People v. Green

• Decision Date: 19 June 1975
• Citation: 83 Misc.2d 583,371 N.Y.S.2d 271
• Parties: The PEOPLE of the State of New York v. Larry GREEN, Defendant.
• Court: New York City Court

Page 271

371 N.Y.S.2d 271

83 Misc.2d 583

The PEOPLE of the State of New York v. Larry GREEN, Defendant.

Criminal Court of the City of New York, New York County, Part I.

June 19, 1975.

Robert M. Morgenthau, Dist. Atty., New York County, by James W. Ryan, Asst. Dist. Atty., for the People.

William Gallagher, The Legal Aid Society, New York City, for defendant; Peter L. Davis, New York City, of counsel.

E. LEO MILONAS, Judge.

The defendant has been charged with attempted assault in the third degree, obstructing governmental administration, and harassment. He entered a plea of 'not guilty' and, subsequently, made a motion for a bill of particulars and discovery, on which the court has already rendered a decision. The People now move, pursuant to section 240.20(4) of the Criminal Procedure Law, for reciprocal discovery of the names, addresses, birthdates, and pretrial statements of witnesses whom the defense intends to call at trial. The defendant urges that this court reject the prosecutor's request, offering a number of arguments in support of his contention.

There is no question that the future trend is toward more liberal discovery by both the defendant and the People. Broad discovery should serve to expedite and facilitate the operation of the criminal process without sacrificing any of the accused's constitutional protections. The defendant, having detailed knowledge of the case against him, will be in a position to enter into plea negotiations on an informed basis. There will be less of an incentive to hold frivolous trials and, since both parties will be better prepared, a more satisfactory disposition of cases that do proceed to trial. Further, liberalized discovery will operate to minimize the not infrequent tendency of criminal actions to disintegrate into a legal contest between the prosecution and the defense over who can outmaneuver the other.

Currently, a nationwide reevaluation, on both the federal and state levels, is taking place in the whole area of pretrial disclosure. The American Bar Association's Project on Standards for Criminal Justices, Standards Relating to Discovery and Procedure Before Trial (hereinafter referred to as the ABA Standards), and the Law Enforcement Assistance Administration's National Advisory Commission on Criminal Justice Standards and Goals (hereinafter referred to as the NAC Standards) have both proposed model discovery provisions upon which much local and federal interest is focused and which many jurisdictions have begun to implement, either through legislative enactment or judicial rule-making authority. The federal courts, although confronted with a statute, Rule 16 of the Federal Rules of Criminal Procedure, which is somewhat more restrictive than New York law, have generally shown greater flexibility in authorizing broad discovery. Various district courts around the country have instituted procedures advocated by the ABA Standards, such as the omnibus hearing, and at least twenty-two states have substantially adopted the Standards. New York State has itself completed a comparative analysis of its criminal procedure in relation to the ABA proposals. In fact, several bills have been introduced before the legislature which would greatly broaden the existing discovery provisions as to disclosure by both the prosecutor and the defendant.

In general, the present New York discovery law follows that of its federal counterpart, Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Rule 16 is a totally discretionary statute in that there is no provision for mandating disclosure of any item, including written or recorded statements of the defenda to law enforcement officials or the defendant's recorded testimony before the grand jury, which under section 240.20(1) of the CPL are both required to be ordered by the court upon defense motion. however, the discovery of all other property, whether consisting of reports and documents of physical or mental examinations or scientific tests and experiments within the possession, custody or control of the government, or any other items designated by the defendant which is not deemed to be exempt, as defined by CPL section 240.10(3), is discretionary under New York law, as it is under Rule 16.

In practice, New York courts have varied widely in their application of Article 240 of the CPL in conformity with the great latitude permitted therein. While the courts have generally authorized disclosure pursuant to subdivision 2 of section 240.20 of the CPL, which provides for discretionary discovery of reports and documents of physical or mental examinations and scientific tests and experiments, it is subdivision 3 of that same section, referring to discretionary disclosure of 'any other property designated by the defendant, except exempt property,' which has created the most divergence of opinion. Some courts grant disclosure of almost any item requested by the defendant, others have so strictly construed Article 240 as to disallow discovery for all material other than that expressly enumerated under subdivisions 1 and 2 of section 240.20, and still other courts have adopted an electric approach, depending on the circumstances of the case and the personal philosophy of the particular trial judge involved. ^* Consequently, the result has frequently been an utter lack of consistency in the practice relating to pretrial disclosure.

This court, believing that adoption of the ABA Standards is highly desirable for the reasons heretofore stated, intends to follow those guidelines so far as consistent with New York law. The Standards require the prosecution to take the initiative in supplying defense counsel with such material and information as the names and addresses of witnesses whom the government plans on calling at a hearing or trial, together with their relevant written or recorded statements; statements of the accused or his codefendant; those portions of grand jury minutes containing the testimony of the defendant and of witnesses to be called at a hearing or trial; prior criminal convictions of government witnesses; and real evidence. The prosecution need not disclose its work product, identity of informants when failure to disclose does not infringe the defendant's constitutional rights, or material involving a substantial risk of grave prejudice to national security. The Standards also provide that the prosecution make available to the defense property that is conducive to inspection, testing, copying, and photogrphing and that, upon request of the defendant's attorney, the People permit inspection, testing, copying, and photographing of any relevant property or information regarding searches and seizures, the acquisition of statements from the accused, and the relationship, if any, of specified persons to the prosecuting authority. Further, the Standards contain a section dealing with the discretionary disclosure of items not previously covered.

Since section 240.10(3) of the CPL defines 'exempt property' to include the 'records of statements made to (such) parties, attorneys or agents by witnesses or prospective witnesses in the case,' discovery in New York may not be ordered as to this particular item, which is authorized under the ABA Standards. The Standards also allow for reciprocal discovery, and both sides have the continuing duty to disclose additional property and information as they learn of its existence.

While the ABA Standards covering pretrial disclosure are lengthy and extremely detailed, the NAC Standards deal with the whole area in a single section, Standard 4.19, which provides for the prosecutor to take the initiative in supplying the defendant with all available evidence that will be used against him at trial, including, but not limited to the names and addresses of witnesses; the written, recorded or oral statements of witnesses, the accused, or any codefendant; the results of physical or mental examinations, scientific tests, and any analysis of physical evidence, as well as any reports or statements of experts relating thereto; and physical eviden belonging to the defendant or which the district attorney intends to introduce at trial. This Standard also states that the prosecutor should disclose any evidence of the above description that subsequently becomes available, as well as any evidence or information that might reasonably be regarded as potentially valuable to the defense.

It is clear that both the ABA Standards and the NAC Standards are both very liberal in authorizing disclosure. However, there are certain differences between the two proposals, among which are the following: (1) Rule 2.6 of the ABA Standards carves out three categories of information not ordinarily subject to discovery: work product, informant's identity, and matters of national security. The NAC Standards provide no exceptions as to the type of information or material which may be legitimately withheld from the defendant by the prosecution; (2) ABA Standard 4.2 refers to a continuing duty to disclose on the part of both parties, while the NAC Standards require this solely of the prosecution; and (3) the NAC Standards do not contain a pretrial procedure comparable to the three-stage process outlined in the ABA Standards.

The People, in the instant case, have requested reciprocal discovery of certain enumerated items. In New York State, discovery by the People is limited by section 240.20(4) of the CPL only to property of the 'same kind or character' as that which has been granted to the defendant. If, for example, the district attorney asks disclosure of medical reports concerning the defendant, the court may authorize such disclosure only if the defendant has previously made a motion for discovery of the same sort of material. See People v Traver, 70 Misc.2d 162, 332 N.Y.S.2d 955 (County Ct., Dutchess County, 1972), in which the court denied the prosecution's request for the defendant's medical...