People v. Cortez
| Citation | 564 N.Y.S.2d 963,149 Misc.2d 886 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Ricardo CORTEZ, Defendant. |
| Decision Date | 12 December 1990 |
| Court | New York City Court |
Office of Robert Baum, Legal Aid Soc. (Ann Moynihan, of counsel), for defendant.
Can administrative convenience justify the destruction of subpoenaed evidence? What is the appropriate remedy for the erasure of subpoenaed police communication tapes?
The salient facts are not in dispute. Defendant was arrested on April 7, 1990. The arresting officer's sworn complaint alleges, inter alia, that defendant was driving a stolen 1979 Oldsmobile at the time and place of arrest. A Sprint printout indicates that the officer spoke with his command during the pursuit. The On-Line Booking System (OLBS) arrest worksheet, a form routinely prepared during the booking process, indicates that the car had not been reported stolen.
At issue for determination at a Dunaway hearing is the basis for defendant's stop and arrest. What did the officer know about the vehicle's status, and when did he know it? The radio communications recorded prior to the arrest would be material to the Court's determination.
Upon defense's request, Judge William Miller signed a subpoena duces tecum dated May 15, 1990 ordering the Police Department to produce the "Sprint record, 911 tape, radio transmission and other alarms" in court on June 21, 1990. The subpoena contained the customary warning that failure to comply would be punishable as a criminal contempt, with penalties including fine or imprisonment. The subpoena was served on the Police Department Communications Division on June 5, 1990.
A subpoena duces tecum directs its recipient to bring specified documents or things to court for use at hearing or trial and enables the court to examine the items and make appropriate direction regarding their use in the action. CPLR 2301 et seq.; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924. It thus may be used to secure and preserve evidence.
A subpoena duces tecum directed to a governmental agency must be issued by a court. CPLR 2307; CPL 610.20(3). It is a court order, not a party's discovery demand or notice. See People ex rel. Hickox v. Hickox, 64 A.D.2d 412, 410 N.Y.S.2d 81 (1st Dept.). A subpoena is not a mere request, susceptible to being followed or not, according to the whim of its recipient. To permit the recipient to unilaterally determine the time and manner of compliance would negate the very nature of a subpoena. Once the court has determined, by signing the subpoena, that material shall be produced, the recipient has a simple choice: comply or move to quash. See CPL 610.40, CPLR 2304. If the recipient elects to do neither, it voluntarily subjects itself to the inevitable consequences. Thus, once a subpoena has been properly served, the focus of the court's inquiry must be on the recipient, not the server, unless the recipient moves to quash. 2
At issue here, therefore, is the Police Department's obligation to comply with a facially valid court order, not counsel's non-compliance with a unilaterally imposed administrative procedure.
Defense counsel acted properly by serving a court-ordered subpoena for specifically designated and correctly described items. She did so at a time when the tapes concededly were extant and accessible. Having done so, she had no obligation to do anything else. The subject subpoena was served 16 days before the return date, well in excess of the statutorily required notice period (CPLR 2307[a] and far in advance of the erasure deadline. The Police Department had more than an adequate opportunity, by its own guidelines, to comply or to seek to quash.
The Police Department may have valid concerns that tapes are automatically requested without thought to actual need; 3 Wilful disobedience of a court-ordered subpoena is considered sufficiently serious to constitute a criminal contempt. See CPLR 2308; Judiciary L.Secs. 750, 751 (civil remedy of Criminal Contempt); Penal L. Sec. 215.50(3) (). When a law enforcement agency deliberately ignores a court order, it thereby undermines the rule of law itself. The Police Department can assert no unique privilege to pick over court orders and choose to enforce only those it deems worthy of enforcement. When the Police Department pursues a policy which arrogates to itself a veto power over the courts, it further erodes public confidence in law enforcement. See Boung Jae Jang v. Brown, 161 A.D.2d 49, 56, 560 N.Y.S.2d 307 (2d Dept.).
it has no authority to compel an attorney or judge to do anything not statutorily required before it complies with a facially valid, timely subpoena. To hold otherwise would permit an administrative agency, under the guise of its own rule-making power, to amend state law. This would be a clear [149 Misc.2d 890] ultra vires act in contravention of the principle of separation of powers
The Police Department here is not a mere bystander. Unlike many subpoena recipients, it is not a disinterested holder of material relevant to litigation. The Police Department is the agency which arrested defendant and initiated his prosecution. The subpoenaed material is clearly relevant to the propriety of the police's own actions; indeed, its relevancy has never been disputed by police or prosecutor. Cf. People v. Cabon, 148 Misc.2d 260, 560 N.Y.S.2d 370 (Crim.Ct., N.Y.Co.); People v. Morrison, 148 Misc.2d 61, 559 N.Y.S.2d 1013 (Crim.Ct., N.Y.Co.); People v. Cruz, 166 A.D.2d 936, 560 N.Y.S.2d 722 (Crim.Ct., N.Y.Co.). It is axiomatic that one may not be the judge in one's own cause. If the Court were to permit the Police Department to limit or condition its compliance with a subpoena, it would improperly delegate judicial power to an interested party. See U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039. Moreover, it would enable the Police Department to insulate itself from review and deprive the defendant of a meaningful opportunity to challenge the police action.
Accordingly, the Court finds that the erasure constituted an unjustifiable defiance of a court order which must be appropriately punished.
The prosecution has an independent duty to turn over to the defense, prior to any hearing or trial, any written or recorded statement in its possession, made by a witness it intends to call. People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; CPL Secs. 240.44(1); 240.45(1)(a). The statute does not require the defense to apply for a subpoena or make any demand or motion as a condition precedent.
Even if such a statement may be discoverable by demand or motion (see, e.g., CPL Sections 240.20(1)(g); 240.40(1)(a)) the defense need not take such action unless it desires access at an earlier stage of the action. The prosecution has a correlative duty to use reasonable care to preserve such statements in its possession. People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; see People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498; U.S. v. Bryant, 439 F.2d 642 (2d Cir.). However, "[w]here the defense has provided specific notice of its interest in particular material, heightened rather than lessened prosecutorial care is appropriate." People v. Vilardi, 76 N.Y.2d 67, 77, 556 N.Y.S.2d 518, 555 N.E.2d 915.
The master tapes kept by the Police Department Communications Division are simply a storage medium. The tapes themselves are not Rosario material. Audio tape should be treated no differently, for Rosario analysis, from any other storage medium, e.g., paper, videotape, or computer disc. If a storage medium contains Rosario material, the Rosario material must be accurately copied, without editing, in the same medium.
It is conceded that the master tapes contained recorded conversations of the arresting It is immaterial that the District Attorney was not a party to the adoption of the police erasure policy and did not actively participate in destruction of the subject tape. 4 While the District Attorney does not control the Police Department, both law enforcement agencies must be considered in privity in conducting prosecutions initiated by a police-made arrest. See People v. Churba, 76 Misc.2d 1028, 353 N.Y.S.2d 130 (Crim.Ct., N.Y.Co.). Thus, for Rosario-rule purposes, recorded statements held by the police must be deemed in the prosecutor's constructive possession.
officer and his command regarding the status of the car pursued. The arresting officer would be a necessary witness at the Dunaway hearing and trial, and undoubtedly would be questioned about his knowledge and/or assumptions about defendant and the car. There can be no doubt that the subpoenaed tape contained Rosario material. Compare People v. Williams, 165 A.D.2d 839, 560 N.Y.S.2d 220...To continue reading
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