People v. Lunney

• Decision Date: 24 December 1975
• Citation: 378 N.Y.S.2d 559,84 Misc.2d 1090
• Parties: The PEOPLE of the State of New York, v. Warren LUNNEY, Defendant.
• Court: New York Supreme Court

Page 559

378 N.Y.S.2d 559

84 Misc.2d 1090

The PEOPLE of the State of New York, v. Warren LUNNEY, Defendant.

Supreme Court, Trial Term, New York County, Part 35.

Dec. 24, 1975.

Robert M. Morgenthau, Dist. Atty. (Andrew N. Sears, New York City, of counsel), for People.

Goldman & Hafetz, New York City (Lawrence S. Goldman, New York City, of counsel), for defendant.

ERNST H. ROSENBERGER, Judge:

Defendant moves under sections 200.80, 210.20(1)(h), 210.20(1)(c), 210.35(4), 190.50(5)(a) and 210.20(1)(i) of the Criminal Procedure Law for a dismissal of Indictment No. 1691/74 and a superseding Indictment No. 4622/74 against him for two counts of murder in the death of one Terry A. Lein.

The factual basis for these motions is clear and important. The District Attorney concedes that the defendant was indicted by a grand jury for these crimes on March 21, 1974 under Indictment No. 1691/74. Subsequent to that, the stenographic minutes, ready to be typed, were lost when an employee of the District Attorney left them on a subway train. Following that negligent loss of the complete stenographic notes of the grand jury presentation, the case was re-present to a second grand jury and the new superseding indictment against this defendant was filed on September 23, 1974.

Defendant seeks dismissal of the indictment on several grounds, i.e.:

1. that dismissal is required because of the loss of the minutes of the March grand jury;

2. that defendant was not afforded an opportunity to testify before the second (September) grand jury although he had previously declined the opportunity to testify before the first (March) grand jury; and

3. that the District Attorney abused the grand jury by gathering additional evidence before the second grand jury after the indictment by the first grand jury.

1. Defendant's right to inspect and to use a prosecution witness' grand jury testimony on cross-examination derives from People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. den., 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64. Rosario held that after the conclusion of the direct testimony of the prosecution's witnesses, the defense is entitled to use for the purpose of impeachment any prior statement made by the witness relating to the subject matter of the testimony. Grand jury minutes have been held to be such prior statements (see, for example, People v. Agron, 10 N.Y.2d 130, 218 N.Y.S.2d 625, 176 N.E.2d 556, cert. den., 368 U.S. 922, 82 S.Ct. 245, 7 L.Ed.2d 136; People v. Jaglom, 17 N.Y.2d 162, 269 N.Y.S.2d 405, 216 N.E.2d 576; People v. Cruz, 16 A.D.2d 899, 228 N.Y.S.2d 806; People v. Wilson, 16 A.D.2d 207, 229 N.Y.S.2d 685).

However, what is the nature of the right to inspect and use prior witnesses' statements given to defendants in Rosario? Does a failure to furnish impeachment material by the prosecutor or the trial court rise to a deprivation of fundamental rights mandating the dismissal of the indictment?

Rosario did not hold that failure to supply the defense with prior statements for impeachment purposes required a dismissal of the indictment. In deciding that case Chief Justice Fuld stated that (9 N.Y.2d p. 289, 213 N.Y.S.2d p. 450, 173 N.E.2d p. 883):

'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.)

In other words, Rosario is based on fairness but not necessarily fundamental constitutional mandates.

The majority opinion in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, on which Rosario was based, discussed its holding granting prior witnesses' statements to the defense in terms of fair 'standards for the administration of criminal justice in the federal courts.' Jencks v. United States makes no mention of constitutional standards.

The United States Supreme Court in an opinion by Mr. Justice Douglas (United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537) has stated that an adverse ruling on the production of prior statements of government witnesses does not necessarily rise to a constitutional deprivation. To the same effect, see the cases cited in United States v. Moceri, D.C., 359 F.Supp. 431, including Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287.

In view of these decisions, this court specifically disagrees with the holding in People ex rel. Hairston v. Adult Detention Center, 76 Misc.2d 1010, 352 N.Y.S.2d 326, insofar as it implies that a deprivation of prior witnesses' statements mandates dismissal of the indictment (see, United States v. Carpenter, 166 U.S.App.D.C. 358, 510 F.2d 738, where the District of Columbia Circuit Court of Appeals refused to dismiss an indictment for negligent destruction of preliminary hearing testimony).

Since constitutional questions are not involved, the court is reluctant to invoke the drastic remedy of dismissal of the indictment. And yet, the remedy in our case cannot be the usual retrial or rehearing which is granted after reversal on appeal (see, People v. Sanders, 31 N.Y.2d 463, 341 N.Y.S.2d 305, 293 N.E.2d 555; People v. Peacock, 31 N.Y.2d 907, 340 N.Y.S.2d 642, 292 N.E.2d 785; People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529; People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103). No matter how many retrials are ordered in our case, the minutes of the grand jury are irremedially lost. There is no possibility of supplying the prior statements to the defense for impeachment purposes under any circumstances.

It has been suggested that the resubmission to the grand jury cures the loss, since it makes Some prior testimony of the witnesses available to the defense at trial. This argument overlooks the function of the Rosario mandated material. It is for cross-examination, not discovery. The difference is plain.

When one is forewarned that he is to be reexamined, particularly when he knows that his prior statement is unavailable, he has a perfect opportunity to 'edit' or 'amend' his testimony on the rehearing or resubmission. This new transcript thus becomes almost useless to the cross-examiner for impeachment purposes. It may well even be counterproductive, since the 'new' transcript might confirm the proffered testimony which the lost transcript might have contradicted.

If we eliminate dismissal of the indictment, what then can be a remedy for this defendant? One can be found in the Jencks Act, 18 U.S.C.A. § 3500. This section of the U.S.Code came about as a result of the Jencks case discussed above. It provides for the furnishing by the prosecution to the defense in a criminal case a witness' statement after he or she has been called to testify on direct examination.

For our purposes, however, the most significant provision is the one for sanctions. Subsection (d) of 18 U.S.C.A. § 3500 provides that if the government does not deliver prior witnesses' statements to the defense 'the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.'

In other words, the remedy provided under the Jencks Act, a close relative of our Rosario rule, is to strike from the record the testimony of the prosecution witness or to grant a mistrial. There is no provision for dismissal of the indictment.

There are recent federal cases which discuss very thoroughly the distinction between willful failure and negligent or 'good faith' inability to furnish the material through loss or other negligence. In United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057, the court had occasion to rule on whether the sanctions in the Jencks Act should be invoked automatically even though the government was merely negligent in losing the grand jury minutes. In United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, the court stated that the circumstances of the disappearance of the prior statement are related to the invocation of the Jencks Act sanctions. It stated that bad faith suppression of evidence causes the sanctions to be imposed but a 'good faith' negligent loss can suspend them.

However, in our case the question of 'good faith' ...