People v. Hasson
| Decision Date | 13 May 1976 |
| Citation | 86 Misc.2d 781,383 N.Y.S.2d 846 |
| Parties | The PEOPLE of the State of New York v. James HASSON. |
| Court | New York Supreme Court |
Maurice H. Nadjari, Sp. Deputy Atty. Gen. (Michael Brown, New York City, of counsel), for plaintiff.
Herald Price Fahringer, Buffalo (Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, of counsel), for defendant.
The defendant is a lawyer charged with bribery, tampering with a witness and perjury growing out of his representation of Robert J. Bottigliari on a matter in Richmond County Criminal Court. He has subpoenaed various documents and records relating to the Bottigliari case and people involved in the incidents underlying the present charges.
This court presently maintains exclusive custody and control of approximately 4 1/2 linear feet of paper consisting of thousands of documents delivered by various governmental, municipal, and private entities pursuant to judicial subpoenas duces tecum issued by the defendant and signed by the late Justice Murtagh. All of these subpoenas were applied for and directed to the agencies a short time before the scheduled trial of the defendant in February 1975. The trial did not take place for many reasons, including Richmond County's need to reconstitute the petit jury venire to conform to the requirements set forth in Taylor v. Louisiana (419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690). The defendant now requests that these items be made available to him before trial. That request is denied. All the judicial subpoenas duces tecum are withdrawn and, except as otherwise provided herein, all items shall be returned to the agencies from which they were produced. The defendant is given leave to apply for judicial trial subpoenas shortly before trial provided, in view of the matters discussed below, they are accompanied by an affidavit setting forth the materiality, relevancy, and admissibility of the subpoenaed testimony and documents. 1
A judicial subpoena duces tecum is a court process for compelling the attendance At trial of witnesses and items in the control of those witnesses. It is not to be used for discovery and inspection purposes nor to ascertain the existence of evidence. The court issues its process when reasonably satisfied that the use the defendant intends to make of the witnesses and items at trial is material and relevant to the case (People v. Coleman, 75 Misc.2d 1090, 349 N.Y.S.2d 298 (Spec. Term, Nassau County Court, 1973)).
The defendant has requested witnesses and records for which there are obvious privileges clearly recognized by both statute and public policy (McGowan v. Metropolitan Life Ins. Co., 234 App.Div. 366, 255 N.Y.S. 130 (First Dept.), app. dism. 259 N.Y. 454, 182 N.E. 81 (1932)). It is disturbing to this court to find among the items sought and delivered are the foster care records of the minor children of a potential witness, medical and psychiatric evaluations of potential witnesses and their families, general hospital records of potential witnesses, confidential Family Court records of potential witnesses and their families, and confidential records of the Department of Social Services relating to potential witnesses and their families. It should be noted that the charges in this indictment have nothing whatsoever to do with physical injuries suffered by the potential witnesses and their families as a result of the defendant's actions. The only possible use to be made of these items is to fish for impeaching material.
The law allows for impeachment of a witness in various ways. But this court cannot reasonably foresee any method of impeachment that would allow the introduction of the testimony of these witnesses accompanied by the relevant privileged documents. Even if the information contained in the items delivered were available to the defendant, at best it could lead to the asking of a question, the answer to which could not be contradicted by introducing...
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People v. Doty
...to determine where subpoenaed materials should be deposited, as well as any disputes regarding production (CPL 610. 25; People v. Hasson, 86 Misc.2d 781, 383 N.Y.S.2d 846; Matter of Nwamu, 421 F.Supp. 1361 [S.D.N.Y.] )" ( id., at 385, 553 N.Y.S.2d at 653, 553 N.E.2d at 242). The defendant's......
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People v. Magliore
...prior Family Court proceeding, where subpoena was sought to permit defendant to discover Rosario or Brady material]; People v. Hasson, 86 Misc.2d 781, 783, 383 N.Y.S.2d 846 [Sup.Ct. Richmond Co.1976] [court withdrew subpoenas duces tecum, signed by predecessor judge since deceased, for a la......
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People v. Natal
...to determine where subpoenaed materials should be deposited, as well as any disputes regarding production (CPL 610.25; People v. Hasson, 86 Misc.2d 781, 383 N.Y.S.2d 846; Matter of Nwamu, 421 F.Supp. 1361 [S.D.N.Y.]. By circumventing the court, the District Attorney avoided all the protecti......
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People v. Chambers
...851, 475 N.Y.S.2d 228; People v. Simone, 92 Misc.2d 306, 401 N.Y.S.2d 130, aff'd 71 A.D.2d 554, 418 N.Y.S.2d 725; People v. Hasson, 86 Misc.2d 781, 383 N.Y.S.2d 846). Accordingly, courts confronted with motions to quash subpoenas duces tecum used to ascertain the existence of evidence have ......