People v. Lamberty

• Citation: 405 N.Y.S.2d 599,94 Misc.2d 636
• Parties: PEOPLE of the State of New York v. Miguel LAMBERTY, Defendant.
• Decision Date: 18 May 1978
• Court: United States State Supreme Court (New York)

Page 599

405 N.Y.S.2d 599

94 Misc.2d 636

PEOPLE of the State of New York v. Miguel LAMBERTY, Defendant.

Supreme Court, Trial Term,Bronx County, Part 15.

May 18, 1978.

Mario Merola, Dist. Atty., Bronx County by Joel Lutwin, Asst. Dist. Atty., for the People.

Phillip Lee, II, Legal Aid Society, New York City, for defendant.

ALFRED H. KLEIMAN, Judge.

The defendant, Miguel Lamberty, was indicted by the Bronx County Grand Jury on April 22, 1976, for the crimes of Assault in the First Degree, Assault in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree.

The People moved, by order to show cause, returnable November 28, 1977, for an order pursuant to Article 660 of the Criminal Procedure Law to have a prospective eyewitness, to wit, a Mr. Thomas Soler, examined conditionally, "and on video tape" to perpetuate his testimony for trial. A hearing was held on December 8, 1977 to determine whether the People's motion should be granted.

Based upon the People's offer of proof, the Court found there is reasonable cause to believe that Mr. Soler was an eyewitness to the alleged incident which is the subject of the charges in this indictment and that he possesses information material to the instant action. The Court further found that, pursuant to stipulated facts, the potential witness will be leaving New York to return to his home in Puerto Rico with the intent of becoming a permanent resident thereof, and has no present intent to return to New York State in the foreseeable future.

Criminal Procedure Law Section 660.20 provides as follows:

"An order directing examination of a witness conditionally must be based upon the ground that there is reasonable cause to believe that such witness:

1. Possesses information material to the criminal action or proceeding in issue; and

2. Will not be amenable or responsive to legal process or available as a witness at a time when his testimony will be sought, * * * because he is:

(a) About to leave the state and not return for a substantial period of time; * * *."

Accordingly, the People having satisfied the statutory requirements of Article 660 of the Criminal Procedure Law, the Court held that the People are entitled to an order for the conditional examination of Mr. Soler.

However, to the extent that the People asked that the testimony be perpetuated also by means of videotape, that application was denied. The Court now sets forth its reasons for the decision rendered heretofore orally from the bench.

The People, during argument, cited two recent Supreme Court decisions by my colleague Justice Alexander Chananau and former Justice Morris J. Aarons to support their position that the testimony may be taken by means of videotape. The two decisions are respectively, People v. Winborne, 90 Misc.2d 71, 394 N.Y.S.2d 769 (Sup.Ct.Bronx County 1977) and People v Aponte and De Jesus, N.Y.L.J., September 2, 1976, page 7, column 1 (Sup.Ct.Bronx County). Both decisions adopt the view that although the Criminal Procedure Law does not specifically authorize taking testimony by means of videotape, since it does not prohibit it, the application may be granted. This Court must respectfully disagree. In my opinion the Criminal Procedure Law does not give the Court discretion to take testimony by other than stenographic means.

Criminal Procedure Law Section 660.60 provides as follows:

"1. The examination proceeding must be conducted and recorded in the same manner as would be required were the witness testifying at a trial. The witness must testify under oath. The applicant party must first examine the witness and the respondent party may then cross-examine him, with each party entitled to register objections and to receive rulings of the court thereon.

2. Upon conclusion of the examination, a transcript thereof must be certified and filed with the court which ordered the examination. " (Emphasis supplied).

In New York, testimony of a witness in a criminal trial is taken only by stenographic means. Therefore, testimony perpetuated for trial must be taken only by stenographic means.

Winborne, supra, and Sonia Aponte, supra, concededly fail to cite any authority in New York for the preservation of testimony by videotape in criminal cases. After reviewing Federal and State cases from other jurisdictions Justice Chananau concluded that "the use of this procedure (i. e., electronic recordings, videotapes) is superior to a cold reading of a typewritten transcript and can only be beneficial to the interests of justice." (Winborne, supra, 394 N.Y.S.2d 771). In Sonia Aponte, supra, Justice Aarons states:

"It would appear that the use of videotape is a more efficient means of reproducing testimony before the triers of the fact than a reading of a stenographic transcript. A videotape preserves a permanent viewable record of all confrontations. It enables the triers of the facts to observe the demeanor of the deponent while testifying under direct and cross-examination."

While I basically agree with the aforementioned conclusions, it does not necessarily follow that the Criminal Procedure Law can be broadly interpreted to incorporate more modern technological means. To my mind this is usurping the exclusive powers of the Legislature.

The decisions in the Federal cases cited in Winborne are based on the Federal Rules of Civil Procedure, Section 30(b)(4) which provides as follows:

"The Court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy." (Emphasis supplied.)

The Federal district courts have therefore sanctioned the use of electronic recording by audiotape at depositions in civil cases based upon the statutory authority of Section 30(b)(4) of the Federal Rules of Civil Procedure (Marlboro Products Corp. v. North American Philips Corp., 55 F.R.D. 487 (Dist.Ct.S.D.N.Y.1972); Jarosiewicz v. Conlisk, 60 F.R.D. 121 (Dist.Ct.N.D.Ill.1973); Kallen v. Nexus Corp., 54 F.R.D. 610 (Dist.Ct.N.D.Ill.1972); Colonial Times, Inc. v. Gasch, 166 U.S.App.D.C. 184, 509 F.2d 517 (1975); Lucas v. Curran, 62 F.R.D. 336 (Dist.Ct.E.D.Pa.1974)).

The Federal Rules of Criminal Procedure, Section 15(d) provides that depositions may be taken in any manner which meets the requirements of the Federal Rules of Civil Procedure. In the case of United States v. LaFatch, 382 F.Supp. 630 (N.D.Ohio 1974), the court permitted the videotaping of testimony in a criminal prosecution, where the defendant's wife, a key defense witness, had suffered a heart attack and was unavailable to testify at trial. (cf. Perry v. Mohawk Rubber Co., 63 F.R.D. 603 (Dist.Ct.D.S.C.1974) where the court denied recording of deposition by videotape.)

Although the Federal Courts have specific statutory rules permitting the taking of depositions by other than stenographic means, the New York Legislature has not enacted such rules.

The notes of the Advisory Committee on the 1970 Amendment to Federal Rule 30(b)(4) cautions the courts by stating:

"In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means, e. g., by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved and filed, and it may contain whatever additional safeguards the court deems necessary."

In our sister states which have allowed videotapes into evidence in criminal cases, few of the cases involve testimony that has been perpetuated for trial purposes and used in lieu of an unavailable witness (see 60 ALR 3d 333). Videotapes have mainly been utilized in the investigative phases of criminal prosecutions. Courts have accepted in evidence videotapes of crimes being committed (Williams v. State, 461 S.W.2d 614 (Tex.Cr.App.1971)), crimes scenes (People v. Mines, 132 Ill.App.2d 628, 270 N.E.2d 265 (1971); State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App.1972); State v. Johnson, 18 N.C.App. 606, 197 S.E.2d 592 (1973)); lineups (People v. Heading, 39 Mich.App. 126, 197 N.W.2d 325 (1972); State v. Newman, 4 Wash.App. 588, 484 P.2d 473 (1971)), interrogations and confessions (Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Paramore v. State, 229 So.2d 855 (Fla.1969); State v. Lusk, 452 S.W.2d 219 (Mo.1970)). Similarly such videotapes have been admitted as evidence in New York courts. (See People v. Higgins, 89 Misc.2d 913, 392 N.Y.S.2d 800 (Sup.Ct.Bronx, 1977)).

Research has disclosed only three criminal court cases in other jurisdictions which have permitted the use of videotapes to preserve testimony for trial. (People v. Moran, 39 Cal.App.3d 398, 114 Cal.Rptr. 413 (1974); Hutchins v. State, 286 So.2d 244 (Fla.App.1973); State v. Hewett, 86 Wash.2d 487, 545 P.2d 1201 (1976)). In two of the aforementioned cases provision was made for the preservation of the testimony of a witness by mechanical means pursuant to statutory authority. Legislation in both Florida and Washington specifically provide that the same rules governing the taking and processing of oral depositions in civil actions are applicable to criminal cases. (Hutchins v. State, 286 So.2d 244, 245; State v. Hewett, 545 P.2d 1201, 1203).

The Moran case, supra, permitted the admission of a videotape of a main prosecution witness who was unavailable to testify at trial. The testimony was taken by means of videotape at a preliminary hearing. The Moran case is distinguishable from the case at bar since it does not appear that there was any objections raised to the original videotaping.

However, there are no appellate opinions in this State which have permitted the use of...