People v. Ramirez

• Decision Date: 05 August 1985
• Citation: 492 N.Y.S.2d 906,129 Misc.2d 112
• Parties: The PEOPLE of the State of New York v. Alice RAMIREZ, Defendant.
• Court: New York Supreme Court

Page 906

492 N.Y.S.2d 906

129 Misc.2d 112

The PEOPLE of the State of New York v. Alice RAMIREZ, Defendant.

Supreme Court, Bronx County,

Part 30.

Aug. 5, 1985.

Mario Merola, Dist. Atty., Bronx County (Peter D. Coddington, Peter S. Baranowicz, Lee S. Gayer, Asst. Dist. Attys., New York City, of counsel), for the People.

Caesar Cirigliano, New York City, The Legal Aid Society, Special Litigation Unit (Michele Maxian, Joel Blumenfeld, Jay B. Ringel, New York City, of counsel), for respondent.

HAROLD ENTEN, Justice:

On June 17, 1985, five days after the defendant was arrested and charged on a felony complaint ¹, she applied for issuance of a subpoena duces tecum from this court, directing the Police Department to produce all official reports relating to her arrest. ²

On June 26, 1985 the District Attorney served an Order to Show Cause on the defendant seeking an Order of this court quashing or refusing to sign the defendant's subpoena duces tecum on the grounds that the court lacked requisite authority to issue such subpoena at this stage of the criminal action.

The issues in this case are whether this court has the authority to issue a subpoena on behalf of a defendant against whom the only accusatory instrument pending is a felony complaint and, if the court has such authority, whether issuance of this subpoena is warranted at this time.

Under CPL Sec. 610.20(3) and CPLR 2307 this court, sitting as a Supreme Court in the district where the required records are located, may issue a subpoena duces tecum on behalf of the defendant, for the production of this material. However, it is incumbent upon this court to determine whether the defendant's use of the subpoena process at this stage of the proceeding is necessary or appropriate before it chooses to exercise this authority.

Traditionally, a judicial subpoena duces tecum is used as a device for compelling the attendance at trial of witnesses and items in the control of those witnesses, so that by reference to these items they may give testimony relevant to the matter under inquiry. Franklin v. Judson, 96 App.Div. 607, 88 N.Y.S. 904; People v. Price, 100 Misc.2d 372, 419 N.Y.S.2d 415. "The court issues its process when it is reasonably satisfied that the use the defendant intends to make of the witnesses and items at trial is material and relevant to the case." People v. Coleman, 75 Misc.2d 1090, 349 N.Y.S.2d 298 as cited in People v. Hasson, 86 Misc.2d 781, 783, 383 N.Y.S.2d 846. The trial court, having knowledge of the details of the prosecution and the defense, is in the ideal position to assess the materiality and relevancy of the required materials to the proceedings and to determine whether the defendant's Sixth Amendment rights to confrontation and compulsory process take precedence over statutory privileges or constitutional rights asserted by third parties moving to quash the subpoena.

Recent legislative enactments, however, have provided for the expanded use of a subpoena duces tecum as a device to be used in conjunction with the discovery process. See CPL Sec. 240.20(2). When a subpoena is used as a tool of disclosure, "the more specific and restrictive provisions contained in the discovery article should control." See People v. Bolivar, 121 Misc.2d 229, 232, 467 N.Y.S.2d 525; People v. Crean, 115 Misc.2d 526, 530, 454 N.Y.S.2d 231; People v. Szychulda, 113 Misc.2d 736, 737, 453 N.Y.S.2d 132 aff'd 57 N.Y.2d 719, 454 N.Y.S.2d 705, 440 N.E.2d 790. CPL Sec. 240.20 delineates the items discoverable from the prosecutor and 240.20(2) provides for the defendant's securing by subpoena any of these items not in the possession of the prosecutor. The necessity for issuing a subpoena for purposes of discovery would arise only after it has been determined that (a) the material is discoverable and (b) that the material is not in the possession of the prosecutor. Attempts to use the subpoena process as a tool for circumventing the discovery process have been precluded by the courts (see People v. Simone, 92 Misc.2d 306, 401 N.Y.S.2d 130, aff'd 71 A.D.2d 554, 418 N.Y.S.2d 725; People v. Hasson, supra; People v. Cammilleri, 123 Misc.2d 851, 475 N.Y.S.2d 228; People v. Grosunor, 108 Misc.2d 932, 439 N.Y.S.2d 243) on the basis that "a party may not accomplish indirectly through the subpoena mechanism what he cannot accomplish directly through the discovery provisions of the CPL." People v. Norman, 76 Misc.2d 644, 649, 350 N.Y.S.2d 52; People v. Crean, supra.

Discovery is permitted only where "an indictment, superior court information, prosecutor's information, information or simplified information charging a misdemeanor is pending." CPL Sec. 240.20(1). The defendant herein is currently being held on a felony complaint, and no trial or hearing is scheduled. Therefore, the defendant is not entitled to discovery at this point in the proceedings. If the court were to issue a subpoena duces tecum on behalf of the defendant at this stage of the action, it would be sanctioning the circumvention of the rules of discovery in contravention of established procedural rules created to preserve orderly judicial process without jeopardizing the constitutional rights of the defendant.

The wisdom in delaying discovery until the filing of an accusatory instrument sufficient for prosecution purposes is manifest. "Frequently, the charges and the gravamen of a complaint are altered during the progress of a case from arraignment in criminal court to consideration by a judge at a hearing, consideration by the grand jury and eventual readiness for trial in the form of an indictment or an information. As such, the items initially requested by a demand on a felony complaint may no longer be relevant after indictment or conversion to a misdemeanor information. Neither the defendant nor the People should be locked into responses to a demand not framed in...