People v. Gissendanner

Decision Date17 December 1979
Citation48 N.Y.2d 543,423 N.Y.S.2d 893,399 N.E.2d 924
Parties, 399 N.E.2d 924 The PEOPLE of the State of New York, Respondent, v. Vida GISSENDANNER, Appellant.
CourtNew York Court of Appeals Court of Appeals
Edward J. Nowak, Public Defender (Rhonda Greenstein, Rochester, of counsel), for appellant
OPINION OF THE COURT

FUCHSBERG, Judge.

A jury found the defendant Vida Gissendanner guilty of the criminal sale of cocaine (Penal Law, § 220.16). The Appellate Division has affirmed the judgment of conviction by a vote of 4 to 1.

The primary issue on the present appeal is the propriety of the trial court's refusal to honor defendant's request that it issue subpoenas duces tecum requiring the production of personnel records of two police officers, the principal witnesses against the defendant. Implicated by this denial, asserts the defendant, are the constitutional and statutory guarantees of compulsory process and, ultimately, the companion right of confrontation which the records may have supported (see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019; U.S.Const., 6th Amdt.; Civil Rights Law, § 12). A second issue requires us to decide whether in-court identifications by the officers, each of whom had also had occasion to see the defendant on the date of her arrest, should have been received in the light of the District Attorney's failure to serve the pretrial notice required by CPL 710.30 (subd. 1).

Turning initially to the question involving the subpoenas, we focus on the trial events from which it arises:

The chief prosecution witness, Ronald Eisenhauer, an undercover investigator for the Irondequoit Police Department, testified that the defendant had made the illegal sale to him. According to Eisenhauer, he and three other officers proceeded to defendant's home, where the other three took up surveillance from an unmarked car parked across the street while he approached her house. Encountering the defendant, whom he had previously met, on the walk leading to the house, he was invited inside where, after she asked him if he wished to purchase drugs, the illegal sale was negotiated. They were alone at the time.

Investigator David Grassi, one of the officers in the surveillance team, also was called. He testified that, though he did not witness the actual sale, from his position in the driver's seat he observed Eisenhauer enter the house with defendant and then exit alone about 15 minutes later. A third occupant of the police vehicle, Detective Craig Corey, also took the stand; he told the jury that he had watched Eisenhauer approach the house but, because his view of the entrance was partially obscured by hedges, did not witness Eisenhauer actually enter the house or see the defendant at all.

The defendant, testifying in her own behalf, recited a story materially at odds with the Eisenhauer-Grassi version. While she acknowledged having met Eisenhauer on several prior occasions, she denied ever having sold drugs to him. As to the night of the crime, she related that, on that evening, as she was driving toward her home, she observed Eisenhauer standing on the porch near the door, whereupon she drove past the house and, returning a short time later, noticed him leave the porch and get into a parked car.

Given this scenario, not surprisingly, defendant's trial strategy concentrated on undermining the credibility of Eisenhauer and Grassi in order to persuade the jury that they had concocted the story of the drug sale. To that end, defense counsel, on the eve of trial, for the first time requested the court to issue subpoenas duces tecum broadly framed to compel the production of "any and all records of (Eisenhauer's and Grassi's) employment * * * with the Irondequoit Police Department and any other law enforcement agency, (including) records of performance in any disciplinary actions." In support of this application, counsel stated only that the purpose was to "find material appropriate for cross-examination when the officers testify"; at no time did he request the court to conduct its own In camera inspection of the personnel files before determining whether any of the contents should be disclosed. The court refused to issue the subpoena on the grounds that "no factual basis", nor any "showing of necessity other than a general discovery" had been demonstrated to warrant such an order. In Its opinion of affirmance, the Appellate Division, in the same vein, characterized the unembellished request for the subpoenas as no more than an attempt to conduct a "fishing expedition" into confidential records. In our view, the ruling was not erroneous. Our reasons follow.

At the outset, we recognize the tension between the constitutionally based rights of an accused to confront and cross-examine adverse witnesses on the one hand, and the interest of the State and its agents in maintaining confidential data relating to performance and discipline of police on the other. Among other values the latter is said to serve are the maintenance of police morale and the encouragement of both citizens and officers to co-operate fully without fear of reprisal or disclosure in internal investigations into misconduct. As to those accused of crime, it should be too obvious to need reiteration that restrictions on the right to cross-examine key prosecution witnesses can deprive a defendant of an important means of combating inculpatory testimony or at least demonstrating the existence of a reasonable doubt as to guilt (Davis v. Alaska, 415 U.S. 308, 315-317, 94 S.Ct. 1105, 39 L.Ed.2d 347; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934; cf. Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 3 L.Ed.2d 1377).

Granting, however, that the constitutional roots of the guarantees of compulsory process and confrontation may entitle these to a categorical primacy over the State's interest in safeguarding the confidentiality of police personnel records, it is not to be assumed that, in striking the balance between the two, police confidentiality must always yield to the demands of a defendant in a criminal case. The circumstances which support such demands may vary greatly. And, though access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific "biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand" (Davis v. Alaska, supra, 415 U.S. at p. 316, 94 S.Ct. at p. 1110), or when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial (cf. United States v. Garrett, 542 F.2d 23, 26; United States v. Cardillo, 316 F.2d 606, 611, 615-616, cert. den. 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55), there is no such compulsion when requests to examine records are motivated by nothing more than impeachment of witnesses' general credibility. In such cases, the defendant's rights have generally been canalized within the bounds of the traditional evidentiary rule that governs the introduction of extrinsic proof of matters collateral to the issues at trial, i. e., its availability rests largely on the exercise of a sound discretion by the trial court (see People v. Ocasio, 47 N.Y.2d 55, 60, 416 N.Y.S.2d 581, 583, 389 N.E.2d 1101, 1103; People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 820, 247 N.E.2d 642, 644, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637, 639; 3A Wigmore, Evidence (Chadbourn rev.), §§ 1005, 1006; Richardson, Evidence (10th ed. Prince), § 491).

Thus, in Davis v. Alaska (supra), the Supreme Court found the Sixth Amendment had been violated because the defendant had been precluded from establishing an eyewitness' status as a juvenile delinquent probationer to support the contention that his unfavorable testimony had been inspired by a desire to curry favor with the prosecution. Justice Stewart, in a concurring opinion, pointedly observed that the Constitution did not confer "a right in every case to impeach the general credibility of a witness through cross-examination about his Past delinquency adjudications or criminal convictions" (emphasis ours) (415 U.S., at p. 321, 94 S.Ct., at p. 1113; cf. People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413).

But when a defendant shows a likelihood that the witness' prior criminal or disciplinary record may provide a motive to falsify, disclosure of this information has been held warranted (Davis v. Alaska, supra ; cf. People v. Cwikla, 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070). Also, when prior bad acts allegedly contained within disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant's case, detailed cross-examination and disclosure, usually after an In camera inspection, have been permitted (see People v. Puglisi, 44 N.Y.2d 748, 405 N.Y.S.2d 680, 376 N.E.2d 1325 (narcotics case; defense counsel had information that undercover officer who testified had improperly handled previous "buys"); People v. Vasquez, 49 A.D.2d 590, 370 N.Y.S.2d 144 (narcotics case; testifying police officer had been convicted for "shaking down" narcotics dealers); Pitchess v. Superior Ct., 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305; State v. Pohl, 89 N.M. 523, 554 P.2d 984; State v. Fleischman, 10 Or.App. 22, 495 P.2d 277 (all involving prosecutions for assault on police officers; defendants claimed officers were the aggressors and made a predicate showing that each had previously been accused of employing excessive force); United States v. Garrett, 542 F.2d 23, Supra (held error to restrict cross-examination of undercover policeman about prior...

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