People v. Cesar G.

• Decision Date: 18 January 1991
• Docket Number: JP-7
• Parties: The PEOPLE of the State of New York, v. CESAR G. 1 , Defendant. Criminal Court of the City of New York, New York County, Part
• Court: New York City Court

Page 383

584 N.Y.S.2d 383

154 Misc.2d 17

The PEOPLE of the State of New York, v. CESAR G. ¹, Defendant Criminal Court of the City of New York New York County, Part JP-7.

Jan. 18, 1991.

Robert M. Morgenthau, Dist. Atty., New York County by Christopher Borek, New York City, for People.

Robert M. Baum, The Legal Aid Soc., New York County by Mihea Kim, New York City, for defendant.

DECISION ON MOTIONS FOR PROTECTIVE ORDERS AND TO QUASH

SUBPOENAS DUCES TECUM

MARCY L. KAHN, Judge:

This case raises apparent conflicts between the rights of a criminal defendant to due process and confrontation of witnesses, on the one hand, and the rights of an alleged victim of domestic abuse to maintain the confidentiality of the records of her mental health treatment, on the other.

Defendant is charged with attempted assault in the third degree (PL § 110.00/120.00), criminal contempt in the second degree (PL § 215.50), petit larceny (PL § 155.25) and harassment (PL § 240.25) based upon an incident involving himself and the mother of his children on March 18, 1990. Prior to trial, the People moved in limine for a protective order ² with respect to hospital records of the complaining witness' psychiatric treatment on the ground that they did not constitute Brady material. (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963]. A hearing was conducted by this court, the records were reviewed in camera, and a protective order was issued. This decision sets forth the court's reasons for issuing that Order.

Procedural Background

In the course of routine trial preparation in an assault case, the Assistant District Attorney assigned to the case served a subpoena duces tecum on the Presbyterian Hospital ("the Hospital") for all of the complainant's medical records subsequent to the March 18th incident. The prosecutor thereby assumed that he would receive all records relating to complaining witness' treatment for injuries allegedly received during the assault.

Subsequently, the A.D.A. received the post-incident medical records which he had subpoenaed from the Hospital. These records related to treatment received by the complainant at the Hospital from March 22, 1990 through March 25, 1990, all of which was psychiatric in nature. The Assistant then met with the complainant and, using the services of a Spanish language interpreter, discussed these records and complainant's medical history with her. She told him that she wished to maintain the confidentiality of these records, and that she especially did not want her estranged husband (i.e., defendant) to have access to them.

Thereafter, when the case was called for trial before this court, the A.D.A. informed the court and counsel that his efforts to meet his discovery obligations by providing to the defense medical records reflecting complainant's injuries from the defendant's alleged attack on her had produced only hospital records reflecting psychiatric treatment received by the complainant at the Hospital several days later. The Assistant stated that the complainant had not received medical treatment for any physical injuries sustained during the incident.

Acknowledging that the records suggested that the complainant had a psychiatric history, the People opposed (with one minor exception) their inspection by the defense. The People argued that these records were confidential, and contained nothing of an exculpatory nature which would qualify for production under Brady v. Maryland, nor any information which would be discoverable under CPL § 240.20. The A.D.A. requested that the court conduct an in camera review of the records and, except for certain statements which the People conceded should be furnished to the defense pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), asked the court to issue a protective order precluding the discovery of the records by the defense.

The defense opposed the People's application in all respects. Defendant argued that complainant's post-incident psychiatric records in the People's possession were the subject of a proper discovery request made by defendant, and that because they could reflect on complainant's mental state and credibility, they should be produced to the defense as Brady material. Specifically, the defense noted that its demand for discovery included a particularized request pursuant to CPL § 240.20(1)(h) and Brady v. Maryland, supra for:

information favorable to defendant which may in any way support a theory of defense or reflect adversely on the credibility of People's witnesses[,] including but not limited to any and all history of ... psychiatric treatment of all prosecution witnesses, including the complainant.

Arguing that complainant's psychiatric history bears on her state of mind at the time of the incident, as well as on her general credibility, and because she would be the principal witness for the prosecution at trial, the defense maintained that the records of complainant's psychiatric treatment should be disclosed pursuant to Brady. Finally, defendant contended that the inspection of the records should be conducted by counsel for thedefendant, not by the court.

The People replied that these records provide no evidence that the complaining witness has (or ever has had) any impairment of her perception, memory or communications abilities; that they do not suggest that she was experiencing hallucinations or delusions; and that the records could in no sense be viewed as providing evidence favorable to the defense. Additionally, the prosecution maintained that due to their confidential and highly sensitive nature, disclosure of the records would amount to an unwarranted intrusion by the defense into a very personal aspect of the complainant's life.

The Brady-Vilardi Standard

Due process places upon the prosecution a continuing duty to disclose to the defense evidence which is both favorable to the defense and material to either guilt or punishment. (Brady v. Maryland, supra; People v. Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915 [1990]; People v. Cwikla, 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070 [1979]. Where the evidence is not favorable to the defense, production is not required. And even where the undisclosed evidence is favorable to the defense, a due process violation will be found only if the suppressed evidence is material to the issues in the case. (See Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 [1987]; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 [1976]; People v. Vilardi, supra 76 N.Y.2d at 77, 556 N.Y.S.2d 518, 555 N.E.2d 915). Accordingly, the questions before the court are whether or not these records are discoverable by the defense as being both "favorable" and "material" for Brady purposes.

To be favorable, the evidence must "tend to exculpate" the defendant. (Brady v. Maryland, 373 U.S. at 88, 83 S.Ct. at 1197). Where a witness' reliability may be determinative of guilt or innocence, material evidence affecting that witness' credibility constitutes exculpatory evidence. (Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 [1972] [jury should have been told of government's non-prosecution agreement with unindicted co-conspirator who was government's key witness]; People v. Cwikla, supra 46 N.Y.2d at 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070 [undisclosed cooperation agreement between prosecution and a key witness that his testimony against the defendant would be communicated to the parole board]; cf., People v. Fappiano, 134 Misc.2d 693, 512 N.Y.S.2d 301 [Sup.Ct.Kings Co.1987], aff'd 139 A.D.2d 524, 526 N.Y.S.2d 620 [2d Dept.1988], app. den., 72 N.Y.2d 918, 532 N.Y.S.2d 852, 529 N.E.2d 182 [1988] [evidence of complainant's chronic alcoholism not material or "favorable" to defendant, absent evidence that the condition caused some degree of mental impairment of the witness' sensory capacity (e.g., hallucinations, blackouts, etc.) at the time of the events in question].

The psychiatric history of a prime prosecution witness may very well be considered evidence affecting the witness' credibility in a manner favorable to the defense. (See, e.g., People v. Rensing, 14 N.Y.2d 210, 250 N.Y.S.2d 401, 199 N.E.2d 489 [1964]; People v. Maynard, 80 Misc.2d 279, 363 N.Y.S.2d 384 [Sup.Ct.N.Y.County 1974]; see also People v. Dudley, 167 A.D.2d 317, 562 N.Y.S.2d 66 [1st Dept.1990] [issue raised in confrontation context]. The more difficult question is whether evidence respecting a witness' psychiatric history is both "favorable" and "material" for Brady purposes in a particular case.

In its most recent explanation of Brady materiality, the Court of Appeals held that where a prosecutor is made aware by a specific discovery request that the defense considers certain evidence important, the defense need only demonstrate the existence of a "reasonable possibility" that a failure to provide the evidence could contribute to the conviction of the defendant or change the outcome of the case in order to establish that the demanded evidence is material. (People v. Vilardi, supra 76 N.Y.2d at 77, 556 N.Y.S.2d 518, 555 N.E.2d 915).

Vilardi involved a charge of arson by explosion, and the defendant had specifically requested disclosure of the reports of police experts, in order to show that no explosion occurred. One such report, which discounted any explosion theory, was withheld from the defense. The Court of Appeals, applying the "reasonable possibility" standard, found that the missing report was both exculpatory and material to the issue of the defendant's guilt and should have been disclosed.

In adopting the reasonable possibility standard as a matter of state constitutional law, the majority opinion focused principally on the dereliction of duty of the prosecutor, and the need to deter it. The Court of Appeals repeatedly emphasized that a prosecutor's failure to...