People v. Hicks

• Decision Date: 25 March 1976
• Citation: 381 N.Y.S.2d 794,85 Misc.2d 649
• Parties: The PEOPLE of the State of New York v. Aurora HICKS, Defendant.
• Court: New York City Court

Page 794

381 N.Y.S.2d 794

85 Misc.2d 649

The PEOPLE of the State of New York v. Aurora HICKS, Defendant.

Criminal Court of the City of New York, New York County Part Jury I.

March 25, 1976.

Robert M. Morgenthau, Dist. Atty., New York County by Allen Steven Portnoy, Asst. Dist. Atty., New York City, for the People.

Frank Bress, New York University Law Clinic, New York City by Bruce Horowitz, Law Intern, for defendant.

E. LEO MILONAS, Judge:

The defendant is charged with the commission of three Class A misdemeanors: assault in the third degree, possession of a dangerous instrument in the fourth degree, and resisting arrest. Defendant now moves to dismiss the misdemeanor complaint pursuant to CPL section 170.30(1)(a), (f), and (g).

The relevant facts are as follows:

Defendant was arrested on July 19, 1975. On the following day a felony complaint was lodged with the court and defendant was arraigned. The original accusatory instrument charged her with a Class D felony, as well as three Class A misdemeanors. It was alleged in the complaint that the defendant had knocked one Charles Hicks off his bicycle and punched said Hicks on the arm, and that the defendant resisted Police Officer Stephen Dandrilli's attempt to place her under arrest by striking the officer about the head with a stick and biting him, thereby causing physical injury which required hospital treatment.

Prior to the preliminary hearing, on September 3, 1975, the felony charge was reduced to assault in the third degree. On conclusion of the hearing, the court dismissed the assault charge relating to the alleged encounter with Charles Hicks. The other Class A misdemeanors still remain before this court as the subject of this motion. While the People have offered to amend the pleadings by submitting a new affidavit which would reflect only the charges still pending against the defendant, no such affidavit has as yet been filed.

At the preliminary hearing, counsel for the defendant made a timely oral request for a copy of the minutes of the proceeding. A formal written demand for a transcript followed immediately thereafter. The court reporter initially indicated that the minutes had not been transcribed but would be available at a later date. Repeated attempts to obtain the record proved futile. Eventually the court stenographer acknowledged that the minutes were irretrievably lost.

Defendant asserts that the prior statements of witnesses are an essential tool of cross-examination and that under the case law in this jurisdiction she has a fundamental constitutional right to such impeachment materials. (See People ex rel. Hairston v. Adult Detention Center, 76 Misc.2d 1010, 352 N.Y.S.2d 326 (Sup. Ct., Bronx County, 1973) and the cases cited therein.) Thus defendant maintains that under the circumstances and in the interests of justice her present inability to obtain the minutes constitutes a legal impediment to conviction which necessitates dismissal of the action. The prosecution contends, however, that the unavailability of a witness's prior statements does not automatically give rise to deprivation of constitutional rights mandating a dismissal. In this instance the People claim that dismissal of the accusatory instrument would not be warranted.

The Supreme Court, in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), held that a defendant 'is entitled to inspect' any statement made by the government's witness which bears on the subject matter of the witness's testimony. (Id. at 667, 668, 77 S.Ct. 1007, 1 L.Ed.2d 1103) In United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), Mr. Justice Douglas indicated that the Jencks decision and the Jencks Act, 18 U.S.C. § 3500, 'were not cast in constitutional terms.' (See also Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); United States v. Moceri, 359 F.Supp. 431 (N.D.Ohio, E.D.1973).) Rather, the decision in Jencks enunciates the rules of evidence which are compatible with our standards for the fair administration of criminal justice in the federal courts (Jencks v. United States, supra, at 668; United States v. Augenblick, supra, 393 U.S., at 356, 89 S.Ct. 528, 21 L.Ed.2d 537).

In this spirit, New York adopted the Jencks holding and rationale, although it was not binding upon the state courts. The Court of Appeals in People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 450, 173 N.E.2d 881, 883 (1961), declared:

'The procedure to be followed turns largely on Policy considerations, and upon further study and reflection this court is persuaded that a Right sense of justice entitles the defense to examine a witness' prior statement . . ..' (emphasis added)

The decision in Rosario, like the opinion in Jencks, is grounded upon a fairness doctrine and 'not necessarily fundamental constitutional mandates.' (People v. Lunney, 84 Misc.2d 1090, 1092, 378 N.Y.S.2d 559, 562, N.Y.L.J., Jan. 19, 1976, p. 7, col. 3 (Sup.Ct., N.Y. County, Rosenberger, J.).) This court must take exception to the holding in People ex rel. Hairston v. Adult Detention Center, 76 Misc.2d 1010, 352 N.Y.S.2d 326 (Sup.Ct., Bronx County, 1973) insofar as it implies that the unavailability of a witness's prior statement results in a deprivation of a constitutional right requiring dismissal. (See United States v. Carpenter, 166 U.S.App.D.C. 358, 510 F.2d 738 (1975) wherein the court upheld denial of a motion to dismiss an indictment because of the negligent destruction of preliminary hearing minutes; People v. Lunney, supra, wherein the court refused dismissal of the indictment because of the irretrievable loss of grand jury minutes.) Based on these cases, the drastic remedy of dismissal is not justified.

In United States v. Augenblick, supra, 393 U.S., at 356, 89 S.Ct. 528, 21 L.Ed.2d 537, Justice Douglas cautioned against elevating to a constitutional level a denial of discovery of Jencks Act material (i.e., prior statements of a witness) even where the denial might work an injustice. The Supreme Court made clear that, apart from trials conducted in violation of express constitutional provisions, a constitutionally unfair trial within the meaning of the Due Process Clause takes place only where the barriers and safeguards are so relaxed or forgotten that the proceeding is more a spectacle...