People v. Colavito

• Decision Date: 08 February 1996
• Citation: 639 N.Y.S.2d 996,87 N.Y.2d 423,663 N.E.2d 308
• Parties: , 663 N.E.2d 308 The PEOPLE of the State of New York, Respondent, v. Ronald COLAVITO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 996

639 N.Y.S.2d 996

87 N.Y.2d 423, 663 N.E.2d 308

The PEOPLE of the State of New York, Respondent, v. Ronald COLAVITO, Appellant.

Court of Appeals of New York.

Feb. 8, 1996.

Jacobowitz & Gubits, Walden (Andrea D. Pawliczek, of counsel), for appellant.

Francis D. Phillips, II, District Attorney of Orange County, Goshen (Gerald D. D'Amelia, Jr., of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

This appeal raises a question concerning the People's obligation to seek out and obtain before trial evidence not in their possession or control. In particular in this case, the two money orders now at issue were not otherwise subject to discovery under CPL article 240. They were, however, within the scope of the People's voluntary disclosure agreement to provide to the defense. The People acquired the two money orders during trial and immediately turned them over to defense counsel.

We conclude that the money orders were properly admitted as evidence in the People's case-in-chief, because (1) they were not discoverable as a matter of right pretrial; (2) disclosure during trial did not violate the voluntary arrangement; (3) there was no bad faith on the part of the prosecutor; and (4) no undue prejudice as a matter of law infected the trial court's discretionary ruling. The order of the Appellate Division upholding the conviction, now before us by leave to appeal granted by a Judge of this Court, should therefore be affirmed.

Defendant was an Orange County Deputy Sheriff, assigned as the Commissary Officer for the Orange County Correctional Facility. His responsibilities included administering the Commissary bank account, into which funds were deposited on behalf of inmates for use in purchasing personal items. During defendant's tenure, he drew at least 38 checks on that account, which were payable to the local post office for the purchase of money orders. An audit revealed numerous irregularities and irreconciliations with respect to the checks and the account. Although the checks were made payable on their face to "Postmaster," the defendant was proved to have altered the check stub records, maintained at the Correctional Facility, to reflect different payees. An accountant's analysis of the records revealed approximately $14,000 worth of these checks as suffering from irreconcilable discrepancies. Defendant was convicted after a jury trial of grand larceny in the third degree, falsifying business records in the first degree and official misconduct, arising out of the embezzlement of the checks and the alteration of the records.

About nine months before trial, the People provided defense counsel with a "voluntary disclosure form," agreeing to allow inspection of "[p]hysical evidence to be introduced at the trial or hearings which is the subject of the Indictment." The People fully complied with this arrangement as to all physical evidence in their possession. The actual money orders that defendant was alleged to have purchased with the unauthorized checks were not produced before trial, because the District Attorney had not obtained them. While some disagreement persists as to the availability, location and effort to find and obtain these records, the dispositive question on this appeal centers on the legal obligation of the prosecution to acquire and disclose such evidence before trial and the consequence for admissibility at trial.

Two weeks into defendant's trial, the prosecutor announced that two of the money orders had been located and would be offered into evidence. He immediately provided copies to the court and to defense counsel. The two money orders were particularly significant because they were payable to an attorney in partial satisfaction of a debt owed to United Jersey Bank by the defendant. These records thus supplied direct evidence that some of the missing funds had been converted to defendant's personal advantage. The People also introduced into evidence a copy of the judgment against defendant in favor of United Jersey Bank.

Defense counsel objected to the introduction of the money orders, arguing that they would severely prejudice his client's defense. Counsel claimed that he had built the defense, including his opening statement, around the absence of any direct documentary evidence that the stolen money had inured to the benefit of the defendant. The District Attorney countered that his office had decided to pursue the money orders around the time the case was ready to go to trial, and soon after a trial court ruling suppressing defendant's inculpatory admission. As soon as the quest for this documentary evidence proved partially successful, the People immediately turned copies of the money orders over to the defense. The Trial Judge overruled the defense objection and admitted the evidence, offering the defense time for an adjournment to deal with the new evidence as it might deem fit and necessary.

On this appeal, defendant concedes that the People did not have possession of the money orders until after the trial had begun and that they turned the items over immediately. Instead, the claim is one of surprise, prejudice and error as a matter of law derived from defendant's novel prosecutorial discovery obligation.

At common law, courts were without power to order discovery in criminal cases (People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 28, 156 N.E. 84 [Cardozo, Ch. J.]. More recently, in addition to overarching imperatives premised on constitutional rights and fundamental fairness (see, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; see also, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; CPL 240.40[1][c] ), the Legislature has prescribed a detailed discovery regimen in New York embodied in article 240 of the Criminal Procedure Law (see, People v. Copicotto, 50 N.Y.2d 222, 225, 428 N.Y.S.2d 649, 406 N.E.2d 465; see also, People v. DaGata, 86 N.Y.2d 40, 44, 629 N.Y.S.2d 186, 652 N.E.2d 932). Items not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated (People v. Copicotto, supra, at 226, n 3, 428 N.Y.S.2d 649, 406 N.E.2d 465; see, Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 240.10, at 216-217). No such exceptional circumstances are urged or appropriately at issue in this case or on this appeal. Thus, we turn to the standard discovery rubrics provided by the Criminal Procedure Law.

The CPL does not expressly compel pretrial discovery of evidentiary material--such as the money orders at issue here--which the prosecution intends to introduce at trial (see, CPL 240.20). Voluntary inspection of such evidence may be prudent, however, and ought in any event to be encouraged to help prevent delays and potential prejudice (see, 2 LaFave and Israel, Criminal Procedure § 19.3[e], at 490 [1984]. Moreover, in the sound exercise of responsible discretion, the trial court may order early prosecutorial disclosure under certain defined circumstances (see, CPL 240.40[1][c] ).

Sound practice is illustrated by what took place here. The prosecution voluntarily agreed to allow inspection of all physical evidence in its possession that it intended to introduce at trial, and defendant acknowledges that the People fully complied with respect to materials actually in their possession. After the People obtained the money orders midtrial and decided then that they would seek their admission into evidence, the trial court weighed all the circumstances, offered a reasonable opportunity for an adjournment and then properly...