People v. Johnson

• Decision Date: 26 August 1982
• Citation: 115 Misc.2d 366,454 N.Y.S.2d 248
• Parties: The PEOPLE of the State of New York v. Jerome JOHNSON, a/k/a Jason Hull, Defendant.
• Court: New York County Court

Page 248

454 N.Y.S.2d 248

115 Misc.2d 366

The PEOPLE of the State of New York v. Jerome JOHNSON, a/k/a Jason Hull, Defendant.

Westchester County Court.

Aug. 26, 1982.

Carl A. Vergari, Dist. Atty., White Plains, for plaintiff.

Stephen J. Pittari, Legal Aid Society, White Plains, for defendant.

GERARD E. DELANEY, Judge.

Defendant has been indicted for the crimes of Attempted Robbery in the First Degree, Criminal Use of a Firearm in the Second Degree and Criminal Possession of a Weapon in the Third Degree. Such crimes occurred in Yonkers, New York, on November 16, 1981, wherein defendant allegedly used a knife and displayed what appeared to be a firearm in an attempt to rob one Sharon Zellner. Following his arrest and later indictment, defendant was arraigned on the instant charges on January 4, 1982. Counsel for defendant had him examined by a psychiatrist for possible alcohol related amnesia at the time of his alleged crimes and upon receiving indications of such an episode from his doctor, defendant submitted an omnibus motion which, inter alia, requested expanded pre-trial discovery under CPL § 240.40. Defendant alleges that as a result of amnesia, alleged to be alcohol related, he remembers nothing of his actions or whereabouts on the date, time and place of the crimes charged and needs expanded discovery so as to allow him to assist in his own defense. This Court reserved decision on such issue, finding that a hearing was necessary for medical evidence of defendant's status at the time of the crimes charged.

A. LAW

The new CPL Article 240 became effective January 1, 1980 (L. 1979, Ch. 412). CPL § 240.40(1)(a) allows a Court, (subject to certain discretionary protective provisions in CPL § 240.50) to "order discovery with respect to any other property, which the People intend to introduce at trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his defense and that the request is reasonable." While the People have previously consented to certain of defendant's discovery requests (see People's affidavit in opposition at p. 3-8, March 23, 1982), the defendant also seeks contested discovery in the broad categories of: police reports concerning identifications made of defendant and names of witnesses; statements defendant may have made to non-police personnel, to include names and addresses of the witnesses; all police reports concerning his arrest; and all reports reflecting prior statements of all witnesses to include their Grand Jury testimony.

CPL Article 240 should be strictly construed inasmuch as it is in derogation of prior common law principles. Cf. In Re Mulvaney v. Dubin, 80 App.Div.2d 566, 435 N.Y.S.2d 761 (2d Dept. 1981). However, special circumstances may allow certain disclosure beyond the statute. See Id. at 567, 435 N.Y.S.2d 761 and cases cited therein. Accord CPL § 240.40(1)(a) supra. Cf. People v. Gissendanner, 48 N.Y.2d 543, 550, 423 N.Y.S.2d 886, 399 N.E.2d 918; Matter of Vergari v. Kendall, 76 Misc.2d 848, 854, 352 N.Y.S.2d 383, aff'd 46 A.D.2d 679, 360 N.Y.S.2d 1003. However, there remains the additional statutory requirement that there must be property of a type "which the People intend to introduce at trial". Cf. People v. Bissonette, 107 Misc.2d 1049, 1051, 436 N.Y.S.2d 607; People v. Finkle, 103 Misc.2d 985, 427 N.Y.S.2d 374.

The Court notes, however, that "constitutional requirements supercede statutory limitations", People v. Harte, 99 Misc.2d 86, 89, 415 N.Y.S.2d 390; cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and the denial of the pre-trial discovery in some instances may well be of constitutional dimensions. Supra.

Of importance here also is that defendant is not contesting his competence to stand trial because of his alleged amnesia on the date of the crime(s), i.e., CPL Art. 730, as such a condition has been held not to constitute mental incapacity. (People v. Francabandera, 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292); Cf. U.S. v. Sullivan, 406 F.2d 180 (2d Cir. 1969). ¹

Under CPL § 240.40 additional discovery may be had if defendant shows by a preponderance of the evidence that such is "material to ... his defense and that the request is reasonable". There appears to be no real question but that the names and addresses and prior statements of the witnesses to the crime and to his arrest are material, i.e., probative of facts in issue, as they would be in every criminal case. The question then becomes whether on the facts presented, the request is "reasonable" and, if so, to what extent the discovery should apply (Cf. CPL § 240.50).

Under old CPL § 240.20(3)(b) and § 240.10(3) prior statements of potential prosecution witnesses were expressly non-discoverable by statute. See People v. Andre W., 44 N.Y.2d 179, 186 n., 404 N.Y.S.2d 578, 375 N.E.2d 758. However, the concept of "exempt property" per se was not carried forward in the 1980 revision of CPL Art. 240 and depending on the circumstances, CPL § 240.40 may well allow it. Regardless of the statute, courts have divided over the issue of the disclosure of the names and addresses of such witnesses. Supra. Such disclosure of the names of witnesses prior to trial, however, was implicitly approved in certain instances at the discretion of the trial Judge, supra at 185, 404 N.Y.S.2d 578, 375 N.E.2d 758. Cf. People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. den. 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286; People v. Stanard, 42 N.Y.2d 74, 84, 396 N.Y.S.2d 825, 365 N.E.2d 857, albeit with considerations to be kept in mind which are similar to those of CPL § 240.50.

Is such discovery "reasonable" in the case of the alleged amnesic defendant? If a defendant has carried his burden of proof ² to indicate that his recollection of the events at the time of the alleged crimes is hampered by a retrograde amnesia pertaining to that time, the courts have seemed to indicate that not only is it reasonable but also necessary in order to insure defendant receives a fair trial. See generally Wilson v. U.S., 391 F.2d 460, 463 (D.C. Cir. 1968); U.S. v. Sullivan, 406 F.2d 180, 186 (2d Cir. 1969) ("Such a loss of memory may call for additional trial safeguards ..." at 186.); People v. Francabandera, supra 33 N.Y.2d at 438, 354 N.Y.S.2d 609, 310 N.E.2d 292 (witness statements were ordered read to defendant before entering his plea); State v. McClendon, 103 Ariz. 105, 437 P.2d 421; People v. Rivera, 111 Misc.2d 713, 435 N.Y.S.2d 510 ("full disclosure" ordered); People v. Soto, 68 Misc.2d 629, 327 N.Y.S.2d 669 (evidence could be "reconstructed" extrinsically through discovery). It is important to note that this additional discovery allowed defendant becomes a factor in the Wilson analysis which must be made by the trial Judge after trial (or before plea) in order to determine whether defendant in the circumstances did (or could) receive a fair trial. People v. Francabandera, supra 33 N.Y.2d at 438-439, 354 N.Y.S.2d 609, 310 N.E.2d 292; U.S. v. Wilson, supra at pp. 463-464.

B. FACTS

A hearing was held on August 12 and 13, 1982, and the Court makes the following findings of fact in this matter for the purposes of the hearing only: Defendant, Jerome Johnson, also known as Jake Hull, Jr., is a 35 year old married male who states he has had an alcohol "problem" since approximately 1966, which statement is verified by various hospital records and diagnoses of alcoholism, cirrhosis of the liver and pancreatitis during this period. He has a long history of weeks of alcoholic "binges" since 1965, and at least two prior "memory losses" when he was drinking heavily.

During the period of three to four weeks prior to the alleged instant crimes, defendant was consuming a pint of vodka a day, and a quart a day on weekends.

On the evening of November 15, 1981, defendant was home with his wife, drank a quart of vodka and went to sleep in the late evening or early morning hours. He claims that he remembers nothing at all of the day of November 16, 1981, except that he does remember waking up in a Yonkers jail cell after 6 P.M. on that date. He states that his wife later told him he went out in the morning of November 16 and bought another bottle of wine.

The instant crime(s) are alleged to have occurred in the afternoon of November 16, 1981.

Defense psychiatrist, Dr. Alan Tuckman, upon an examination of the defendant and all hospital records, termed defendant a chronic alcoholic and...