LEAH v. KEITH (2025)

On October 6, 2023, the children of respondent father were interviewed by a Safe Horizon employee at the Manhattan Child Advocacy Center (CAC).  The videotaped interviews were observed by a multidisciplinary team comprised of a detective from the New York City Police Department's Special Victims Unit and representatives from the Manhattan District Attorney's Office and Child Protective Services in a separate room.  On October 10, 2023, respondent father was arrested and charged with first-degree sex abuse and endangering the welfare of a child.  On July 15, 2024, the criminal charges were dismissed due to a lack of witness cooperation.

On October 11, 2023, Administration for Children's Services (ACS) commenced a Family Court Act article 10 proceeding against the father, alleging that he sexually abused both of his daughters.  ACS informed the father that it would seek to introduce the videotaped interviews at the fact-finding hearing.  He subsequently moved to preclude ACS from introducing the videos or a transcript of the interviews.

Criminal Procedure Law § 160.50 specifies that, where a criminal action or proceeding terminates in favor of the accused, “all official records and papers ․ relating to the arrest or prosecution, including all duplicates and copes thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed” (see CPL 160.50[1][c]).  The statute “serves a laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his [or her] having once been the object of an unsustained accusation” (see Matter of Hynes v. Karassik, 47 N.Y.2d 659, 662, 419 N.Y.S.2d 942, 393 N.E.2d 1015 [1979]).  However, not all documents or records constitute “official records” under CPL 160.50 (see Matter of Harper v. Angiolillo, 89 N.Y.2d 761, 766, 658 N.Y.S.2d 229, 680 N.E.2d 602 [1997]).  Although the statute “specifies judgments and orders of a court as items ‘included’ in the category of official records and papers, the statute is otherwise silent on the nature of such ‘official’ material” (see id. at 765–766, 658 N.Y.S.2d 229, 680 N.E.2d 602).

The forensic interviews at CAC were part of the children's protective investigation.  ACS obtained the videos from Safe Horizon.  Safe Horizon, an independent victims’ assistance agency tasked with gathering information about the children's safety, is the official creator and custodian of the master tape.  The father overlooks the plain language of CPL 160.50, which defines the records subject to sealing as being on file with the “division of criminal justice services, any court, police agency, or prosecutor's office.”  Neither ACS nor Safe Horizon are included in this list, and the father fails to explain why ACS, an agency with a different mission and a different burden of proof, cannot use the videotape.  The videotaped interviews are thus not subject to sealing under the statute.

The videos are not “official records and papers” related to the father's arrest or prosecution.  The Social Service Law permits CAC to conduct a forensic interview of a child by a trained professional that “must be conducted in a manner which is neutral and fact-finding and coordinated to avoid duplicative interviewing” (see Social Services Law § 423–a[2][f]).  These videotaped interviews are confidential, but “shall” be disclosed for the purpose of investigation, prosecution and/or adjudication in any relevant court proceeding (see Social Services Law § 423–a[5][a]).  The interviews were made in CAC's regular course of business and not in conjunction with law enforcement relating to the father's prosecution.  Even so, the mere existence of a multidisciplinary task force involving multiple law enforcement and non-law enforcement actors is not dispositive (see People v. Wilcox, 192 A.D.3d 1540, 1541, 144 N.Y.S.3d 770 [4th Dept. 2017], lv denied 37 N.Y.3d 961, 147 N.Y.S.3d 518, 170 N.E.3d 392 [2021]).

The argument advanced by ACS and the attorney for the children, which analogizes the CAC videos to 911 recordings, is persuasive.  This Court has held that 911 calls are not official records within the meaning of CPL 160.50, as the 911 system serves a broader purpose than solely relating to criminal arrests and prosecutions (see Matter of Krystal N. [Juan R.], 193 A.D.3d 602, 602, 142 N.Y.S.3d 808 [1st Dept. 2021], lv denied 37 N.Y.3d 906, 2021 WL 4098619 [2021] [“Family Court properly declined to strike the 911 tapes from the record after [respondent's] acquittal in Criminal Court because those records were not official recordings relating to respondent's arrest or prosecution and thus were not subject to the sealing statute”];  Matter of Dockery v. New York City Hous. Auth., 51 A.D.3d 575, 575, 859 N.Y.S.2d 130 [1st Dept. 2008], lv denied 11 N.Y.3d 704, 864 N.Y.S.2d 808, 894 N.E.2d 1199 [2008]).  Similar to a 911 call, which is handled by the NYPD and may or may not lead to a police response and criminal proceeding, a forensic interview at CAC is an initial information-gathering process, not inherently tied to any arrest or prosecution that may follow.

The recorded interviews of the children, in which they gave their own accounts of the father's actions to an independent forensic interviewer, did not contain any information about the father's arrest or discontinued prosecution.  Sealing the videotaped interviews would undermine the CAC and multidisciplinary model.  Although we recognize that there is a delicate balance between the compelling need to protect the welfare of children and the right of criminal defendants to be free from the stigma of an unsustained prosecution, CPL 160.50 should not be used to override the truth-finding and child-protective missions of the Family Court.

Accordingly, the order of the Supreme Court, New York County (Michael L. Katz, J.), entered on or about November 29, 2024, which denied respondent father's motion to preclude petitioner Administration for Children's Services from introducing into evidence video recordings of forensic interviews with the subject children at the Family Court Act article 10 fact-finding hearing, should be affirmed, without costs.

Order of the Supreme Court, New York County (Michael L. Katz, J.), entered on or about November 29, 2024, affirmed, without costs.

González, J.

All concur.