People v. Grosunor

• Decision Date: 27 April 1981
• Citation: 439 N.Y.S.2d 243,108 Misc.2d 932
• Parties: The PEOPLE of the State of New York v. Stephanie GROSUNOR, Defendant.
• Court: New York City Court

Page 243

439 N.Y.S.2d 243

108 Misc.2d 932

The PEOPLE of the State of New York v. Stephanie GROSUNOR, Defendant.

Criminal Court of the City of New York Bronx County.

April 27, 1981.

Mario Merola, Dist. Atty. by Catherine O'Hagan, Dist. Atty., New York City, for the People.

Caesar Cerigliano, Legal Aid by Richard Finkelstein, New York City, for Stephanie Grosuner, defendant.

DECISION

WILLIAM D. FRIEDMANN, Judge.

The District Attorney moves pursuant to CPL section 610.20 and CPLR 2307 to quash a subpoena duces tecum issued at the request of the defendant, by this court in "So Ordered" form, on November 26, 1980 (Gorfinkel, J.). The subpoena was directed to the New York City Department of Social Services and was endorsed "To Be Produced In Camera". It demanded the production of the personnel file of complainant, Esther Roundtree, a Social Service Income Maintenance Specialist, employed by the said Department of Social Services.

The subject subpoena was served upon the legal division of the Department of Social Services, which produced and delivered the demanded material, without objection, to the Jury Assignment Part (JP I) of the court. The District Attorney, at this point, objected to the subpoena process, with its demanded production thereunder, and moved for an order quashing the subpoena on the grounds of immateriality, irrelevancy and privilege.

FACTS

The defendant, Stephanie Grosunor, is accused of striking the complainant, Esther Roundtree, with a chair, becoming loud and boisterous and using obscene language, thereby causing physical injury to the complainant, and creating a disturbance whereby all work ceased at a Department of Social Services Center on or about November 30, 1979. As a result of the incident, the defendant was charged by prosecutor's information with Assault in the Third Degree (P.L. 120.00), Criminal Possession of a Weapon (P.L. 265.01), Obstructing Government Administration (P.L. 195.05) and Disorderly Conduct (P.L. 240.20).

MOTIONS UNDER CONSIDERATION

Movant, District Attorney, seeks to test the validity of the subpoena by motion to quash or vacate it. The grounds urged being: (1) The records and documents sought are not legitimately related to the guilt or innocence of the defendant, that is, whether the defendant struck Esther Roundtree or engaged in the other activity complained of. (2) The subpoena is an unwarranted intrusion into the privacy of the complaining witness and in opposition to the public interest. (3) The defendant has not, up to this point, made a good faith showing or produced a factual predicate to link the personnel records of the complainant with the events of November 30, 1979.

Defendant resists quashing of the motion and urges the court to conduct an in camera inspection of the demanded material. Essentially, she argues: (1) The personnel file of Esther Roundtree, maintained and made in the normal course of business by an agency (Department of Social Services) independent of the District Attorney's office, is material and relevant and therefore subpoenable and discoverable. (2) The People have no standing to move to quash a subpoena directed to an independent agency not serving as their agent. (3) The demanded material is not subject to privilege or statutory exclusion and therefore is material and relevant. (4) The defendant stands ready to make an offer of proof at the proposed in camera inspection (so as not to prematurely reveal defense strategy) which will make it reasonably likely that the demanded material is linked with the events of November 30, 1979.

In addition to opposing the People's motion to quash, the defendant cross-moves in the alternative for discovery and inspection of the same material, namely, the complainant's personnel file, pursuant to CPL 240.10 and 340.30.

STANDING TO QUESTION SUBPOENA

The standing of the District Attorney to move on behalf of the New York City Department of Social Services will be the subject of preliminary inquiry. The court finds that the District Attorney, although a party to this criminal proceeding, does not have the requisite standing or authorization to make the within motion to quash. Such representation would appear to be in violation of local law (N.Y.City Charter, section 394) and would constitute a conflict of interest between the agencies involved. Generally, the office of the District Attorney is charged with the responsibility of initiating and conducting all prosecutions for crimes and offenses cognizable by courts of the county in which he serves. (People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732). In addition, the District Attorney is elected by and for the County of the Bronx and discharges his duties within and for that county.

The Department of Social Services, the non-party recipient of defendant's subpoena, is an agency of the City of New York and, as such, has a statutory attorney and a legal division separate and apart from the district attorney's office. (N.Y.City Charter, section 391 et seq.). For this reason, the proper party to challenge the validity of the subpoena is the Department of Social Services and not the District Attorney's office. As the court pointed out inRaynor v. Kirk, 30 Misc.2d 1041, 219 N.Y.S.2d 661, which held that the District Attorney had no authority to represent the Nassau County Commissioner of Police, a member of the county police department and Nassau County itself, we are dealing with public officers and municipal agencies whose powers and duties are spelled out specifically by statute. In the case at bar, the relevant statutes require a holding similar to the one reached in Raynor, supra.

Although the District Attorney has broad discretion to prosecute for all crimes and offenses cognizable by the courts of the county for which elected (People v. Di Falco, supra; County Law sections 700, 927), there is long established precedent that the authority to prosecute is not exclusively vested in the District Attorney in certain misdemeanors and offenses, particularly those involving local laws. (People v. Montgomery, 7 Misc.2d 294, 166 N.Y.S.2d 455 and authorities cited therein). In the case before this court, local law makes it abundantly clear that the interests of the Department of Social Services and its employee, Esther Roundtree, should have been represented by the Corporation Counsel of the City of New York or its designee, the legal division of the Department of Social Services.

Section 394(a) of the New York City Charter sets forth the "powers and duties" of the law department of the City of New York. It provides that "the corporation counsel shall be attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business of the City and its agencies in which the City is interested." (See Abrams v. Ronan, 36 N.Y.2d 714, 367 N.Y.S.2d 484, 327 N.E.2d 638; Katz v. Board of Education of the City of New York, 260 App.Div. 9, 20 N.Y.S.2d 898).

Examination of various criminal proceedings in which the quashing of a judicial subpoena duces tecum has been considered, indicates that the motion to quash is made by the adversely affected and interested person and not by strangers to the litigation or by the District Attorney. (People v. Dodge, 73 Misc.2d 80, 341 N.Y.S.2d 471; People v. Sumpter, 75 Misc.2d 55, 347 N.Y.S.2d 670; People v. Morales, 97 Misc.2d 733, 412 N.Y.S.2d 310).

In People v. Dodge, supra, the State Attorney General moved to quash a subpoena issued to the Superintendent of Corrections of the Ossining Reception Center. Although the court did not have to address the issue of standing, the case underscores the proposition that an interested and aggrieved non-party may move to quash a subpoena, in that case, the Attorney General in behalf of a state correctional facility. In similar fashion, it was the Police Department of the City of New York, through its legal division, that moved to quash judicial subpoenas directed against the department in both the Sumpter, supra, and Morales, supra, cases cited above.

This court in making its preliminary determination with regard to standing is cognizant of the authority indicating that any party affected by process of a court may apply to that court for modification or vacatur or to have the process quashed. (In re Roden, 200 Misc. 513, 106 N.Y.S.2d 345). However, after careful review of such authority permitting intervention on a motion to quash, it would seem that only the Department of Social Services, by its attorneys, or the complainant, Esther Roundtree, by her own attorney, would be affected by the subject process in order to gain standing to move to quash or vacate it.

The standing of those adversely affected and thus having standing to move to quash or vacate a subpoena issued to another is succinctly summarized in Beach v. Oil Transfer Corp., 23 Misc.2d 47, 199 N.Y.S.2d 74, wherein a client sought to invoke the privilege of the attorney-client relationship:

"The right of the defendant and the witnesses subpoenaed to challenge the compulsion of the process served prior to the production of the records demanded cannot seriously be questioned. (Citations omitted). In situations where witnesses served with subpoenas are not parties, nevertheless, upon a claim of privilege, the defendant, being the party principally concerned by the adverse effect of the subpoenas served upon the witnesses and being the 'party whose rights are invaded by such process, may apply to the court whose duty it is to enforce it, or to set it aside if it is invalid (Citations omitted).' "

It does not appear to this court that the district attorney is a party directly or derivatively affected by the subject subpoena so as to acquire the necessary standing to challenge the process.

The court is further aware in making this preliminary determination on standing of what appears to be a contrary position reached by Professor David D. Siegel in his...