People v. Heller
| Decision Date | 28 November 1984 |
| Citation | 126 Misc.2d 575,483 N.Y.S.2d 590 |
| Parties | The PEOPLE of the State of New York v. Edward HELLER. |
| Court | New York Supreme Court |
Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Ethan Levin-Epstein and Anne E. Stanley, Asst. U.S. Attys., of counsel, for the U.S.
La Rossa, Cooper, Axenfeld, Mitchell & Bergman by James M. La Rossa, New York City and Matthew S. Dontzin, New York City, of counsel, for defendant Heller.
Before this court is a motion to quash a subpoena duces tecum directed to the Custodian of Records for the United States Attorney, Eastern District of New York. The subpoena was issued by counsel for the defendant, who is charged with eight counts of Grand Larceny in the Second Degree and participating in a Scheme to Defraud in the Second Degree. The motion to quash is made by the Office of the United States Attorney.
It would be an understatement to note that this case has generated extensive motion practice. The instant subpoena and the ensuing litigation represent but one skirmish in the lengthy battle for discovery waged by the defendant. Much of the conflict stems from the expected testimony of one Spencer Lader, formerly charged as a co-defendant. 1
Originally, Lader was not scheduled to testify, but the District Attorney's office then reversed its position and indicated that he would, in fact, take the stand. Acting upon this information, the defendant sought disclosure of material regarding Lader, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). When it was learned that Lader was cooperating with the United States Attorney's office in a Federal investigation, the scope of the requested disclosure from the District Attorney's office was broadened to include any Brady material obtained by them from Federal authorities. In said motions for discovery, the defendant argued that the materials would show a bias or motive on the part of Spencer Lader to testify against Heller. The motions were pending for more than six months, while the People made a number of requests for additional time to answer and to comply. The information eventually provided to the defendant through the District Attorney's office was found by him to be unsatisfactory. When the Federal authorities officially denied possession of any additional Brady material the subpoena at issue was signed by this court.
The position of the United States Attorney's office is that it is without authority to comply with the subpoena and therefore must decline to do so. This is based in large measure upon regulations set forth in 28 U.S.C.--Judicial Administration of Federal Regulations (28 C.F.R. § 16.21 et seq. ), which governs the production or disclosure of information in Federal and State proceedings. 28 C.F.R. § 16.22 generally prohibits production or disclosure where the United States is not a party to the proceeding, except where specifically authorized by appropriate officials in the Department of Justice.
According to the affirmation submitted by the Assistant United States Attorney, the Department of Justice did not authorize disclosure and instead instructed the Eastern District to seek to quash the subpoena. It is their contention, based on United States ex rel. Touhy v. Ragen, 340 U.S 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951) and People v. Carbonaro, 104 Misc.2d 145, 427 N.Y.S.2d 701 (Sup.Ct., Kings Co., 1980), that absent such authorization, compliance may not be judicially compelled. This court does not agree.
The Government has appeared in this matter behind the shield of "binding" Federal regulations, claiming that disclosure would hamper pending investigations by revealing confidential sources and investigative techniques employed by the Federal Bureau of Investigation. This claim is made notwithstanding the fact that the District Attorney's office has already had at least limited access to those files. While this court appreciates the sensitive nature of the investigations being conducted, its primary responsibility is to safeguard the defendant's constitutional right to a fair trial in a state prosecutorial process.
The rights to compulsory process and to confrontation of witnesses are basic to our system of justice. The Supreme Court has recognized its "... manifest duty ... to vindicate those guarantees ...." ( United States v. Nixon, President of the United States, 418 U.S. 683, 711, 94 S.Ct. 3090, 41 L.Ed.2d 1039 ). The landmark cases of Brady v. Maryland, supra, and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), underscore the rights of criminal defendants to discover exculpatory evidence in the possession of the prosecution. The duty of the prosecuting authority to comply is an affirmative one (United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 ), grounded in considerations of "... elemental fairness to the defendant and as a matter of professional responsibility ..." (People v. Cowart, NYLJ, 1/29/82, p. 7, col. 2 ). When those guaranteed rights are in direct conflict with a policy of another governmental authority, one must yield. It is the opinion of this court that, in this case, the rights of the competing authority must yield to those of the defendant.
Similar problems have arisen on the Federal level as well, where the power of a Federal subpoena against the Department of Justice was in question. In United States v. Feeney, 501 F.Supp. 1324 (Dist.Ct., Colorado, 1980), the court concluded that such a subpoena could be enforced, observing that
A defendant has certain absolute rights under our...
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People v. Chambers
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...297 (1973); see also, People v. Chambers, 134 Misc.2d 688, 512 N.Y.S.2d 631, 633 n. 2 (Sup.Ct. N.Y.Co., 1987), citing People v. Heller, 126 Misc.2d 575, 483 N.Y.S.2d 590 (Sup.Ct. Kings Co., 1984); People v. Harte, 99 Misc.2d 86, 415 N.Y.S.2d 390 (Sup.Ct. Bronx Co., The question presented is......
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