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In Re: T.P. U.P. CP Children Under 18 Years Alleged to be Neglected by Tony G., Respondent

The neglect proceeding was heard pursuant to Article 10 of the Family Court Act. The Respondent has been accused of perpetuating various acts of violence against the children’s mother in front of the children and has been accused of using excessive corporal punishment. R was also accused of being an alcoholic.  R was also prosecuted in criminal court which was dismissed.

The Respondent said that criminal records should not have been used (the arresting officer used them to refresh his memory).

On cross-examination, the officer testified that before attending the neglect proceeding he had reviewed criminal paperwork, the Domestic Incident Report (DIR) and his memo book to refresh his memory.

The court looked at whether these documents were considered sealed pursuant to CPL 160.50(1) which states that all official records relating to prosecution on file with the criminal justice services, police or the prosecution shall be sealed. The court said that all of the documents used should have been sealed except for the memo book.

The ASC stated that the DIR is different because it is required by law. That doesn’t change the importance of enforcing the public policy associated with the sealing statute in a case where an arrest doesn’t take place. The purpose of this law was to protect the accused and be in keeping with the presumption of innocence. Or in other words, no person should suffer the consequences from a mere accusation. Matter of Joseph (NY City Bd of Educ.) 82 NY2d 131 [1993].

This policy is within the CPL 160.60 which says that an arrest that ends in favor accused is considered null and that the person is returned to they had before the arrest. There are two decisions backing this idea up Matter of B/L Children, fam court, Kings City, February 22, 2011, Gruebel J., docket No. NN 30879-80/10, In re: JG, 2009 WL 7292304, Bronx Fam City Drinane J. Both of these cases deal with whether sealed documents can be used as evidence.

The court decided that the memo book does not come under CPL 160.50(1)(c). The court says that a police memo book does not come under the records discussed in CPL 160.50(1)(c)

Contrary to ASC’s assertion, the ruling will not hinder the case from proceeding, even when corresponding documents are sealed. The statute doesn’t prevent the officer from testifying from memory or trying to refresh his memory from his own records.

The Petitioner cited People v Patterson 78NY 711, 713 and In re Quadon 55 AD 3d 834, 834 2d Department 2008 as support that an officer used sealed documents to prepare for family court.

The court says that these cases deal with very different fact scenarios. In both cases, the sealed were used to locate a person arrested for another crime.

The issue in those cases was whether the evidence obtained other than the sealed item had to be suppressed because of the taint using the sealed items.

If you have a family court matter, it is important to speak to a lawyer to ensure that your rights are protected. Contact Stephen Bilkis and Associates for a free consultation. There are locations in Manhattan, the Bronx, Brooklyn, Staten Island, Queens, Westchester County, Suffolk County and Nassau County. Call today at 1-800-NYNYLAW.

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