People v. D'Amico
| Decision Date | 01 July 1987 |
| Parties | The PEOPLE of the State of New York v. Anthony J. D'AMICO and Dominic A. Bretti, Defendants. |
| Court | New York County Court |
Barry A. Donalty Oneida Co. Dist. Atty. by Michael L. Dwyer, Utica, for the People.
Frank J. Nebush, Jr., Public Defender, Esther Cohen Lee, First Asst. Public Defender of Oneida County, for defendant D'Amico.
Frank Policelli, Utica, for defendant Bretti.
Defendants were convicted after trial of Conspiracy, Second Degree, the indictment alleging they conspired to murder one Richard Clair. Both have brought CPL Article 440 motions to vacate their respective convictions and, alternatively, their respective sentences. Joint hearings on the motions were conducted in February and April, 1986, and the matter finally submitted for decision on May 5, 1987.
On February 19, 1980, while in custody after his arrest on the charge of conspiracy to murder Richard Clair, defendant D'Amico gave a recorded statement to law enforcement personnel and the Assistant District Attorney in which he confessed to the murder of Dawn Grillo. D'Amico gave additional statements concerning that murder on February 20 and 22, 1980, one written and one tape recorded. D'Amico did not, at any time, confess to or give a statement concerning his alleged involvement in the Clair murder conspiracy.
Prior to trial of the Clair conspiracy indictment, both defendants demanded discovery pursuant to CPL 240.20. CPL 240.20(1)(a) provides that, upon demand to produce, the prosecutor shall disclose
Any written, recorded or oral statement of the defendant, and of a co-defendant to be tried jointly, made, other than in the course of the criminal transaction, to a public servant engaged in law enforcement activity....
The District Attorney did not disclose the D'Amico confessions to the Grillo murder to either defendant, either prior to or during the trial. In fact, defendants were not provided with copies of the written statements and transcripts of the oral statements until after they were indicted for the murder of Dawn Grillo, more than a year after the verdict in the instant case.
Defendants contend that the District Attorney's failure to disclose the D'Amico confessions to the Grillo murder, despite demand for any such statements pursuant to CPL 240.20(1)(a), constitutes "and prejudicial conduct not appearing in the record ... which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom...." (CPL 440.10 Defendants further argue that the prosecutor's failure to disclose D'Amico's statements constitutes a violation of defendants' due process right to a fair trial. (CPL 440.10[1][h].)
The prosecutor contends that his CPL 240.20(1)(a) duty to disclose statements of the defendant or codefendant does not extend to confessions to a wholly unrelated crime, but is limited to statements which in some way pertain to the particular criminal prosecution in question. Defendants, however, rely upon a literal interpretation of the language of CPL 240.20(1)(a), which requires disclosure of "... any ... statement of the defendant...." They point out that the statute contains no provision limiting its application to statements relating directly to the criminal conduct described by the indictment.
The Court has examined the D'Amico statements of February 19, 20 and 22, 1980, and finds them to be unrelated to the Clair conspiracy in their content. Furthermore, the statements do not inculpate codefendant Bretti in the Grillo homicide.
The novel issue thus presented is whether CPL 240.20(1)(a) compels disclosure of literally any statement ever made by the defendant to a public servant engaged in law enforcement activity, regardless of relevance to the criminal prosecution in question. It appears to this Court that there must, of necessity, be logical parameters to the prosecution's duty under CPL 240.20(1)(a). To require the prosecution to give notice of any statement ever made by defendant, regardless of its remoteness in time or substance to the proceeding against defendant, is to impose an onerous burden upon the prosecution not in keeping with the general policy behind the discovery statute. This is especially clear where, as here, the statements in question, although wholly unrelated to the criminal prosecution under way, are very relevant to an ongoing homicide investigation.
The parameters to the prosecution's duty to disclose under CPL 240.20(1)(a) must be examined in light of statutory policy and the treatment of the statute in prior cases. Discovery Article 240 of the CPL has been said to represent "... a rather moderate, middle of the road approach halfway between the extreme liberal position which advocates almost unlimited discovery and the extreme prosecutorial approach which would permit virtually none." (Memo of Commission on Revision of the Penal Law and Criminal Code, March, 1970 The court in People v. Bennett, 75 Misc.2d 1040, 349 N.Y.S.2d 506, accurately observed that New York is not an "open file" state with regard to criminal discovery. "No court in this State, nor any Federal court, has ever required the prosecution to afford a general unlimited right of discovery to a criminal defendant." (People v. Bennett, supra, p. 1047, 349 N.Y.S.2d 506.)
Exhaustive review of the cases addressing the discovery of defendants' statements reveals that prior decisions have dealt almost exclusively with statements which were directly related to the crime charged (e.g. People v. Copicotto, 50 N.Y.2d 222, 428 N.Y.S.2d 649, 406 N.E.2d 465; People v. Di Matteo, 80 Misc.2d 1029, 365 N.Y.S.2d 126; People v. Wyssling, 82 Misc.2d 708, 372 N.Y.S.2d 142; People v. Bennett, supra; People v. Zacchi, 69 Misc.2d 785, 331 N.Y.S.2d 86; and People v. Ames, 119 A.D.2d 755, 501 N.Y.S.2d 165). The sole exception is the case of People v. Sapia, 41 N.Y.2d 160, 391 N.Y.S.2d 93, 359 N.E.2d 688 (1976), cert. denied 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80, where the Court of Appeals determined it was not error to deny defense counsel access to a tape recording of a post-indictment interview between defendant and the police. The trial court had reviewed the tape-recorded statement of defendant and concluded it was of an interview "... in which the police sought defendant's cooperation in wholly unrelated matters and that there was nothing therein having any relevance to the case on trial." (Sapia, supra, p. 166, 391 N.Y.S.2d 93, 359 N.E.2d 688) The Court of Appeals further held that the assertion that the recorded statement might contain material useful to the prosecution in cross-examination of the defendant, and that defendant's option to testify was thereby chilled, was "sheer, unsupported speculation". (Sapia, supra, p. 167, 391 N.Y.S.2d 93, 359 N.E.2d 688.)
Although the Sapia decision was rendered under CPL 240.20(1)(b), L.1970, ch. 996, whereunder criminal discovery demands were required to be made by motion to the court, the reenactment of the statute in 1979 (L.1979, ch. 412), permitting discovery on demand and discovery of the statements of codefendants, did not undermine the Sapia court's ruling on the discovery of statements wholly unrelated to the criminal prosecution. (See Memo of Office of Court Administration, McKinney's 1979 Session Laws, 202d Session, chs. 1-726, Leg. Reports & Memoranda, p. 1888.) The Sapia case differs from the instant case in that in Sapia, there was a pretrial determination that the statements were not relevant to the proceeding. However, the decision provides sound precedent for the principle that the prosecutor's duty to disclose under CPL 240.20(1)(a) does not extend to statements of defendant concerning "wholly unrelated" subject matter and irrelevant to the prosecution under way.
In addition to the statutory policy of moderation and the Sapia precedent, the court looks to the statutory purpose as enunciated in People v. Remaley, 26 N.Y.2d 427, 311 N.Y.S.2d 473, 259 N.E.2d 901, cert. denied 400 U.S. 948, 91 S.Ct. 257, 27 L.Ed.2d 255. In Remaley, where defendant was granted pretrial disclosure of his confession to the crime with which he was charged, the court held that "... a defendant is entitled to inspect any statements he may have made to the police or other law enforcement officers in order to enable him to intelligently prepare his defense. (People v. Remaley, supra, p. 429, 311 N.Y.S.2d 473, 259 N.E.2d 901, emphasis added.) The court observed that defendant is entitled to inspect his statement in order to determine whether a question of voluntariness may be raised, how its content impacts upon guilt and whether it contains prejudicial matter to which he might object. The Remaley court's concern for fairness to a defendant in affording him the ability to "intelligently prepare his defense" is not advanced by the disclosure of statements wholly unrelated to the crime with which defendant is charged. Where, as in the instant case, the statements in question are unrelated, irrelevant and otherwise inadmissible on the crime for which defendant is being tried, their disclosure is not required to enable defendant to "intelligently prepare his defense" to the charges against him. This is not to say that where the statements in question do relate to the crime for which defendant is charged, defendant must show a need for the statements in preparation of his defense, for in that situation, the statements are always discoverable.
Having determined that D'Amico's statements are wholly unrelated and irrelevant under Sapia, supra, and not pertinent to the defendant's or the codefendant's ability to "intelligently" prepare his defense under Remaley, supra, and giving effect to the statutory policy of moderation, this court concludes that the statements in question are not within the parameters of required disclosure under CPL 240.20(1)(a).
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People v. D'Amico
...to supply defendants with Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; CPL 240.45). 136 Misc.2d 16, 517 N.Y.S.2d 881. The People also appeal from an order denying their motion to reargue or renew. We find that the court properly vacated the conviction......