People v. Szychulda
| Decision Date | 19 January 1982 |
| Citation | 113 Misc.2d 736,453 N.Y.S.2d 132 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Eric F. SZYCHULDA, Respondent. |
| Court | New York Supreme Court — Appellate Term |
Patrick Henry, Dist. Atty. (Ronald E. Lipetz, Asst. Dist. Atty., of counsel), for appellant.
Arthur V. Graseck, Jr., Port Washington, for respondent.
Before SLIFKIN, J. P., and GEILER and DiPAOLA, JJ.
Appeal by the People from an order dismissing the accusatory instrument.
Order affirmed.
Counsel for the defendant served a notice on the Police Department of Suffolk County on January 12, 1981 that on January 15 he would move before the District Court for a judicial subpoena duces tecum for the personnel file of one of the Department's detectives. On January 15, the police did not appear before the lower court but counsel for defendant and the People argued for and against the oral motion for the subpoena and the motion was granted. When the parties appeared before the court for trial on January 20, the People informed the court that the Police Department would not produce the material in question on the ground that it was privileged matter under the Civil Rights Law. After informing the People that this was not the proper procedure to use to quash a subpoena, and upon the representation by defendant's counsel that he could not represent defendant without the material in question, the court dismissed the accusatory instrument.
Section 50-a(1) of the Civil Rights Law provides that the personnel records of policemen are "considered confidential and not subject to inspection or review without the express written consent of such police officer except as may be mandated by a lawful court order." That section continues with the requirement that the court should review the request for the material and permit interested parties to be heard on the issue (subd. 2). In the case at bar, notice was given to the Police Department and it chose not to respond to the argument on the motion before the court on January 15, 1981. Subdivision 3 of section 50-a provides that once the material is submitted to the court, the court shall review same and determine if the material submitted is relevant and material to defendant's case and if so, it shall be presented to him. In the case at bar, the Police Department did not submit the information for the court's inspection and therefore the People cannot be heard to complain of a violation of this subdivision.
Having found that the Police Department wilfully failed to comply with a subpoena duces tecum properly issued, was the lower court correct in dismissing the accusatory instrument? We conclude that said court was correct.
The Criminal Procedure Law is silent as to the penalty for failure to honor a subpoena (see CPL, Article 610). The Criminal Procedure Law, does however, contain sanctions for failure of a party to comply with an order of disclosure or discovery. It is the opinion of this court that a subpoena is a tool of disclosure and therefore the provisions of Article 240 of the Criminal Procedure Law should apply as well to the failure to honor a subpoena (see People v. Harte, 99 Misc.2d 86, 415 N.Y.S.2d 390). The remedy provided for in CPLR 2308 is not applicable or relevant to criminal proceedings (see Matter of Davis, 88 Misc.2d 938, 389 N.Y.S.2d 1015). CPL 240.70(1) provides that among the sanctions that a court may impose for the failure of a party to comply with discovery procedures, is the sanction of "any other appropriate action." While there is support for the contention that such "other appropriate action" should not include dismissal of the accusatory instrument (Practice Commentary McKinney's Cons. Laws of N.Y., Book 11A, § 240.70, Supp. Pamphlet, 1972 to 1980, p. 346), this sanction appears to be proper under the circumstances herein in view of the lack of any alternative sanctions for the court to impose.
The dismissal was also...
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People v. Cortez
...dismissed pursuant to its discretionary power to "take any other appropriate action" under CPL 240.70(1). People v. Szychulda, 113 Misc.2d 736, 453 N.Y.S.2d 132 (App.T., 2d Dept.), aff'd 57 N.Y.2d 719, 454 N.Y.S.2d 705, 440 N.E.2d 790 (police wilfully refused to submit subpoenaed personnel ......
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People v. Ramirez
...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 prosecut......
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People v. Elliott
...take any other appropriate action. "Other appropriate action" has been held to include dismissal of the information. (People v. Szychulda, 113 Misc.2d 736, 453 N.Y.S.2d 132.) Once the request for a bill of particulars is made, the District Attorney is required by Section 200.95 (subdivision......