People v. Coleman

• Decision Date: 09 November 1973
• Citation: 349 N.Y.S.2d 298,75 Misc.2d 1090
• Parties: PEOPLE of the State of New York v. Anna D. COLEMAN, Defendant.
• Court: New York County Court

Page 298

349 N.Y.S.2d 298

75 Misc.2d 1090

PEOPLE of the State of New York v. Anna D. COLEMAN, Defendant.

Nassau County Court, Special Term, Part I.

Nov. 9, 1973.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

Maccaro, Newmark, Lamb, Dowling & Marchisio, Garden City, for defendant.

JOHN S. LOCKMAN, Judge.

The defendant, by her attorney, applies for three judicial subpoenas duces tecum to be directed to governmental or municipal entities. (CPL § 610.20(3); CPLR 2307). These subpoenas would require the production in Court of various police records relating to the crimes charged in the indictment, personnel records of the complainant police officers, records of the District Attorney's office as to other complaints of assault made by these police officers, and records of the Freeport Human Rights Commission relating to complaints made against these police officers. The Nassau County District Attorney and the Freeport Police Department have appeared in opposition. The Freeport Human Rights Commission has not so appeared.

At the outset we are called upon to determine what issues may properly be considered upon an application pursuant to CPLR 2307. The defendant contends that CPLR 2307 merely charges the Court with the duty of performing an essentially ministerial act. She argues that the sole consideration before the Court is whether original documents or copies should be produced. This proposition is not without support. (Friedeberg v. Haffen, 162 App.Div. 79, 147 N.Y.S. 1; Masten v. State, 14 Misc.2d 119, 179 N.Y.S.2d 93; Cannon, Practice Commentary to CPLR 2307, Book 7B (McKinney's)). However, CPLR 2307(b) provides that, as a general rule, the production of photostatic copies constitutes compliance with a subpoena issued under CPLR 2307(a). As the Practice Commentary recognizes, to construe CPLR 2307(a) as requiring only that the Court decide whether originals or copies are to be produced renders that statute meaningless in light of CPLR 2307(b). We cannot so construe an act of the Legislature. (Neddo v. State, 194 Misc. 379, 85 N.Y.S.2d 54, aff'd 275 App.Div. 492, 90 N.Y.S.2d 650, aff'd 300 N.Y. 533, 89 N.E.2d 253). Case law indicates that upon an application for a judicial subpoena duces tecum the Court may consider various issues including the materiality and relevancy of the items sought to be subpoenaed (Trombetta v. Van Amringe, 156 Misc. 307, 280 N.Y.S. 480), the specificity of the demand (Blaikie v. Borden Co., 47 Misc.2d 180, 262 N.Y.S.2d 8), and the public policy involved, if any (Yude v. Cruise, 261 App.Div. 938, 25 N.Y.S.2d 449, aff'd 287 N.Y. 603, 38 N.E.2d 710; McGowan v. Metropolitan Life Ins. Co., 234 App.Div. 366, 255 N.Y.S. 130; In re Green, 92 Misc. 503, 157 N.Y.S. 87). Indeed Weinstein, Korn and Miller in their treatise, New York Civil Practice (vol. 2A, par. 2307.03), indicate that when a CPLR 2307 application is opposed, the Court may treat the proceeding as a motion to quash. This construction has the virtue of a proper deference for an act of the Legislature and additionally provides for a more efficient procedure in that the application and any motion to quash which might otherwise be made are disposed of in a single proceeding.

The use which the defendant intends to make of the items which she would have us subpoena is the decisive factor in determining whether these applications should be granted. 'A subpoena duces tecum (may not) be used for the purpose of discovery or to ascertain the existence of evidence.' (Matter of Saratoga Harness Racing Ass'n, Inc. v. Monaghan, 9 Misc.2d 868, 872, 169 N.Y.S.2d 520, 524; Cataldo v. County of Monroe, 38 Misc.2d 768, 238 N.Y.S.2d 855, aff'd 19 A.D.2d 852, 243 N.Y.S.2d 986). Rather, it is a Court process which directs an individual to appear together with books, documents, papers or other items in his possession so that by reference to these items he may give testimony relevant to the matter under inquiry and, through the production of evidence, assist in the pursuit of truth. (CPL § 610.10(2) and (3); CPLR 2301; Franklin v. Judson, 96 App.Div. 607, 88 N.Y.S. 904). '(A subpoena duces tecum) gives no right whatever to the inspection of the books by . . . counsel.' (Franklin v. Judson, supra at 607, 88 N.Y.S. at 904). Where it is apparent that a party does not intend or cannot hope to offer testimony which refers to the items subpoenaed but merely seeks discovery and inspection, his application should be denied. (Saratoga Harness Racing Ass'n, Inc. v. Monaghan, supra; In re Ebbet's Will, 155 Misc. 870, 280 N.Y.S. 710).

From the Freeport Police Department the defendant would have us subpoena, Inter alia, the personnel profile records of Officers King and Honeyman, the complainants herein, and any and all records, complaints, inquiries and investigations, whenever made, pertaining to their performance as police officers. The defendant asserts that these items are necessary to enable a cross-examination of Officers King and Honeyman as to their professional competence as well as on their credibility.

The defendant has failed to inform the Court and we fail to see how the professional competence of the complainant police officers is relevant and material to a prosecution for assault. (Penal Law Art. 120). The defendant does make reference to alleged undue apprehensiveness of assault on the part of Officers King and Honeyman and also hints that they have a tendency to use unnecessary physical force. However, at no point does the defendant express an intention of offering a defense of justification (Penal Law 35.15) nor allege any facts tending to show that that defense is available. At best the defendant appears to be foraging for evidence that such a defense would be reasonable. This is not a proper use of a subpoena duces tecum. (Saratoga Harness Racing Ass'n, Inc. v. Monaghan, supra.).

In support of her contention that these items should be subpoenaed to permit an attack upon the credibility of the complaining witnesses the defendant cites People v. Sumpter, 75 Misc.2d 55, 347 N.Y.S.2d 670 (Sup.Ct. New York County). There the Court denied a motion to quash a subpoena such as the one now before us holding, Inter alia, that (p. 56), 347 N.Y.S.2d p. 673):

'The right of a defendant to confront and cross-examine witnesses is fundamental. This includes the right to attempt to impeach the credibility of a witness by proving his prior conviction of crime and by inquiring into facts showing his general reputation with respect to truth and veracity and any immoral, vicious or criminal act which might affect his character and tend to show the witness is not worthy of belief.'

While we do not quarrel with this statement of law, the result which the Court derived from it is unacceptable. The statement makes a basic and traditional distinction which, under the facts of the case before us, compels a denial of the subpoena with reference to the items now under consideration.

A witness may indeed be impeached by Proof of a criminal conviction or by Inquiry into his reputation for truth and veracity as well as any past vicious, immoral or criminal conduct. The word 'proof' is used as shorthand for the rule that a criminal conviction may be shown by extrinsic evidence while the word 'inquiry' expresses the rule that extrinsic evidence of past vicious, immoral or criminal conduct whether standing alone or as support for testimony of a poor reputation for truth and veracity may not be offered. Testimony as to past vicious, immoral or criminal conduct may be elicited only from the witness himself. (People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637). While witnesses may be called to testify as to reputation for truth and veracity, they may not, on direct, be asked about specific conduct which may have led to that reputation. (Conley v. Meeker, 85 N.Y. 618; Richardson on Evidence (9th Ed.) § 507). This rule of exclusion rests upon sound policy considerations to wit: insulation of the jury from collateral issues which may tend to confuse and avoidance of surprise attacks upon witnesses who cannot be expected to enter Court prepared to defend every act of their past lives against charges which may never previously have been made. (3 Wigmore, Evidence (3rd Ed.) § 979).

In the instant case the defendant does not merely seek records of criminal conviction, rather she appears to contemplate a broad assault upon the credibility of the complainants through reputation evidence and past vicious, immoral and criminal conduct. Neither method of impeaching credibility permits the offering of testimony referring to the content of the items the defendant would have us subpoena. Thus the only purpose the defendant could have in seeking the production of the items now under discussion would be discovery and inspection. As we have discussed previously, this is not a proper use for a subpoena duces tecum. (People v. Fraiser, 75 Misc.2d 756, 348 N.Y.S.2d 529 (Nassau County Court).

Even if the subpoena duces tecum were a discovery device, public policy militates against the granting of an unlimited right to inspect the personnel records of prospective witnesses. No rational distinction divides police officers from other citizens. Were we to find that the defendant is entitled to what he seeks, every...