People v. Johnson

• Decision Date: 31 December 1971
• Citation: 68 Misc.2d 708,327 N.Y.S.2d 690
• Parties: The PEOPLE of the State of New York, Plaintiffs, v. Mack Ray JOHNSON, Defendant.
• Court: New York County Court

Page 690

327 N.Y.S.2d 690

68 Misc.2d 708

The PEOPLE of the State of New York, Plaintiffs, v. Mack Ray JOHNSON, Defendant.

Dutchess County Court.

Dec. 31, 1971.

Lloyd L. Rosenthal, Poughkeepsie, for defendant.

Albert M. Rosenblatt, Dist. Atty., for plaintiffs; Carl S. Wolfson, Poughkeepsie, of counsel.

RAYMOND E. ALDRICH, Jr., Judge.

The defendant Mack Ray Johnson moves for an order of discovery pursuant to CPL 240.20 concerning various items of personal property taken from him, and, as to those considered contraband requiring the district attorney to make known to him all reports and documents concerning any scientific tests and experiments made in connection with the case.

The district attorney opposes the relief sought upon the grounds that the defendant is not entitled to the items at the present time, although it may well be that the tests will at some future time be introduced into evidence at a trial, and at that point he may be entitled to renew his request.

The indictment contains three (3) counts, each involving a dangerous drug offense, namely, Criminally Selling a Dangerous Drug In The Second Degree, a Class B Felony, Criminal Possession of a Dangerous Drug In The Fourth Degree, a Class D Felony, and Criminal Possession of a Dangerous Drug In The Sixth Degree, a Class A Misdemeanor, with the dangerous drug in each instance being heroing.

The essence of each crime charged, therefor, is whether the defendant did or did not possess this dangerous drug. The papers in opposition leave no doubt but that certain personal property was in fact taken from the defendant, and that scientific tests and experiments were made in connection therewith.

During the ninety year old era of the Code of Criminal Procedure, the New York rules governing pre-trial discovery in criminal cases were grounded upon the principal that inspection may not be had for the sole purpose of prying into the people's case, or because disclosure may prove helpful to a defendant in preparing his defense (People ex rel. Lemon v. Supreme Court, 1927, 245 N.Y. 24, 34, 156 N.E. 84, 87). As the years passed, however, trial judges more occasionally expressed views indicating a justification for more liberalization in this area (Silver v. Sobel, 7 A.D.2d 728, 180 N.Y.S.2d 699; People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542; People v. Stokes, 24 Misc.2d 755, 204 N.Y.S.2d 827; People v. Quarles, 44 Misc.2d 955, 255 N.Y.S.2d 599; People v. Abbatiello, 46 Misc.2d 148, 259 N.Y.S.2d 203; People v. Harvin, 46 Misc.2d 417, 259 N.Y.S.2d 883; People v. Matera, 52 Misc.2d 674, 276 N.Y.S.2d 776).

The advent of the new Criminal Procedure Law, effective September 1, 1971, resulted in a codification of the growing beliefs among judges that such a more modern approach to discovery should be the acceptable rule in today's society, and as a result a defendant now has, pursuant to legislative enactment, as a matter of right, a discovery of his testimony before the grand jury, of any written or recorded statements made by him to law enforcement officers, and of reports and documents concerning physical or mental examinations or scientific tests and experiments made in connection with the case, as well as to any other property specifically designated by the defendant upon certain enumerated conditions (CPL section 240.20, subds. 1, 2, and 3).

This new legislative enactment is in substance an adoption of Federal Rule 16, and materially expands the scope of the former pre-trial discovery.

A motion for discovery must now be made by a defendant with due diligence prior to the commencement of trial, and if not so made may be summarily denied (CPL 240.30), and a defendant consequently runs the risk of not making such a motion at the earliest possible opportunity, for if he delays, he does so at his peril.

This Court has repeatedly held that 'if the People have evidence in their possession or control which is favorable to the defendant, the concept of fairness, sense of justice, and due process compells disclosure to the defendant.' People v. Bach, 65 Misc.2d 994, 997, 319 N.Y.S.2d 703, 707.

CPL 240.20, subd. 2, permits discovery

'. . . with respect to property consisting of reports and documents . . . concerning . . . scientific tests and experiments made in connection with the case which are within the possession, custody or control of the district attorney, the existence of which is known, or by the exercise of due diligence should become known, to such district attorney.'.

This Court notes that this section has...