People v. Allen

• Decision Date: 29 April 1980
• Citation: 104 Misc.2d 136,427 N.Y.S.2d 698
• Parties: The PEOPLE of the State of New York, v. Jimmie Lee ALLEN and Junius Gray.
• Court: New York Supreme Court

Page 698

427 N.Y.S.2d 698

104 Misc.2d 136

The PEOPLE of the State of New York, v. Jimmie Lee ALLEN and Junius Gray.

Supreme Court, Westchester County.

April 29, 1980.

J. Radley Herold, Asst. Dist. Atty., White Plains, for defendant allen.

Hyman Dechter, White Plains, for defendant Gray.

Joseph West and Bruce Bendish, Asst. Dist. Attys., White Plains, for the People.

McNAB, Judge.

The defendants herein stand charged with having acted in concert to commit a quadruple homicide in the town of Bedford Hills, New York on the night of May 9 and 10, 1979. Following the close of testimony on the People's direct case, the People, under CPL § 240.45(2) which became effective January 1, 1980, called upon the defendants to make available any written or recorded statements of any prospective defense witnesses, other than from the defendants themselves, if counsel were in possession of any such statements. Mr. Radley Herold, counsel for defendant Allen objected, particularly with respect to the prospective witness, Rose Allen, defendant's wife, on grounds: (1) that he had written notes of the substance of an oral conversation had with Mrs. Allen, neither signed by her nor read over by her, which, he contended, fell outside the scope of the language of "written or recorded" statements contained in § 240.45(2) and (2) that in view of the fact that his conversation with Mrs. Allen had taken place in jail, in the course of a three-way conversation between himself, Mrs. Allen, and the defendant, that any turnover of his notes would be in violation of the husband-wife privilege, or alternatively, in violation of the attorney-client privilege, which counsel urges, became "meshed" with the husband-wife privilege by virtue of this three-way conversation.

It seems clear to this Court that to whatever extent counsel reduced Mrs. Allen's answers to writing and made written notes, he is now actually in possession of "written or recorded" material within the meaning of this section. Additionally, the law is clear that communications between husband and wife made in the known presence of a third person are not confidential and, hence, are not privileged. See Richardson's § 450; People v. Dudley, 24 N.Y.2d 410, 301 N.Y.S.2d 9, 248 N.E.2d 860 (1969); People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582 (1966). The attorney-client privilege is similarly waived.

However, a more far-reaching question of interpretation of this new provision, perhaps of first impression, seems to be presented by a portion of the Practice Commentary to § 240.45, wherein Mr. Joseph Bellacosa states:

"The reciprocal aspect of this section simply burdens the defense with a disclosure responsibility for written or recorded statements of witnesses the defense will call. Depending on the circumstances, this type of written or recorded statement may very well disappear, not necessarily unethically or contumaciously but rather as a matter of routine and practice with defense counsel who will more likely rely on personal, counsel notes which are not discoverable. Why would they create a potential trap for their own witness and hurt their own cases if they don't have to honestly and ethically do so?"

Hence, the real issue before the Court, as this Court sees it, is whether the notes taken of Mrs. Allen's conversation by Mr. Herold constitute non-discoverable "counsel's notes", as Mr. Bellecosa uses the term, or whether Mr. Herold's notes in effect constitute a "written or recorded" statement of the prospective witness which must be turned over. The Court feels, that on the facts here, Mr. Herold must turn over such notes as he has.

First of all, as Mr. Bellacosa notes at the beginning of his Practice Commentary, § 240.45 was drafted to codify the holdings of People v. Rosario, 9 N.Y.2d 286 (1961) and People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830, 247 N.E.2d 651 (1969), the seminal New York cases concerning prior statement turnovers. Given that legislative intent, it is apparent that the more recent cases have taken a rather expansive view as to just what constitutes "Rosario" material. For example, in considering the Rosario branch of defendant's argument, the Court of Appeals in ...