YANICKI v. STATE (1997)

In this action, David Yanicki seeks damages for “defamation in the form of slander and general negligence” alleging that in 1991 members of the State Police told reporters from two newspapers that he had been convicted of a felony in a 1960 armed robbery case.   The claim was filed late pursuant to orders of Judge McMahon, who has since retired.   The gravamen of the claim is that claimant was not convicted of a felony, but was only adjudicated a youthful offender (YO) a fact the police were bound by Criminal Procedure Law section 720.35 not to disclose.¹

Contending that the causes of action pleaded lack merit, the State moves for summary judgment dismissing the action.   Claimant opposes the motion, asserting in part that information given to the newspapers by the State Police was slanderous per se as there was no felony conviction, only a YO adjudication, and cross-moves to amend the claim to allege causes of action for intentional infliction of emotional distress, invasion of privacy and damages under 42 U.S.C. § 1983 for violation of a constitutional right of privacy.

 The motion and cross-motion are before the Court on attorney affidavits, rather than evidentiary affidavits establishing what, if anything, the State Police told the news reporters.   Thus, the Court cannot summarily determine whether the Police slandered claimant by falsely reporting that he had been convicted of a felony.   On the other hand, it appears that both parties see the claim as seeking recovery of damages for violation of CPL section 720.35 as well as defamation.   That section only prohibits disclosure of “official records and papers, ․ relating to a case involving a youth who has been adjudicated a youthful offender” (CPL 720.35 [2] ), not information about the facts of the case.

Does violation of this statute give rise to an implied private cause of action for damages?   The answer to this question depends upon whether claimant is one of the class for whose benefit it was enacted, and whether such an action is consistent with the statute's legislative history and underlying scheme.   See Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459.   The YO procedure provides an opportunity for certain young offenders to be insulated from the lifelong stigma of a criminal conviction and an opportunity to avoid harsh sentences of imprisonment and loss of civil qualifications and rights.   Certainly, claimant was a member of the class intended to be benefitted by this procedure.   Whether he lost that status through the passage of time, as the State contends, need not be determined.  CPL article 720 does not expressly authorize a civil remedy for breach of its confidentiality provisions.²  Nor is there anything in its legislative history signaling an intent to create a private right of action.   Furthermore, achievement of its objective, limited access to YO records held by public agencies, will not be enhanced by a civil remedy.

 The Court of Appeals has ruled that the confidentiality component of CPL 720.35 is intended only to assure that the youthful offender does not suffer a stigma or disability from a criminal conviction, not to prevent press attendance at and reporting of a sentencing proceeding after adjudication (Capital Newspapers Div. of Hearst Corp. v. Moynihan, 71 N.Y.2d 263, 272, 525 N.Y.S.2d 24, 519 N.E.2d 825).   See also People v. Vidal, 26 N.Y.2d 249, 309 N.Y.S.2d 336, 257 N.E.2d 886 (allowing cross-examination of a defendant on the underlying illegal and immoral acts that resulted in an earlier youthful offender adjudication);  Bell v. Codd, 57 A.D.2d 814, 395 N.Y.S.2d 16 (holding that the purpose of CPL 720.35 does not prohibit requiring an applicant for appointment as a police office to disclose a YO adjudication and the underlying facts).   No criminal penalty is provided for a breach of this confidentiality mandate, although such a penalty would not necessarily suggest the existence of a civil remedy.   See CPC Intl. v. McKesson Corp., 70 N.Y.2d 268, 519 N.Y.S.2d 804, 514 N.E.2d 116 (holding that there is no civil remedy for violation of General Business Law section 352–c, a penal provision);  Gomariz v. Foote, Cone & Belding Communications, 228 A.D.2d 316, 644 N.Y.S.2d 224 (holding that Judiciary Law section 519 making it a misdemeanor to fire an employee for serving on a jury does not impliedly create a private civil cause of action).   These decisions lead to the conclusion that the underlying scheme of article 720 does not imply the existence of a private remedy for breach of its confidentiality provision.   Therefore, the motion is granted to the extent that it seeks a determination that there is no cause of action for damages arising from a disclosure prohibited by section 720.35.

 Public policy prohibits a claim for intentional infliction of emotional distress against the State.  De Lesline v. State of New York, 91 A.D.2d 785, 458 N.Y.S.2d 79, lv. denied 58 N.Y.2d 610, 462 N.Y.S.2d 1027, 449 N.E.2d 427.   There is no common-law right to privacy in New York nor any cause of action for violation of a privacy right except as provided by Civil Rights Law sections 50 and 51 (Arrington v. New York Times Co., 55 N.Y.2d 433, 439–440, 449 N.Y.S.2d 941, 434 N.E.2d 1319, cert. denied 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994), which have no bearing on this case.   While it is doubtful that there is a federal right to privacy in a case such as this, 42 U.S.C. § 1983 does not provide a remedy against the State.   Brown v. State of New York, 89 N.Y.2d 172, 184–186, 652 N.Y.S.2d 223, 674 N.E.2d 1129.

The motion is granted in part and otherwise denied;  the cross-motion is denied in full.   This claim was filed almost five years ago.   It appears that little has been done to prepare it for trial.   The parties shall complete all disclosure by June 20, 1997 and claimant shall serve and file a note of issue and certificate of readiness by June 30.   Motions for summary judgment will not be heard after July 30.   Trial of liability and damages will commence on August 13.

FOOTNOTES

1.   Judge McMahon's first order allowed a claim pleading defamation to be filed.   His second order permitted the filing of an amended claim adding a cause of action “for negligent release of confidential information.”   The amended claim refers to general negligence which the Court will limit as Judge McMahon directed.   Also, it dropped the following language found in the original claim, “․ Police were under a duty not to disclose.   The claim arose when State ․”, which the Court will deem included.

2.   The same can be said of similar Code of Criminal Procedure provisions in effect at the time of claimant's adjudication.

JOHN P. LANE, Judge.