People v. Guthman

• Citation: 348 N.Y.S.2d 109,75 Misc.2d 572
• Parties: PEOPLE of the State of New York, Plaintiff, v. Harry GUTHMAN, Defendant.
• Decision Date: 10 October 1973
• Court: New York County Court

Page 109

348 N.Y.S.2d 109

75 Misc.2d 572

PEOPLE of the State of New York, Plaintiff, v. Harry GUTHMAN, Defendant.

County Court, Nassau County, Special Term, Part VIII.

Oct. 10, 1973.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

James J. McDonough, Legal Aid Society, Mineloa, for defendant.

RAYMOND, L. WILKES, Judge.

This is a motion by the defendant for an Order declaring Criminal Procedure Law § 250.20 unconstitutional or in the alternative providing for reciprocal disclosure of witnesses, i.e. ALIBI.

The District Attorney, pursuant to CPL § 250.20(1) served upon the defendant a demand for a Bill of Particulars with respect to an affirmative defense that the defendant was elsewhere than at the scene of the crime. The defendant has not responded to this demand although he indicates in his moving papers his intention to assert such a defense upon the trial.

The defendant relies upon the United States Supreme Court decisions of Wardius .v Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 and Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 in support of his contention that any statute requiring disclosure of alibi witnesses must provide for reciprocal disclosure of rebuttal witnesses or fall under the proscription of the due process clause of the United States Constitution.

CPL § 250.20(1) provides that:

'At any time before trial, the people may serve upon the defendant or his counsel, and file a copy thereof with the court, a demand that if the defendant intends to offer a trial defense that at the time of the commission of the crime charged he was at some place or places other than the scene of the crime, and to call witnesses in support of such defense, he must, within four days of service of such demand, serve upon the people, and file a copy thereof with the court, a 'notice of alibi,' reciting (a) the place or places where the defendant claims to have been at the time in question, and (b) the names, residential addresses, the places of employment and the addresses thereof of every alibi witness upon whom he intends to rely.'

The United States Supreme Court in Williams v. Florida, supra, '. . . upheld the constitutionality of the Florida notice of alibi rule which required criminal defendants intending to rely on an alibi defense to notify the prosecution of the place at which they claimed to be at the time in question and of the names and adresses of witnesses they intended to call in support of the alibi.' Wardius v. Oregon, supra, 412 U.S. 471, 93 S.Ct. 2210. The Court emphasized that the constitutionality of such rules 'might depend on 'whether the defendant enjoys reciprocal discovery against the State.' 399 U.S., at 82 n. 11, 90 S.Ct. at 1896.' Wardius v. Oregon, supra, 471, 93 S.Ct. 2210.

Wardius v. Oregon, supra, p. 472, 93 S.Ct. 2211 states:

'. . . the Due Process Clause of the Fourth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.'

The Williams court was circumspect to note that 'florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.' 399 U.S. at 81, 90 S.Ct. at 1896 (footnote omitted). CPL § 250.20 standing alone does not provide reciprocal disclosure. However, unlike the Oregon statute which provides no discovery rights to the accused (Wardius v. Oregon, supra, p. 472, 93 S.Ct. 2208), the New York Criminal Procedure Law provides for a painstaking discovery mechanism pursuant to Article 240 of the Criminal Procedure Law.

The District Attorney suggests to the Court that the overall practice of discovery now extant in the State of New York by virtue of statute and case law may be sufficient to satisfy the requirements of the due process provisions of the United States Constitution. More specifically, it is urged by the People that a merger of the discovery provisions of CPL Art. 240 with CPL § 250.20 can achieve a constitutionally acceptable result. It is, of course, elementary to the point of being virtually axiomatic that a strong presumption of constitutionality attaches to any statute duly enacted by the Legislature. (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205)

'It is a general rule of construction that omissions in a statute cannot be supplied by construction; omissions are to be remedied by the Legislature, and not by the courts. Thus a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact. More particularly, a court cannot, by implication, read or supply in a statute a provision which it is reasonable to suppose the Legislature intentionally omitted.' . . .

'Where, however, the legislative intent is clear, an omission in an act may sometimes be considered an inadvertence and supplied by the courts, and words obviously omitted by mistake may be supplied to prevent inconsistency, unreasonable and unconstitutionality in a statute.' McKinney's Statutes, Book 1, p. 363.

The Court notes, favorably, prior instances where discretionary judicial interpolation has upon occasion preserved the constitutionality of a statute under attack. For example: (1) The New York Court of Appeals in People v. Bailey, 21 N.Y.2d 588, 289 N.Y.S.2d 943, 237 N.E.2d 205 read into the former Penal Law § 2189a a provision for a hearing on the one-day-to-life psychiatric sentence inspired by the United States Supreme Court decision in Specht v. Patterson, 386 U.S. 605, and thus the constitutionality of the statute then at issue survived; (2) The New York Court of Appeals in People v. Fuller, 24 N.Y.2d 292, 300 N.Y.S.2d 102, 248 N.E.2d 17 preserved former § 208 (2) of the Mental Hygiene Law by reading into a statute a provision for a hearing before a jury if desired by a defendant, thus avoiding a violation of the Constitution; and (3) The New York Court of Appeals in Lee v. County Court of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, pursued a comparable course with respect to pre-trial psychiatric examinations where an insanity defense had been interposed by creating a procedure consistent with the defendant's constitutional right against self-incrimination.

In addition, this Court must of necessity weigh the practical...