People v. Bennett

• Decision Date: 01 October 1973
• Citation: 349 N.Y.S.2d 506,75 Misc.2d 1040
• Parties: PEOPLE of the State of New York v. William BENNETT et al., Defendants.
• Court: New York Supreme Court

Page 506

349 N.Y.S.2d 506

75 Misc.2d 1040

PEOPLE of the State of New York v. William BENNETT et al., Defendants.

Supreme Court, Additional Special and Trial Term, Erie County.

Oct. 1, 1973.

[75 Misc.2d 1043] Stanley J. Collesano, Buffalo, for defendant Peter Galvin.

Barbara E. Handschu, Buffalo and William M. Kunstler, New York City, for defendant Mariano Gonzalez.

William M. Kunstler and Margaret L. Ratner, New York City (Barbara E. Handschu, Buffalo, of counsel), for defendant John Hill.

Salvatore R. Martoche, Buffalo, for defendant Leon McDonald.

Harold J. Boreanaz, Buffalo, for defendant Stephen Merkel.

Ramsey Clark, New York City, Herman Schwartz and Edward I. Koren, Buffalo, for defendant Charles Pernasalice.

Paul I. Birzon, Buffalo, for defendant James Richey.

Sean D. M. Hill, Buffalo, for defendant Alphonso Ross.

Vincent E. Doyle, Jr., Buffalo, for defendant Eric Thompson.

Robert E. Fischer, Deputy Atty. Gen. (Roger W. Bradley, Sp. Asst. Atty. Gen., of counsel), for People.

Donald L. Jelinek, Coordinator of Attica Legal Defense, for defendants named in Appendix 'A'.

George P. Doyle, Buffalo, for defendant Ronald Coyle.

Richard J. Lippes, Buffalo, for defendant Edward Dingle.

Peter L. Parrino, Buffalo, for defendant Robert Dugram.

MEMORANDUM

JAMES O. MOORE, Justice.

These are motions made upon behalf of the defendants listed in Appendix A ¹, as well as the above-named defendants who have appeared by separate counsel, for pretrial discovery and inspection pursuant to Article 240 of the Criminal Procedure Law, and the provisions of the Constitutions of the United States and New York State pertaining to fair trial. The moving defendants are variously named in 37 separate indictments.

Traditionally, the scope and extent of discovery to be afforded to individual defendants or defendants named in the same indictment should be judicially determined in the light of the charges alleged in each such indictment. Nonetheless, all of the defendants are, to a degree, similarly situated in that the indictments at bar were returned by a Special Grand Jury of Wyoming County impaneled in connection with an Additional Special and Trial Term of this Court to inquire into acts relating to the possession and control of a portion of the Attica Correctional Facility by inmates during the period September 9 to 13, 1971, and the resumption of possession and control by lawful authorities. All of the charges made in the indictments relate to events during the course of the uprising at Attica State Prison during the period of September 9 through September 13, 1971. Accordingly, the Court has entertained an omnibus discovery motion made on behalf of some 43 defendants represented for the purpose of the motions by the Coordinator of the Attica Legal Defense, as well as individual motions made on behalf of certain of the other defendants. Since all of the motions bear a large degree of similarity with respect to the scope and extent of the pretrial discovery sought, this memorandum opinion will serve as the Court's determination of the motions at bar, and separate orders should be submitted with respect to the individual or multiple defendants named in each of the indictments.

I. CRIMINAL DISCOVERY IN NEW YORK

Common law courts have no power to compel the pretrial discovery of evidentiary material in either civil or criminal cases, and it was left to the courts of equity to devise a remedy in the form of a separate proceeding for a bill of discovery. McQuigan v. D., L., & W.R.R. Co., 129 N.Y. 50, 29 N.E. 235.

Even before the adoption of the Field Code in 1848, the power to grant this form of equitable relief in Civil cases was afforded to common law courts by succeeding statutory enactments governing practice and procedure, and culminating in the enactment of the broad discovery proceeding contained in the Civil Practice Law and Rules.

Prior to the enactment of the Criminal Procedure Law of 1971, no parallel development was to be found on the criminal side and, as a consequence, there was no effective pretrial discovery in criminal cases. Indeed, as late as 1927 Chief Judge Cardozo in People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 32, 156 N.E. 84, 86, declined 'to affirm or deny the existence of an inherent power in courts of criminal jurisdiction to compel the discovery of documents in furtherance of justice.' This anomalous state of the law became the subject of wide spread critical comment, and despite the reservations expressed by the Court of Appeals, the trial and intermediate appellate courts of the State granted limited discovery in criminal cases on an Ad hoc basis. Silver v. Sobel, 7 A.D.2d 728, 180 N.Y.S.2d 699; People v. Rogas, 18 Misc. 567, 287 N.Y.S. 1005; People v. Preston, 13 Misc.2d 802, 176 N.Y.S.2d 542; Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279; Traynor, Ground Lost and Found in Criminal Discovery, 1964, 39 N.Y.U.L.Rev. 228; Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo.L.J. 1276.

In actual practice, there was a growing tendency on the part of the district attorneys to make available to defense attorneys before trial statements made by the accused and other documentary evidence for the purpose of encouraging the disposition of cases by pleas of guilty. At the same time, the course of decision in the Supreme Court of the United States was adding new content to the constitutional concept of fair trial, and the necessity for effecting a liberalization of pretrial discovery procedures in criminal cases became more and more apparent. See Developments in Law--Discovery, 74 Harvard Law Review 940, 1051--1062.

The 1966 amendment of Rule 16 of the Federal Rules of Criminal Procedure materially expanded the scope of discovery in the Federal Courts, and served as a pattern for Article 240 of the Criminal Procedure Law. This legislation was designed and intended 'to provide a workable body of procedure accommodated to modern times' and reflects 'a rather moderate middle-of-the-road approach, halfway between the extreme liberal position which advocates almost

unlimited discovery and the extreme prosecution approach which would permit virtually none.' See Memorandum of Commission on Revision of Penal Law and Criminal Code, N.Y. Legis. Annual, pp. 36, 37, 43, March 1970. It embodies 'the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.' Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973. Against this background the provisions of Article 240 must be construed and applied in the light of the factual complexities involved in the particular case, always with a view to the over-riding consideration of affording defendants the fair trial [75 Misc.2d 1046] mandated by the State and Federal Constitutions. Since the New York statute is virtually identical with the 1966 revision of Rule 16 of the Federal Rules of Criminal Procedure, the Federal experience is important in delineating the scope of the discovery warranted by this legislation. People v. Leto Bros., Inc., 70 Misc.2d 347, 334 N.Y.S.2d 298.

II. THE PRODUCTION OF MATERIAL REQUIRED BY UNITED STATES v. BRADY AND PEOPLE v. ROSARIO

The motions at bar reach far beyond the orbit of Article 240 and its progenitor Rule 16 of the Federal Rules of Criminal Procedure. Neither of these codifications attempts to treat the disclosure requirements mandated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, or the procedures required under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, with respect to the production upon the trial of prior statements of a witness who has testified for the prosecution. Nonetheless, it is appropriate that these questions be raised at the threshold of this litigation so that standards may be determined for the governance of the trials of these indictments.

Brady Material

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused, upon request, violates due process where the evidence is material either to guilt or punishment irrespective of the good faith or the bad faith of the prosecution.

The genesis of Brady is found in the incorporation of the concept of 'fair play' into the constitutionally mandated requirement of a fair trial. The rationale is that no person should stand convicted of a crime under circumstances where the government was in possession of undisclosed evidence which might tend to exculpate the accused. The constitutional mandate does not create further categories of pretrial discovery. United States v. Cobb, D.C., 271 F.Supp. 159; United States v. Callahan, D.C., 300 F.Supp. 519; United States v. Dioguardi, D.C., 332 F.Supp. 7.

Moreover, in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, the Court made clear that there is no constitutional requirement that the prosecution account to the defense for all the investigatory work it has undertaken in the preparation of a case.

Although there can be no disagreement with the principle of law enunciated in Brady, the application of the rule in our existing adversary system has posed difficult problems. See Prosecutor's Duty to Disclose, 52 Marquette Law Review 516; Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 University of Chicago Law Review 112.

The Supreme Court has not specified whether the determination with respect to the information in the prosecutor's file should be left to the prosecutor, or whether it should be made by the trial judge or defense counsel. The moving defendants contend with considerable force that this crucial decision as to whether particular material is favorable to a defendant cannot be left to the benevolence of the prosecutor and by analogy to the reasoning of People...