People v. Cangiano
| Decision Date | 17 March 1986 |
| Citation | 502 N.Y.S.2d 349,131 Misc.2d 930 |
| Parties | PEOPLE of the State of New York v. Juan CANGIANO. |
| Court | New York Supreme Court |
Elizabeth Holtzman, Dist. Atty., Kings County (Noah Sorkin, Asst. Dist. Atty., Brooklyn, of counsel), for the People.
Harvey Herbert, Brooklyn, for the defendant.
This case presents for review the propriety of a court order requiring the defense at the beginning of trial, immediately prior to jury selection, to furnish a list of prospective defense witnesses to the court and the district attorney and the sanctions which may be imposed upon the defense for violation of such a court order. The defense has challenged this court's order to supply a witness list to the court and district attorney immediately prior to jury selection contending that compliance with the order would violate the defendant's privilege against self-incrimination. The defendant's claim has no merit.
The defendant has been indicted for the crimes of sodomy in the first degree (eight counts) and endangering the welfare of a child (two counts). It is alleged that he forced his nine-year-old son and seven-year-old daughter to engage in acts of oral sex with him. Both the district attorney and the defense have announced their readiness for trial and a jury panel is about to be summoned. The district attorney has furnished the court with a witness list, but the defense has refused to do so, asserting a Fifth Amendment privilege in this information. The defense has offered to disclose its witness list to the jury panel out of the presence of the district attorney. If this offer is rejected, the defense asserts it has no witness list to disclose at this time.
The defendant's position has no support in law. One of the basic functions of voir dire is to determine whether any of the prospective jurors is related to or knows one of the parties or lawyers in the case or a prospective witness. Section 270.20(1)(c) of the Criminal Procedure Law provides that a juror may be challenged for cause if:
He is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant; or that he is or was a party adverse to any such person in a civil action; or that he has complained against or been accused by any such person in a criminal action; or that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict. (Emphasis added.)
The only way this issue can be addressed by the court is through disclosure to the prospective jurors of the names of all prospective witnesses. Indeed, it is up to the court (People v. Boyd, 74 A.D.2d 647, 648 [2d Dept 1980], affd, 53 N.Y.2d 912 [440 N.Y.S.2d 631, 423 N.E.2d 54] [1981] ). The proper procedure for the trial court to follow is that the "names of prospective witnesses should be obtained from the attorneys outside the presence of the jury and presented to prospective jurors during voir dire without attribution to either party * * * " (People v. Boyd, 53 N.Y.2d 912, 913-914, 440 N.Y.S.2d 631, 423 N.E.2d 54 [1981] ). That is exactly the procedure which the court intends to follow here.
Use of this procedure will not violate the defendant's privilege against self-incrimination. The court's order does not compel the defendant to reveal evidence of criminal activity; nor does it compel the defendant to give testimony. No "testimonial declarations" of the defendant are involved (Cf. People v. Copicotto, 50 N.Y.2d 222, 229, 428 N.Y.S.2d 649, 406 N.E.2d 465 [1980] ). The defendant is being directed solely to furnish the names of witnesses he may call to testify at some future time. "[T]he testimonial disclosures protected by the Fifth Amendment include only statements relating to the historical facts of the crime, not statements relating solely to what a defendant proposes to do at trial" (Williams v. Florida, 399 U.S. 78, 86, n. 17, 90 S.Ct. 1893, 1898, n. 17, 26 L.Ed.2d 446 [1970] ).
Nor is there a constitutional violation in requiring disclosure of prospective witnesses prior to jury selection. The mere disclosure of witnesses' names immediately prior to jury selection cannot prejudice the defense, absent extraordinary circumstances. Either the district attorney will recognize the names or he will not. If he does recognize them, then he will already have been aware of their existence, and disclosure of their names will add nothing to that which he already knows. If he does not recognize them, the names alone will mean nothing to him. Even if the court were to assume that disclosure of the names alone of prospective defense witnesses might tip off the defense in the case, there would be no constitutional violation. "Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself" (Williams v. Florida, supra, 399 U.S. at 85, 90 S.Ct. at 1898).
In People v. Boyd (supra), the Appellate Division specifically rejected the identical Fifth Amendment claim being advanced by the defense here. "There is * * * no inherent violation of the defendant's right against self-incrimination by calling upon him to reveal, with appropriate precautions, the names of the prospective witnesses he may call to testify" (People v. Boyd, supra, at 74 A.D.2d 648-649, 425 N.Y.S.2d 134).
The court order in this case is, therefore, appropriate and constitutional. The defendant's persistent refusal to comply with the order requires consideration of an appropriate sanction. What should the penalty be for refusal by the defense to comply with a lawful and constitutional order requiring the defense to furnish the court with a list of prospective witnesses immediately prior to jury selection? No ideal remedy exists.
In fashioning a sanction, the court...
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State v. Powers
...petitioner to provide the court with a list of witnesses on the first day of trial prior to voir dire of jury); People v. Cangiano, 131 Misc.2d 930, 502 N.Y.S.2d 349 (1986) (disclosure of prospective witnesses is required to determine whether any prospective juror is related to or knows any......
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State ex rel. Hill v. Reed, 23810
...limit the trial judge's authority to order disclosure necessary for proper and comprehensive voir dire. In People v. Cangiano, 131 Misc.2d 930, 502 N.Y.S.2d 349 (N.Y.Sup.Ct.1986), the defense challenged a court order requiring it to furnish a list of its prospective witnesses immediately pr......