People v. Tissois

• Decision Date: 06 July 1988
• Citation: 72 N.Y.2d 75,531 N.Y.S.2d 228,526 N.E.2d 1086
• Parties: , 526 N.E.2d 1086 The PEOPLE of the State of New York, Respondent, v. Fritzlet TISSOIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 228

531 N.Y.S.2d 228

72 N.Y.2d 75, 526 N.E.2d 1086

The PEOPLE of the State of New York, Respondent, v. Fritzlet TISSOIS, Appellant.

Court of Appeals of New York.

July 6, 1988.

Constance Cushman, Howard B. Comet and Richard S. Mandel, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty. (Jessica Hecht and Barbara D. Underwood, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Statements made to a registered social worker, during the course of that worker's employment, are deemed confidential communications protected from disclosure by statute (CPLR 4508). We hold that defendant's claim of entitlement under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, to statements made by prosecution witnesses to a social worker employed by the Brooklyn Society for the Prevention of Cruelty to Children is insufficient, in the circumstances presented, to overcome this statutory privilege properly invoked at trial.

Defendant was convicted of rape in the second degree and various counts of sexual abuse based upon accusations made by three young children who, together with their parents, temporarily shared a home with defendant in Brooklyn during the summer of 1984. Defendant contended that the children were coerced into making these accusations by their father, who was a strict disciplinarian resentful of the friendship that had developed between defendant and the children. In order to secure support for this theory, defense counsel subpoenaed the notes of a social worker for the Brooklyn Society for the Prevention of Cruelty to Children (BSPCC), who interviewed and counseled the children prior to trial. At trial, defendant argued that he was entitled under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, supra; see also, CPL 240.45[1][a], to production of these notes to facilitate cross-examination of the children regarding the alleged acts and the strained relationship between the children and their father.

The social worker's notes--consisting of seven typewritten pages--were not in the possession of the prosecutor; they were produced by counsel for the BSPCC, who requested that the BSPCC be notified if the trial court was inclined to disclose them so that he could discuss such disclosure with the children insofar as the documents were deemed confidential under the CPLR (see, CPLR 4508). After an in camera inspection, the trial court denied defendant's request for the notes as Rosario material on the ground that they contained "nothing whatsoever exculpatory, and nothing whatsoever * * * that is inconsistent" with the testimony of the children on direct examination. On appeal from his conviction, defendant challenges the trial court's determination, arguing that it impeded him from adequately presenting his defense, and that the rule established in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 supra )--which imposes generally an obligation on the People to produce pretrial statements of prosecution witnesses prior to cross-examination--entitles him to inspect the pretrial statements the children gave to the social worker ( see generally, People v. Ranghelle, 69 N.Y.2d 56, 62, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Jones, 70 N.Y.2d 547, 550, 523 N.Y.S.2d 53, 517 N.E.2d 865).

We have identified certain factors as bearing upon the scope of the People's obligation under Rosario to produce the pretrial statements of prosecution witnesses. In Rosario itself, we recognized that the defense is entitled to examine such statements to determine their value for cross-examination, "[a]s long as the statement * * * contains nothing that must be kept confidential" ( People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 173 N.E.2d 881, supra; People v. Ranghelle, 69 N.Y.2d 56, 59, 511 N.Y.S.2d 580 N.E.2d 1011, supra ). Also to be considered is whether the material sought is in the possession or control of the People ( see, e.g., People v. Fishman, 72 N.Y.2d 884, 532 N.Y.S.2d 739, 528 N.E.2d 1212; People v. Reedy, 70 N.Y.2d 826, 827, 523 N.Y.S.2d 438, 517 N.E.2d 1324; cf., People v. Perez, 65 N.Y.2d 154, 158, 490 N.Y.S.2d 747, 480 N.E.2d 361 [statements made to private party but prompted and recorded by prosecutor are in possession and control of People] ). Here, consideration of both factors demonstrates that the People were not required to produce the communications of the child victims to the social worker. The interview notes of a registered social worker taken during the course of his or her employment are confidential communications protected from disclosure by statutory command. CPLR 4508(a) prohibits a "person duly registered as a certified social worker" from disclosing "a communication made by his client to him * * * in the course of his professional employment". Ordinarily, therefore, prior to trial a social worker's interview notes would not be in the possession or control of the People, but in the possession and control of the social worker. Indeed...