People v. Clayton B.

• Decision Date: 04 August 1981
• Citation: 442 N.Y.S.2d 724,110 Misc.2d 567
• Parties: The PEOPLE of the State of New York v. CLAYTON B and Patrick B.
• Court: New York City Court

Page 724

442 N.Y.S.2d 724

110 Misc.2d 567

The PEOPLE of the State of New York v. CLAYTON B and Patrick B.

Criminal Court of the City of New York,

New York County.

Aug. 4, 1981.

Robert M. Morgenthau, Dist. Atty., Michelle Stone, New York City, for the People.

Paul Scotto and Daniel Alterman, New York City, for defendants.

STANLEY GARTENSTEIN, Judge:

The issue before this court, apparently one of first impression, may be characterized in the following terms:

At precisely what juncture does the state's interest in maintaining the confidentiality of a probationer's records yield to the constitutionally based right of an accused to confront and cross-examine that probationer who is called as an adverse witness?

In the instant action, defendants were charged with the Class C felony of Robbery in the Second Degree (Penal Law § 160.10) and related offenses. These charges were subsequently reduced on the People's motion to the Class A misdemeanors of Assault in the Third Degree (Penal Law § 120.00) and Petit Larceny (Penal Law § 155.25), and were tried before a jury with the undersigned presiding. ¹

The information alleged that "on April 18, 1980, at 23rd Street and Third Avenue, New York City, the defendants, acting in concert, grabbed the complainant's purse, knocked her to the ground, and thereby took from her possession personal property and a sum of money. The complainant sustained physical injury."

Pursuant to CPL 240.20, defendants moved for pretrial discovery of certain reports and materials, including the Department of Probation file of the complaining witness who is apparently a reformed drug addict with shoplifting convictions in another state. She is now attending College with an "A" average after moving to New York pursuant to order of that state transferring supervision to this jurisdiction. Complainant's turnabout apparently took place during a series of events in her life, one of which consisted of a highly publicized lawsuit in the Federal courts which recognized her right to nurse her child while incarcerated.

In these discovery proceedings which were ruled upon by the court prior to trial, defendants argued that in order to adequately prepare for trial, they were constitutionally entitled to complainant's probation records; that denial of access to this material would have deprived them of their Sixth Amendment right to confront and cross-examine this adverse witness. We disagree; have so ruled; and issue this opinion as a guide to the profession in future analogous situations. Neither statute nor case law specifically addresses this precise issue. By analogy however, certain principles are applicable by interpolation to the situation at bar. The confidentiality of specific reports prepared in the course of the litigation process has been closely scrutinized both by courts and legislature. Indeed, CPL 390.50(1) referring to the probation report of a defendant in connection with sentencing, mandates that same "is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of court." The closest analogy we can find to a modus operandi which strikes a reasonable balance between statutory confidentiality and implementation of a public policy favoring liberal disclosure exists with regard to the confidentiality of police personnel records. Section 50-a of the Civil Rights Law, fairly reflects pre-existing judicial consenus in such situations. After declaring police personnel records to be confidential, the statute provides that, on "a clear showing of facts sufficient to warrant the judge to request records for review," an in camera inspection is to be conducted. If the court...