People v. Aviles

• Decision Date: 03 January 1977
• Citation: 89 Misc.2d 1,391 N.Y.S.2d 303
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Victor AVILES, Defendant.
• Court: New York Supreme Court

Page 303

391 N.Y.S.2d 303

89 Misc.2d 1

The PEOPLE of the State of New York, Plaintiff, v. Victor AVILES, Defendant.

Supreme Court, Trial Term, New York County, Part 44.

Jan. 3, 1977.

Robert M. Morgenthau, Dist. Atty. by Judith Bresler, Asst. Dist. Atty., of counsel for the People.

Laurence E. Jacobson, New York City, for defendant.

IRVING LANG, Judge.

The defendant, charged with rape in the first degree (Penal Law, § 130.35), rape in the third degree (Penal Law, § 130.25), and possession of a weapon as a felony (Penal Law, art. 265), moves for a dismissal of the indictment on the grounds that a transcript of a preliminary hearing relating to the instant indictment is not available to him for use at trial, thereby depriving him of 'a fair trial and due process of law.'

In the alternative, defendant moves that any witness who testified at the preliminary hearing be barred from testifying at trial.

On September 14, 1973, defendant was arrested on the complaint of Rosie Pellot, charged with rape and possession of a weapon. On September 17, 1973, a preliminary hearing was held in the Criminal Court, New York County, during which the complaining witness testified.

Held for action of the grand jury, defendant Aviles was subsequently indicted. On December 17, 1973, defendant failed to appear in the Supreme Court, bail was forfeited and a bench warrant issued for his arrest. Returned to the jurisdiction of the Supreme Court in August 1976, defendant was assigned new counsel, who promptly received from this court an order authorizing the furnishing to the defendant of a transcript of his preliminary hearing. A diligent search by the court reporter and other administrative personnel failed to find the stenographic notes and counsel has been advised that the reporters' notes have been lost.

Defendant contends that he has an absolute constitutional right to a copy of all prior testimony of any witness who will testify against him at trial and that the failure to provide him with a copy of such testimony deprives him of a fair trial and due process of law pursuant to the Fourteenth Amendment and deprives him of his right to effectively confront and cross-examine witnesses pursuant to the Sixth Amendment of the United States Constitution and Article I, Section Six of the Constitution of the State of New York.

In recent years there has been a proliferation of both statutorily mandated and constitutionally required pretrial testimonial hearings. In addition to preliminary hearings to determine whether there is probable cause to hold a defendant for grand jury action or trial, there are grand jury proceedings, and motions to suppress physical evidence, statements, identifications and intercepted communications.

Transcripts of these proceedings are often most useful to defense counsel for impeachment purposes, particularly when counsel is able to elicit before a jury an inconsistent statement under oath. Other documents, such as police reports, and statements of witnesses, even though unsworn, also provide important cross-examination material.

The right of defense counsel to these materials has long been recognized by both New York and federal courts. Since, for the most part, these transcripts and documents relate to collateral issues of credibility, both New York and federal courts hold that access to these items is not constitutionally mandated but is based primarily on policy considerations of fairness. Thus in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, the New York Court of Appeals held that a 'right sense of justice entitles the defense to examine a witness' prior statement,' (p. 289, 213 N.Y.S.2d p. 450, 173 N.E.2d p. 883) and in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, the Supreme Court of the United States explained its granting to the defense of witnesses' statements in terms of fair standards for administration of criminal justice in federal courts, rather than in terms of constitutional mandates.

The holding of the Supreme Court in Jencks was codified in Title 18, Section 3500 of the United States Code (Jencks Act). In New York, however, there has been no specific statutory implementation of the Rosario rule. Rather, there has emerged a growing body of decisional law in New York courts, and it is upon two of these cases that defendant moves for relief in the instant case.

In support of his motion to dismiss the indictment, defendant relies on the holding in People ex rel. Hairston v. Adult Detention Center, 76 Misc.2d 1010, 1011, 352 N.Y.S.2d 326, 327. In that case, remarkably similar to this one, preliminary hearing minutes were lost. The court held that the availability of a transcript of a preliminary hearing was a 'fundamental constitutional right' and that no amount of reconstruction would provide defendant with the same testimony to which he was entitled at trial. In dismissing the indictment, and in support of its position that a 'fundamental constitutional right' was involve the court cited a number of decisions by the New York Court of Appeals: People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529; People v. West, 29 N.Y.2d 728, 326 N.Y.S.2d 388, 276 N.E.2d 226; and People v. Peacock, 31 N.Y.2d 907, 340 N.Y.S.2d 642, 292 N.E.2d 785. Yet, in my view, the court in Hairston misconstrued the nature of the 'fundamental constitutional right' to which our highest court referred in the above and other cases.

The 'fundamental constitutional right' alluded to relates to the equal protection clause of the constitution rather than the confrontation clause. In other words, equal protection of the law dictates that a poor defendant should not be deprived of the minutes of a pretrial proceeding which more affluent defendants could afford (see People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 235--236, 299 N.Y.S.2d 617, 618--619, 247 N.E.2d 492, 493).

Thus in People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529, while holding that indigent defendants were not entitled to daily copy of trial minutes, the Court of Appeals reversed a conviction because the defendant was denied the minutes of a pretrial suppression hearing.

'We have held that Indigent defendants have a constitutional right to Free transcripts of preliminary hearings (People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730) and to minutes of a prior trial or of the Grand Jury (People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103) . . . 'The Montgomery-Ballott rules must, as a matter of logic and fairness, also extend to the minutes of pretrial suppression hearings.'' (p. 536, 311 N.Y.S.2d p. 897, 260 N.E.2d p. 532) (emphasis supplied).

In People v. West (supra), where the trial court denied assigned counsel minutes of a pretrial Huntley (statements) hearing, the Court of Appeals reversed and held that 'The right of Indigent defendants to a Free transcript of a pretrial suppression hearing is a fundamental constitutional right.' (29 N.Y.2d 729, 326 N.Y.S.2d p. 388, 276 N.E.2d p. 226) (emphasis supplied).

In People v. Sanders, 31 N.Y.2d 463, 341 N.Y.S.2d 305, 293 N.E.2d 555, a case involving the denial of a motion to suppress physical evidence, Chief Judge Fuld stated:

'We have consistently held that an Indigent defendant has a 'fundamental constitutional right' to a Free transcript of the minutes of a pretrial suppression hearing and that its denial requires a reversal of the judgment of conviction, even though no prejudice be shown and '(r)egardless of the nature and quantum of proof against' him.' (p. 466, 341 N.Y.S.2d p. 306, 293 N.E.2d p. 556) (emphasis supplied).

Recognizing the administrative burden involved, however, the court in Sanders indicated that the defendant should make his request for minutes of any pretrial hearing prior to its conclusion.

People v. Peacock, 31 N.Y.2d 907, 340 N.Y.S.2d 642, 292 N.E.2d 785, cited in Hairston, held (4 to 3) that when an identification hearing was held just prior to trial it was error to deny an indigent defendant the minutes of that hearing since the majority indicated that the stenotype notes were no substitute for a transcript in hand.

Absent any showing of specific prejudice or any deliberate act on the part of the government to deprive a defendant of 'Rosario' material, I find no statute or appellate case law authorizing the dismissal of an indictment because of the good faith negligent loss of such material. Nor can I perceive any sound public policy which would be served by such an act.

The second branch of defendant's motion seeks to have the complainant and any other witness who testified at the hearing barred from testifying at the trial.

In this connection counsel cites the case of People v. Lunney, 84 Misc.2d 1090, 378 N.Y.S.2d 559.

After defendant Lunney was indicted for murder, the stenographic minutes of the grand jury proceedings, ready to be typed, were lost when an employee of the District Attorney left them on a train. Following the loss, the case was represented to another grand jury and a superseding indictment was filed.

Ruling on a motion to dismiss, the court in Lunney declined to follow Hairston, holding that since constitutional questions were not involved, '. . . the court is reluctant to invoke the drastic remedy of dismissal of the indictment.' (p. 1093, 378 N.Y.S.2d p. 562.) However, the court indicated that since the grand jury testimony was 'irremedially lost,' (sic) no resubmission could cure the defect since the witness 'has a perfect opportunity to 'edit' or 'amend' his testimony . . .' (p. 1093, 378 N.Y.S.2d p. 563). Seeking a 'remedy' other than dismissal, and apparently unable to find one in New York statutory or case law, the court applied a Federal Jencks Act sanction as the 'only acceptable remedy' and 'barred and excluded' testimony of all witnesses who testified before the first grand jury (1094--95, 378 N.Y.S.2d 563--564).

The...