People v. Collins

• Decision Date: 05 October 1973
• Citation: 75 Misc.2d 535,348 N.Y.S.2d 99
• Parties: PEOPLE of the State of New York, Plaintiffs, v. Barry COLLINS, Defendant.
• Court: New York County Court

Page 99

348 N.Y.S.2d 99

75 Misc.2d 535

PEOPLE of the State of New York, Plaintiffs, v. Barry COLLINS, Defendant.

Nassau County Court, Special Term, Part I.

Oct. 5, 1973.

As Amended Oct. 12, 1973.

William Cahn, Dist. Atty., Nassau County, Mineola, for petitioner.

James J. McDonough, Legal Aid Society of Nassau Co., Crim. Div., Mineola, Atty. in charge, Atty., for defendant.

DAVID T. GIBBONS, County Judge.

Under the indictment herein, the defendant is charged with the commission of the crimes of Criminal Sale of a Dangerous Drug in the third degree, and Criminal Possession of a Dangerous Drug in the fourth degree.

By this motion, the defendant challenges the constitutionality of Notice of Alibi provisions of Section 250.20 of the Criminal Procedure Law, and under his Notice of Motion seeks the following relief:

'1. Declaring that Section 250.20 of the Criminal Procedure Law is unconstitutional, as it does not provide for reciprocity of disclosure.

2. That the defendant, BARRY COLLINS, may offer at trial a defense that the time of the commission of the crime charged, he was at some place other than the scene of the crime and he may give testimony and call witnesses in support of such defense without complying with Section 250.20 of the Criminal Procedure Law.

3. That if the court finds that Section 250.20 of the Criminal Procedure Law is constitutional and does provide for reciprocity of disclosure, then the defendant seeks an order requiring the prosecution to disclose to the defendant the names, residential addresses and places of employment of every witness who will be produced to disprove the defense of alibi.'

The statute under attack provides that the defendant, upon written demand by the district attorney, must state in advance of trial whether he intends to rely upon a defense of alibi. If he so intends, he must, within 4 days after said demand, disclose to the People the place where he claims he was at the time of the alleged offense, and the names and addresses of the witnesses which he intends to use on the trial to establish such alibi. The statute also provides for sanction against the defendant to the effect that his failure to comply therewith may result in the exclusion of his witnesses offered at the trial to prove such alibi defense.

The underlying basis for the defendant's argument is that Section 250.20 of the CPL is unconstitutional for the reason that it does not provide for reciprocity of disclosure on the part of the People to reveal the identity of those witnesses which it proposes to use at the trial in rebuttal of the defendant's alibi witnesses:

The Supreme Court of the United States in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), held that the Florida notice of alibi rule, which provided for the defendant's pre-trial disclosure of his alibi witnesses, as well as the prosecution's disclosure of those witnesses which it intended to offer in rebuttal of the defendant's alibi witnesses, was constitutional.

The Williams Court stated (p. 82, 90 S.Ct. p. 1896, n. 11) that the norm to be applied in determining whether a notice of alibi statute is constitutional is 'whether the defendant enjoys reciprocal discovery against the State.'

In 1973, the Supreme Court of the United States in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, was called upon to pass upon the constitutionality of the notice of alibi statute of the State of Oregon which made no provision for reciprocal discovery.

In its determination of the question presented, the court, in Wardius reiterated (p. 472, 93 S.Ct. p. 2211) the rule, 'that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.'

In the process of striking down the Oregon notice of alibi statute, the court, in Wardius, expressed the philosophy of its ruling in the following language: (412 U.S. pp. 474, 475, 93 S.Ct. p. 2212, 37 L.Ed.2d p. 87)

'The Williams court was therefore careful to note that 'Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is carefully hedged with reciprocal duties requiring state disclosure to the defendant', 399 U.S. at 81, 90 S.Ct. 1893, at 1896 (footnote omitted), 26 L.Ed.2d 446. The same cannot be said of Oregon law. As the State conceded at oral argument, see transcript of oral argument at 19, Oregon grants no discovery rights to criminal defendants and, indeed, does not even provide defendants with bills of particulars. More significantly, Oregon, unlike Florida, has not provision which requires the State to reveal the names and addresses of witnesses it plans to use to refute an alibi defense.' (Emphasis added)

The precept upon which its ruling rests lies in the apparent deficiencies in the body of the Oregon law to afford both the People and the defendant equal and reciprocal rights in the area of witnesses disclosure, a deficiency which existed not only in the notice of alibi statute, when being considered, but also in the general tenor of the Oregon Law against such equal treatment. The court stated in this regard as follows (pp. 475, 476, 93 S.Ct pp. 2212, 2213):

'We do not suggest that the Due Process Clause of its own force requires Oregon to adopt such provisions. Cf. United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a 'search for truth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.'

Measured against the constitutional demands expressed in Wardius, the court will first consider the posture and substance of the law in the State of New York, and the capabilities of its court to not only require disclosures by the defendant, but also to compel the prosecution to disclose material elements of its case to the defendant in the interest of fairness.

Unlike the state of the law on Oregon where there is no provision for disclosure by the People, the State of New York has, over the years, established a large body of both case and statute law in which is evinced a strong desire to make discovery a 'two-way street'.

In 1927 a monumental step forward came with the recognition of an inherent 'supervisory jurisdiction' in the courts of New York to grant disclosure in appropriate circumstance by Chief Judge Benjamin Cardoza of the New York Court of Appeals in People ex rel. Lemon v. Supreme Court in 245 N.Y. 24 at page 32, 156 N.E. 84 at page 86, where he declared:

'Whether apart from statute and beyond it there is a Supervisory jurisdiction, as yet unplumbed and unexhausted, in respect of criminal prosecutions, is something that can best be determined at the call of particular exigencies in the setting of the concrete instance.' (emphasis added)

In the ensuing years there came down a series of ad hoc decisions of the courts of this state in which the field of discovery was extensively broadened in the area relating to compelling disclosure by the prosecution for the benefit of the criminal defendant.

In People v. Remaley, 26 N.Y.2d 427, 311 N.Y.S.2d 473, 259 N.E.2d 901, the defendant was provided with a copy of his own written statement. In People v. Courtney, 40 Misc.2d 541, 243 N.Y.S.2d 457, the defendant was provided with the autopsy report; in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, the defendant was furnished with copies of statements made by prosecution witnesses and minutes of their testimony before the grand jury for the purpose of cross-examination. In People v. Terzani, 149 Misc. 818, 269 N.Y.S. 620, the defendant was furnished with reports of his fingerprints. In People v. Perrell, 47 Misc.2d 1024, 263 N.Y.S.2d 640, the defendant was permitted to perform chemical tests of the alleged narcotic upon which the prosecution was based. In People v. Chambers, 56 Misc.2d 683, 687, 289 N.Y.S.2d 804, 808, the People were required to disclose the name of the undercover police agent where a defense of entrapment was interposed. An inspection of hospital records was allowed in People v. Preston, 13 Misc.2d 802, 176 N.Y.S.2d 542, writ of prohibition denied sub-nom, Silver v. Sobel, 7 A.D.2d 728, 180 N.Y.S.2d 699. In People v. Lynch, 23 N.Y.2d 262, 273, 296 N.Y.S.2d 327, 335, 244 N.E.2d 29, 36, it was held that disclosure of the names of the prosecution's witnesses and their statements is a matter resting in the sound discretion of the court.

The Federal Rules of Criminal Procedure were amended in 1966 by the inclusion of Rule 16 which represented a considerable enlargement of the magnitude of pre-trial discovery. It was from this statute that Article 240 of the CPL was fashioned and enacted into the law of this state and became effective in September 1971.

The draftsman's practice commentary under Article 240 of the CPL states:

'By amendment in 1966 to the federal 'Rules of Criminal Procedure' (Rule 16), the scope of pre-trial discovery in the federal jurisdiction was materially expanded. These formulations, which are far more liberal and precise than anything to be gleaned from New York case law, seems to provide a fair implement to defendants about to go on trial without working undue hardship on the prosecution. With some structural and phraseological alterations, Federal Rule 16 is, in substance, adopted in CPL Article 240.'

The enactment of CPL Article 240 providing for discovery not only codified the large body of...