People v. Diggs

• Citation: 140 Misc.2d 794,531 N.Y.S.2d 723
• Parties: The PEOPLE of the State of New York, v. Reginald DIGGS, Defendant.
• Decision Date: 14 July 1988
• Court: New York District Court

Page 723

531 N.Y.S.2d 723

140 Misc.2d 794

The PEOPLE of the State of New York, v. Reginald DIGGS, Defendant.

District Court, Nassau County First District, Criminal Part.

July 14, 1988.

Denis Dillon, Dist. Atty., Nassau County, Mineola, for the people.

Matthew Muraskin, Legal Aid Society of Nassau County, Hempstead, N.Y., for defendant.

SANDRA J. FEUERSTEIN, Judge.

Pursuant to defendant's request and CPL 180.60, a felony examination was held in this matter on June 27, 1988. In the course of the hearing, at the close of the testimony of the complainant, defense counsel moved, pursuant to Section 240.44(1) of the CPL, for disclosure of the witness' prior statement to the police. The People objected.

Both the prosecutor and defense counsel argued their respective points persuasively, the former, citing People v. Epps, 67 Misc.2d 907, 325 N.Y.S.2d 818 aff'd. 32 N.Y.2d 706, 344 N.Y.S.2d 1, 296 N.E.2d 803 claiming that the instant proceeding is not a pre-trial hearing within the meaning of Section 240.44, but a pre-indictment procedure which is not covered by the statute, and that to permit discovery pursuant to Section 240.44 would be dilatory as well as a violation of the statutory scheme of disclosure created by the legislature which permits more extensive disclosure in direct proportion to the increase in the People's burden of proof. Defendant cited Butts v. Justices of Ct. of Special Sessions, 65 Misc.2d 536, 318 N.Y.S.2d 245, reversed on other grounds 37 A.D.2d 607, 323 N.Y.S.2d 619, appeal dismissed 29 N.Y.2d 707, 325 N.Y.S.2d 747, 275 N.E.2d 331 and the need for the disclosure to properly conduct a cross-examination of the complaining witness.

The court, upon a preliminary hearing is charged with determining whether there is reasonable cause to believe the defendant committed a felony, and that there is sufficient evidence to warrant the court in holding the defendant for the action of the grand jury (CPL Section 180.10). CPL Section 70.10(2) states " 'reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."

CPL Section 240.44 states: "Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed:

1. Any written or recorded statement, including any testimony before a grand jury, made by such witness other than the defendant which relates to the subject matter of the witness's testimony."

After examining the relevant case law and statutes, this court holds that in the course of a hearing upon a felony complaint the defense is entitled to examine and utilize prior statements of testifying witnesses relevant to the testimony elicited on direct examination for the purpose of cross-examination.

The U.S. Supreme Court has held that the preliminary hearing is a critical stage of the proceedings ( Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 [1970] ) at which the right of counsel attaches and the Court of Appeals stated People v. Malinsky, 15 N.Y.2d 86 at 90, 262 N.Y.S.2d 65, 209 N.E.2d 694, "We made it unmistakably clear in People v. Rosario, 9 N.Y.2d 286 [213 N.Y.S.2d 448, 173 N.E.2d 881] that defense counsel must be permitted to examine a witness' prior statement, whether or not it differs from his testimony on the stand, and to decide for themselves the use to be made of it on cross-examination, provided only that the statement 'relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential' (p. 289). And, obviously, it matters not whether the witness is testifying upon a trial or at a hearing. In either event, 'a right sense of justice' entitles the defense to ascertain what the witness said about the subject under consideration on an earlier occasion."

The Malinsky decision was rendered upon a motion made in connection with a suppression hearing, a distinction pressed by the prosecution in relation to the language of Section 240.44 and by other courts (see People v. Landers, 97 Misc.2d 274, 411 N.Y.S.2d 173) insofar as the impact of the outcome of the hearing upon an ultimate finding of guilt or innocence.

Other courts, including the Appellate Division, Second Department in Butts, 37 A.D.2d at 607, 318 N.Y.S.2d 245, have found otherwise: "We feel it important to state that with respect to the question of the right of a defendant to inspect and use prior statements of a preliminary examination witness, we are in accord with the portion of the opinion of the learned Justice at Special Term which deals with that subject. Applying the rationale of People v. Rosario, 9 N.Y.2d 286 [213 N.Y.S.2d 448, 173 N.E.2d 881], absent the necessities of effective law enforcement which might require that the statement be kept secret or confidential, the State has no interest in interposing any obstacle to the disclosure of a prior statement by a preliminary examination witness which may expose the prosecution's case and persuade the committing magistrate to refuse to bind the accused over (see Coleman v. Alabama, 399 U.S. 1 [90 S.Ct. 1999, 26 L.Ed.2d 387]; People v. Malinsky, 15 N.Y.2d 86 [262 N.Y.S.2d 65, 209 N.E.2d 694] )."

This was the rationale of the Court in People v. Dash, 95 Misc.2d 1005, 409 N.Y.S.2d 181 at 1008-1009:

"While the defendant has no constitutional right to a preliminary hearing ( People ex rel. Hirschberg v. Close, 1 N.Y.2d 258 [152 N.Y.S.2d 1, 134 N.E.2d 818] supra; People v. Aaron, 55 A.D.2d 653, 654 ) the Legislature has determined to extend by statute, in certain cases, the defendant's right of confrontation to such an examination (CPL 180.10 et seq.; 170.50). The burden of proof on the People therein is not great. They need only provide, through nonhearsay evidence, reasonable grounds to believe in the defendant's commission of a crime. But the defendant is clearly entitled to put the People to their proof on this issue and, in this effort, is often forced to direct all his energies to the question of the credibility of the People's witnesses. No sound reason has been advanced to deprive him of access to the relevant prior statements of these witnesses for his use in aid of cross-examination (see Brooks v. Jennings, 17 Ariz.App. 407 ). Should such reason in fact exist in the unusual case, the People have the option of direct presentation to the Grand Jury.

The People further maintain that to grant counsel's demand would be to unreasonably extend pretrial discovery beyond the limits set forth by statute (CPL Art. 240). As the United States Court of Appeals has stated in an analysis of preliminary examination practice: "Cross examination at a preliminary hearing, like the hearing itself, is confined by the principle that a probe into probable cause is the end and aim of the proceedings, and the line between refutation of probable cause and discovery into the prosecutor's case ofttimes is thin." ( Coleman v. Burnett, 477 F.2d 1187, 1201.) To deny the reach of Rosario to the preliminary hearing would be to deprive counsel of the opportunity for effective confrontation. The Legislature has extended this right to the defendant--it should not be nullified in fear of "premature" discovery. In fact, developments in both Federal and State criminal procedure, over a long period, have given increasing recognition to the proposition that the search for the truth is promoted by broadening pretrial disclosure (see Dennis v. United States, 384 US 855, 871, n 17 [86 S.Ct. 1840, 1849-1850, n. 17, 16 L.Ed.2d 973]; People v. Bennett, 75 Misc 2d 1040 ; Developments in the Law: Discovery, 74 Harv L Rev 940, 1062-1063.) Thus, confronting the question from a historical perspective, to hold that the rule of Rosario extends to the preliminary hearing is to permit the effective assistance of counsel and utilization of the statutory right to confrontation at the cost of a diminishing (and perhaps ultimately imperceptible) harm."

Butts and Dash pre-date the 1982 legislation which created CPL Section 240.44. Nevertheless, this "historical perspective" is borne out...