People v. Harte
| Decision Date | 17 April 1979 |
| Parties | The PEOPLE of the State of New York v. James HARTE, Defendant. |
| Court | New York Supreme Court |
Markewich, Rosenhaus, Markewich & Friedman by Daniel Markewich, New York City, for defendant.
Allen G. Schwartz, Corp. Counsel of the City of New York by Susan R. Rosenberg, New York City, for the People.
The Corporation Counsel of the City of New York moves to quash a subpoena duces tecum previously issued by this Court directing the Off Track Betting Corporation, hereinafter referred to as O.T.B., to produce papers and documents relative to the charges against the defendant.
The said defendant stands indicted for Criminal Mischief in the Second and Third Degrees. The People allege that after having lost an exclusive window glass repair contract servicing all O.T.B. parlors, the defendant sought to discredit his successor by causing window breaks at 12 different O.T.B. locations. The documents sought by the defendant involve investigative, surveillance, and incident files concerning city-wide destruction of O.T.B. windows.
The Corporation Counsel claims that the defendant is using the subpoena improperly as a discovery device. He contends that since defendant's counsel had on a previous occasion served a motion for discovery upon the District Attorney and neglected to request the material now sought, he could not now utilize this means for discovery. He alleges further that production now would be premature and allow defendant to completely circumvent discovery rules set down in Section 610.10 CPL, even if the materials were discoverable, which the Corporation Counsel also contests.
In order to clarify the issue of discoverability, mention must be made of the history of this case. In denial of a prior motion by the defendant to dismiss the indictment, this Court rejected the contention of the defendant that all of the breakings charged to the defendant were a series of individual misdemeanors, and that in lumping together the cumulative damages to place the violation in a felony class, the District Attorney and the Grand Jury acted wrongfully. After inspecting the minutes of Grand Jury proceedings, this court concluded that there was sufficient testimony submitted therein to justify the indictment charging this defendant with acting through a single intent, motive, scheme and design. In his detailed subpoena duces tecum, the defendant seeks primarily all of the investigative reports relating to the itemized incidents of glass breakage during the time period at issue.
The tenor of the Corporation Counsel's argument is that this is a fishing expedition. This Court does not agree. If a defendant, charged in acting with a single intent in furtherance of a common plan and scheme, seeks to acquire evidence which might demonstrate, through pattern or modus operandi, that one or more unknown persons committed some or all of the acts attributed to him, then the denial of such material to him would be completely unjustified.
CPL 240.20 sets forth the conditions under which a court "must or may issue an order of discovery." As it applies herein, subd. 3 provides "such discovery may be ordered with respect to any other property specifically designated by the defendant, except exempt property, which is within the possession, custody or control of the district attorney upon a showing by the defendant that (a) discovery with respect to such property is material to the preparation of his defense, and (b) the request is reasonable." Both standards favor the defendant herein. It is the very type of information which, if denied to him "violates due process where the evidence is material either to guilt or punishment." (See Brady v. Maryland, 373 U.S. 83, at 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215).
The Corporation Counsel stresses the fact that the statute specifically refers to material in the "possession, custody and control of the District Attorney." Should this, therefore, deprive him of material which under Brady's mandate he may be clearly entitled to? The answer must be in the negative. Once having found that the material is discoverable, it is of no significance that the defendant resorts to subpoena under CPL...
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