People v. Courtney

• Citation: 40 Misc.2d 541,243 N.Y.S.2d 457
• Parties: . Supreme Court, Special and Trial Term, New York County, Part XXX
• Decision Date: 08 October 1963
• Court: United States State Supreme Court (New York)

Page 457

243 N.Y.S.2d 457

40 Misc.2d 541

The PEOPLE of the State of New York v. Jimmy Wilson COURTNEY, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXX.

Oct. 8, 1963.

Frank S. Hogan, New York, City (James C. Mosley, New York City, of counsel), for plaintiff.

Emanuel Elbaum, New York City, for defendant.

ABRAHAM N. GELLER, Justice.

Defendant, indicted for murder in the first degree, has moved for the following bill of particulars:

'1. The exact time and place where the alleged killing occurred.

'2. The nature and character of the place where the alleged killing occurred.

'3. The exact place where the body of the deceased was found.

'4. A copy of the Medical Examiner's report and/or autopsy report with respect to the cause of death of Elias Negron and the medical facts in connection therewith.

'5. The exact description, make, number, calibre and other identification of the weapon used.

'6. The registration and owner of said weapon.

'7. The exact name and identification of the person in whose possession the weapon used was found and where when and under what circumstances said weapon was found '8. The exact time and place of the arrest of the defendant herein and the identity of the arresting officers.

'9. The identity of the person or persons arrested with defendant at the time of his arrest or under arrest at the time of his arrest in connection with this crime.

'10. The exact description, make, number, calibre and other identification of the weapon used as referred to in the complaint and short affidavit in the arrest of the defendant and one FRANK GONZALES in connection with this crime, and the ballistics report with reference thereto.

'11. Copy of all statements and transcriptions of testimony taken from the defendant herein since on or about 3:00 A.M. on February 12, 1963.'

There is no provision in our Code of Criminal Procedure for a bill of particulars, except with regard to a simplified indictment, and the form therein provided (§ 295-i) that only certain bare essentials are to be furnished. However, where the circumstances warrant, the courts hav reasonably, but cautiously, expanded the scope of the particulars to be furnished (See, e. g., People v. Parkinson, 181 Misc. 603, 41 N.Y.S.2d 331; People v. Jordan, Gen.Sess., 128 N.Y.S.2d 457). A defendant is not entitled to know the precise nature of the evidence or the theory of criminal responsibility intended to be relied upon by the district attorney. But, in a murder case, a defendant is entitled to know the exact date and approximate time of day, the nature of the place, the exact place where the body was found, and the exact description and identification details of the weapon used (referred to in the indictment as a pistol).

Accordingly, items 1, 2, 3 and 5 are granted, as herein above indicated. It should be observed that the district attorney has consented to several of these items. Items 6, 7, 8, 9 and 10 are denied, as involving matters of evidence falling within the inhibitions of the applicable rule.

The remaining itmes--4, copy of autopsy report, and 11, copy of defendant's statements, as well as that portion of item 10 relating to the ballistics report--actually are requests for inspection of documents in advance of trial.

In the landmark case of People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200, Judge Cardozo reviewed the subject of disclosure of documents in criminal proceedings and the legitimate limits to be observed in balancing the rights of the defendant and prosecution. He pointed out (245 N.Y. p. 29, 156 N.E. p. 85, 52 A.L.R. 200) that the rule even in civil matters was circumscribed: 'Documents are not subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence will be gathered. Documents to be subject to inspection must be evidence themselves.' He then went on to indicate that in criminal causes, the practice was even more restricted, although noting that in courts of other jurisdictions, there could be found '[t]he beginnings or at least the glimmerings' of the doctrine of 'an inherent power in courts of criminal jurisdiction to compel the discovery of documents in furtherance of justice.' (245 N.Y. p. 32, 156 N.E. p. 86, 200 A.L.R. 200.)

Since Lemon a number of decision in this state have indicated a gradual trend toward an 'evolving practive of liberal discovery in criminal cases.' (People v. Stokes, 24 Misc.2d 755, 760, 204 N.Y.S.2d 827, 833; See, e. g., Matter of Silver v. Sobel, 7 A.D.2d 728, 180 N.Y.S.2d 699; People v. Munoz, 11 A.D.2d 79, 85, 202 N.Y.S.2d 743, 749-750; People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542.) The federal courts and many...