People v. Marrero

71 Misc.3d 1078

146 N.Y.S.3d 455

The PEOPLE of the State of New York,

v.Johnny MARRERO, Defendant.

587/20

Supreme Court, New York County, New York.

Decided on April 13, 2021

Cyrus R. Vance, Jr., District Attorney (Alexander Kahn of counsel), for plaintiff.

The Legal Aid Society (Laura Waters of counsel) for defendant.

April A. Newbauer, J. Defendant moves to remedy the People's acquisition of defendant's medical records pursuant to a so-ordered subpoena that was issued ex parte , in the absence of a HIPAA release. The motion is granted in part, as follows.

Factual Background

Defendant Johnny Marrero has been indicted for attempted robbery in the first and second degrees (PL 160.15[3] and 160.10[2][a], dangerous instrument and physical injury, respectively). The theory of the prosecution is that on March 3, 2020, Marrero, armed with a knife, sliced open the pants pockets of the complainant, who was sleeping on a subway car as it approached an upper Manhattan station. The complainant awoke and attempted to back away, but Marrero allegedly brandished the knife and demanded the complainant's money and wallet. When the complainant again retreated, Marrero allegedly attacked him, biting his arm as the two engaged in a struggle. The complainant was able to exit the car and summon the police. He then witnessed Marrero's arrest. Marrero, who sustained cuts and had blood on his hands, was taken to Harlem Hospital.

Marrero was arraigned in Criminal Court on March 5, 2020. Addressing the People's bail application, the defense counsel challenged the strength of the prosecution's case:

But I think there are some reasons to believe that this is not as clear cut as it looks. Mr. Marrero does actually have some defensive wounds that would be consistent with him having be[en] cut with a knife which would be unusual in a situation where he was the one wielding that knife. I think that there's a lot to explore in this case.

The following day, March 6, 2020, the People submitted a so-ordered subpoena for defendant's Harlem Hospital records to the Grand Jury judge. The Assistant District Attorney's supporting affirmation recounted the People's theory of the crime and defense counsel's arraignment argument that defendant sustained "defensive wounds." The records were sought "to determine the extent or origin of Mr. Marrero's wounds after his struggle with the complaining witness, which is relevant to Mr. Marrero's intent and the defense of justification." Although the sequence of the day's events are not clear, the People presented the case against defendant to the Grand Jury on March 6, the CPL § 180.80 day, and obtained the present indictment, which was filed on March 9, 2020.

Defendant eventually received, through discovery, the medical records obtained by the People. On September 22, 2020, defense counsel challenged the propriety of the Grand Jury judge's so-ordered subpoena before a second supreme court justice, to whom this case was previously assigned. After counsel argued that the subpoena violated HIPAA¹ and should not have been procured ex parte , the justice reviewed the supporting affirmation and commented, "I am certain I would have signed [it] as well .... I am very comfortable with it based on the information provided." The second justice agreed to consider the matter further if defense counsel submitted her argument in writing. The present motion followed.

In his motion to remedy the purportedly improper issuance of the subpoena, Marrero asks the court for various relief: to direct the People to return the records to the court to maintain them under seal; to bar the ADA who obtained the records from further involvement in the case; and finally to disclose the affirmation submitted in support of the subpoena. The People have since attached the affirmation as an exhibit to their response. In support of the requested relief, the defense cites HIPAA, arguing that there was neither a waiver by defendant nor a "court order" contemplated by that statute, and a breach of the state physician-patient privilege. In response, the People submit that the so-ordered subpoena was in fact a court order, and that defendant waived the state privilege at Criminal Court arraignment by placing his physical condition, more specifically the possibility of a justification defense, in issue.

HIPAA

A health care provider may disclose patient information in compliance with HIPAA with the patient's consent. 45 CFR 164.508 (c). There are several instances, however, in which the patient's authorization is unnecessary, such as public health matters, 45 CFR 164.512(b) and (d) ; matters involving victims of abuse, neglect or domestic violence, 45 CFR 164.512 (c) ; law enforcement activities, 45 CFR. 164.512(f) ; and, as relevant here, "[d]isclosures for judicial and administrative proceedings," 45 CFR 164.512(e). Subdivision 164.512 (e) expressly permits disclosure "in the course of any judicial or administrative proceeding" in two instances, (e)(1)(i), "[i]n response to an order of a court or administrative tribunal," provided that the provider "discloses only the protected health information expressly authorized by such order," and (e)(1)(ii), "[i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if (A) the provider receives assurances of reasonable efforts to notify the individual whose information is sought, or (B) the provider receives assurances that the party seeking the information has made reasonable efforts "to secure a qualified protective order" shielding notice of the request.

In support of its argument that the so-ordered subpoena violated HIPAA because it was ex parte , defendant cites Matter of Miguel M. (Barron) , 17 N.Y.3d 37, 926 N.Y.S.2d 371, 950 N.E.2d 107 (2011). In that case, respondent Barron, director of the Department of Psychiatry at Elmhurst Hospital Center, applied for an order under Mental Hygiene Law 9.60 of "assisted outpatient treatment"("AOT," colloquially known as "Kendra's Law") for Miguel M., on the basis of the Miguel's mental illness and likely inability to live safely in the community. At a hearing on the matter, Barron introduced records from two hospitals concerning Miguel's prior hospitalizations. Barron received those records pursuant to a "request," as opposed to a court order, of which Miguel had no notice. Id. at 40—41, 926 N.Y.S.2d 371, 950 N.E.2d 107. Rejecting application of the "public health" and "treatment" exceptions of 45 CFR 164.512 advanced on Barron's appeal, the court noted "the existence of other exceptions that Barron might have invoked but did not," id. at 43, 926 N.Y.S.2d 371, 950 N.E.2d 107, namely, disclosure in response to "an order of a court or administrative tribunal," 45 CFR 164.512(e)(1)(I), or "a subpoena, discovery request, or other lawful process," 45 CFR 164.512(e)(1)(ii). Id. at 44, 926 N.Y.S.2d 371, 950 N.E.2d 107. The court then opined, in the context of the AOT proceeding at hand, that, "absent extraordinary circumstances," Barron could not "have obtained a court order requiring disclosure without giving ... notice." Id.² Nor, the court continued, could it discern a policy reason not to give notice.

This case is different in two respects. First, it does not involve records obtained pursuant to an unelaborated "request," as in Miguel M. , or pursuant to an attorney's trial subpoena. Instead, the records were produced pursuant to a judicial so-ordered subpoena, which carries the signature, stamp and authority of the court, and the stated consequence of criminal contempt sanctions for non-compliance. See CPLR § 2308. This court thus disagrees with defendant's core argument that a so-ordered subpoena is an ordinary attorney's subpoena, akin to 45 CFR 164.512(e)(1)(ii)'s "discovery request," and not a 45 CFR 164.512(e)(1)(i) court order. People v. Olsen , 23 Misc.3d 593, 600, 873 N.Y.S.2d 453 (Nassau Co. Dist. Ct. 2009) ("medical records may be obtained from a provider without a written authorization from the patient only where the disclosure is made pursuant to an order of the court [as in the case of a So—Ordered subpoena], pursuant to 45 CFR § 164.512 [e][1][I], or pursuant to a subpoena which must be accompanied by assurances of notice or protective order pursuant to 45 CFR § 164.512 [e][1][ii][A] or [B]); Matter of Antonia E. , 16 Misc.3d 637, 640, 640 fn. 2, 838 N.Y.S.2d 872 (Fam. Ct., Qns. Co. 2007) (construing application for judicial subpoena as involving order of the court pursuant to 45 CFR 164.512 [e][1][i], not [ii] subpoena).

This case concerns a grand jury subpoena, where notice is impractical and potentially ill-advised. Having reviewed the supporting affidavit and arraignment minutes, this court will not overrule, in effect, the two coordinate justices who considered the subpoena proper. However, this court does observe some troubling aspects to the process and questions the necessity for overriding the defendant's HIPAA protections. Contrary to what the Grand Jury judge may have concluded, the counsel's statements at arraignment were equivocal and did not signal a clear intent to raise a justification defense.³ Further, it is not clear from the colloquy at the arraignment that the Marrero intended to testify before the Grand Jury. Although cross grand jury notice was served, the record also reveals that Marrero had a court-related intake appointment scheduled at a conflicting time. Without Marrero's testimony, there would be virtually no possibility of a justification defense at the grand jury stage, no reason for the prosecutor to give the justification charge or, more to the point, to use the subpoenaed records.

The People may have been able to clarify through counsel whether Marrero intended to assert the justification defense at that juncture, and whether the defendant indeed intended to testify before resorting to an ex parte records request.

However, even if the...