The Court, on its own motion, rescinds the prior decision and order dated April 18, 2025, and replaces it with this decision and order in its place and stead.

The defendant has filed the instant application, ex parte, for a subpoena duces tecum for the entirety of the complaining witness' education records for the period of 2022 through 2025 academic years.^[FN1] This subpoena requests all records, including the complaining witness' "attendance records, disciplinary records, suspensions, unsatisfactory (conduct) ratings, test scores, report cards, psychiatric/psychological or IEP records, and counseling records." The defendant also seeks a subpoena duces tecum for mental health records from the period of January 2022 through December 2025.

At the outset, it should be noted that both sets of records for which the defendant is seeking an ex parte judicial subpoena are confidential records of a child complaining witness. More specifically, the child complaining witness' school records are confidential and protected under the Family Education and Privacy Rights Act ("FERPA") (see 20 USCA 1232g). Similarly, the mental health records of the child complaining witness are confidential (See People v Colon, 173 AD3d 1704 [3d Dept 2019]). Trial courts are granted discretion in deciding whether, and to what extent, these types of records should be disclosed in a criminal case (See People v. McCray, 23 NY3d 193 [2014]; People v. Cooley220 AD3d 1189, 1190, 197 NYS3d 790, 793 [4th Dept 2023]).

While the Court recognizes that CPL §610.20[3] allows for a defendant to apply ex parte for a subpoena duces tecum, under the facts and circumstances of this case, because this application seeks confidential and protected records of a child, procedural fairness and privacy protections dictate that such application be made on notice to the People so that the People have an opportunity to be heard on issues of privilege, overbreadth and materiality. This is particularly true since the defendant's papers do not adequately set forth a compelling reason for this application to be made ex parte.

Furthermore, the defendant's application as it relates to the school records is overbroad in that it seeks the entirety of the child's school records without providing any specific facts that demonstrate a "reasonable likelihood that the records might contain material bearing on the reliability and accuracy of the witness' testimony" (People v. Duwe, 154 AD3d 1256, 1257, 83 NYS3d 582, 584 [2d Dept 2018]). This threshold must be met prior to a court granting a subpoena for in camera review (Id).

Accordingly, the defendant's ex parte application for the issuance of a subpoena duces tecum seeking the entirety of the complaining witness' education and mental health records is DENIED, without prejudice.

The defendant may re-submit the application, on notice to the People. Any revised application should also be specific as to why the records are relevant as to the defendant's guilt or innocence, or the witness' ability to recall or testify truthfully, or otherwise bear on the witness' reliability and that the need for these records outweighs their confidentiality. (See eg People v Colon, 173 AD3d 1704 [3d Dept 2019]). In addition, any request for the complaining witness' mental health records must also include information pertaining to why the alleged diagnosis, in and by itself, affects the witness' ability to recall and testify. (See People v. Elliot, 2012 NY MISC LEXIS 1727 [Bronx Co 2012])

Lastly, any revised subpoena should direct that the records be provided to the Court for in camera review.

A copy of this decision, along with all moving papers, will be placed in the Court file under seal.