Motion [sequence #3] by defendant Rafael Stern and cross-motions [sequence #s 4 and 5] by defendants Scott Glassberg, Matthew Lerner and Faith Lerner, all seeking an order of protection suppressing the transcript of their respective plea allocutions and preventing their use of any statements made therein to any governmental agencies for any purpose upon the grounds that such use would violate Criminal Procedure Law § 720.35 are granted.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on October 31, 2005. The incident which occurred on October 31, 2005 resulted in moving defendants being charged with crimes for which they all received youthful offender status.

The aforementioned defendants argue that youthful offender records are protected under CPL § 720.35 and hence, plaintiff's counsel is not entitled to utilize the minutes of their plea allocutions which counsel simply obtained from the court reporter. In opposition, plaintiff's counsel contends that CPL § 720.35 is inapplicable here since the minutes of defendants' plea allocutions were obtained prior to the imposition and entry of youthful offender status and it is only at that time that the court records become sealed.

CPL 720.35(2) provides in relevant part:

"Except where specifically required or permitted by statute or upon specific authorization of the court, all official records and papers, whether on file with the court, a police agency or the division of criminal justice services, relating to a case involving a youth who has been [*2]adjudicated a youthful offender, are confidential and may not be made available to any person or public or private agency, other than an institution to which such youth has been committed, the division of parole and a probation department of this state that requires such official records and papers for the purpose of carrying out duties specifically authorized by law."

In State Farm Fire and Casualty Co. v. Buongiorno, (237 AD2d 31, 36 [2nd Dept., 1997]), the court, in denying counsel for plaintiff's attempt to essentially circumvent the confidentiality provisions of CPL 720.35(2) by serving a notice to admit upon defendant, reasoned as follows:

"CPL 720.35(2) is not to be construed as but a minor obstacle to be easily overcome by the plaintiff as it seeks to cast aside the statutory protection afforded to [defendant]. The confidentiality of information is part of the comprehensive legislative plan to relieve youthful offenders of the consequences of a criminal conviction and give them a second chance.' This involves sealing of all court papers from the time of arraignment, for the privacy of all court proceedings, and * * * for the ultimate withholding of a criminal record from the offender upon his adjudication as a youthful offender' (Mem of State Exec Dept. in support of L 1971, ch 981, 1971 McKinney's Session Laws of NY, at 2516). Youthful offender status is designed to protect young offenders. It permits the court to mete out fair punishment for a young adult's crimes and transgressions yet mitigates future consequences in recognition of, inter alia, the youth's lack of experience and the court's hope for his future constructive life' (People v Gordon S., 89 AD2d 912, 913 [2nd Dept. 1982] [emphasis added]). The primary advantage of such treatment is the avoidance of the stigma and practical consequences which accompany a criminal conviction' (People v Cook, 37 NY2d 591, 595 [1975] [emphasis added]).

In order to give effect to these legislative intentions, [defendant's] motion for a protective order must be granted. To establish, by a contrary ruling, a policy under which a youthful offender knows that the privacy and confidentiality granted by CPL 720.35 could be broken, would have a chilling effect on the willingness of a charged youth to accept a plea which includes his or * * * her * * * adjudication as a youthful offender. This contravenes the goals envisioned by the youthful offender policy."

As in State Farm and recognizing the public policy underlying passage of CPL 720.35(2), counsel for plaintiffs' expediency in obtaining court transcripts will not be permitted to circumvent the confidentiality of those court documents which CPL 720.35(2) is intended to protect.

Court records, while out of the court's actual possession, are not beyond its control. This court accordingly finds that the statutory cloak of confidentiality afforded by CPL 720.35(2) is broad, covering all court records relating to youthful offender adjudication, including copies of those records no longer in the possession of the court.

Defendants' success at this time, however, does not foreclose the possibility that at least some of the protected transcripts may again become the subject of court review. [*3]

Generally, "the privilege created by CPL 720.35 attaches not only to the physical documents constituting the official records of the [defendant's] adjudication as a youthful defender, but also to the information contained within those documents" (Matter of Susan Barnett v David M.W., 22 AD3d 575 [2nd Dept. 2005]). Nevertheless, not all information contained within the confidential records is privileged (Id.). Defendants' youthful offender adjudications do not render them immune from answering questions about the facts or events underlying the October 31, 2006 incident (Id.; State Farm Fire & Casualty Co. v Buongiorno, supra). Their depositions may therefore be pursued and they may be called to testify at trial.

If, as a consequence of defendants' testimony, circumstances develop which warrant disclosure of one or more of defendants' plea allocutions, further application may be made to the court which rendered the youthful offender adjudication (see, Id. at p.35; Royal Globe Ins. Co. v. Mottola, 89 AD2d 90) or perhaps the trial court.

In view of the foregoing, the motion and cross-motions for a protective order suppressing the transcript of the aforementioned defendants are granted.

All parties are reminded that a compliance conference is scheduled to be held before the undersigned on April 3, 2007 at 9:30 A.M.

This decision constitutes the order of the court.

Dated: FEBRUARY 20, 2007
THOMAS P. PHELAN

J.S.C.