People v. Davis

• Decision Date: 02 August 1996
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Theodore DAVIS, Defendant.
• Court: New York County Court

Page 392

647 N.Y.S.2d 392

169 Misc.2d 977

The PEOPLE of the State of New York, Plaintiff, v. Theodore DAVIS, Defendant.

County Court, Westchester County.

Aug. 2, 1996.

Legal Aid Society of Westchester County, White Plains (Stephen J. Pittari and Eugene T. Traynor, of counsel), for defendant.

Jeanine Ferris Pirro, District Attorney of Westchester County, White Plains (Robin Lamont, of counsel), for plaintiff.

PETER M. LEAVITT, Judge.

The defendant, Theodore Davis, has been indicted for the crimes of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree involving an incident which allegedly occurred in the Town of New Castle on February 21, 1996.

The defendant now moves, by omnibus motion, for various forms of relief.

MOTION FOR INSPECTION OF CRIME SCENE

Defendant seeks an order permitting counsel to inspect and photograph the alleged scene of the crimes with which he has been charged--i.e., Apartment 102 at 1 Barker Street, Mount Kisco, New York (hereafter, the "Apartment")--the area of a United States Post Office wherein defendant was placed under arrest for said crimes, and the area of the headquarters of the New Castle Police Department where defendant allegedly made an oral statement relative to said crimes.

It is uncontested that defendant owns the Apartment jointly with Ms. Eraina Jenkins--an alleged witness to the crimes--and that Ms. Jenkins continues to reside therein while defendant is incarcerated in lieu of bail. Defense counsel has been inside the Apartment on at least one occasion, but was directed to leave by an Assistant District Attorney before completing his inspection of the scene. Preliminarily, the Court must confess to some confusion as to why a defendant would require judicial intervention to permit his attorney--or, for that matter, anyone--to inspect and photograph his own property, or by what authority an Assistant District Attorney could direct that attorney to cease doing so. Ms. Jenkins was the only person aside from defendant with an interest in and, therefore, the right to exclude others from, the Apartment. Yet, there are no allegations that Ms. Jenkins voiced any objections to defense counsel's presence or that counsel was engaged in any activity which would have been within the legitimate jurisdiction of the police or the Office of the District Attorney of Westchester County.

As the People note, the parameters of "Discovery" are strictly defined in Article 240 of the Criminal Procedure Law, and the inspection of an alleged crime scene by a defendant is not provided for in said statute. ¹ However, CPL Article 240 is concerned only with the disclosure and exchange of items and information between the parties to the action--i.e., the defendant and the prosecutor. [See, CPL 240.20(1) ] The statute does not purport to regulate the uncovering or acquisition of items or information by or between the defendant and the rest of the world. [See People v. Anthony Lafontant, (West.Co.Ct., LaCava, J., Ind. No. 96-0311, entered 4/2/96) ], nor does the fact that this broader process can also be described generically as "discovery" bring it within the statute's purview. Thus, the limitations contained within CPL Article 240 are relevant only to the extent that the item or information of which "Discovery" is sought is within the possession or control of the party from whom it is sought or may, by a diligent, good faith effort be produced by such party. [See CPL 240.20(2) and 240.30(2) ]. Conversely, if that which is sought is not within the possession or control of one of the parties to the action then the provisions of CPL Article 240 have no bearing upon the process. ²

Since a "crime scene" would not be within the prosecutor's possession or control except for the exceedingly rare occasion on which it may be alleged that the crime occurred in a district attorney's own offices, the inspection thereof would, for all practical purposes, never fall within the statute's purview. Indeed, the very improbability of such a scenario may be the most likely and logical reason that "inspection of the crime scene" was omitted from the list of items and information which are "Discoverable" pursuant to Article 240. It is, in any event, a far more likely rationale then the theory of legislative intent to which the People subscribe--i.e., that which the district attorney does not control cannot be "discovered"--and which, carried to its logical conclusion, could have consequences even more ludicrous and surreal then that which they propose herein. ³ Furthermore, a defendant's access to inspect an alleged crime scene clearly implicates concepts of fundamental fairness [see, e.g., Henshaw v. Commonwealth, 19 Va.App. 338, 451 S.E.2d 415 (1994); State v. Gonsalves, 661 So.2d 1281 (4th Dist.Ct. of App. of Fla., 1995) ], and the constitutional right to compulsory process [see People v. Nicholas, 157 Misc.2d 947, 948, 599 N.Y.S.2d 779 (S.Ct., Bx.Co., 1993) ]. This is not to say that a criminal defendant has an absolute right of completely unfettered entree to any locale at which he is alleged to have committed a criminal act. Merely, that such access is not subject to the mandates and limitations imposed by Article 240. [C.f., People v. Chambers, 134 Misc.2d 688, 690, 512 N.Y.S.2d 631 (S.Ct., N.Y.Co., 1987) ].

Of course, as the People note, the "innocent"--i.e., "uncharged" or "complaining" witness--owner of property also has fundamental rights and interests which must be considered. (See, People v. Nicholas, supra ). Clearly, therefore, as a joint owner of the property to which defendant seeks access, Ms. Jenkins has the right to exclude defendant's attorney from the Apartment as well as the right to notice of, and to be heard in opposition to, defendant's application for a court order directing such access. Said rights are, however, personal to Ms. Jenkins and, to date, she has not appeared before this Court in pursuit of said rights, nor has any affidavit been submitted which would indicate that she wishes to do so.

Unfortunately, the People are apparently laboring under the unfounded misapprehension that by virtue of a district attorney's mandate and authority to prosecute those charged with crimes it appropriates to itself all the rights, privileges and status of those private citizens against whom such crimes were committed or who may be witnesses thereto. This is, however, simply not the case. (See People v. Nicholas, supra at 948, 599 N.Y.S.2d 779). The People do not share, nor have they been conveyed, Ms. Jenkins' rights in the Apartment, nor have they made any showing that she has invested in the District Attorney of Westchester County authority to pursue or protect her interests. In sum, neither the permission, acquiescence or cooperation of the District Attorney is required because the District Attorney does not have possession, control nor any property interest in the apartment and, to date, has not made any factual allegations based upon which the People would even have standing to oppose, or to be heard in opposition to, defense counsel's inspection thereof. Consequently, the District Attorney lacks standing to be heard in opposition to this branch of defendant's application and, since no affidavit or other papers indicating otherwise have been submitted in Ms. Jenkins' behalf, it is, in essence, unopposed. Moreover, for the same reasons, the District Attorney also lacks standing to be heard in opposition to defendant's applications to inspect a United States Post Office and the...