to this appeal have not supplied any statutory or case authority for this portion of the order, that is not, per se, a reason to reverse it. No statutory or case authority has been submitted showing this portion of the order to have been an improper exercise of the court's discretion or jurisdiction.

The dissent notes that compliance with the order to produce the people who were present would require the recipient of the subpoena "to conduct her own investigation, to identify and locate all such persons who might come within the compass of the subpoena, and then to produce them for interviews". In my view, this ignores the setting in which the original incident took place. It took place in a classroom, while class was in session. It should not require any great deal of effort to have the students who were in that classroom at the time brought together in the classroom again for the purpose of being interviewed. Obviously, the good faith efforts of the recipient of the subpoena to comply with that portion of the order would be sufficient to avoid contempt.

In light of this, an extended discussion of the confidentiality of addresses and telephone numbers of students is unnecessary.

WALLACH, Justice (concurring).

The presentment agency filed a juvenile delinquency petition against respondent for acts committed in the classroom of the complaining witness teacher. Without specifying the basis therefor, respondent served a subpoena on the Assistant Principal demanding "names, addresses and telephone numbers for each student and nonstudents who were in the classroom" at the time in question. When no answer was received, respondent, contending that the information demanded was necessary to discover witnesses to the events charged in the proceeding, sought and obtained an order directing the Assistant Principal to show cause why she should not be held in contempt. A cross motion to quash was filed. The court denied the motion to quash unless the Assistant Principal agreed to produce the named persons at a mutually selected time and place, in which event she need not provide the names and other identifying information. Otherwise, the Assistant Principal was "directed to produce the information as to names and telephone numbers or times the children can be brought to answer a telephone at school."

While a subpoena may not be utilized to obtain information where there is no demonstration of relevancy or materiality, and the evidence sought "would not directly bear on the hard issue of guilt or innocence" (People v. Gissendanner, 48 N.Y.2d 543, 550, 423 N.Y.S.2d 893, 399 N.E.2d 924), the information sought here is necessary to locate eyewitnesses to the alleged crime, and thus bears directly on the issue of guilt or innocence. The subpoena is not being used for general discovery purposes, or "an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [respondent] to impeach the witness" (People v. Gissendanner, supra, at 549, 423 N.Y.S.2d 893, 399 N.E.2d 924).

Furthermore, I differ with the view of my dissenting colleagues that the confidentiality provisions of Education Law § 3212-a create an insuperable bar to the enforcement of this subpoena. In the City of New York, the pertinent provisions of the Family Educational Rights and Privacy Act ("FERPA"; 20 U.S.C. § 1232g, commonly referred to as the Buckley Amendment) are incorporated into the Regulations of the Schools' Chancellor by release No. A-820, issued October 1, 1979. Those regulations provide that "[i]t is the responsibility of each school to preserve the rights of privacy of all students and parents," and that under the policies of FERPA and the Board of Education, parents have the right to control disclosure from a child's education records, with certain exceptions (see, 20 U.S.C. § 1232g[b][2]. However, the Buckley Amendment, although imposing broad confidentiality requirements for student records, carves out a significant exception by allowing conditional disclosure of "directory information" (see, 20 U.S.C. § 1232g[a][5], which includes the student's name, address and telephone listing, the very items sought here.

Contrary to the dissent, there is no suggestion here that these provisions have been complied with, nor is it urged that the Chancellor's regulations can alter a statute. Rather, those regulations are cited simply to indicate the relatively modest privacy interest which is implicated here.

But, even assuming the confidentiality policy of the Education Law were cast in the most absolute terms, this could not defeat respondent's rights to compliance, which are of constitutional and due process dimensions. As was cogently stated in People v. Heller, 126 Misc.2d 575, 577, 483 N.Y.S.2d 590,

The rights to compulsory process and to confrontation of witnesses are basic to our system of justice. The Supreme Court has recognized its "manifest duty * * * to vindicate those guarantees" (United States v. Nixon, 418 US 683, 711 [94 S.Ct. 3090, 3109, 41 L.Ed.2d 1039 (1974) ]. The landmark cases of Brady v. Maryland [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], and Giglio v United States (405 US 150 [92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ], underscore the rights of criminal defendants to discover exculpatory evidence in the possession of the prosecution. The duty of the prosecuting authority to comply is an affirmative one (United States v. Agurs, 427 US 97 [96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ], grounded in considerations of "elemental fairness to the defendant and as a matter of professional responsibility" (People v. Cowart, NYLJ, Jan. 29, 1982, p 7, col 2 [114 Misc.2d 881, 452 N.Y.S.2d 774, Supreme Ct, Bronx County, Bernstein, J.]. When those guaranteed rights are in direct conflict with a policy of another governmental authority, one must yield. It is the opinion of this court that, in this case, the rights of those competing authority must yield to those of the defendant. [Emphasis added.]

CARRO, Justice (dissenting).

Respondent was charged with juvenile delinquency on the basis of a complaint that he entered a high school teacher's classroom without authorization, prevented her from leaving, and assaulted her in front of approximately 40 students and an unspecified number of school personnel. The respondent served the appellants Board of Education and Linda Marks, an Assistant Principal of the high school, with a subpoena duces tecum demanding the "names, addresses and telephone numbers for each student and non students who were in the classroom when the incident occurred." When the appellants did not comply, a motion to hold them in contempt and a cross-motion to quash the subpoena were disposed of in a decision and order as follows:

Motion to quash partially granted. If Linda Marks is willing to produce the persons whose names were requested by respondent at a time and place to be chosen together by Mr. Tatem [respondent's attorney] and Ms. Marks, the names and other identifying information need not be provided. If such an arrangement is not acceptable to Ms. Marks, the motion to quash is denied and Ms. Marks is directed to produce the information as to names and telephone numbers or times the children can be brought to answer a telephone at school.

Education Law § 3212-a(1) provides as here pertinent that "[e]ach school shall maintain a record of the telephone number of each pupil enrolled in the school ... [which record] shall, except as otherwise provided by law, be accessible solely for emergency purposes." Clearly, release of the students' telephone numbers to provide the respondent with leads as to potential defense witnesses was not within the contemplation of the statute. At minimum, the respondent was required to provide "some basis" to the court for believing that the appellants were in possession of...