
    [619 NE2d 389, 601 NYS2d 452]
    In the Matter of Terry D., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued April 26, 1993;
    decided June 10, 1993
    
      APPEARANCES OF COUNSEL
    
      O. Peter Sherwood, Corporation Counsel of New York City (Linda H. Young, Elizabeth S. Natrella, Pamela Seider Dolgow and Scott A. Korenbaum of counsel), for New York City Board of Education and Linda Marks, appellants.
    
      James H. Tatem for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, appellants’ cross motion to quash granted, and the certified question answered in the negative.

The juvenile delinquency petition and underlying complaint allege that on September 18, 1990, respondent Terry D., then one week shy of his 16th birthday, entered a classroom at Brandéis High School in Manhattan, cursed the teacher, blocked her exit and punched her in the head. Respondent was charged with various acts of juvenile delinquency.

At respondent’s request, a Family Court Judge issued a subpoena duces tecum directing Brandéis’ assistant principal to produce in court "the names, addresses and telephone numbers of each student and non students who were in the classroom” at the time of the incident. The subpoena was duly served, and when the assistant principal did not comply, respondent moved to have her held in contempt and the witness and Board of Education cross-moved to quash the subpoena.

In support of the contempt motion, respondent’s attorney averred that "the names, addresses and telephone numbers requested are the potential witnesses to the offenses,” and in opposition to the motion to quash, he stated that the information was sought "for only one purpose, to wit, to locate each [witness] and subpoena him or her to appear in court to testify as to the incident in question and what each saw.”

The motions were decided as follows:

"Motion to quash partially granted. If Linda Marks [the assistant principal] is willing to produce the persons whose names were requested by respondent at a time and place to be chosen together by Mr. Tatem [respondent’s counsel] and Ms. Marks, the names and other identifying information need not be provided. If such an arrangement is not acceptable to Ms. Marks, the motion to quash is denied and Ms. Marks is directed to produce the information as to names and telephone numbers or times the children can be brought to answer a telephone at school.”

The assistant principal and Board of Education appealed and the Appellate Division affirmed by a three-two vote. That court granted leave to appeal, and we now reverse.

The Family Court is a State-wide court of record whose processes, warrants and mandates may be served and executed throughout the State (NY Const, art VI, § 1; Judiciary Law § 2 [8]). Like other courts of record, the Family Court may subpoena a witness to testify (Judiciary Law § 2-b [1]; Family Ct Act § 153) and "is also authorized to issue a subpoena duces tecum in accordance with * * * the applicable provisions of the CPLR.” (Family Ct Act § 153.)

Because the statutory subpoena authority is so broad, and the recipient may be subject to contempt sanctions for failure to comply (Family Ct Act § 156; Judiciary Law § 750 [3]; Matter of Spector v Allen, 281 NY 251, 258-259), by necessity courts have imposed limitations on the use of subpoena power. Generally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence (People v Gissendanner, 48 NY2d 543, 551). "Rather, its purpose is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’ ” (Matter of Constantine v Leto, 157 AD2d 376, 378, affd for reasons stated 77 NY2d 975).

On this record, the inexorable conclusion is that the purpose of the subpoena duces tecum was to obtain otherwise unavailable discovery. The discovery provisions of the Family Court Act do not require blanket disclosure of the names of all eyewitnesses (see, Family Ct Act §§ 330.1-335.2), and thus respondent would ordinarily be required to unearth this information through his own investigation. Of course, if the presentment agency were aware of potentially exculpatory statements made by an eyewitness, the information would have to be disclosed upon request (see, People v Vilardi, 76 NY2d 67, 75-76; Brady v Maryland, 373 US 83, 87-88). Similarly, prior statements made by a presentment agency witness that relate to the subject matter of his or her testimony must be disclosed prior to cross-examination (Family Ct Act § 331.4 [1] [a]).

Respondent, however, cannot use the procedural mechanism of a subpoena duces tecum to expand the discovery available under existing law (see, People v Gissendanner, 48 NY2d, at 551). Yet in view of his motion papers it is evident that this is precisely what respondent sought to do. Thus, Family Court abused its discretion in denying appellants’ motion to quash.

The dissent agrees as to the governing legal principles, but differs only as to whether there was an abuse of discretion in applying those principles to the facts before us. In the dissent’s view, the purpose of the subpoena was to "secure the attendance of witnesses” (dissenting mem, at 1045). While it is true, of course, that the Constitution protects the right to require the attendance of witnesses (dissenting mem, at 1046; Pennsylvania v Ritchie, 480 US 39, 56), and that ultimately respondent may have sought to compel the witnesses’ attendance at a hearing with a subpoena ad testificandum, it is plain (and indeed fully conceded by respondent) that the function of this subpoena was to locate all eyewitnesses. Accordingly, there is no merit to the suggestion that respondent’s constitutional rights are implicated in these circumstances.

Given this result, it is unnecessary to reach the statutory issues addressed by the dissent.

Smith, J.

(dissenting). Contrary to the decision of the majority, I find no abuse of discretion by either the Family Court or the Appellate Division. Moreover, respondent’s effort to secure the attendance of witnesses to the alleged incident for which he has been charged is clearly within his rights. Accordingly, I dissent.

Respondent has been charged with juvenile delinquency in that on September 18, 1990, he entered a classroom at Brandéis High School in Manhattan, cursed a teacher and struck her. A subpoena duces tecum was issued by a Family Court Judge directing the assistant principal of the high school to produce "the names, addresses and telephone numbers of each student and non students who were in the classroom” when the alleged incident occurred. When the assistant principal did not comply, a motion was made to have her held in contempt. In response, she moved to quash the subpoena. Family Court granted the motion to quash in part. Specifically, Family Court gave the assistant principal the option of producing the persons whose names and addresses were requested rather than the names and other identifying information. In default of producing these persons, the other identifying information was to be supplied. It goes without saying that any production of the individuals could be accompanied by parents and/or counselors.

Respondent’s objective is to produce witnesses to the incident to testify in court. This right is protected by the Sixth and Fourteenth Amendments to the Constitution of the United States. Moreover, neither State nor Federal law prevents disclosure as urged by the assistant principal.

Education Law § 3212-a (1) provides:

"Each school shall maintain a record of the telephone number of each pupil enrolled in the school and each person in parental relation to such pupil including the residential and business telephone numbers of persons in parental relation to pupils unless such person or pupil chooses not to supply such numbers. The record of such telephone numbers shall, except as otherwise provided by law, be accessible solely for emergency purposes.”

The statute authorizes access to student telephone numbers in an emergency or as provided by law. As is indicated by its plain language, the purpose of the provision is to assure that lists of student telephone numbers are not released arbitrarily or for improper purposes. A judicial subpoena duces tecum, however, issued pursuant to statutory authority, qualifies under the "as otherwise provided by law” language. Thus, this statute does not bar the subpoena.

Nor does Federal law prohibit enforcement of the subpoena. The Family Educational Rights and Privacy Act provides:

"No [Federal] funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information * * * unless * * * such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency” (20 USC § 1232g [b] [2] [B]).

This Act does not proscribe the issuance of a subpoena directing that student records be produced. Rather, the Act provides that a school is at risk of losing Federal funding if it complies with such a subpoena without giving advance notice to parents and students. That is a matter for the school, however, not the authority issuing the subpoena.

Finally, the assistant principal argues that respondent made an insufficient showing to justify the subpoena and that he is misusing the court’s subpoena power to obtain discovery. These essentially fact-based determinations were resolved against the witness by the courts below and are reviewed here solely for abuse of discretion (see, People v Gissendanner, 48 NY2d 543, 550). In the circumstances presented, I conclude that the courts below did not abuse their discretion.

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Simons, Titone and Bellacosa concur in memorandum; Judge Smith dissents and votes to affirm in an opinion in which Judge Hancock, Jr., concurs.

Order reversed, etc. 
      
       The Act broadly defines "education records” as materials that "contain information directly related to a student” (20 USC § 1232g [a] [4] [A] [i]). There is also a category of records called "directory information” which consists of, among other things, students’ names, addresses and telephone numbers (20 USC § 1232g [a] [5] [A]). A school may make directory information public if parents are given an opportunity to opt out (see, 20 USC § 1232g [a] [5] [B]). Although there is no evidence that the school complied with the procedure for publishing directory information, that would not affect the production of directory information — a subcategory of "education records” — pursuant to subpoena (see, 20 USC § 1232g [b] [2] [B]).
     