People v. Chirico

• Decision Date: 18 November 1969
• Citation: 305 N.Y.S.2d 237,61 Misc.2d 157
• Parties: PEOPLE of the State of New York, Plaintiff v. John CHIRICO, Defendant.
• Court: New York County Court

Page 237

305 N.Y.S.2d 237

61 Misc.2d 157

PEOPLE of the State of New York, Plaintiff v. John CHIRICO, Defendant.

Fulton County Court.

Nov. 18, 1969.

Michael Raphael, Braun & Raphael, Albany, for defendant.

Thomas M. Persico, Dist. Atty., Fulton County, Gloversville, for the People.

CARROL S. WALSH, Judge.

This is a motion made by defendant for an order directing the District Attorney of Fulton County to deliver to the defendant a copy of the statement made by defendant, in the absence of counsel, at or prior to or after his arrest for Assault Second Degree, for which he was subsequently indicted by the Grand Jury of Fulton County. Defendant alleges that on or about July 12, 1969, he was interrogated by the State Police at the Police Barracks in Fonda, and that he then made a statement. Neither during the interrogation or when the statement was made was consel for defendant present.

Defendant states that due to the length of time between the interrogation and the making of the statement and the present time, and the highly nervous and excitable state of mind in which he was at the time, he cannot recall with accuracy the contents of the statement or the contents of the interrogation. Defendant requests a copy of his statement on the following grounds: (1) Fair play; (2) The Statement's availability for impeachment purposes; and (3) The inadmissibility of derivative evidence should the statement be determined to be involuntary.

The District Attorney opposes the granting of the Order.

To date, there is no statutory law on the subject of discovery and inspection which permits a defendant to obtain, prior to his trial, a copy of a statement made by him to the police or the District Attorney at the time of his arrest. Section 813--f of the Code of Criminal Procedure does provide that in a case where the People intend to offer a confession or admission in evidence upon a trial of a defendant, the People must, within a reasonable time before the commencement of the trial, give written notice of such intention to the defendant or to his counsel if he is represented by counsel, and Section 813--g of the Code provides that a defendant claiming to be aggrieved by an involuntary confession or admission may move for its suppression from use as evidence, which as a practical matter does permit in such a situation a copy of the alleged confession to be furnished to the defendant or his counsel.

However, we are here concerned with the situation where no notice pursuant to Section 813--f of the Code has been given by the District Attorney. As mentioned above, no statutory provision is in effect permitting a copy of the alleged confession or admission to be given to defendant or his counsel, nor has the Court of Appeals rendered any decision, so far as this Court knows, concerning this point.

It is the opinion of this Court, however, without intending to be the least bit presumptuous, that the Court of Appeals of this State will hold, should this question reach the Court of Appeals for decision, that the People are compelled to furnish a defendant or his counsel, prior to trial, a copy of any statement, confession or admission made by a defendant at the time of his arrest in the absence of counsel, whenever the defendant or his counsel requests a copy thereof.

In support of the opinion of this Court, attention is called to the decisions of the Supreme Court of the United States on this very point and to this right afforded defendants in numerous other states of these United States. In addition, attention is also called to the decisions of the Court of Appeals in the State of New York liberalizing the rights of a defendant in the pre-trial discovery of prosecution evidence in criminal cases. In People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 450, 173 N.E.2d 881, 883, 7 A.L.R.3d 174, a case in which the defendant on appeal contended that the trial judge committed reversible error in refusing to turn over to defense counsel, for cross examination purposes, statements given some time before the trial by three prosecution witnesses, the Court held that '(t)he procedure to be followed turns largely on policy considerations, and upon further study and reflection this court is persuaded that a right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination.' In the case of People v. Malinsky, 15 N.Y.2d 86, 90--91, 262 N.Y.S.2d 65, 70, 209 N.E.2d 694, 697, the Court held, 'In view of our decision in Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, supra, the judge presiding may not allow the People to keep from the defendants' counsel statements or notes made by a witness upon the ground that nothing in them could assist the defense or that no prejudice would result from withholding them.' The notes referred to in the Malinsky case were the notes which a police officer had made in connection with the arrest of the defendant.

Granted, that the foregoing cases cited concern the use by the defendant of People's witnesses' statements and notes on cross examination for purposes of impeachment, nonetheless it indicates the Court's attitude that in all justice and fairness no evidence in the hands of the People, except that which on good cause is shown to be confidential, should be withheld from examination by the defendant or his counsel because to do so would deprive the defendant and his counsel of the ability to prepare proper defense and could very well deprive the defendant of a fair trial.

It is inconceivable that the Courts of this State would permit a defendant the right to examine statements of witnesses and to examine other evidence, yet be deprived of the right to examine his own statement made at the time of his arrest in the absence of counsel. To deprive defendant of this right, one might inquire as to how counsel for defendant could evaluate the case, to say nothing of preparing a proper defense, when counsel has no idea as to what the defendant disclosed in the statement at the time of the arrest. Certainly, in view of the decisions in the Courts of this State, it would be illogical and inconsistent to hold that a defendant would not be permitted to obtain a copy of a statement made by him at the time of his arrest in the absence of counsel.

People v. Quarles, 44 Misc.2d 955, 255 N.Y.S.2d 599, is a most erodite and scholarly judicial opinion on this very point. Reviewing United States Supreme Court decisions, decisions of the Courts of sister States and decisions in the Courts of the State of New York, the Court in Quarles, without equivocation, held that the statements made by a defendant to the police or District Attorney at the time of his arrest, without the assistance of counsel and without waiver of his right to counsel, are directed to be disclosed by the District Attorney to defense counsel as a matter of right to properly enable the said defendant to prepare a defense in accordance with the dictates of a fair trial. In People v. Abbatiello, 46 Misc.2d 148, 150, 259 N.Y.S.2d 203, 206, the Court held that the copy of the statement of the defendant made to the...