Opinion
02-06-2015
The PEOPLE of the State of New York, v. John DOE, Defendant.
Christa Douaihy, Esq., The Bronx Defenders, Bronx, Defense Counsel. Jason Navia, Esq., Assistant District Attorney, Bronx, The People.
Christa Douaihy, Esq., The Bronx Defenders, Bronx, Defense Counsel.
Jason Navia, Esq., Assistant District Attorney, Bronx, The People.
JEANETTE RODRIGUEZ–MORICK, J. Defendant stands charged with assault in the third degree, Penal § 120.00(1), and harassment in the second degree, id. § 240.26(1), for allegedly biting a security officer assigned to a HIV/AIDS Services Administration ("HASA") location. Invoking Public Health Law § 2780 et seq. , Defendant seeks an order sealing the instant motion and precluding the complainant-security officer from referring in her trial testimony to the suggestion that Defendant is HIV-positive and that the alleged assault took place at a Human Resources Administration HASA location, among other things.
HASA, an agency of the Human Resources Administration, provides "[i]ntensive case management and assistance in applying for public benefits and services" to "persons living with AIDS or clinical s[y]mptomatic HIV illness." Human Resources Administration, Department of Social Services, HIV/AIDS Services Administration, http://www.nyc. gov/html/hra/html/services/hasa.shtml (last visited Jan. 24, 2015).
In deciding this motion, the court has considered the following:
(1)Defendant's motion, dated March 31, 2014; the People's opposition, dated November 18, 2014; Defendant's reply, dated December 31, 2014; the People's sur-reply, dated January 14, 2015; and Defendant's reply to the People's sur-reply, dated January 21, 2015;
(2)transcripts of the minutes of a combined Huntley/Dunaway/Wade hearing held by Hon. David Stadtmauer on November 25, 2013, at which the complainant testified (and, although not relevant, the transcripts of hearing minutes from November 19, 2013, and December 17, 2013);
(3) an in camera oral argument in connection with this motion, held on January 21, 2015; and
(4) the information, dated August 1, 2011.
For the reasons that follow, Defendant's motion for an order pursuant to Public Health Law § 2780 et seq. is DENIED; but his application for an order sealing the instant motion is GRANTED.
Background
According to the minutes of the Wade/Dunaway hearing, complainants, a supervising security officer employed by FJC Security, a private security company, was assigned to supervise several security guards at a HASA facility in the Bronx on August 10, 2010. (Nov. 25, 2013 Hr'g Tr. 4:11–5:7.)
At around 11 a.m., Complainant received a radio call from another security officer about an altercation between a client and a HASA caseworker in the waiting room. (Id. at 5:9–10; 18:16–20.) Complainant responded and ultimately needed to physically intercede between Defendant and the caseworker. (Id. at 10:18–11:4.) In the midst of the scuffle, Defendant bit her on the right side of her torso. Complainant's shirt was "full of blood" and she described the bite as "deep" and "penetrating." (Id. at 11:16–12:14; 32:12–15.) Defense counsel filed the instant motion, pursuant to Public Health Law § 2780 et seq. , for an order precluding any and all Complainant's references to HIV in this case, including, but not limited to, Defendant's HIV status, a description of the incident location as a HASA office, testimony regarding the necessity of Complainant's having to undergo HIV testing, her subsequent retroviral medication regime, and the adverse effects of that testing and treatment.
Analysis
Defendant argues that Complainant is prohibited by the Public Health Law from testifying regarding any HIV references because such testimony is tantamount to "disclosure" under article 27–F, which provision requires the People to seek, preliminarily, a court order authorizing that disclosure.
Article 27–F of the Public Health Law limits the disclosure of "confidential HIV-related information." See id. § 2780 et seq. If article 27–F applies, its confidentiality protections would arguably necessitate the preclusion of certain aspects of the Complainant's testimony. Since HIV-related information is defined as "any information, in the possession of a person who provides one or more health or social services or who obtains the information pursuant to a release of confidential HIV related information," id. § 2780(7) (emphasis added), Defendant's argument turns on whether Complainant is a provider of "health or social services" under section 2780(7).
To get there, Defense counsel essentially reads an agency theory into the Public Health Law, and argues that all HRA/HASA "employees and [ ] agents have a statutory duty to maintain the confidentiality of [Defendant's] HIV-related information." (Mem. of Law 8.) Counsel argues that article 27–F applies to those "who in the course of their employment" obtain any HIV-related information. (See Mem. of Law 7.)
But article 27–F's actual language differs not a little from what defense counsel urges. The non-disclosure provisions throughout article 27–F appear to apply only to service providers who, in the course of providing such services, obtain confidential information. See, e.g., Pub. Health Law §§ 2780(7) (defining confidential HIV related information to mean information "in the possession of a person who provides one or more health or social services " (emphasis added)); 2782(1) ("No person who obtains confidential HIV related information in the course of providing any health or social service ...."); 2785(4)(a) ("The individual concerning whom confidential HIV related information is sought and any person holding records concerning confidential HIV related information.... "). Because Complainant here is not a person providing health or social services, article 27–F does not apply.
See also id. at § 2780(8) (defining "[h]ealth or social service" as "any public or private care, treatment, clinical laboratory test, counseling or educational service for adults or children, and acute, chronic, custodial, residential, outpatient, home or other health care provided pursuant to this chapter or the social services law; public assistance or care as defined in article one of the social services law; employment-related services, housing services, foster care, shelter, protective services, day care, or preventive services provided pursuant to the social services law; services for the mentally disabled as defined in article one of the mental hygiene law; probation services, provided pursuant to articles twelve and twelve-A of the executive law; parole services, provided pursuant to article eight of the correction law; corrections and community supervision, provided pursuant to the correction law; detention and rehabilitative services provided pursuant to article nineteen-G of the executive law; and the activities of the health care worker HIV/HBV advisory panel pursuant to article twenty-seven-DD of this chapter.").
Undeterred by the absence of any textual support in article 27–F indicating that employees of independent contractors are persons who provide "health or social service[s]," Defense counsel cites several other statutory provisions to support her agency theory. (See Douaihy Aff. 8 (citing Social Services Law § 2 ; 18 NYCRR § 357.2 ; 10 NYCRR § 63.4 ).) But an examination of these provisions reveals that her argument is built like a house of cards.
For example, defense counsel cites Social Services Law § 2 and 18 NYCRR § 357.2 for the proposition that "Human Resources Administration employees and agents are categorically bound" by the non-disclosure provisions of article 27–F. (Mem. of Law 8–9.) Yet a cursory glance at Social Services Law § 2 exposes it to be nothing more than a general catalog of definitions that, predictably, does not include "Human Resources Administration employees and agents" or even any reference to article 27–F. Equally barren is the citation to 10 NYCRR § 357.2, relating to "[p]rohibition[s] against disclosure of information," which provides that "[o]fficers and employees of social services districts" are prohibited from disclosing, among other things, the identity of applicants for HIV-related public assistance benefits. This provision defines neither "agents" as "employees" nor "social services districts" and lacks any reference to article 27–F. Finally, defense counsel's citation to 10 NYCRR § 63.4, relating to the "[f]iling of reports," yields nothing of any relevance. See id. at (b)-(c) (requiring certain medical personnel and their agents to file HIV-related reports with the commissioner of health and providing for the confidentiality thereof). Needless to say, none of the cited provisions support defense counsel's contention that all HASA "employees and agents in contract with HRA" fall under the purview of article 27–F.
In her motion papers, defense counsel does not explain which of section 2's subdivisions, if any, support her sweeping proposition. Presumably, she refers to "[h]ealth or social service provider," as defined in article 27–F under section 2780(8), which incorporates Social Services Law § 2's definition of "[p]ublic assistance and care." See Soc. Serv. Law § 2(18). Yet that definition, which provides that "[p]ublic assistance or care" includes "family assistance, safety net assistance, veteran assistance, medical assistance for needy persons, institutional care for adults and child care granted at public expense pursuant to this chapter," id., does not support her argument.
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In short, because article 27–F clearly does not apply here, Defendant's motion borders on the frivolous and is therefore denied.
Defense counsel's motion to seal the underlying motion papers, however, is granted. See, e.g., Hynes v. Karassik, 47 N.Y.2d 659, 664, 419 N.Y.S.2d 942, 393 N.E.2d 1015 (1979) (noting courts' power to restrict access to confidential records "when the interests of justice so dictate" based on the "discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice"). Although article 27–F does not apply, given the sensitive nature of the instant proceedings—particularly in light of the strong public policy in favor of confidentiality, as indicated by the legislative intent informing article 27–F—the court finds good cause to seal the underlying motion papers and further orders the instant caption amended to permit Defendant to proceed anonymously as to this motion in order to preserve privacy in this sensitive and personal matter. See N.Y. Law Reports Style Manual § 12.4(a)(3) ("If reference to protected personal names is necessary, use real or fictitious initials or other formats that shield the person from identification. For example, George Jones may be replaced by George J., or G.J., or George RR or Anonymous.").
Accordingly, Defendant's motion for an order precluding the People from introducing any HIV-related information, pursuant to Public Health Law § 2780 et seq. is denied; and his request to file the instant motion under seal is granted.
It is so ordered.