Can a teacher who was acquitted at a criminal trial use the sealing provisions of the Criminal Procedure Law to shield from evidence sought to be introduced at her DOE termination hearing?

No. Petitioner, a middle school teacher, was arrested and tried for an alleged sexual relationship she had with a 12 year old student. She was acquitted of all criminal charges and her criminal record was sealed, automatically, pursuant to the Criminal Procedure Law.

Shortly thereafter petitioner was served with DOE charges which mimicked the criminal prosecution. At the 3020-a hearing petitioner maintained that evidence which was obtained by the DA or otherwise used at her dismissed criminal trial could not be introduced because the sealing provisions of the Criminal Procedure Law shielded their use at the Departmental trial.

This material included bank records, telephone records (over 8,000 text messages between the two), motel records, a video of petitioner taken on the Student’s cell phone, DNA analysis (showing that the Student’s saliva were found on petitioner’s bedspread), the anticipated testimony of the prosecuting ADA (who was expected to testify as to admissions made by petitioner at the criminal trial), and the testimony of an NYPD Detective (who was expected to testify as to the chain of custody regarding the above evidence). Respondent opposed, arguing that the evidence it was seeking to introduce did not constitute “official records and papers” as defined under 160.50.

The arbitrator granted the motion to preclude as to the Detective’s testimony, finding such testimony unnecessary, but denied the remainder of the motion. She found the following as justifications for admitting the controversial evidence: the bank, phone and motel records were created by private institutions in the regular course of business; the cell phone video was not recorded by a law enforcement agent; and the DNA analysis was prepared by an agency separate from the NYPD or District Attorney’s Office. As to the ADA, the arbitrator permitted her to testify only as to admissions by the petitioner at the criminal trial (no testimony was permitted as to anything else regarding the criminal investigation or trial).

The arbitrator sustained the charges and terminated her. The Petitioner appealed to the Supreme Court, New York County.

Justice Alice Schlesinger found that there was enough evidence to sustain the arbitrator’s findings without the deciding the sealing issue. However, Justice Schlesinger found, “But even assuming that the controversial evidence constituted “official records and papers” and was sealed under CPL 160.50, and admittance constituted a violation of         this statute,the Court of Appeals has held that a violation of CPL 160.50, without more, does not require suppression of such evidence or implicate constitutional considerations such as due process, or warrant annulment of a respondent’s determination of termination despite a  prior acquittal of the same or similar charges in a criminal proceeding. See Charles Q. v. Constantine, 85 NY2d 571, 575 [1995] (state trooper’s termination for sexual misconduct upheld despite prior acquittal in criminal proceeding and improper consideration of records sealed under CPL 160.50 when “respondent’s determination is supported by substantial evidence in the record, including the complainant’s own testimony, and there is no indication that the admission of the erroneously unsealed evidence operated to   deprive petitioner of a fair hearing.”);

 

2016 NY Slip Op 50979(U). IN THE MATTER OF THE APPLICATION OF CLAUDIA TILLERY, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent.651804/15. Supreme Court, New York County. Decided June 24, 2016.

 

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