People v. Simone

• Citation: 92 Misc.2d 306,401 N.Y.S.2d 130
• Court: United States State Supreme Court (New York)
• Decision Date: 13 December 1977
• Parties: The PEOPLE of the State of New York v. Pasquale SIMONE, Defendant.

Page 130

401 N.Y.S.2d 130

92 Misc.2d 306

The PEOPLE of the State of New York v. Pasquale SIMONE, Defendant.

Supreme Court, Trial Term, Bronx County, Part 22.

Dec. 13, 1977.

Zuckerberg, Santangelo, Mahler & Harris, Kew Gardens, by Stephen R. Mahler, Kew Gardens, of counsel, for defendant.

Mario Merola, Dist. Atty. by Stanley R. Chesler, Asst. Dist. Atty., Bronx, for the People.

JOEL J. TYLER, Judge.

DECISION AND ORDER

The central issues here are: (1) What official police reports are included within the meaning of "exempt property" (CPL § 240.10(3)), required to be surrendered to defendant prior to trial as allowable discoverable material; (2) at what stage of the action must it be so delivered, and (3) who the court or prosecution shall make the determination which material is relevant for surrender to defendant before trial. Ancillary questions must also be here considered. For example: May the court order the preclusion of all testimony of police officers, where the Police Department has not obeyed a subpoena, for all its records filed with it in connection with the case and which subpoena had been served substantially before trial and unconnected with any pending hearing.

Here, the defendant secured a judicial subpoena duces tecum, on June 30, 1977, calling upon the Police Department to produce in court on July 13, 1977 "copies of U.F. 61's, U.F. 49's, D.D. 5's, Intelligence Reports (P.D. 378-151), Arrest Disposition Sheets D.D. 19's and any and all other official police reports filed in connection with this case." The issuing court made no prior inquiry as to the propriety of the subpoena. It was apparently duly served on the Police Department on July 8, 1977; but no prior advice was given to the District Attorney of the proposed application for the subpoena, nor was a copy thereof served upon him. On or about August 15, 1977, the Police Department delivered only an Arrest Deposition Sheet, a single UF 61 and an unrequested defendant's fingerprint sheet; with the subsequent advice by the Department that those were all of the papers filed with the Department in the case (Defense affirmation, p. 2).

Defendant insists that other completed police forms must have been filed in this case, and if not with the Department itself, then with the District Attorney's office, and his failure to secure them has and will prevent him from properly conducting an investigation to aid in preparing a possibly adequate defense. Accordingly, he moves to preclude the prosecution from offering any police testimony at the trial. Of course, the People resist such relief on several grounds, but, primarily, that the defendant is not now entitled to have such reports. The issuing judge has directed that this matter be referred for final disposition to this Court, the trial court.

In this connection, it is significant that by Notice of Motion, dated June 21, 1977, defense counsel moved under CPL Article 240, for discovery and inspection of eight different items, including tape recordings, but nowhere therein did he request copies of any police reports or memoranda. Further, by Notice of Motion, dated August 12, 1977, defendant again moved, this time for re-argument of the original discovery motion, and seeking, among other relief, clarification of the court's original discovery order. He also requested the disclosure of other and new items not theretofore requested to be disclosed. Significantly, no request, whatsoever, for copies of any police reports was made in this second motion, although it could have and, if desired, should have been included, if not in the first discovery motion, certainly then in the second.

Firstly, we shall dispose of certain ancillary issues raised. The prosecution complains that the police reports subpoenaed, could, and should have been requested in either of the two aforesaid discovery motions, and such reports should not have been attempted to be secured by the ruse of a subpoena, and certainly not without prior notice to the People of the application therefor. Defense counsel, an eminent criminal trial attorney, undoubtedly knows the purpose to be served by our discovery procedure (CPL Article 240) and when, and under what circumstances it should and may be used, as distinguished from the essential purpose to be served by a subpoena duces tecum, an instrument and tool for use in aid of giving testimony (CPL 610.10). As counsel was well aware, there was no possibility for a hearing on any motion or trial on or about the date the subpoena was made returnable, and thus there was no need for a subpoena.

A subpoena may not be used for purpose of discovery or to ascertain the existence of evidence (People v. Coleman, 75 Misc.2d 1090, 1091, 349 N.Y.S.2d 298, 301) and the proper means of discovery in a criminal case is strictly by motion, made within 45 days after arraignment (CPL § 255.10, subd. 1(c) and § 255.20(1)), with an opportunity afforded to the opposition to be heard (CPL § 240.20(5); People v. Norman, 76 Misc.2d 644, 649, 350 N.Y.S.2d 52, 58; People v. Bennett, 75 Misc.2d 1040, 1061, 349 N.Y.S.2d 506, 528). The use of subpoena duces tecum, where pre-trial discovery is intended is eminently improper and can only delay the expeditious final disposition of the case.

Further, the People complain that the subpoena should never have been issued without prior notice to them that an application therefor will be made, as required by CPL § 610.20(3) and CPLR § 2307. In essence, these statutory provisions require that a judicial subpoena duces tecum, directed to any governmental agency or officer or representative thereof, be issued by the court on motion and on one day's notice to the opposing party and the target of the subpoena, unless, for some good cause shown, the court determines that such notice be dispensed with. No notice was here given to the district attorney nor is there any indication why it was necessary to issue the subpoena ex parte. The District Attorney states, without contradiction (People's affirmation, p. 1, dated, September 15, 1977), that he was unaware of the existence of the subpoena until the case again appeared on the calendar of this Court on August 22, 1977, almost two months after issuance and then for the first time was afforded the opportunity to oppose it.

The authorities do not deem the failure to give such one day's notice as sufficient to deny the relief requested nor does it constitute a ground to quash the subpoena (Matter of Wilbur F., 70 Misc.2d 674, 675, 335 N.Y.S.2d 329, 330 rev'd on other grounds 42 A.D.2d 780, 346 N.Y.S.2d 316); and other experts view the notice requirement as "out-of-date and unnecessary and is frequently ignored" (Commentaries, CPLR § 2307; McKinney's, Book 7B, p. 238). Nevertheless, that requirement may not be entirely irrelevant, as the instant case well demonstrates. In view of the awesome volume of work handled by the criminal justice system in this jurisdiction, the People have a legitimate interest in saving both the District Attorney's office and the Police Department from as much cost, paperwork and internal administrative problems as possible. This interest is properly served if the People have a day's notice, and preferably more, to object to the issuance of a subpoena on legitimate grounds before it is signed. Thus, the procedures, both legal and administrative, of applying, post facto, to the courts for protective orders or orders to quash, may be avoided, along with all the trouble and expense attendant upon it.

There is merit to the People's position that this motion be summarily denied for failure to comply with CPLR § 2307, and no ameliorative action in defendant's favor be taken by this Court, particularly in the light of the apparent misuse of the subpoena as an instrument for discovery. If judicial subpoenas continue to be misused, as here, as a discovery device, judicial wisdom can readily justify the quashing thereof and the refusal to take the action here ordered, which effectively aids the party misusing it. Under such circumstances, the offender will be thereafter relegated to seek discovery under CPL Article 240, but may painfully discover that that motion too may be denied for late filing beyond 45 days after indictment; and he may further find that the court will not deem an improper use of a subpoena as "good cause" for exercising his discretion in his favor under CPL § 240.30. Counsel should take care that inattention to statutory requirements does not place him and his trusting client in this possible and distressing predicament. The manner of the resolution of the controversy here should not be deemed a precedent for future judicial action, where circumstances substantially point to the inappropriate use of a judicial subpoena. The dispensation here is singular to this case, and may not be employed by this court again under like circumstances.

Defendant's request that police testimony be precluded for failure to comply with the subpoena, finds support nowhere to my knowledge, either in statute or case law, nor does defense counsel suggest the existence of such statutory or judicial support, outside of his bold assertion. CPLR § 3042(c) provides for preclusion of testimony where a party fails to comply with a demand for a bill of particulars, while CPLR § 2308 authorizes contempt proceedings, or the striking of a pleading or money damages for failure to comply with a judicial subpoena. Nowhere do we find provision for the remedy sought by defendant.

Moreover, even the remedies provided in CPLR § 2308 are inappropriate under the circumstances here. Both the remedy demanded (preclusion) and the People's complaint that the subpoena was unjustified and infelicitous are irrelevant to the central issue, namely, the propriety of defendant's discovery of the items in question. To deal effectively with that issue, we shall treat this motion under CPL Article 240 as one for discovery of the items mentioned in...