People v. Butler

• Decision Date: 22 October 2018
• Docket Number: 03479N/2017
• Citation: People v. Butler, 61 Misc.3d 1009, 85 N.Y.S.3d 842 (N.Y. Sup. Ct. 2018)
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Melvin BUTLER, Defendant.
• Court: New York Supreme Court

61 Misc.3d 1009

85 N.Y.S.3d 842

The PEOPLE of the State of New York, Plaintiff,

v.Melvin BUTLER, Defendant.

03479N/2017

Supreme Court, New York County, New York.

Decided on October 22, 2018

For the People: Office of the Special Narcotics Prosecutor, Bridget G. Brennan, Special Narcotics Prosecutor, 80 Centre Street, New York, NY 10013, By Assistant District Attorney Daniel J. Koevary (212) 335-9000

For the Defendant: The Legal Aid Society, 49 Thomas Street, New York, NY 10013, By Angela Chuang, Esq. (212) 298-5000

Curtis J. Farber, J.

The New York County Defender Service (hereinafter the "NYCDS"), by Angela Chuang, Esq., moves to quash two trial subpoenas issued by the Office of the Special Narcotics Prosecutor for the City of New York (hereinafter "the People"), calling for production of a videotape in the possession of the Defendant's trial counsel. It is uncontested that the videotape at issue is a "copy" of surveillance footage obtained by an investigator in the employ of defense counsel. The investigator acquired a DVD of the video footage from a business located near the scene of the alleged crime. The People believe the videotape will show an attempted sale of crack cocaine between an unapprehended woman and the Defendant, as well as an ensuing struggle between the Defendant and police officers.

The People served defense counsel with the two trial subpoenas on July 18, 2018. One, a subpoena duces tecum, calls for production of the surveillance video purportedly depicting the incident underlying the criminal action. The second, a subpoena ad testificandum, calls for the appearance of a NYCDS employee to testify to the authenticity of the videotape and its chain of custody. The People have filed a memorandum of law in opposition to the motion to quash.

Background and Procedural History

On September 13, 2017, the Defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree ( Penal Law § 220.16[1] ) and Resisting Arrest ( Penal Law § 205.30 ). On September 19, 2017, the Grand Jury voted an indictment as to both these charges, as well as for Criminal Possession of a Controlled Substance in the Fifth Degree ( Penal Law § 220.06[5] ). On October 10, 2017, the Defendant was arraigned on the indictment.

It is alleged, in sum and substance, that on September 13, 2017 at approximately 5:25 p.m., opposite 71 West 112th Street in New York County, Police Officer Juan Espinal observed a woman, with money in hand, walk toward the Defendant who was holding a small object. As police officers approached, the Defendant attempted to place this object in his mouth. A struggle ensued between the Defendant and the officers, during which three small bags containing crack cocaine fell to the ground. A subsequent search of the Defendant's person resulted in the seizure of 15 additional bags of crack cocaine.

Within days of the Defendant's criminal court arraignment, defense counsel sent an investigator to the arrest location to canvas nearby businesses for surveillance video. This investigator was able to obtain a "copy" of footage from one business which assertedly depicts all, or part of, the incident.¹ At this investigator's request, the store personnel copied this surveillance footage onto a DVD, with the original surveillance footage remaining at the business location.

The People pursued an antipodal course to a timely investigation. It was not until over eight months had passed, that the People sent any police officers or investigators to the scene to look for surveillance video capturing the incident. By that time, they were unable to obtain any videotape footage from September 13, 2017.

The People first learned that defense counsel was in possession of surveillance footage when they reviewed recordings of the Defendant's telephone calls placed while in custody. On March 16, 2018, more than six months after Defendant's arrest, the People had served a subpoena upon the New York City Department of Corrections for recordings of the Defendant's telephone calls for the period from September 13, 2017 to October 16, 2017. The People received a compact disc containing Defendant's calls on May 8, 2018. In those calls, the Defendant is captured in conversations with unknown third parties stating that his lawyer had sent an investigator to retrieve video of the events leading up to his arrest and the arrest itself. The People cite to one call, from September 23, 2017, in which a woman tells the Defendant that she has seen the video and that it showed the Defendant sitting and talking to two girls, the police approaching, and thereafter Defendant with his hands on the wall.

On May 10, 2018, the People asked defense counsel for a copy of the videotape. Defense counsel refused this request. The People indicate that on May 16, 2018, they then sent an investigator to the scene and identified two locations which could have video of the arrest location. Workers at both locations informed their investigator that while they had surveillance camera systems, neither retained video from the date at issue.²

On May 16, 2018, the People made a motion to compel discovery, pursuant to CPL § 240.20(2). On June 13, 2018, defense counsel responded in opposition to the People's motion.

On July 10, 2018, this Court denied the People's motion to obtain the videotape, ruling it was not subject to reciprocal discovery. CPL § 240.30(1) states, in relevant part: "Except to the extent protected by court order, upon a demand to produce by the prosecutor, a defendant against whom an indictment ... is pending shall disclose and make available for inspection, photographing, copying or testing, subject to constitutional limitation: (b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial ." (Emphasis added). Because defense counsel indicated that she did not intend to introduce the videotape at trial, this Court ruled the defense was not obligated to provide the People with access to the recording. As such, this Court did not address the constitutional issue raised by the defense, specifically, that being required to turn over the results of their investigation to the prosecution would infringe upon the Defendant's Sixth Amendment constitutional right to the effective assistance of counsel by creating a chilling effect on counsel's obligation to conduct a full and comprehensive investigation of their client's case.

On July 18, 2018, the People served defense counsel with the two subpoenas currently at issue. The subpoenas seek the exact same surveillance videotape which this Court found the People were not entitled to receive under the reciprocal discovery statute.

Analysis

While there are circumstances where the People may obtain evidence by subpoena duces tecum, pursuant to Article 610 of the Criminal Procedure Law, they may not use their subpoena power to circumvent the statutory limitations on their right to reciprocal discovery. "Items not enumerated in Article 240 are not discoverable as a matter of right unless constitutionally or otherwise specifically mandated." ( People v. Colavito, 87 N.Y.2d 423, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996] ; Johnson v. Sackett , 109 A.D.3d 427, 429, 970 N.Y.S.2d 546 [1 Dept. 2013], lv denied 22 N.Y.3d 857, 2013 WL 6500525 [2013] ["It is well settled that neither the defendant nor the court has the ‘authority to compel pretrial discovery in criminal cases that is unavailable pursuant to statute, and prohibition lies to prevent an attempt to do so’."]; People v. Perry , 70 A.D.3d 1063, 894 N.Y.S.2d 231 [3d Dept. 2010], lv denied, 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010] ). As previously noted, the discovery statute expressly exempts from defense counsel's reciprocal discovery obligations the production of videotape evidence in their possession, if they do not intend to introduce that evidence at trial.

In this case, the People have failed to demonstrate an applicable exception to the statutory limitations on reciprocal discovery, which would enable them to circumvent the limits of CPL § 240.30 by seeking non-discoverable evidence through their subpoena power. The People do not contend, nor is there any basis to find, that the defense took possession of the original surveillance tape with the intent of precluding the People from obtaining the evidence through their own investigation. Access to the videotape evidence was equally available to both the prosecution and defense. However, the People made no effort to send either police officers or investigators from the Office of the Special Narcotics Prosecutor to canvass the arrest location for surveillance evidence until eight months after Defendant's arrest, despite the likelihood that businesses located near the crime scene would have recorded the interaction.

It should hardly have come as a surprise to the People that the surveillance video had been deleted by the time they sought it out. It is well known that most video recordings are routinely destroyed or over-written after a short retention period. Even the New York City Police Department ("NYPD") has a recognized policy of destroying 911 recordings after a retention period of three months. (See, e.g., People v. Randolph , 261 A.D.2d 154, 690 N.Y.S.2d 195 [1st Dept. 1999], lv denied 93 N.Y.2d 1025, 697 N.Y.S.2d 584, 719 N.E.2d 945 [1999] ). Thus, it was incumbent upon the People to seek out the surveillance evidence on their own, in a timely manner. Having failed to do so, the People cannot now encroach upon the NYCDS's work on behalf of their client to obtain materials that, with the exercise of a minimum of due diligence they could have obtained through their own investigation, and which they believe will aid them in obtaining a conviction.

It is well-established that neither the People nor the defense are obligated to secure evidence which the other party can obtain for themselves, including surveillance videotapes. ( CPL §§ 240.20[...