People v. Magliore

• Decision Date: 30 September 1998
• Citation: 679 N.Y.S.2d 267,178 Misc.2d 489
• Parties: , 1998 N.Y. Slip Op. 98,587 The PEOPLE of the State of New York, Plaintiff, v. Garry MAGLIORE, Defendant.
• Court: New York City Court

Page 267

679 N.Y.S.2d 267

178 Misc.2d 489, 1998 N.Y. Slip Op. 98,587

The PEOPLE of the State of New York, Plaintiff, v. Garry MAGLIORE, Defendant.

Criminal Court of the City of New York Kings County.

Sept. 30, 1998.

Brooklyn Defender Services (Carol Gray of counsel), for defendant.

Charles J. Hynes, District Attorney of Kings County (Douglas Appel of counsel), for plaintiff.

William J. Breuer, for Uniformed Court Officers Association.

CHARLES J. HEFFERNAN, Jr., Judge.

This case presents a question of apparent first impression: whether defendant's motion pursuant to Civil Rights Law Section 50-d for a subpoena duces tecum for the personnel records of four Uniformed Court Officers ("the officers") who are complainants against him in the impending trial of this case should be granted, where defendant offers no factual showing of the relevance of the content of those records to the issues to be resolved at trial, other than his hope that they may reveal evidence which can be used to impeach the testimony of the officers. For the reasons which follow, the motion should be denied. ¹

Introduction

Defendant stands accused of three counts of an attempt to commit the crime of assault in the third degree (P.L. 110.00/120.00[1] ), four counts of harassment in the second degree (P.L. 240.26[1] ), one count of an attempt to commit the crime of criminal contempt in the second degree (P.L. 110/215.50[2] ), and one count of disorderly conduct (P.L. 240.20[2] ), pertaining to conduct allegedly committed against the four officer-complainants in a hallway of the Civil Court Building at 141 Livingston Street in Kings County on January 27, 1998. By pretrial ex parte application, defendant seeks a judicial subpoena duces tecum for the personnel records of those officers.

Upon receipt of the motion, the court directed that the officers be notified of its pendency and have the opportunity to prepare and present their positions on its merit to the court. On June 29, 1998, this court conducted a hearing at which defendant's counsel, the attorney for the four officers, and the People were heard. While defendant was invited to make a showing of actual or likely relevance of the yield of the sought subpoenas, he instead merely cited their potential value as impeachment material. The officers oppose the application, as do the People.

The Legal Analysis

Access to personnel records of court officers is governed by Section 50-d of Civil Rights Law, which was enacted in 1992. Subdivision 2 thereof provides as follows:

Personnel records of court officers shall be disclosed in a court action pursuant to the relevant provisions of the criminal procedure law, the civil practice law and rules, or any other provision of law governing such disclosure only after the court has notified the subject of such record that such record may be disclosed in a court action and the court has given the subject of such record an opportunity to be heard on the question of whether the records sought are relevant and material in the action before the court. If, after such hearing, the court determines that only a portion of such records are relevant and material in the action before it, it shall make those parts of the record found to be relevant and material available to the persons so requesting.

There appears to be no case law interpreting this statute.

The seminal case in this general area of law is People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979), which reviewed the propriety of a trial court's refusal of a defense request for subpoenas duces tecum requiring production of personnel records of two police officers who were the principal prosecution witnesses. The court there offered principles which are equally compatible with sound interpretation of Civil Rights Law 50-d. ²

Recognizing "the tension between the constitutionally based rights of an accused to confront and cross-examine adverse witnesses on the one hand, and the interest of the State and its agents in maintaining confidential data relating to performance and discipline of police on the other," the court noted:

Granting, however, that the constitutional roots of the guarantees of compulsory process and confrontation may entitle these to a categorical primacy over the State's interest in safeguarding the confidentiality of police personnel records, it is not to be assumed that, in striking the balance between the two, police confidentiality must always yield to the demands of a defendant in a criminal case. The circumstances which support such demands may vary greatly. And, though access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific 'biases, prejudices or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand'(Davis v. Alaska [415 U.S. 308] at p. 316, 94 S.Ct. 1105, 39 L.Ed.2d 347), or when it involves other information which, if known to the trier of fact could very well affect the outcome of the trial (cf. United States v. Garrett, 542 F.2d 23, 26; United States v. Cardillo, 316 F.2d 606, 615-616, cert. den. 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55), there is no such compulsion when requests to examine records are motivated by nothing more than impeachment of witnesses' general credibility. In such cases, the defendant's rights have generally been canalized within the bounds of the traditional evidentiary rule that governs the introduction of extrinsic proof of matters collateral to the issues at trial, i.e., its availability rests largely on the exercise of a sound discretion by the trial court (see People v. Ocasio, 47 N.Y.2d 55, 60, 416 N.Y.S.2d 581, 389 N.E.2d 1101; People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Sorge, 301 N.Y. 198, 202; , 93 N.E.2d 637 3A Wigmore, Evidence [Chadbourn rev], Section 1005, 1005; Richardson, Evidence [10th ed-Prince], Section 491).

(Id. at 547-548, 423 N.Y.S.2d 893, 399 N.E.2d 924).

CPL 610.20(3) bars an attorney for a defendant in a criminal case from issuing a subpoena duces tecum of the court directed to any department, bureau or agency of the state, but authorizes counsel to obtain such a subpoena upon court order pursuant to CPLR 2307. ³ A court's authority to issue such process is subject to settled legal constraints which the law places on the use of such process. Such limitations have been lucidly summarized by the Appellate Division, Third Department, in Matter of Constantine v. Leto, 157 A.D.2d 376, 378, 557 N.Y.S.2d 611 (3rd Dept.1990), aff'd for reasons stated 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392 [1991], a decision which granted a motion to quash a subpoena duces tecum served upon the State Police for their "Breath Test Operator's Training Manual":

We also note that a subpoena duces tecum may not be used to circumvent the discovery provisions of CPL 240.20 and 240.40 (People v. Ramirez, 129 Misc.2d 112, 113-114, 492 N.Y.S.2d 906; People v. Crean, 115 Misc.2d 526, 454 N.Y.S.2d 231; People v. Miranda, 115 Misc.2d 533, 454 N.Y.S.2d 236), to "ascertain the existence of evidence" (People v. Gissendanner, [supra at], 551, 423 N.Y.S.2d 893, 399 N.E.2d 924) or "to fish for impeaching material" (People v. Di Lorenzo, 134 Misc.2d 1000, 1001, 513 N.Y.S.2d 938). Rather, its purpose is "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (Matter of New York State Dept. of Labor v. Robinson, 87 A.D.2d 877, 449 N.Y.S.2d 321). A showing that certain documents carry a potential for establishing relevant evidence is insufficient; instead, a defendant must put forth 'some factual predicate' which would make it reasonably likely that documentary information will bear relevant and exculpatory evidence (People v. Gissendanner, supra, at 550, 423 N.Y.S.2d 893, 399 N.E.2d 924).

See also, (Matter of Terry D., 81 N.Y.2d 1042, 601 N.Y.S.2d 452, 619 N.E.2d 389 (1993) [subpoena directing school assistant principal to produce names, addresses and telephone numbers of students and non students present in classroom at time of assault of teacher with which defendant stood charged quashed]; Matter of Javier V., --- A.D.2d ----, 670 N.Y.S.2d 355 [3rd Dept.1998] [same type information sought, with same result] ); Matter of Pirro v. LaCava, 230 A.D.2d 909, 646 N.Y.S.2d 866 (2nd Dept.1996) [writ of prohibition granted against enforcement of subpoena duces tecum issued by trial court in murder case directing Medical Examiner's Office to produce certain material relating to the autopsy examination of the victim; Appellate Division held that discovery which is unavailable by statute may not be ordered on principles of due process because "there is no general constitutional right to discovery in criminal cases", citing Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507, in turn citing Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30].

A subpoena duces tecum may not be used "in the hope of finding something helpful to [the] defense." (Matter of Decrosta v. State Police Laboratory, 182 A.D.2d 930, 931, 581 N.Y.S.2d 938 [3rd Dept.1992] [subpoena in DWI case for generalized category of records pertaining to a specific breathalyzer ampule lot and simulator lot denied]; see also, People v. Carpenter, 240 A.D.2d 863, 864, 658 N.Y.S.2d 542 [3rd Dept.1997] [in murder case where defendant sought to show a need for a psychiatric examination, subpoena denied for school records that defendant believed might exist regarding psychological, emotional or...