People v. Cabon

• Decision Date: 14 August 1990
• Docket Number: AP-9
• Citation: 560 N.Y.S.2d 370,148 Misc.2d 260
• Parties: The PEOPLE of the State of New York, v. Jesus CABON, et al., Defendants
• Court: New York City Court

Page 370

560 N.Y.S.2d 370

148 Misc.2d 260

The PEOPLE of the State of New York, v. Jesus CABON, et al., Defendants.

Criminal Court of the City of New York New York County, Part AP-9.

Aug. 14, 1990.

Jeremy Travis, Deputy Com'r of Legal Matters (Daniel Oates, New York City, of counsel), for the Police Dept.

Thomas M. O'Brien, The Legal Aid Society, New York City, for the defense.

DECISION AND ORDER

WILLIAM LEIBOVITZ, Judge:

The New York City Police Department requests that subpoenas duces tecum be quashed in ten separate cases, having been issued by a judge of this court ex parte to defendants' attorneys, The Legal Aid Society. The subpoenaed items are all routine police reports concerning the defendants' charges, and their arrest photographs.

The Police Department contends that police reports are not legally available to defendants under pretrial discovery rules, or as Rosario material until a hearing or trial, and that subpoenas may not be used to circumvent these laws. Also claimed is a waste of resources in supplying improperly subpoenaed materials.

In response, The Legal Aid Society states that the items subpoenaed are specific, relevant and material, and are not claimed to be privileged. They are essential for trial preparation and contain, among other matters, evidence from witnesses who will not testify at trial and consequently will never be disclosed to the defendants as Rosario material, or otherwise than by subpoena.

Research has not disclosed a reported case in which a New York appellate court has decided under current law whether a defendant in preparation for trial may subpoena specific and routine police reports that are not confidential or privileged.

Pretrial Compulsory Process

In all criminal prosecutions, the Sixth and Fourteenth Amendments of the Constitution guarantee the defendant the right to compulsory process of witnesses and documentary evidence that might be favorable to the defendant. See, e.g., United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The Supreme Court views the Compulsory Process Clause within the framework of the Due Process Clause and fundamental fairness of trials. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987).

In the present proceeding, the Police Department argues that compulsory process is a trial right that is not available to defendants before trial, citing People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608 (1990) (defendant lacked absolute right to subpoena complaining witness at Wade hearing). However, Chipp does not support that conclusion and does not address the issue of pretrial subpoenas for police documents, but instead involves a separate and unrelated policy concern for intimidation of civilian witnesses by subpoenas at pretrial hearings.

It has long been the federal view that trial courts have discretion to grant compulsory process for documents before trial to facilitate trial preparation. In 1807, the Supreme Court through Chief Justice Marshall ruled that Aaron Burr's compulsory process right entitled him before trial for treason to subpoena as evidence a letter in the possession of President Jefferson. The Court rejected the notion "that the accused shall be disabled from preparing for trial until an indictment shall be found against him ..." and held that "he should have the benefit of the provision which entitles him to compulsory process as soon as he is brought into court...." United States v. Burr, 25 Fed.Cas. 30, 33-34 (C.C.Va.1807). The Supreme Court noted the present viability of the Burr case in both United States v. Nixon, supra, 418 U.S. at 702, 94 S.Ct. at 3104, and Pennsylvania v. Ritchie, supra, 480 U.S. at 55, 107 S.Ct. at 1000-01.

New York now expressly shares the federal view, embodied in Rule 17(c) of the Federal Rules of Criminal Procedure, that a trial judge has discretion to grant pretrial access of subpoenaed materials to both defendant and prosecutor for trial preparation. In 1979, New York amended CPL 610.25, in conformity with Rule 17(c), to allow the parties pretrial access to evidence by subpoena duces tecum. A practice commentary of (now Judge) Joseph W. Bellacosa explains the revision as being "designed to foster early availability of evidence to reduce surprise and gamesmanship." Bellacosa, Practice Commentary, McKinney's Cons.Laws of New York, Book 11A, CPL 610.25, p. 270.

Accordingly, the Police Department's position, that as a matter of law physical evidence is not available to defendants by compulsory process before trial, is legally unsupportable. It is therefore necessary to determine whether other legal barriers prevent the defendants' access to police reports by subpoena.

Preconditions of Subpoena Right

A defendant's right to acquire information by subpoena duces tecum (CPL Art. 610) is subject to threshold conditions. The general rule in New York is that evidence subpoenaed by the defendant must be relevant and material to the determination of guilt or innocence. People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979).

Gissendanner, however, did not address the issue of materiality as it would apply to routine police reports. In Gissendanner, defendant's counsel requested a subpoena for police officers' personnel files which were admittedly confidential. Counsel's only stated purpose was "to find material appropriate for cross-examination when the officers testified" (at 547, 423 N.Y.S.2d 893, 399 N.E.2d 924). The court held that while even confidential records may be subject to compulsory process, counsel's sole objective of impeaching general credibility was not sufficiently relevant and material to outweigh "the State's interest in safeguarding the confidentiality of police personnel records" (at 548, 423 N.Y.S.2d 893, 399 N.E.2d 924).

Appellate decisions in New York have not considered the issue of materiality in relation to nonconfidential, routine police reports, in which counsel's purposes for access by subpoena, as in this proceeding, are not limited to general impeachment.

The federal standard for pretrial access to subpoenaed materials under Federal Rule 17(c) has generally been the test devised in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952), requiring the party that seeks production to show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."

Whether applying New York or federal criteria, the critical element in judicial evaluation of a subpoena duces tecum is its materiality, that is, whether the information subpoenaed would make a favorable difference to the seeking party in the outcome of the trial if disclosed. Such was the concern in People v. Gissendanner, supra, 48 N.Y.2d at 548-550, 423 N.Y.S.2d 893, 399 N.E.2d 924. The federal test, previously cited, also centers in actual practice on the materiality of the subpoenaed documents. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982); United States v. Nixon, supra, 418 U.S. at 700, 94 S.Ct. at 3103. Likewise, a subpoena in a state criminal case considered under state laws by the United States Supreme Court was analyzed principally in terms of materiality. Pennsylvania v. Ritchie, supra, 480 U.S. at 61, 107 S.Ct. at 1004.

In a case having a major impact on the present proceeding, the Supreme Court in Pennsylvania v. Ritchie, supra, held that a Pennsylvania trial court violated the Sixth and Fourteenth Amendment due process rights of a defendant by failing to review his subpoenaed records in camera and to release any material information to the defendant before trial. Counsel for the defendant who was charged with sexual abuse of a child had subpoenaed the confidential records of a state child welfare agency, claiming he was entitled to the information "because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence" (480 U.S. at 44, 107 S.Ct. at 995).

In the present case, the request of defendants' counsel for access to the subpoenaed police reports is essentially that of counsel in Pennsylvania v. Ritchie, supra. Counsel here urges that such reports might contain information regarding favorable witnesses (who if not called to testify at trial would not come within the reach of Rosario disclosure [CPL 240.45]. Counsel here also seeks other unspecified exculpatory material, as in Ritchie.

It is therefore clear under the given facts of this proceeding that unless these subpoenas are otherwise legally invalid, the court should not summarily quash them or neglect to determine the materiality of the police records. To do otherwise invites a due process violation.

The Police Department cites language in Ritchie stating that a defendant has no constitutional right to make an unsupervised, general search of the State's files under a general request to discover exculpatory evidence, but must rely on the prosecution to produce Brady material. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977). However, in Ritchie, the trial court's failure to review the subpoenaed records was ruled unconstitutional, and it is therefore clear that the foregoing language was not intended to support the quashing of the subpoena. Instead, the Court meant that the trial court was to determine the materiality of the subpoenaed records, and not the defendant acting alone.

Also misconceived is the fact that the...