People v. Doe

• Decision Date: 19 September 1996
• Citation: 170 Misc.2d 454,649 N.Y.S.2d 326
• Parties: The PEOPLE of the State of New York, Plaintiff, v. John DOE, Defendant. 1 Supreme Court, Monroe County
• Court: New York Supreme Court

Page 326

649 N.Y.S.2d 326

170 Misc.2d 454

The PEOPLE of the State of New York, Plaintiff, v. John DOE, Defendant. ¹ Supreme Court, Monroe County.

Sept. 19, 1996.

Donald Thompson for defendant.

Howard R. Relin, District Attorney of Monroe County (Cara Briggs, of counsel), for plaintiff.

DONALD J. MARK, Justice.

The defendant is charged with two counts of Sexual Abuse in the First Degree and three counts of Endangering the Welfare of a Child, as a result of alleged sexual contact with a female under the age of eleven years and two males under the age of seventeen years.

At the prosecutor's request, the Court issued a subpoena duces tecum to the Department of Corrections for a copy of the defendant's medical records. At the defendant's request, the Court issued a subpoena duces tecum to the Family Court for a copy of any records involving the alleged victims and this alleged incident, to the Department of Social Services for the same records and to the Rochester Mental Health Center for a copy of psychiatric records of the alleged female victim. ² This procedure is the common practice in this area, but no authority for it is found in Article 23 of the CPLR.

These four subpoenas duces tecum were apparently applied for and issued under the authority of CPLR Section 2302(b), which provides in pertinent part as follows: "A subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence ... shall be issued by the court...." (emphasis added). As has been indicated, the parties sought only copies of records, so this section is inapplicable.

The appropriate section under which the subpoenas to the four governmental agencies should have been issued is CPLR Section 2307(a). That section provides in pertinent part as follows: "A subpoena duces tecum to be served upon ... a department or bureau of a municipal corporation or of the state ... requiring the production of any ... papers or other things, shall be issued ... by a judge of the court in which an action for which it is required is triable.... a motion for such subpoena shall be made on or at least one day's notice to the ... department, bureau ... having custody of the document ... or other thing and the adverse party...." (emphasis added).

Obviously, the subpoenas duces tecum directed to the four governmental agencies were not in compliance with CPLR Section 2307(a), as no motion on notice to the appropriate agency or the opposite party was made.

A motion to quash brought pursuant to CPLR Section 2304 ³ is the exclusive vehicle to challenge the validity of a subpoena duces tecum (Brunswick Hospital Center v. Hynes, 52 N.Y.2d 333, 438 N.Y.S.2d 253, 420 N.E.2d 51; Ayubo v. Eastman Kodak Co., 158 A.D.2d 641, 551 N.Y.S.2d 944; Matter of Shankman v. Axelrod, 137 A.D.2d 255, 528 N.Y.S.2d 937, affd., 73 N.Y.2d 203, 538 N.Y.S.2d 783, 535 N.E.2d 1323) upon this procedural ground (see Application of Office of Special State Prosecutor, 51 A.D.2d 1013, 381 N.Y.S.2d 514) or any other relevant ground, see, e.g., People v. Still, 48 A.D.2d 366, 369 N.Y.S.2d 759). Such motion could be instituted by the governmental agency (see Greater Buffalo Chapter, American Red Cross v. State Division of Human Rights, 118 A.D.2d 288, 504 N.Y.S.2d 882; Matter of State of New York--Office of Mental Retardation & Dev. Disabilities v. Mastracci, 77 A.D.2d 473, 433 N.Y.S.2d 946), the prosecutor (see Morgenthau v. Young, 204 A.D.2d 118, 611 N.Y.S.2d 855) or the defendant (see Ateni Maritime Corp. v. Great Marine Limited, 225 A.D.2d 573, 639 N.Y.S.2d 116; Moskowitz v. Hynes, 48 A.D.2d 804, 369 N.Y.S.2d 451). ⁴ In this case no agency made such a motion to quash, and the failure to do so constituted a waiver of any objection (Brunswick Hospital Center v. Hynes, supra; People v. Pastore, 50 A.D.2d 1088, 377 N.Y.S.2d 325; see People v. Burnette, 160 Misc.2d 1005, 612 N.Y.S.2d 774).

This hybrid type of subpoena duces tecum, which obtained this Court's sanction pursuant to CPLR Section 2302(b), but which avoided the motion notice to the governmental agency and adverse party in contravention of CPLR Section 2307(a), probably evolved, because almost never is there a motion to quash based upon improper procedure, and the subpoenaed agency and adverse party assume that insisting on the appropriate procedure would not alter the end result.

Here, although there was no motion to quash any subpoena duces tecum, each governmental agency reacted differently.

The Department of Corrections complied with the subpoena duces tecum and presented the defendant's medical records to the Court. Thereafter, counsel for that Department telephoned the Court to advise that it objected to the dissemination of any information to the prosecutor based upon the prohibition of Section 2782(1) of the Public Health law relating to the disclosure of HIV information.

The prosecutor was seeking only evidence connecting the defendant with Chlamydia, since the alleged victims had contracted that disease, and this might be probative on the issue of sexual contact (see People v. Williams, 176 A.D.2d 371, 574 N.Y.S.2d 787, app. den., 79 N.Y.2d 866, 580 N.Y.S.2d 738, 588 N.E.2d 773). The Court examined the subpoenaed medical records in camera (see Mahoney v. Staffa, 168 A.D.2d 809, 564 N.Y.S.2d 231) and ascertained that the defendant had requested an examination for Chlamydia on two occasions from medical personnel at the correctional facility. It was determined that this portion of the records, while not relevant to the prosecutor's theory, might be interpreted as consciousness of guilt (see People v. Bull, 218 A.D.2d 663, 630 N.Y.S.2d 354, app. den.,87 N.Y.2d 899, 641 N.Y.S.2d 228, 663 N.E.2d 1258 ⁵), and it did not violate the physician-patient privilege (see People v. Toure, 137 Misc.2d 1066, 523 N.Y.S.2d 746, affd., 180 A.D.2d 1013, 579 N.Y.S.2d 809, app. den., 79 N.Y.2d 1008, 584 N.Y.S.2d 463, 594 N.E.2d 957).

Out of concern for a possible violation of the physician-patient privilege (see Westchester County v. People, 122 A.D.2d 1, 504 N.Y.S.2d 497), this material was first shown to the defendant's attorney, and after his objections were heard, it was forwarded to the prosecutor.

The subpoena duces tecum was issued to Family Court with some reluctance upon the assumption that those records were confidential. ⁶ However, Section 166 of the Family Court Act protects Family Court records from "indiscriminate public inspection" but allows the court in its discretion to permit such inspection. Section 50-b of the Civil Rights Law prohibits the disclosure of information concerning the victim of a sex offense, but also allows disclosure upon the Court's finding of "good cause," upon notice to the victim or the person legally responsible for such victim as well as the prosecutor.

A defendant is entitled to have a court in a criminal action conduct an in camera examination of the Family Court records in order to determine whether they contain information pertinent to a defendant's defense by way of impeachment material in the form of prior inconsistent statements (People v. Harder, 146 A.D.2d 286, 540 N.Y.S.2d 557, app. dec., 153 A.D.2d 976, 546 N.Y.S.2d 980). This Court was erroneously prepared to hold such an in camera proceeding in accordance with that holding, although there had been no compliance with the notice provisions of Section 50-b of the Civil Rights Law, but it was advised by Family Court that there were no such records.

The Department of Social Services responded to the subpoena duces tecum. The counsel for that Department attached a letter to the subpoenaed materials requesting an in camera inspection of the same and pointing out that they were classified as confidential under Section 136(2) of the Social Services Law. That section provides in pertinent part as follows: "All communications and information relating to a person receiving ... care obtained by any social services ... employee in the course of his work shall be considered confidential...."

Citing People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, rearg. den., 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. den., 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, and its caveat that the statement contain "nothing that must be kept confidential," one trial court refused to allow a defendant in a criminal proceeding to inspect records subpoenaed from the Department of Social Services for possible impeachment purposes because of the confidentiality imposed by that statute (People v. Graydon, 70 Misc.2d 336, 333 N.Y.S.2d 323). However, an appellate court allowed a defendant in a paternity action to subpoena such records from which he sought to show prior inconsistent statements made by the mother relative to paternity, after Family Court reviewed the records in camera, because disclosure in such situations is restricted but not prohibited (Addie W. [Anonymous] v. Charles U. [Anonymous], 44 A.D.2d 727, 354 N.Y.S.2d 721). This appellate decision obviously was viewed as controlling.

Here, again, no notice to the mother of the alleged victims or prosecutor was given, as mandated by the said Section 50-b of the Civil Rights Law. Nevertheless, this Court did improperly examine the records of that Department in camera and found them to contain some Rosario material (People v. Rosario, supra ) in the form of prior inconsistent statements by the alleged female victim. The prosecutor was not obligated to submit this information to the defendant, because it was not under the control of the People (see People v. Kelly, 88 N.Y.2d 248, 644 N.Y.S.2d 475, 666 N.E.2d 1348), although it was accessible through the process of a subpoena duces tecum (see People v. Harder, supra ). The possible use to be made of such impeachment material was not the responsibility of the court (People v. Nelson, 188 A.D.2d 67, 594 N.Y.S.2d 8, lv. to app. withdrawn, 81 N.Y.2d 975, 598 N.Y.S.2d 776, 615 N.E.2d 233)...