People v. Radtke

• Decision Date: 23 July 1992
• Docket Number: J-4
• Citation: 155 Misc.2d 21,588 N.Y.S.2d 69
• Parties: The PEOPLE of the State of New York v. Jason RADTKE, Defendant
• Court: New York Supreme Court

Page 69

588 N.Y.S.2d 69

155 Misc.2d 21

The PEOPLE of the State of New York v. Jason RADTKE, Defendant.

Supreme Court, Queens County Criminal Term, Part J-4.

July 23, 1992.

Richard A. Brown, Dist. Atty., Queens County by Daniel M. Sullivan, Asst. Dist. Atty., Kew Gardens, for the people.

Joseph F. DeFelice, Ozone Park, for defendant.

Jeffrey B. Kaufman, Ridgewood, for Linda Boyce.

DAVID GOLDSTEIN, Justice.

The issue, one of first impression, is whether and under what circumstances, the attorney-client privilege (CPLR 4503) should yield to a criminal defendant's constitutional right of confrontation under the Sixth Amendment, where the witness faces possible self-incrimination by such cross-examination.

The defendant stands indicted, inter alia, for the murder of his six-day-old son, Anthony Radtke. According to proof adduced at a pretrial hearing and before the Grand Jury, on August 10, 1990, defendant and his "common-law wife," Linda Boyce, summoned the police to their apartment, located within a two-family house, to investigate a report of a missing child. Upon examining the apartment, the police found Anthony's blood-soaked clothing, bone or skull fragments and the baby's wrist band.

After concluding that defendant's German Shepherd had devoured the child, x rays of the dog revealed what appeared to be human bones and an autopsy disclosed parts of the child's body inside the animal's stomach. Defendant was questioned and admitted to police that, in the middle of the night, he threw the child to the ground, resulting in a head injury, which, it is claimed, caused the child's death. The People contend that, after finding that Anthony was no longer breathing, defendant dismembered the body with a razor and fed the parts to the dog.

According to Linda Boyce's Grand Jury testimony, she was asleep during the incident, but awoke to find defendant disposing of the body. She feigned sleep by not moving for several hours, until daylight, when she awoke and pretended to have discovered, for the first time, that Anthony was missing.

As a result of this incident, a child protective proceeding was brought under the Family Court Act, wherein Boyce and defendant were jointly charged with abuse and neglect of Kaylen Radtke, the couple's other child. Boyce was represented in that proceeding by a court-appointed attorney, Jeffrey Kaufman, whose records are now sought to be examined.

By order to show cause, defendant has applied for issuance of a subpoena duces tecum to Jeffrey Kaufman, to require him to appear at trial and to bring certain documents pertaining to his representation of Ms. Boyce, who had testified before the Grand Jury under a waiver of immunity. She is to be a key prosecution witness at this trial. Kaufman's file allegedly contains correspondence with his client and with others in connection with the Family Court proceeding, Family Court documents, and the attorney's notes relating to that proceeding. He opposes disclosure on the grounds of attorney-client privilege, work product and the confidentiality accorded to Family Court proceedings. The People oppose the motion for essentially the same reasons.

Defendant argues that Boyce's communications with Kaufman may contain statements inconsistent with her contemplated trial testimony and, to deny access to those alleged inconsistent statements, would be tantamount to denying his constitutional right to confront the witnesses against him. He also claims that these communications are in the nature of Rosario material (People v. Rosario 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881) and, further, may contain exculpatory information which must be disclosed (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215).

The history of the attorney-client privilege dates back to the reign of Elizabeth I and, thus, appears to be the oldest of the confidential communication privileges (see, generally, 8 Wigmore, Evidence [McNaughton rev. 1961] § 2290). In order to promote freedom of consultation between legal advisors and clients, the apprehension of compelled disclosure had to be removed. As a result, there arose a policy to prohibit such disclosure except upon the client's consent. Although developed at common law, this privilege has now been codified by CPLR § 4503, which provides:

(a) Confidential communication privileged; non-judicial proceedings. Unless the client waives the privilege, an attorney or his employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. * * *

The courts in this State have formulated the elements of the privilege as follows: (1) The attorney-client relationship has to be established i.e., one must contact an attorney in his capacity as such, for the purpose of obtaining legal advice (see, People v. Mitchell 58 N.Y.2d 368, 373, 461 N.Y.S.2d 267, 448 N.E.2d 121; 8 Wigmore, Evidence § 2292); (2) The information sought to be protected is a confidential communication, made to the attorney, for the purpose of obtaining legal advice or services (Matter of Jacqueline F., 47 N.Y.2d 215, 219, 417 N.Y.S.2d 884, 391 N.E.2d 967); (3) The burden of proving each element of the privilege rests upon the party asserting it (see, People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183; Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69, 431 N.Y.S.2d 511, 409 N.E.2d 983); and (4) Even where the technical requirements of the privilege are satisfied, in a proper case, the privilege may, nonetheless, yield where there is a strong public policy which mandates disclosure (Matter of Priest v. Hennessy, supra at p. 69, 431 N.Y.S.2d 511, 409 N.E.2d 983; Matter of Jacqueline F., supra ). It is this last element, namely, whether there is a strong public policy so as to mandate disclosure under the facts of this case, which is at issue here.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to cross-examine witnesses against him (see, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934). In a proper case, this right of confrontation may be held to override State law and policy with respect to either privilege or confidentiality (see, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924). Any such determination may be dependent upon the specific privilege involved, since different legal privileges have different weight and importance under the law and are entitled to different degrees of protection.

In many instances, the right of confrontation may be held to be superior to a particular privilege if it is established that the information will be used on cross-examination to demonstrate bias, prejudice or some other ulterior motive on the part of the witness. Thus, in Davis v. Alaska, supra, dealing with a State privilege relating to secrecy and confidentiality to be accorded juvenile records, the United States Supreme Court held that defense counsel should have been permitted to impeach a crucial witness as to any possible bias resulting from his juvenile probationary status, thereby concluding that the protection to be accorded the privilege was overshadowed by the policy and purpose which would accompany disclosure and use on cross-examination.

Likewise, in Matter of Jacqueline F., supra, the Court of Appeals held, under the facts of that case, that an attorney may be compelled, on pain of contempt, to disclose the address of his client, the child's aunt, who had fled with the child to Puerto Rico. The aunt had obtained legal custody of the child when an application was brought to return custody to the natural parents. Recognizing that any determination as to the effect and viability of the privilege ought to be made on a case-by-case basis, the Court held that the child's best interests, of paramount concern, required that she be returned to her natural parents. This far outweighed the confidentiality attached to any "privileged" communication, albeit emanating from the attorney-client relationship. Accordingly, counsel was directed to disclose the whereabouts of his client, which, presumably, would lead to the child as well. Any other determination would frustrate the court's mandate as to custody and effectively block any judicial direction to effectuate that mandate. In so ruling, the Court expressly distinguished " * * * those situations in which a communication by a client to an attorney is made with the expectation that this information will be kept confidential for a legitimate purpose." (supra, 47 N.Y.2d at 222, 417 N.Y.S.2d 884, 391 N.E.2d 967).

The foregoing cases, however, are quite different from the situation in this case. What distinguishes this case from any other reported decision in this or any other State is the nature of Ms. Boyce's contemplated testimony and the clear need to enforce the attorney-client privilege here. Inasmuch as Boyce testified before the Grand Jury under a waiver of immunity, she is still subject to possible criminal prosecution for the death and/or illegal disposal of the body, depending on what evidence is adduced in the future. To subject her to additional cross-examination in relation to statements to counsel,...