Johnson v. Sackett

• Decision Date: 20 August 2013
• Parties: In re Robert T. JOHNSON, etc., Petitioner, v. Hon. Robert A. SACKETT, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 427
970 N.Y.S.2d 546
2013 N.Y. Slip Op. 05663

In re Robert T. JOHNSON, etc., Petitioner,
v.
Hon. Robert A. SACKETT, etc., et al., Respondents.

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

Aug. 20, 2013.

Robert T. Johnson, District Attorney, Bronx (Lindsey Ramistella of counsel), for petitioner.

[970 N.Y.S.2d 547]

The Bronx Defenders, Bronx (Jenny Eisenberg of counsel), for Howard Rascoe, respondent.

DeGRASSE, J.P., FREEDMAN, RICHTER, MANZANET–DANIELS, JJ.

[109 A.D.3d 427]Petition pursuant to CPLR article 78 for a writ of prohibition to prohibit, respondent Robert A. Sackett, a Justice of the Supreme Court, Bronx County, from enforcing an order of the same court issued on May 13, 2013, precluding the People from calling the complainant to testify with respect to the robbery charges in a trial in a criminal action entitled [109 A.D.3d 428]People v. Howard Rascoe (Indictment No. 2094/2011), unanimously granted, without costs or disbursements, and the respondent Justice is prohibited from enforcing the order of preclusion dated May 13, 2013.

Petitioner seeks a writ of prohibition to prevent respondent Justice from enforcing a pretrial order precluding the People from calling the complainant to testify about the robbery in the impending criminal trial against respondent Rascoe.¹ The complainant and Rascoe have known each other for several years. The People allege that Rascoe assaulted and robbed the complainant, and as a result of Rascoe's conduct, the complainant suffered injuries to his right eye and face. A few days after the alleged assault, the complainant sought treatment at Lincoln Hospital. The medical records from that visit indicate that the complainant was using three different psychotropic medications, and the complainant subsequently apprised the prosecutor that he took these medications to treat his bipolar disorder. The complainant stated that he had never been hospitalized for mental illness.

In a subsequent interview, the complainant advised the prosecutor that he has auditory and visual hallucinations, which are controlled by medication, but would neither give the prosecutor a HIPAA authorization nor disclose where he received psychiatric treatment. Because of the complainant's refusal, the People do not have the complainant's psychiatric records nor any information, besides the Lincoln Hospital records, about where the complainant has been treated. When the case was sent out for trial,² the respondent Justice directed the People to produce the complainant and the court asked the complainant if he would sign the necessary consent forms for the defense to obtain his psychiatric records. When the complainant refused to provide the requested information about the location of his treatment or consent to the release of his records, the court issued an order precluding the complainant from testifying with respect to the robbery.

An article 78 proceeding seeking relief in the nature of a writ of prohibition is an extraordinary remedy and is available to [109 A.D.3d 429]prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction (Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [1996];Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297 [1988] ). “The writ does not lie as a means of seeking a collateral review

[970 N.Y.S.2d 548]

of an error of law, no matter how egregious that error might be ... but only where the very jurisdiction and power of the court are in issue” (Matter of Brown v. Blumenfeld, 103 A.D.3d 45, 55, 957 N.Y.S.2d 171 [2d Dept. 2012] [internal quotation marks omitted] ). Here, the court had no authority to issue this preclusion order since the records were neither discoverable nor Brady material ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ). It is undisputed that the People did not have the complainant's records and did not know where he had been treated ( see People v. Hayes, 17 N.Y.3d 46, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011],cert. denied––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553 [2011];People v. Walloe, 88 A.D.3d 544, 931 N.Y.S.2d 48 [1st Dept. 2011] [allegedly exculpatory tape was not Brady material because it never was in the People's possession or control], lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012] ). The People had no affirmative duty to ascertain the extent of the complainant's psychiatric history or obtain his records ( see People v. Collins, 250 A.D.2d 379, 379, 673 N.Y.S.2d 76 [1st Dept. 1998], lv. denied92 N.Y.2d 895, 680 N.Y.S.2d 59, 702 N.E.2d 844 [1998], citing People v. Sealey, 239 A.D.2d 864, 659 N.Y.S.2d 639 [4th Dept. 1997], lv. denied90 N.Y.2d 910, 663 N.Y.S.2d 522, 686 N.E.2d 234 [1997] ). The People advised the defense of the information they had regarding the complainant's diagnosis and also apprised the defense of the complainant's statements regarding his hallucinations. Therefore,...