People v Heil

[*1] People v Heil 2007 NY Slip Op 51572(U) [16 Misc 3d 1125(A)] Decided on June 20, 2007 Monroe County Ct Renzi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2007
Monroe County Ct

People of the State of New York

against

David Heil, Defendant.



0862/2006



Appearances:

For the People:

Douglas Randall, Esq.

Assistant District Attorney

For the Defendant:

David R. Morabito, Esq.

Peter Pullano, Esq.

Alex R. Renzi, J.

This Court is called upon to determine whether the failure of the Rochester City School District to report a sex abuse complaint against one of it's teacher employees to police compels dismissal of the instant indictment on the grounds that prosecution of that teacher, the defendant, commenced outside the five year statute of limitations. Reluctantly, this Court holds that the school district's failure to notify law enforcement, or the state central register of child abuse and maltreatment of the complaint leveled against the teacher, inadvertently permitted the statute of limitations to be extended pursuant to Criminal Procedure Law sec. 30.10 (3) (f).

Accordingly, the defendant's motion to dismiss the indictment on statute of limitations grounds is denied.

While the prosecution against the defendant may proceed, the facts gathered by this Court at a hearing conducted in March 2007 cannot pass without discussion. The Court can best characterize the city school district's attempt to absolve itself from responsibility to notify police of a claim of sex abuse against one of it's teachers as an exercise in "legal gymnastics." [*2]

FINDINGS OF FACT

In October 2006 the Rochester City Police were first called upon to investigate an allegation made by a Rochester City School student, L.K.[FN1], that in April, 2000, within School No. 28, LK had been sexually abused by City School District teacher David Heil (the defendant). At the hearing conducted by this Court the complainant's mother, R.L.[FN2], testified that she first learned about the alleged sexual abuse of LK on April 28, 2000 when LK told her about the incident that had occurred earlier in the day at School No. 28. R.L. immediately called her uncle, Henry Rouse, a Monroe County Jail Deputy (who happened to be on his last day of work prior to retirement). R.L. testified that she called Mr. Rouse to seek his advice in his capacity as her uncle and as her friend, but not due to the fact he was a police officer. R.L. told Mr. Rouse that she did not want to call the police at this time. Rouse advised her to call the school principal. R.L. called the principal that evening and told her what her child had reported. The principal assured her that the defendant would not be attending a previously scheduled school function (a carnival) the following day, and set up a meeting with R.L. for Monday morning to address the complaint.

That Monday R.L., accompanied by her children (including the complainant) went to a meeting at the school where the complainant and siblings were interviewed at the school by school officials. Also present at this meeting was a Mr. Yancy (identified as a "student advocate") as well as the principal, Mrs. Cardirelli. R.L. was assured that she would get a copy of all reports filed in this matter and was further assured that as a result of the complaint Mr. Heil "would no longer be teaching". R.L. testified that she never received a copy of any report. Based on the actions she believed the district to be undertaking RL did not report the sex abuse complaint to Child Protective Services or to a law enforcement agency.

It happened that in October 2006 R.L. was visiting School No. 19 attending to one of her other children. While there she saw the defendant, David Heil. She immediately went to the school office and learned from personnel that Heil was still teaching. As with the initial incident R.L. called her uncle for advice. This time, however, he instructed her to call the Rochester Police Department and file a report. She did so and shortly thereafter met with police in order to commence criminal proceedings. Upon commencement of the criminal action, the complainant (L.K.) was under the age of 18.

From April 2000 until October 2006 no law enforcement agency in Rochester or Monroe County was notified by L.K. or R.L. of the complaint against the defendant; nor during that period did the records of the state central register of child abuse indicate the filing of a complaint against the defendant.

For its part the City School Administration (RCSD) handled the matter internally, with [*3]notification to the State Education Department in Albany. City School District Attorney Michael Looby testified that in May 2000 he was first made aware of the sex abuse allegations against Heil, recalling that the complaint involved a teacher abusing a student (from another class) by giving the student a "pink belly" and putting his hands down the front of the student's pants. Looby nor any other school administrator, to his knowledge, contacted law enforcement or Child Protective Services. Looby reported the allegations to then school superintendent Clifford Janey. The two discussed their reporting obligations, and agreed that Albany was required to be notified based on an allegation of "moral failure" by a school teacher.

RCSD sent letters to the investigative division of the State Education Department. One such letter indicated that Heil had not been involved in any other incidents. The record fails to reveal that either the RCSD or the State Education Department conducted any additional investigation into the claims. The defendant was apparently fully reinstated as a teacher in the district.

On November 14, 2006, the Monroe County Grand Jury returned an indictment against David Heil, charging him with two counts of sexual abuse in the first degree, and one count of endangering the welfare of a child, for offenses allegedly committed against LK on April 28, 2000.

DISCUSSION AND CONCLUSIONS OF LAW

The defendant argues, and the People concede, that the defendant's arrest for the April 28, 2000 incident occurred outside the five-year statute of limitations. However, the People maintain that an exception to the statute of limitations for certain sex crimes is contained within Criminal Procedure Law sec. 30.10 (3) (f), which, in relevant part provides:

[T]he periods of limitation for the commencement of criminal actions are extended as follows in the indicated circumstances:. . . (f) For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law . . . the period of limitation shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.

The People argue that because the complainant had not reached the age of eighteen, and that no law enforcement agency or the state central register had been notified of the incident, that the statute of limitations was tolled, and that the subsequent arrest and indictment in late 2006 was timely. The defendant counters, claiming that the crime was in fact reported to an agency (the Rochester City School District) which is mandated under state law to report child abuse, and that as a consequence the statute of limitations "clock" started running in April 2000. The defense further argues that it is immaterial that the school district failed to forward the complaint to law enforcement or the state registry; rather, it is argued that the school district "status" of being a mandated reporter of child abuse renders the school an adjunct to law enforcement or the state central register.

In addition, the defendant maintains that the telephone call made by R.L. to her uncle, a jail [*4]deputy, constituted "reporting" the incident to a law enforcement agency.

Law Enforcement Agency. At the outset, the Court rejects the defendant's claim that R.L.'s conversation with her uncle was the equivalent of reporting the crime to a "law enforcement agency." RL's testimony clearly established that the telephone call to her uncle was not intended to commence criminal proceedings against David Heil; instead, the call's intent was to seek guidance on a troubling situation. In fact, RL testified that she did not intend for the defendant to be arrested. Moreover, the uncle's position as a soon-to-be retired jail deputy does not appear to constitute a "law enforcement agency" as contemplated in CPL sec. 30.10(3)(f). While undefined in CPL sec. 1.20, a "law enforcement agency" is generally considered to include "law enforcement entities in addition to police departments and the Division of Criminal Justice Services." Katherine B. v. Cataldo, 5 NY3d 196, 204 (2005).

Thus, as it appears RL contacted her uncle as a personal appeal for advice rather than intended to launch a criminal investigation against the defendant, her act in reporting to her uncle the allege abuse was not a report to a law enforcement agency.

Nor can it be argued that the school district's referral to the "Teacher Discipline Unit" equated to reporting the offense to a law enforcement agency. As previously noted, the definition of "law enforcement agency" as set forth by caselaw is quite narrow. Matter of New York State Temporary Commission of Investigation, 155 Misc 2d 822, 824 (County Ct., Westchester County, 1992). To illustrate, an internal investigative agency, such as the attorney grievance committee or police internal affairs, does not render that agency a per se "law enforcement" agency, as that term has been narrowly defined. See Matter of Hynes v. Karassik, 47 NY2d 659 (1979); Matter of Dondi, 63 NY2d 331 (1984); and In re Police Commissioner of the City of New York, 131 Misc 2d 695 (Sup. Ct., New York County, 1986), where internal investigative agencies have been held not to be "law enforcement agencies." The Teacher Discipline Unit merits similar treatment.

Statute of Limitations. Requiring a more detailed analysis is the defendant's claim that the statute of limitations commenced on the date School No. 28 principal Cardarelli (and, by extension, the RCSD) were informed of the abuse allegations against the defendant, thus precluding prosecution of the defendant.

The legislative intent behind enacting exceptions to the statute of limitations (CPL 30.10) for certain sex crimes was stated within the Governor's Memorandum:

The bill . . . provides a much-needed reform bearing on the ability of child-victims of sexual abuse to obtain redress through criminal prosecutions. . . . [C]hild-victims of sex offenses cannot fully appreciate the crimes committed against them until they reach maturity; many child-victims are victimized by parents or other persons with whom they have a close relationship, and cannot reasonably be expected to report these crimes while they remain under the sway of their abusers. . . . [T]he statute of limitations would not begin to run until the child reaches the age of [18] or at the date the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier. This change would therefore allow for the prosecution of sex offenders who prey on victims under the age of [18] to be commenced as late as the victim's [*5][23] birthday if the offense went unreported prior to the victim's [18] birthday.

Governor's Mem. approving L. 1996, ch. 122, 1996 McKinney's Session Laws of NY, at 1863-1864.

In similar fashion the Assembly concluded that a change in the law was necessary in order "to recognize the vulnerability of child victims of assault" and that "[c]hild victims of sexual abuse are usually violated by people with whom they have and ongoing relationship." Assembly Mem. in Support, 1996 McKinney's Session Laws of NY, at 2085.

Here, L.K. immediately reported the abuse to a parent, who, in turn, immediately advised Rochester City School officials. However, both the hearing testimony of Thomas Corbett of Child Protective Services and Mr. Looby of the City School District indicate that they interpret the law to mean that the district was not legally required to pass the abuse complaint on to either law enforcement or the state central register of child abuse, despite the apparent mandates contained within the Social Services Law.

NY Soc. Serv. Law § 413, subd. 1 ("Persons and officials required to report cases of suspected child abuse or maltreatment") states that

The following persons and officials are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child: . . .school official . . . .

For purposes of Soc. Serv. Law § 413, a "person legally responsible" includes "the child's custodian, guardian, or any other person responsible for the child's care at the relevant time." NY Family Court Act § 1012 (g). Looby's testimony, as well as his affidavit, posits that David Heil was not a person "legally responsible" for the complainant at the time of the alleged abuse. As a consequence it was his opinion that under any interpretation of the aforementioned statutes (the Criminal Procedure Law, Social Services Law, or Family Court Act) the district was not obligated to report the Heil incident to law enforcement, Child Protective Service, or the state central register of child abuse.

This Court's research has failed to disclose any appellate-level cases which seemingly support this narrow interpretation of the statutes. The school district administration appears to rely on trial-level decisions dating over three decades ago. Among those cases are Maynard v. Shanker, 59 Misc 2d 55 (Fam. Ct., NY Co., 1969) (teacher's union or school board are not persons "legally responsible" for neglecting children during teacher's strike); In re Arlene D., 70 Misc 2d 953 (Fam. Ct., Richmond Co., 1972) (Willowbrook State School and Department of Mental Hygiene are not persons "legally responsible" under Family Court Act for neglect committed on children at the state facility); and In re Yvette R., 61 Misc 2d 20 (Fam. Ct., Bronx Co., 1969) (a "person legally [*6]responsible" under section 312 of the Family Court Act is limited to a parent, relative, guardian or one standing in loco parentis and not the Commissioner of Social Services). See also Matter of Jessica C., 132 Misc 2d 596 (Fam. Ct., Queens Co., 1986) wherein the Court opined that the "catch-all" phrase of Family Court Act § 1012(g) ("any other person responsible for the child's care at the relevant time") is "not as expansive as it seems, but is limited to the functional equivalent of parent in a household setting." Matter of Jessica C., at 601.

More recently, however, the Fourth Department and the legislature have directly addressed the responsibilities of school districts in the manner they treat complaints from students of abuse occurring at home (and then reported to school officials), and abuse occurring within the school setting.

In Kimberly S.M. v. Bradford Central School, 226 AD2d 85 (Fourth Dept., 1996) a student reported to her sixth grade teacher that she had been sexually abused by her uncle. The teacher failed to pass along the allegation to supervisors. For over a year after the complaint the student was continuing to live in the abuse setting. The abuse was again reported, but instead to a guidance counselor. The victim's mother was then told of the abuse, and a report filed. The student's family commenced a civil action against the school district, but the school district moved for summary judgement arguing that the teacher had no common-law or statutory duty to report the incident. While agreeing that no common-law duty to report the abuse existed, the Court, citing Social Services Law § 413, found that "[t]he duty of school officials, including teachers, to report cases of suspected child sexual abuse is now mandated by statute in New York." Kimberly S.M. at 88.

In analyzing the existing law at length, the Court stated:

. . . First, whether a teacher is required to report a suspected case of child sexual abuse is determined by the facts and circumstances known to the teacher at the time she learns of the abuse. . . . Social Services Law § 415 requires all mandated reporters, including teachers, to make an oral report "of suspected child abuse or maltreatment" immediately and to file a written report within 48 hours. The written report must include, inter alia, "the names and addresses of the child and his or her parents or other person responsible for his or her care, if known" and "the name of the person or persons alleged to be responsible for causing the injury, abuse or maltreatment, if known" (Social Service Law § 415 [emphasis added]). Thus, the mandated reporter is required to report even though she may not know the identity of the "person legally responsible" or the identity of the abuser. It is not the duty of the mandated reporter to assess whether the abuser would be considered by Family Court to be a "person legally responsible" or whether a "person legally responsible" allowed the abuse to occur. If she has reasonable cause to suspect that a child has been sexually abused, the reporter must report immediately. It is the duty of the investigating agency to determine whether the report was founded.

Kimberly S.M. v. Bradford Central School, at 89-90.

While the facts in Kimberly S.M. did not directly address the obligations of school officials to report a sex abuse charge against one of its own school teacher/employees, the legislature did [*7]settle this issue in 2000 by enacting Article 23-B of the Education Law, titled "Child Abuse in an Education Setting." Among other things, the law placed duties on school employees and officials to report allegations "that a child has been subjected to child abuse by an employee . . . in an educational setting." NY Educ. Law § 1126. Most significantly § 1129 (1) criminalizes a failure to report such abuse.[FN3] Allegations must be forwarded to the school superintendents, who in turn must disclose the charges to the child's parents and to law enforcement.[FN4]

In creating this law, the legislature described the law's intent and necessity as follows:

. . . Notwithstanding the commitment and dedication of [teachers and school personnel], the abuse of children when they are in educational settings by persons in a position of trust is an ongoing and persistent problem. This problem is largely unaddressed in state statute or regulation. No standard statewide policy exists for the reporting, investigation or identification of this form of child abuse. Standardization and consistency are necessary and appropriate for the protection of the school children of New York state.

The legislature further finds that the reporting of allegations of child abuse in an educational setting must be formal, consistent and well documented. The investigation of such allegations of criminal conduct must not be undertaken by school personnel but must be the responsibility of law enforcement agencies . . . .

The legislature further finds that the practice of "quiet resignations" whereby an employee is allowed to resign his or her position in a school district in lieu of an investigation of child abuse allegations permits and perpetuates an abuser's ability to harm children in multiple school districts of subsequent employment. . . .

2000 NY Laws, c. 180, § 1 (eff. July 1, 2001). (Emphasis added.)

Thus, at the time the allegations against David Heil were under investigation by the City School District and State Education Department, the state legislature was passing legislation designed to regulate the manner in which school districts investigated abuse allegations against one of their own employees. Interestingly, and in all likelihood coincidentally, Dr. Janey closed the district's investigation into Mr. Heil on June 7, 2001 (People's Answering Affirmation and attachment), only three weeks before the effective date of the law which would have criminalized non-reporting an abuse incident at a school.

Therefore, based on the legislature's actions in 2000 and 2001, as well as the Fourth Department's decision in 1996 of Kimberly S.M. v. Bradford Central School, supra, it would appear to this Court that the officials at School No. 28 and the district administration during the relevant [*8]time period were "mandated reporters" under the law, and that by neglecting to pass along the abuse complaint to law enforcement in a timely fashion they failed in their legal responsibility to L.K. and his/her parents. This failure to notify police could possibly have resulted in barring the bringing of criminal charges against the defendant, through no fault of the complainant or the complainant's mother.

However, despite the failings of the RCSD in this matter, the prosecution against this defendant may nevertheless proceed. While recent statutes and cases on "school setting" abuse support a finding that the point in this case when the statute of limitations commenced was April 2000, this Court holds otherwise. The facts remain that the complainant was under 18 in October 2006 when the criminal action was commenced; no law enforcement agency had been notified previously of the allegations; and the state central register of child abuse showed no record of an abuse complaint lodged against the defendant. This Court is bound by the exceptions to the statute of limitations as expressed in CPL § 30.10 (3)(f), and is not at liberty to impute to the legislature an intent other than that warranted by the language of the legislation. See NY Statutes, § 94 (McKinneys, 1971); and Sife v. Board of Education of the City of New York, 65 Misc 2d 383 (Sup. Ct., New York County, 1970).

CONCLUSION

Accordingly, for the foregoing reasons, the defendant's motion to dismiss the indictment on the grounds the prosecution is time-barred by the statute of limitations is denied in all respects.

This opinion constitutes the Decision and Order of the Court.

Dated:June _____, 2007

Rochester, New York

_________________________________

HON. ALEX R. RENZI

Monroe County Court Judge

Footnotes

Footnote 1:The complainant will be identified by initials in order to protect his/her anonymity.

Footnote 2:Initials used to protect the complainant's anonymity.

Footnote 3:"Willful failure of an employee to prepare and submit a written report of an allegation of child abuse as required by this article shall be a class A misdemeanor." N.Y Educ. Law § 1129 (1).

Footnote 4:NY Educ. Law § 1128(1).