Panel Reverses Refusal to Quash Subpoenas

, New York Law Journal

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A judge erred in refusing to quash grand jury subpoenas served on the Westchester County Department of Social Services in the wake of a child's death, said a Brooklyn appellate panel.

Following the youth's 2012 death, the Westchester County District Attorney's Office, on behalf of the grand jury, subpoenaed the agency for records including reports of the New York Statewide Central Register of Child Abuse and Maltreatment that were deemed both "indicated" and "unfounded."

The agency said the records were confidential and moved to quash. Acting Westchester County Supreme Court Justice Barbara Gunther Zambelli (See Profile) denied the motion, saying the bid was moot because prosecutors already had the reports as part of a fatality review and investigative team.

The Appellate Division, Second Department unanimously reversed on Dec. 4.

The panel said even if prosecutors already had the "indicated" reports, under Social Services Law §422(4)(A)(f), they could only be given to the grand jury after a showing the grand jury needed the information to determine the charges.

"No such finding was made here," the panel said, remitting the matter to the lower court to determine if it was necessary for the grand jury to have the indicated reports.

As for the unfounded reports, prosecutors were "not permitted to redisclose those reports to the grand jury. Furthermore, under the circumstances of this case, those reports were inadmissible in 'any judicial or administrative proceeding or action'" the panel said, noting Social Services Law §422(5)(b).

Justices Mark Dillon (See Profile), Daniel Angiolillo (See Profile), John Leventhal (See Profile) and Plummer Lott (See Profile) decided Matter of McGuire v. DiFiore, 2013-03312.

James Castro-Blanco, chief deputy county attorney, and Thomas Gardiner, senior assistant county attorney, appeared for the Westchester County Department of Social Services. Westchester County Assistant District Attorneys Steven Bender and Richard Longworth Hecht appeared for the prosecution.

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