The father of a girl who was hit in the eye by an egg was barred in a personal injury lawsuit from delving into the youthful offender status of the boy who allegedly threw the egg.

Daniel Castiglione sued James F. Q., claiming that in a Halloween prank in 2007, the son of James F.Q. struck and severely injured his daughter, who was 14 at the time.
Castiglione asserted that criminal charges were filed against the boy, who pleaded guilty to third-degree assault and was adjudicated a youthful offender.

Daniel Castiglione sued James F. Q., claiming that in a Halloween prank in 2007, the son of James F.Q. struck and severely injured his daughter, who was 14 at the time.

Castiglione asserted that criminal charges were filed against the boy, who pleaded guilty to third-degree assault and was adjudicated a youthful offender.

But at a deposition, the boy denied throwing the egg and would not answer questions about youthful offender proceedings or any statements he made to police or in court, invoking Criminal Procedure Law §720.35(2).

That statute requires, except in certain narrow exceptions, that “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 adjudicated a youthful offender, are confidential and may not be made available to any person or public or private agency.”

All official records and documents related to the youthful offender determination are sealed.

After the boy’s refusal to answer questions, Castiglione moved to compel him to respond to deposition questions and sought permission to inspect police and court files connected to the proceedings. He also asked for sanctions for failure to disclose.

Acting Nassau County Supreme Court Justice Antonio Brandveen (See Profie) denied the bid in June 2012.

On Wednesday, the Appellate Division, Second Department unanimously affirmed Brandveen in Castiglione v. James F.Q., 2012-08050, saying the boy’s silence was shielded under the youthful offender statute, CPL §720.

The panel observed that the statute’s privilege applies not only to documents in the official records but also the information contained in those documents.

As a result, the panel said “a person adjudicated as a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made.” They added a youthful offender still has to “answer questions regarding the facts underlying the adjudication.”

CPL §720.35(2) does allow access to confidential records “upon specific authorization of the court,” but the panel said the provision applies solely to the court that rendered the adjudication.

The panel observed that, like other privileges, the privilege under §720.35(2) is waived when the individual puts the information or conduct at issue.

But here, the boy had not waived the privilege. He did not initiate the suit, nor did he advance counterclaims, cross claims or testify on the record’s contents, the panel said.

“Contrary to the plaintiff’s contention, the testimony of the defendant’s son at his deposition denying that he threw the egg which allegedly struck the plaintiff’s daughter did not waive the protections of the statute,” the panel added.

Justices Peter Skelos (See Profile), Cheryl Chambers (See Profile), L. Priscilla Hall (See Profile) and Robert Miller (See Profile) sat on the panel, hearing Jan. 27 arguments.

Anthony Montiglio of Mineola represented Castiglione. He said he likely would not appeal the decision, noting jury selection in the case is schedule to begin April 2.

Montiglio said he thought his case presented “unique facts” because other cases dealing with youthful offender proceedings were connected to “collateral issues” while his case concerned the alleged actual commission of the act.

One consideration that may have “weighed heavily on the court’s mind,” said Montiglio, was the concern that ruling for his client could mean an increased chance for defendants to face civil liability, which, he said, would make them less likely to enter plea agreements.

He said the prank had left Castiglione’s daughter “effectively blind” in her left eye.

Susan Ulrich of Kelly, Rode & Kelly in Mineola represents James F. Q.