People v. Day

• Decision Date: 01 November 1979
• Citation: 102 Misc.2d 11,422 N.Y.S.2d 816
• Parties: The PEOPLE of the State of New York v. Matt DAY Jr., Defendant.
• Court: New York District Court

Page 816

422 N.Y.S.2d 816

102 Misc.2d 11

The PEOPLE of the State of New York v. Matt DAY Jr., Defendant.

District Court, Nassau County, First District, Criminal Part.

Nov. 1, 1979.

Denis Dillon, Dist. Atty. of Nassau County, Mineola by Bruce Ruinsky, Asst. Dist. Atty., Mineola.

Patrick Mahoney, Mineola, for defendant.

HAROLD FERTIG, Judge.

The circumstances of this motion are relatively unique. This Court could find no reported case where a similar motion was made during or at the end of trial.

At the end of trial, after both sides had rested, the defendant made a motion requesting that the testimony of the People's witness, Louis Santorella, be stricken. The basis of that motion was that the People did not produce a statement taken from Mr. Santorella, by the Police of Nassau County, on the date of the incident in question. The case involves an alleged assault by the defendant, on the complaining witness, Roy Stone, in the Mays department store in North Woodmere, New York on March 16, 1979 at about 8 P.M. The witness, Louis Santorella, testified as to his observations concerning the incident and made statements which were inculpatory to the defendant. On cross-examination the witness testified that he had given a statement to a police officer on the date of the incident and that he had signed that statement. Defense counsel requested production of the statement and it was then for the first time that the defendant and the Court and the jury were advised that no such statement was available. Defendant then moved to have all of the testimony of that witness stricken. At that time that motion was denied.

During the course of discussion in chambers concerning that motion, the Court advised the defendant that it would direct the People to have the police officer who took the statement, in court on the following day, so that defendant might have an opportunity to question that police officer or to call him as a witness if he desired. On the following day the Court was advised by the District Attorney that the police officer was available in the courthouse and brought in from his vacation for whatever purpose defendant wished, either to question him or to call him as a witness.

The defendant subsequently advised the Court that he did not wish to call that police officer as a witness or to question him. Nevertheless, the police officer remained in the courthouse most of the day. After the defendant's witness testified, both sides rested. The case was put over for the following trial day for purpose of summation and charge to the jury.

On that day the defendant then, at the end of the entire case, made a motion to dismiss the information because the statement in question was not available to him for cross-examination, which motion was denied. He then made a renewed motion to strike the testimony of the witness Lewis Santorella, again on the grounds that the statement of this witness, taken by the police on the date of the incident, some 9 months prior to the date of trial, was not available to him for cross-examination, nor was the People's failure to produce that statement sufficiently explained; all to the prejudice of the defendant.

Defendant cited the case of People v. Lunney, 84 Misc.2d 1090, 378 N.Y.S.2d 559 as his authority for the motion. The People contend that they have made a good faith effort to locate the statement and were unable to do so. The case of People v. Lunney, supra, cited by the defendant, involved the loss of minutes of a presentation to the grand jury, and the Court held that the defendant has a right to inspect and use those witnesses' prior statements for impeachment purposes, citing People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881. In that case the Court, referring to Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, held that the right sense of justice entitles the defendant to examine a witness' prior statement. The Court in People v. Lunney, supra, went on to say that the drastic remedy of a dismissal of the indictment should not be used in such a case. It referred to the Jencks act, a federal statute, and relating it to the Rosario case, indicated that a sanction under such an instance would be to strike from the record the testimony of the prosecution witness or to grant a mistrial.

In U. S. v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537, the Court referred to the Jencks Act. In that case certain tape recordings were unavailable for trial. Tape recordings were taken at the interrogation of one of the witnesses, and the Court stated, "The law officer properly ruled that the Government bore the burden of producing them or explaining why it could not do so.". It determined that an out-of-court hearing should be held to explain the non-existence of the tapes. In United States v. Bryant, (decided in 1971) 142 U.S.App.D.C. 132, 439 F.2d 642, the Court referred to the Augenblick decision. That case also involved the loss of tape recorded conversations between the defendants and an undercover agent. It held that the rule in question was intended to apply even to pre-arrest statements made by defendant during the course of his crime, and was meant to broaden the scope of discovery available to defendants. Referring to the Jencks Act, the Court stated that it dealt with disclosure of statements by witnesses, and the Court held that " * * * the duty of disclosure attaches in some form once the Government has first gathered and taken possession of the evidence in question. * * * Hence, we hold that before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation. Only if evidence is carefully preserved during the early stages of investigation will disclosure be possible later." And, referring to Augenblick, the Court stated, "Nonetheless, it held that 'the Government bore the burden of producing (the tapes) or explaining why it could not do so' ", and went on to say that while sanctions should be imposed in cases of bad faith, such as suppression of evidence, an exception will be made for good faith loss. "An exception for good faith loss of important evidence must not be allowed to swallow the discovery rules, and the burden of explanation on the Government must be a heavy one; * * * " The Court reasoned that criminal convictions otherwise based on sufficient evidence may be permitted to...