People v. Rios-Liberato
| Decision Date | 09 November 2015 |
| Citation | 22 N.Y.S.3d 326,50 Misc.3d 737 |
| Parties | The PEOPLE of the State of New York v. Lenin RIOS–LIBERATO, Defendant. |
| Court | New York Criminal Court |
Cyrus R. Vance, Jr., District Attorney, New York County, (Courtney Razner, of Counsel), for the People.
Seymour W. James, Jr., Esq., (Natoya L. McGhie, of Counsel), for the Defendant.
The defendant, Lenin Rios–Liberato, is charged with Forcible Touching (Penal Law [PL] § 130.52 ) and Sexual Abuse in the Third Degree (PL § 130.55). Specifically, the defendant is alleged to have placed his finger inside the complainant's vagina forcibly and repeatedly without her consent.
On July 10, 2015, the defendant served a general demand to produce discovery materials pursuant to Criminal Procedure Law (CPL) 240.20. In the Voluntary Disclosure Form (VDF) which the People attached to their response, the People acknowledged that there are photographs related to the case made either at the request of a public servant or by a person whom the People intended to call as a witness at trial. The People offered in the VDF to permit defense counsel to view these photographs without redactions. At some point, the People informed defense counsel that the photographs were taken by the complainant's companion at the time and place of the alleged offenses, which allegedly occurred while complainant underwent the application of a tattoo to her pubic area by the defendant, a commercial tattoo artist. At some point, the date of which is unclear from the motion papers of the parties, the People provided defense counsel with photographs, some of which had been redacted to block view of the complainant's vagina. On August 18, 2015, the defendant served and filed a motion for an order compelling the People to turn over the un-redacted photographs. The People have served and filed a motion for a protective order pursuant to CPL 240.50 to restrict discovery to redacted copies of the photographs.
The People motion for a protective order in hereby denied and they are hereby ordered to provide the defendant with the un-redacted photographs as demanded. However, the defendant is hereby ordered to restrict access to those photographs to those persons directly involved in the preparation of a defense to these charges.
Generally, CPL 240.20(1)(d) requires that upon demand of a defendant in a pending action the People must provide him or her with a copy of any photograph made by a person whom the People intend to call as a witness at trial. The People have acknowledged that they intend to call as a witness the person who made the photographs at issue here. CPL 240.50(1) provides, however, that the Court may issue a protective order "denying, limiting, conditioning, delaying or regulating discover" afforded pursuant to Article 240 when there is a "substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person ..." (see People v. Goldman, 175 A.D.2d 723, 724, 573 N.Y.S.2d 282 [1st Dept.1991] ).
The People contend that if the defendant were permitted to obtain a copy of the un-redacted photographs in question this would cause the complainant unjustifiable annoyance or embarrassment. The defendant contends that he needs the un-redacted photographs to prepare his defense. He intends to argue to the trier of fact that any touching of the complainant's vagina was inadvertent or unavoidable because the area of skin where the complainant had requested the tattoo be placed was very close to the opening of her vagina and that he need to flatten the skin area to apply the tattoo accurately. The People contend that the redacted photographs would permit the defendant to achieve his trial preparation aims without subjecting the complainant to the embarrassment of knowing that persons to whom she never intended to see her intimate parts would view photographs of them. The Court has examined in camera both the un-redacted and redacted sets of photography submitted by the People for review. The Court notes that none of the un-redacted photographs depict any more than the top part of the vaginal opening. The court also notes that the several of photographs depict a male individual, presumably the defendant, leaning over a female individual's unclothed crotch area. His right hand rests upon her left thigh applying what appears to be tattooing device to her pubic area while his left hand rests on her right thigh with two fingers holding the skin taut on either side of the tattoo.
It is not unreasonable for the defendant to seek the un-redacted photographs because they clearly depict how close to the complainant's vagina was the area where he was applying the tattoo and how close his fingers were to her vagina. For the defendant to...
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