People v. Ryan
| Decision Date | 06 February 1985 |
| Citation | 485 N.Y.S.2d 933,127 Misc.2d 138 |
| Parties | The PEOPLE of the State of New York v. Frank J. RYAN, Defendant. |
| Court | New York County Court |
Morosco & Cunard, White Plains, for defendant.
Carl A. Vergari, Dist. Atty., White Plains (T. Bona, White Plains, of counsel), for the People.
The instant case presents the court with several unique issues concerning the procedural and substantive application of a criminal defendant's right to suppress or controvert a sentence enhancing predicate conviction.
A review of the relevant facts, which are generally not in controversy, would help to understand the issues presented to the court.
On May 2, 1980, the defendant, Frank Joseph Ryan was arrested by New York State Trooper, Robert Acevedo and charged with Driving While Intoxicated a misdemeanor. He refused to submit to a breathalyzer test. Simultaneously, an individual named Philip Witenko was arrested by another New York State Trooper, K.O. Kari, (Acevedo's partner), at the scene of the Ryan arrest for Driving While Intoxicated Witenko was Ryan's bartender.
With regard to Witenko, Trooper Kari conducted an interview on the night of the arrest and reduced Witenko's admissions to writing. Trooper Kari then filled out a physical condition report of Witenko, a Simplified Traffic Information, and a Prosecutor's Information. These documents were then delivered to the Peekskill City Court, where a common practice was to ask the Court Clerk to keep what belonged in the court file and deliver the remainder to the District Attorney's secretary in the office across the hall.
Witenko and Ryan were subsequently arraigned and represented by the same attorney. Sometime thereafter, the attorney was advised by the District Attorney that the charge against Witenko would be reduced to Disorderly Conduct a violation. The attorney then advised Ryan to retain other counsel to represent him because he would continue representing Witenko, a potential witness against Ryan, and he perceived a conflict of interest.
Witenko plead guilty to Disorderly Conduct and was sentenced to a conditional discharge on August 26, 1980, before Peekskill City Court Judge Norman Roskin. On September 25, 1980, Judge Roskin on Motion and Order prepared by Witenko's attorney, sealed the court's file regarding Ryan's case was transferred from the Peekskill City Court to the Harrison Town Court because the Judges of the Peekskill Court knew Ryan, who is an attorney. Ryan's trial attorney made all necessary pre-trial motions to receive information pursuant to the mandates of Criminal Procedure Law 240.45, commonly known as Rosario & Brady material.
Witenko, pursuant to Criminal Procedure Law 160.50.
In preparation for the Ryan trial, the Assistant District Attorney assigned to the case, who had appeared once in the Witenko case in Peekskill, interviewed Witenko and Trooper Kari. He called Trooper Kari at the pre-trial suppression hearing and Witenko as a witness in Ryan's trial.
The bench trial in January, 1981, resulted in a guilty verdict against Ryan for the misdemeanor, Driving While Intoxicated. Witenko testified as will be later discussed. Ryan filed a Notice of Appeal from that decision which was dismissed for failure to perfect.
Ryan was arrested on July 24, 1983 on the instant, Driving While Intoxicated charge, which is a felony by virtue of the prior conviction Thereafter, he moved (in the nature of coram nobis), to set aside the 1981 conviction as being violative of his "due process" right to confrontation in the trial court (not the same trial judge), which was denied. He then sought a pre-trial motion to suppress the Special Information attached to the indictment (see CPL 200.60) which was denied as being a "collateral attack" on the prior conviction and that his proper remedy was a timely appeal pursuant to Article 400 of the Criminal Procedure Law. (Colabella, J., April 4, 1984).
The matter is presently before this court for trial of the 1983 arrest as a felony. Defense counsel moves to suppress the Special Information at the time it is offered on the District Attorney's direct case as being violative of his client's "due process" rights. In support of this application, his offer of proof, in addition to the above facts, alleges that the exculpatory statements of Witenko and Trooper Kari's notes which challenge Witenko's ability to accurately observe the facts about which he testified are only in the sealed Peekskill City Court files and not the District Attorney's files. The issues presented in this trial court are:
(1) May a defendant attack a sentence enhancing predicate conviction by evidentiary objection during trial?
(2) If so, did the City of Peekskill Court have the authority to seal the court file pursuant to CPL 160.50 in September 1980?
(3) Did the denial of defendant's counsel to have the Witenko material work a violation of his client's right to confrontation under the SIXTH and FOURTEENTH Amendments of the United States Constitution?
The decision of the Court is as follows:
The defendant has a right to attack, as violative of due process, a predicate conviction which acts as an enhancement of punishment statute, [Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169].
The court further recognizes that there is no statutory scheme existing for procedural attacks of this nature in New York, pre-trial. Therefore, the court, perceiving a wrong, must construct the remedy. The remedy most appropriate in this court's opinion, would be to hold a hearing during the trial, at the time the defendant objects to the introduction of the predicate conviction, regardless of the position the defendant takes concerning the arraignment under CPL 200.60, absent, of course, an admission of that predicate conviction, (People v. Solomon, 113 Misc.2d 790, 449 N.Y.S.2d 875; Judiciary Law Section 2-b Criminal Procedure Law, 200.60, which provides for the arraignment on the predicate conviction after the trial commences).
Furthermore, it would be instructive of the court to advise counsel how it perceives the burden of proof concerning this issue. Since the predicate conviction stands, it must be afforded a presumption of regularity. Therefore, the defendant has the burden of going forward. At such time as the defendant has offered evidence sufficient to rebut that presumption, in the opinion of the court, the District Attorney then would have the burden of proof beyond a reasonable doubt to prove that the predicate conviction was obtained without constitutional impediment.
In order to properly conduct the evidentiary hearing upon defendant's objection, the court must determine if the sealing of Witenko's record by the City of Peekskill Court was authorized. If not, those records are available to the defendant at this hearing. The court holds same to be void ab initio.
The power of the courts to seal a record is a statutory creation of the Legislature, there being no inherent power in the judiciary. Such a statute must be strictly construed, [People v. Casella, 90 Misc.2d 442, 395 N.Y.S.2d 909].
The statutory authority of the court to seal Witenko's record in September of 1980, is non-existent, since a plea down from a Misdemeanor to Disorderly Conduct is not a "favorable disposition", Furthermore, even if it were so viewed there existed no statute permitting the sealing...
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