Barbour v. People

• Decision Date: 18 November 1994
• Parties: Trevor BARBOUR, Petitioner, v. The PEOPLE of the State of New York, Department of Corrections and New York State Division of Parole, Respondents.
• Court: New York Supreme Court

Page 892

620 N.Y.S.2d 892

163 Misc.2d 321

Trevor BARBOUR, Petitioner, v. The PEOPLE of the State of New York, Department of

Corrections and New York State Division of Parole,

Respondents.

Supreme Court, Kings County.

Nov. 18, 1994.

G. Oliver Koppell, Atty. Gen. (Alan B. Berkowitz, of counsel), for New York State Div. of Parole.

Charles J. Hynes, Dist. Atty. of Kings County (Virginia C. Modest, of counsel), for People.

Spiro L. Ferris, for Trevor Barbour.

WILLIAM F. MASTRO, Justice.

Petitioner moved to suppress physical evidence to be introduced at a final parole revocation hearing. Ancillary to his motion, Petitioner requested Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881).

By order and memorandum dated October 17, 1994, this Court ordered a suppression hearing. The Court's memorandum posed several questions for the parties to address in connection with the Rosario question.

The Rosario rule requires a prosecutor in a criminal proceeding to turn over to defendant any written or recorded statement in their possession made by a person whom the People intend to call as a witness at trial (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; CPL 240.45[1][a]. To constitute Rosario material, the utterance must relate to the subject matter of the witness' direct testimony at trial (see, People v. Mobley, 190 A.D.2d 821, 593 N.Y.S.2d 839; People v. Faison, 176 A.D.2d 752, 743, 574 N.Y.S.2d 977; People v. Goldman, 175 A.D.2d 723, 725, 573 N.Y.S.2d 282; People v. Nixon, 166 A.D.2d 170, 564 N.Y.S.2d 289).

The so-called "Rosario rule" was promulgated as a matter of policy and a "right sense of justice" (People v. Rosario, 9 N.Y.2d at 289, 213 N.Y.S.2d 448, 173 N.E.2d 881, supra ). The court reasoned that a defendant is entitled to such prior statements since the State has "no interest in interposing any obstacle to the disclosure of facts" and that the " 'defense should be given the benefit' of any information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence" (id. at 290, 213 N.Y.S.2d 448, 173 N.E.2d 881; citing, People v. Davis, 52 Mich. 569, 572, 573-574, 18 N.W. 362; People v. Walsh, 262 N.Y. 140, 150, 186 N.E. 422).

Notwithstanding the laudatory objectives of the Rosario rule, it has generally been applied to criminal or quasi-criminal actions and not administrative proceedings.

A parole revocation hearing is not a criminal matter but an administrative hearing to determine whether a parolee has violated the conditions of parole (People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418, 322 N.Y.S.2d 668, 271 N.E.2d 517; see also People ex rel. Piccarillo v. New York State Board of Parole, 48 N.Y.2d 76, 80, 421 N.Y.S.2d 842, 397 N.E.2d 354). While a parole revocation hearing is not a criminal proceeding, courts must remain sensitive to the serious, if not irreparable, consequences which may befall a parolee if the charges of misconduct are sustained by the Board of Parole. Indisputably, "[w]hen all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action" (People ex rel. Piccarillo v. New York State Board of Parole, 48 N.Y.2d at 80-81, 421 N.Y.S.2d 842, 397 N.E.2d 354, supra ).

With these principles in mind, the question remains as to whether the Rosario rule would apply to a suppression hearing conducted to determine the admissibility of evidence at a parole revocation hearing.

The only appellate case that expressly addressed the application of Rosario to an administrative proceeding to revoke parole is Milburn v. N.Y.S. Div. of Parole, 173 A.D.2d 1016, 569 N.Y.S.2d 849. The court stated, in dicta, that the right to discovery of Brady material or Rosario material "has no application in an administrative proceeding to revoke parole" (id. at 1017, 569 N.Y.S.2d 849; cf. People ex rel. Grimaldi v. Warden, 174 A.D.2d 497, 498, 571 N.Y.S.2d 274, lv. denied, 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057).

In contrast, although not binding on this court, an examination of the federal counterpart to New York's Rosario rule is nonetheless instructive.

The "Jencks Act" (18 U.S.C. § 3500), like the Rosario rule, generally requires that prior statements of witnesses in the possession of the government be turned over to defendant for use in cross-examination, where such statements relate to the witness' testimony (Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; 18 U.S.C. § 3500).

Several federal circuit courts have expressly held that the Jencks Act is applicable to administrative proceedings (NLRB v. Safeway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir.1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150; Harvey Aluminum, Inc. v. NLRB, 335 F.2d 749 (9th Cir.1964); NLRB v. Adhesive Prods. Corp., 258 F.2d 403 (2nd Cir.1958); and Communist Party of the United States v. Subversive Activities Control Board, 254 F.2d 314, 327 (D.C.Cir.1958)).

In NLRB v. Adhesive Prods. Corp., 258 F.2d at 408, supra, the court remarked:

"Logic compels the conclusion that these rules are applicable to an administrative hearing ... [citation omitted]. The production and inspection, and possible use for cross-examination purposes, of such a document could serve only to test the memory and credibility of the witness ... there can be no sound reason to bar such production."

While the "logic" of the application of the Rosario rule to an administrative proceeding is compelling given that the availability to the accused of prior testimony is "significant, and sometimes vital to the cross-examination of witnesses, and of aid in the preparation of trial" (People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 235, 299 N.Y.S.2d 617, 247 N.E.2d 492), the question of the applicability of Rosario to a parole revocation hearing need not be resolved here.

The instant proceeding was brought by petitioner via writ of habeas corpus, which is governed by the CPLR. In People ex rel. Coldwell v. N.Y.S. Div. of Parole, 123 A.D.2d 458, 459-60, 506 N.Y.S.2d 761, the court held that it was improper to order the Division of Parole to conduct a suppression hearing. This was so because the proceeding was one for habeas corpus, which must be conducted by the court, and not an administrative body (id. at 459, 506 N.Y.S.2d 761, citing, People ex rel. Robertson v. New York State Div. of Parole, 67 N.Y.2d 197, 501 N.Y.S.2d 634, 492 N.E.2d 762). ¹ The court thus viewed this proceeding not as part of the parole hearing, but as a separate proceeding.

A proceeding under Article 70 of the CPLR is a "special proceeding" to inquire into the cause of restraint or detention and to enforce a right to be released from such confinement (People ex rel. H v. P, 90 A.D.2d 434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99; CPLR 7001). As such, the procedures in Article 4 of the CPLR for "special proceedings" apply to habeas corpus proceedings (id.; see, McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C7001:1, p. 3).

Recognizing the need for "speed and economy", which underlie the main purpose behind special proceedings, the disclosure devices in Article 31 of the CPLR are typically available in a special proceeding only by leave of court (see, People ex rel. H v. P, 90 A.D.2d at 437, n. 2, 457 N.Y.S.2d 488, supra Seigel, N.Y.Practice § 555 p. 868; see also, In re Sahara Beach, 3 A.D.2d 933, 163 N.Y.S.2d 315; Plaza Operating Partners Ltd. v. IRM (USA) Inc., 143 Misc.2d 22, 539 N.Y.S.2d 671; CPLR 408).

Notwithstanding that leave of court is required for disclosure in a special proceeding, where it is appropriate, the full range of discovery devices are available to parties to a special proceeding (see e.g., In re Sahara Beach, 3 A.D.2d 933, 163 N.Y.S.2d 315, supra; Plaza Operating Partners Ltd. v. IRM (USA) Inc., 143 Misc.2d 22, 539 N.Y.S.2d 671 supra; and McLaughlin, Practice Commentaries, McKinneys Cons.Laws of N.Y., Book 7B, CPLR C408:1 at 661).

Discovery

CPLR Article 31 governs discovery in a civil proceeding. Section 3101(a), as amended, provides that "there shall be full disclosure of all evidence material and necessary " (emphasis added).

The phrase "material and necessary" was defined in the seminal case of Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430, and was held to be

"interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (p. 406, 288 N.Y.S.2d 449, 235 N.E.2d 430).

In general, the "purpose of disclosure ... is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits" (Rios v. Donovan, 21 A.D.2d 409, 411, 250 N.Y.S.2d 818, citing, Hoenig v. Westphal, 52 N.Y.2d 605, 610, 439 N.Y.S.2d 831, 422 N.E.2d 491; see also, Vandenburgh v. Columbia Memorial Hosp., 91 A.D.2d 710, 711, 457 N.Y.S.2d 591). Any evidence that will assist in the preparation for trial and is material and useful to the party seeking disclosure should be provided (Brahm v. Hatch, 169 A.D.2d 263, 572 N.Y.S.2d 395). In particular, a witness' prior statements which are relevant to the subject matter of his or her expected testimony, and are not privileged, should be provided regardless of the form and regardless when made (Matter of John G., 91 A.D.2d 685, 457 N.Y.S.2d 330).

The scope of and supervision over discovery is within the sphere of the trial court's broad discretionary power (Dunlap v. United Health Services, Inc., 189 A.D.2d 1072, 1073, 593 N.Y.S.2d 339; see also, Carella v. King, 198 A.D.2d...