People v. Nova

• Decision Date: 15 November 1994
• Citation: 618 N.Y.S.2d 645,206 A.D.2d 132
• Parties: The PEOPLE of the State of New York, Respondent, v. Ricardo NOVA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 645

618 N.Y.S.2d 645

206 A.D.2d 132

The PEOPLE of the State of New York, Respondent, v. Ricardo NOVA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 15, 1994.

David Touger, of counsel (Peluso & Touger, attorneys), New York City, for defendant-appellant.

Donald J. Siewert, of counsel (Patrick J. Hynes, on the brief, Robert M. Morgenthau Dist. Atty. of New York County, attorney), New York City, for respondent.

Before ELLERIN, J.P., and ROSS, ASCH, RUBIN and WILLIAMS, JJ.

ROSS, Justice.

By a judgment of Supreme Court, New York County (Edwin Torres, J.), rendered January 3, 1992, defendant-appellant Ricardo Nova, along with six other individuals, was convicted of murder in the second degree and related crimes in connection with an attack on the Watkins family on September 2, 1990, which resulted in the death of Brian Watkins from a deep stab wound to the chest, inflicted by Nova's accomplice Yull Gary Morales. While Brian Watkins was the only fatality, the other members of his family were either slashed, or kicked and beaten by the group of teenagers who committed these atrocities in order to obtain money to go dancing at Roseland. The defendant was sentenced to 25 years to life in prison for the murder. On direct appeal, Nova's conviction was affirmed by order of this Court entered November 30, 1993 (People v. Nova, 198 A.D.2d 193, 603 N.Y.S.2d 863, lv. denied 83 N.Y.2d 808, 611 N.Y.S.2d 144, 633 N.E.2d 499). By motion dated September 8, 1993, Nova moved pursuant to CPL 440.10, for an order vacating the judgment of conviction on the ground that an audiotape made by the pathologist during the autopsy of Brian Watkins' body constituted Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; see also, CPL 240.45[1][a], and that the failure to disclose the tape required reversal and a new trial pursuant to People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011. By order of Supreme Court, New York County (Edwin Torres, J.), entered October 13, 1993 that motion was denied. Permission to appeal that order was granted by a justice of this Court. For the following reasons we unanimously affirm the October 13, 1993 order and hold that the audiotape in question is not Rosario material.

In People v. Rosario, supra, 9 N.Y.2d at 289, 213 N.Y.S.2d 448, 173 N.E.2d 881, it was held that a "right sense of justice" requires that the prosecution turn over to the defense any statement made by a prosecution witness to the police, district attorney or grand jury that relates to the subject matter of the witness' testimony. Since People v. Ranghelle (supra), it has been the law in this State that the People's complete failure to provide Rosario material to the defense constitutes per se reversible error requiring a new trial (People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134; see, People v. Jones, 70 N.Y.2d 547, 523 N.Y.S.2d 53, 517 N.E.2d 865; People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361).

However, it has been consistently held by the Court of Appeals that the People's obligation to produce the pretrial statements of their witnesses is limited to material which is in their possession or control (People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383). Traditionally, documents in the possession of law enforcement agencies have been deemed to be in the constructive possession of the People and are required to be produced.

For example, in People v. Ranghelle (supra), the failure to turn over a precinct complaint report containing a synopsis of the complainant's allegations against the defendant, before the close of the evidence, was held to be per se reversible error. The Court noted that the existence of a complaint report filed with the police was readily available to the People and held that, "the burden of locating and producing prior statements of complaining witnesses, filed with police agencies, remain[s] solely with the People" (Ranghelle, supra, 69 N.Y.2d at 64, 511 N.Y.S.2d 580, 503 N.E.2d 1011). In People v. Fields, 146 A.D.2d 505, 537 N.Y.S.2d 157, this Court held that the notes of a parole officer constituted Rosario material, which the People were required to produce. In holding that a parole officer was a member of law enforcement it was noted that, "a parole officer is a peace officer with the power to take such action as making warrantless arrests, using physical and deadly force in executing an arrest or preventing an escape, carrying out constitutionally permissible warrantless searches, and possessing and taking custody of firearms not owned by the peace officer for the purpose of disposing and guarding such firearms (citation omitted)" (supra, at 508, 537 N.Y.S.2d 157). It was also noted that the parole officer's function of determining if parole violation charges are to be filed against a person in order that he or she may be sent back to prison is "certainly a prosecutorial function" (id., at 508-509, 537 N.Y.S.2d 157).

Defendant, herein, raises the same arguments as were raised and rejected by the Second Department in People v. Washington, 196 A.D.2d 346, 612 N.Y.S.2d 586, lv. granted 83 N.Y.2d 1008, 616 N.Y.S.2d 489, 640 N.E.2d 157. Here, as in Washington, the defendant bases his argument that the Office of the Chief Medical Examiner (OCME) performs "prosecutorial functions" on the facts that the New York City Charter (Charter) and the New York City Administrative Code (Code) require the OCME to make certain determinations regarding the cause of death (Charter § 557[f]; Code §§ 17-203, 17-205), and to maintain certain records and provide same to law enforcement and the prosecutor's office (Charter § 557[g]; Code § 17-205).

However, upon our review of these Charter and Code provisions, we conclude, in accordance with People v. Washington (supra), that the OCME is neither an agency of law enforcement, nor in any manner under the control of the local prosecutors' offices. Pursuant to Charter § 557(a) and (c), the OCME was created as an independent agency affiliated for administrative purposes with the Department of Health of the City of New York. The medical examiners who staff OCME are doctors who are qualified as pathologists and microscopists. Unlike the officers of the State Division of Parole, they are not peace officers and do not have any of the powers of peace officers. "[T]he principal function of OCME is to officially determine the cause of death when death occurs under any one of several distinct circumstances, i.e., 'from criminal violence, by casualty, by suicide, suddenly when in apparent health, when unattended by a physician, in a correctional facility or in any suspicious or unusual manner' (NY City Charter § 557[f]; see also, Administrative Code of City of NY §§ 17-201, 17-203)" (Washington, supra, 196 A.D.2d at 350, 612 N.Y.S.2d 586).

It is required that the OCME deliver to the District Attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality (Charter § 557[g]. This requirement to furnish information does not place the OCME under the control of the prosecutor's office for the purposes of Rosario or for any other purposes. It has been noted that nothing in the Charter or Code requires the OCME to make or retain audio tapes of autopsies. Further, the District Attorney has no control over the form of the records kept by the OCME or over which records are provided to it (see, People v. Washington, supra, at 351, 612 N.Y.S.2d 586).

There is nothing unique in this arrangement. Numerous other governmental agencies are required to provide reports to the District Attorney. For example: the Board of Elections must refer a matter to the District Attorney and make its files available if it believes a criminal violation has occurred (see, Election Law § 3-104[3]; the director of a facility under the jurisdiction of the Offices of Mental Health is obligated by law to report crimes to the District Attorney and, upon consent of the appropriate commissioner, the clinical records of patients in mental health facilities must be provided to the District Attorney's Office when necessary to the furtherance of a criminal investigation of patient abuse (Mental Hygiene Law § 7.21[b] and § 33.13[c][9][vi]; and the Superintendent of Insurance must report fraud to the District Attorney (...