| Castiglione v James F.Q. |
| 2014 NY Slip Op 01571 [115 AD3d 696] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Daniel Castiglione, Appellant, v James F.Q.,Respondent. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Susan M. Ulrich of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals froman order of the Supreme Court, Nassau County (Brandveen, J.), dated June 13, 2012,which denied his motion pursuant to CPLR 3124 and 3126 to compel certain disclosureor to impose sanctions upon the defendant for failure to disclose.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action alleging that, on Halloween 2007, thedefendant's son threw an egg which hit the plaintiff's daughter in the eye, causing herinjuries. The plaintiff further alleged that criminal charges were filed against thedefendant's son arising from this incident, that the defendant's son pleaded guilty toassault in the third degree (Penal Law § 120.00 [2]), and that the defendant's sonwas subsequently adjudicated a youthful offender.
At his deposition, the defendant's son denied throwing the egg which allegedlystruck the plaintiff's daughter. He refused to answer questions regarding the youthfuloffender proceedings and any statements he made to police or the court regarding anyinvolvement in the incident on the ground that such information was privileged pursuantto CPL 720.35 (2). The plaintiff then served a demand for authorizations to obtain thecomplete police and court files related to the youthful offender adjudication. Thedefendant objected to the demand based upon the statutory privilege.
The plaintiff moved pursuant to CPLR 3124 and 3126, inter alia, to compel thedefendant's son to answer the questions posed at his deposition and to comply with theplaintiff's demand for authorizations. The Supreme Court denied the motion, determiningthat the defendant's son did not waive the confidentiality of his youthful offenderproceeding.
The youthful offender statute (CPL art 720) provides special measures for personsfound to be youthful offenders, which " 'emanate from a legislative desire not tostigmatize youths between the ages of 16 and 19 with criminal records triggered by hastyor thoughtless acts which, although crimes, may not have been the serious deeds ofhardened criminals' " (Matter of Capital Newspapers Div. of Hearst Corp. vMoynihan, 71 NY2d 263, 268 [1988], quoting People v Drayton, 39 NY2d580, 584 [1976]). Thus, "[a] youthful offender adjudication is not a judgment ofconviction for a [*2]crime or any other offense" (CPL720.35 [1]). Further, pursuant to CPL 720.35 (2), all official records and papersconcerning the adjudication are sealed. That statute provides: "Except where specificallyrequired or permitted by statute or upon specific authorization of the court, all officialrecords and papers, whether on file with the court, a police agency or the division ofcriminal justice services, relating to a case involving a youth who has been adjudicated ayouthful offender, are confidential and may not be made available to any person or publicor private agency [with certain exceptions not relevant here]."
The privilege created by this statute attaches not only to the physical documentsconstituting the official record, but also to the information contained within thosedocuments (see Matter ofBarnett v David M.W., 22 AD3d 575 [2005]; State Farm Fire & Cas. Co. vBongiorno, 237 AD2d 31, 35 [1997]). Thus, a person adjudicated a youthfuloffender may refuse to answer questions regarding the charges and police investigation,whether he or she pleaded guilty, and whether a youthful offender adjudication wasmade. However, the person must still answer questions regarding the facts underlying theadjudication (see Matter of Barnett v David M.W., 22 AD3d at 576-577).
The language in the statute permitting access to the confidential records "uponspecific authorization of the court" refers only to the court which rendered the youthfuloffender adjudication (CPL 720.35 [2]; see State Farm Fire & Cas. Co. vBongiorno, 237 AD2d at 35; Royal Globe Ins. Co. v Mottola, 89 AD2d 907[1982]). Absent a statute or order of the court which rendered the youthful offenderadjudication, disclosure of the information in the confidential records may not becompelled unless the youthful offender has waived the privilege (see Auto Collection, Inc. vC.P., 93 AD3d 621 [2012]; State Farm Fire & Cas. Co. v Bongiorno,237 AD2d 31 [1997]). As with other privileges, the privilege of CPL 720.35 (2) iswaived "where the individual affirmatively places the information or conduct in issue"(Green v Montgomery, 95 NY2d 693, 700 [2001]; see Dillenbeck vHess, 73 NY2d 278, 287 [1989]; Prink v Rockefeller Ctr., 48 NY2d 309[1979]; Pink v Ricci, 74AD3d 1773 [2010]; Taylor v New York City Tr. Auth., 131 AD2d 460[1987]).
Here, the defendant's son did not waive the privilege afforded by the statute since hedid not commence an action which places the conduct at issue (see Green vMontgomery, 95 NY2d at 701; Taylor v New York City Tr. Auth., 131AD2d at 462; Gebbie v Gertz Div. of Allied Stores of N.Y., 94 AD2d 165[1983]). The defendant did not assert counterclaims or cross claims in this action placingthe conduct at issue (see AutoCollection, Inc. v C.P., 93 AD3d 621 [2012]; Pink v Ricci, 74 AD3d1773 [2010]), and the defendant's son did not testify as to the confidential contentsof the records (see Matter of Barnett v David M.W., 22 AD3d at 577; Peoplev Johnson, 90 Misc 2d 777 [1977], revd on other grounds 78 AD2d 298[1981]). Contrary to the plaintiff's contention, the testimony of the defendant's son at hisdeposition denying that he threw the egg which allegedly struck the plaintiff's daughterdid not waive the protections of the statute (see State Farm Fire & Cas. Co. vBongiorno, 237 AD2d 31, 33, 37 [1997]). Accordingly, the Supreme Court properlydenied the plaintiff's motion to compel disclosure of the confidential information or toimpose sanctions upon the defendant for failure to disclose. Skelos, J.P., Chambers, Halland Miller, JJ., concur.