Doorley v. Castro

• Decision Date: 27 April 2018
• Docket Number: 230,OP 17–01262
• Parties: In the Matter of Sandra DOORLEY, Monroe County District Attorney, Petitioner, v. Melchor E. CASTRO, Acting Monroe County Court Judge, and Marquise Walker, Criminal Defendant, Respondents.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1381
76 N.Y.S.3d 313

In the Matter of Sandra DOORLEY, Monroe County District Attorney, Petitioner,
v.
Melchor E. CASTRO, Acting Monroe County Court Judge, and Marquise Walker, Criminal Defendant, Respondents.

230
OP 17–01262

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 27, 2018

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR PETITIONER.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT MARQUISE WALKER, CRIMINAL DEFENDANT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.

MEMORANDUM AND ORDER

Memorandum:

76 N.Y.S.3d 315

Petitioner commenced this CPLR article 78 proceeding seeking to prohibit Melchor E. Castro, Acting Monroe County Court Judge (respondent), from enforcing an order directing petitioner to permit the attorney for respondent Marquise Walker, a criminal defendant (hereafter, defendant), to inspect a video recording of an interview of a child victim conducted by an advocate from the Bivona Child Advocacy Center (Bivona) in Rochester for the purpose of determining whether it constitutes exculpatory evidence. We agree with petitioner that respondent acted in excess of his authorized powers in ordering disclosure to defendant's attorney. Although respondent could have viewed the video recording in camera in order to make a determination whether it contained exculpatory evidence, he declined to do so.

Defendant was indicted on charges of predatory sexual assault against a child ( Penal Law § 130.96 ) and course of sexual conduct against a child in the second degree (§ 130.80[1][a] ) with respect to a then three-year-old child. In discovery material provided to defendant, there was a police report indicating that the alleged victim had been interviewed by a Bivona advocate and that the interview had been video recorded. Defendant's attorney orally requested disclosure of the video recording, and petitioner opposed the request. Respondent orally ordered petitioner to disclose the video recording before a pretrial hearing in the criminal matter, despite the fact that neither the child nor the Bivona advocate would testify at the pretrial hearing. Petitioner filed a petition seeking to prohibit respondent from enforcing that oral order and sought a stay of enforcement.

Before any determination was made on the request for a stay, respondent issued a written order acknowledging that the video recording did not constitute Rosario material and that he thus lacked any authority to order its disclosure on that ground (see CPL 240.45[1] ). Instead, respondent concluded that the video recording could potentially contain exculpatory evidence, which petitioner would be obligated to disclose under Brady v. Maryland, 373 U.S. 83, 87–88, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ; see CPL 240.20[1][h] ; People v. Santorelli , 95 N.Y.2d 412, 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000] ). Respondent determined that neither he nor the "untrained prosecutor" could make the determination whether the person interviewing the child "employ[ed] suggestive interrogation techniques." Rather, "only defense counsel, with full knowledge of the defendant's case[, could] make the proper assessment." As a result, respondent again ordered petitioner to permit defendant's attorney to inspect the video recording.

Petitioner filed an amended petition seeking to prohibit enforcement of both the oral order and the written order. One day after respondent issued his written order, he issued an amended order

76 N.Y.S.3d 316

correcting typographical errors and making no substantive changes. We thus conclude that it is of no moment that the amended petition seeks to prohibit enforcement of the original order instead of the amended order (see e.g. Moody v. Sorokina, 56 A.D.3d 1246, 1247, 866 N.Y.S.2d 891 [4th Dept. 2008] ; Hillman v. Eick, 8...