People v. Copicotto

• Decision Date: 06 May 1980
• Parties: , 406 N.E.2d 465 The PEOPLE of the State of New York, Respondent, v. Leonard COPICOTTO and Myriam Copicotto, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 649

428 N.Y.S.2d 649

50 N.Y.2d 222, 406 N.E.2d 465

The PEOPLE of the State of New York, Respondent, v. Leonard COPICOTTO and Myriam Copicotto, Appellants.

Court of Appeals of New York.

May 6, 1980.

Stanley L. Shapiro, Commack, for appellants

John J. Santucci, Dist. Atty. (John H. Larsen, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

Defendants were convicted upon a jury's verdict of petit larceny for the theft of merchandise from Macy's Department Store. Prior to trial, the People were granted discovery of sales receipts in defendants' possession, allegedly for the property which was the subject of the charge. At trial, these receipts were used by defense counsel in an effort to impeach prosecution witness Kitty Wills, the store detective, by seeking to create an inference that the receipts were for the items of property allegedly stolen. On the People's rebuttal, the prosecutor recalled Ms. Wills and swore another Macy's employee to show that the receipts actually represented purchases made after defendants had been arrested and questioned. Defendants urge on this appeal that the grant of the People's motion for pretrial discovery was improper under the discovery statute and the Fourth and Fifth Amendments to the United States Constitution. We take a contrary view and therefore affirm.

In this State, pretrial discovery by the defense and prosecution is governed by statute, CPL article 240. ¹ As applicable to this case, that article provides that upon motion of a defendant, the court must order discovery of the defendant's Grand Jury testimony and any written or recorded statements within the possession or control of the District Attorney made by the defendant to persons engaged in law enforcement activity (CPL 240.20, subd. 1). An order of discovery in favor of the defendant may be issued as a matter of discretion with respect to reports and documents concerning physical or mental examinations or scientific tests and experiments which are within the possession or control of the District Attorney (CPL 240.20, subd. 2). Upon a showing that the request is reasonable and that the property is material to the preparation of the defense, discovery may also be ordered for any other property specifically designated by the defendant, except exempt property, ² which is within the possession or control of the District Attorney (CPL 240.20, subd. 3).

Discovery ordered in the court's discretion under subdivisions 2 and 3 serves as a predicate for a prosecution motion for reciprocal discovery. Upon motion by the People showing that the request is reasonable and the property is material to the preparation of their case, the grant of the defendant's discovery motion may be conditioned by a direction for "discovery by the people of property, other than exempt property, of the same kind or character as that authorized to be inspected by the defendant, which is within the possession, custody or control of the defendant and which he intends or is likely to produce at the trial" (CPL 240.20, subd. 4). Both sides have a continuing duty to disclose property covered by a discovery order and, for a breach of that duty, the court may order the violating party to permit inspection of subsequently discovered property, grant an adjournment, preclude use of the property as evidence or take other appropriate action (CPL 240.40).

The criminal discovery procedure embodied in article 240, adopted in substance from Rule 16 of the Federal Rules of Criminal Procedure (see Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL art. 240, p. 466; Judicial Conference Report on the CPL, Appendix B, McKenna, Memorandum and Proposed Statute Re Discovery, McKinney's 1974 Session Laws of New York, pp. 1860, 1868), evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence (see Notes of the Advisory Committee on the Proposed 1974 Amendment to Rule 16 of the Federal Rules of Criminal Procedure). In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice. ³

Examination of the disclosure proceedings here in light of the statutory provisions and the underlying legislative policy reveals that the prosecution request was properly granted. At the first hearing on the omnibus defense motion seeking discovery and the prosecution motion for reciprocal discovery, the People we directed to turn over any statements made by defendants and to provide defendants with a list of property seized. The prosecutor complied by offering a copy of the police property voucher and by stating that no other property was seized. Defense counsel also sought discovery of statements contained in an internal security report of the incident to Macy's, prepared by the store detective, Kitty Wills. At the November 4 hearing, Judge Roth ordered the prosecutor to make the material available to the defense. The court also granted the prosecution motion for disclosure of sales receipts allegedly showing the purchase by defendants of the merchandise they were charged with stealing. Defense counsel had informed the prosecution of the existence of these sales receipts but had refused to permit inspection. Defense counsel objected, arguing that there was no predicate for reciprocal discovery as disclosure of defendants' statements was mandatory and the request for the Kitty Wills memorandum was for material favorable to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, not the discovery provisions.

Contrary to defendants' assertion, the then applicable statutory prerequisites for reciprocal discovery were present. True, the request by defendants for disclosure of their written or recorded statements cannot serve as the predicate for discovery by the prosecution, for disclosure of such material is available to the defense as of right (CPL 240.20, subd. 1, par. (b)). ⁴ The grant of defendants' request for the Wills memorandum, however, did provide a foundation sufficient to permit discovery by the prosecution. Defendants have pointed to nothing to indicate how the memorandum can be considered Brady material or subject to the mandatory disclosure provisions of article 240. ⁵

Also rejected is defendants' argument that disclosure of the sales receipts was improperly directed because they were not property "of the same kind or character as that authorized to be inspected by the defendant" (C PL 240.20, subd. 4). Notwithstanding the protests to the contrary, an adequate relationship exists between the request for the receipts and defendants' request for the memorandum from the security officer. In opposing disclosure, defendants apparently seek to limit the availability of prosecution discovery to items which are the mirror image of items directed to be disclosed to the defendants. The statutory requirement, however, should not be so narrowly construed. Of course, the prosecution's right to discovery is not an independent right, being triggered only by a defense request for discretionary discovery and restricted to like property. ⁶ But this restriction does not demand identity of requests (see People v. Catti, 90 Misc.2d 409, 394 N.Y.S.2d 1017; People v. Green, 83 Misc.2d 583, 371 N.Y.S.2d 271). To so construe the statute would defeat unnecessarily the legislative design to increase the availability of information to both sides. Consistent with both the purpose to expand discovery rights and the notion that prosecution discovery is merely reciprocal, it is sufficient if the material sought by the prosecution is of the same general character as that sought by the defendant and touches the same subject matter.

Having concluded that the People's discovery was proper under the statute, we reach and reject defendants' constitutional assault upon the grant of the People's motion here. Of course, in authorizing disclosure in favor of the People, care must be taken not to impinge upon the criminal defendant's right not to be compelled to be a witness against himself. This Fifth Amendment privilege proscribes only testimonial compulsion, not that which merely makes a person the source of real or physical evidence (People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584, app. dsmd. --- U.S. ----, 100 S.Ct. 197, 62 L.Ed.2d 127; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908). In this case, there has been no compelled testimonial disclosure in violation of the privilege.

The act of complying with a demand to produce specified evidence has communicative aspects, involving the tacit representation by the individual of the existence of the item, its possession by him and his belief that the item produced is that sought in the demand (see Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct....