People v. Utley

• Citation: 77 Misc.2d 86,353 N.Y.S.2d 301
• Parties: PEOPLE of the State of New York v. Richard UTLEY, Defendant.
• Decision Date: 25 February 1974
• Court: New York County Court

Page 301

353 N.Y.S.2d 301

77 Misc.2d 86

PEOPLE of the State of New York v. Richard UTLEY, Defendant.

Nassau County Court, Special Term, Part VIII.

Feb. 25, 1974.

William Cahn, Dist. Atty., Nassau County, Mineola, for State.

Henesy, Kerwick & Hodges, Baldwin, for defendant.

RICHARD C. DELIN, Judge.

The defendant, Richard Utley, through his attorney, moves this Court for the following relief:

(a) That the Court inspect and examine the stenographic minutes of the Grand Jury proceeding which resulted in the instant indictment for the purpose of determining, under § 210.30 C.P.L., whether the evidence before the Grand Jury was legally sufficient to support the indictment, and each count thereof;

(B) That the Court dismiss the indictment and each count thereof, under § 210.20(1)(b) C.P.L., in that the evidence before the Grand Jury was not legally sufficient to establish any of the offenses charged;

(C) That the District Attorney be directed to file a Bill of Particulars, pursuant to § 200.90 C.P.L., supplying the following items of information:

1. the exact dates and times of the occurrence of the offenses listed in the indictment;

2. the exact location and description of the places wherein the crimes alleged in the indictment occurred;

3. the exact amounts of money allegedly stolen;

4. the exact description of any weapons displayed by the defendant;

5. the manner in which the defendant allegedly used a weapon to injure the victim; and

6. a description of acts committed by co-defendants.

(D) That the Court issue an Order of Discovery as to any oral or written statements made by the defendant;

(E) That the Court direct pretrial hearings pursuant to Article 710 C.P.L. to determine the illegality or taint of any evidence to be used against the defendant at trial;

(F) That the Court release the defendant in his own recognizance under § 530.40 C.P.L.; and,

(G) That the Court grant such other and further relief as to the Court seems just and proper.

I. AS TO INSPECTION AND DISMISSAL

An indictment is presumptively based on legal and sufficient evidence, and this presumption continues until there is satisfactory proof to the contrary (People v. Sexton, 187 N.Y. 495, 80 N.E. 396; People v. Howell, 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867; People v. Bergerson, 17 N.Y.2d 398, 271 N.Y.S.2d 236, 218 N.E.2d 288). This presumption is generally overcome only by sworn allegations of fact set forth in moving papers. Surmise, conjecture or speculation does not give rise to 'reasonable cause to believe the grand jury evidence may not have been legally sufficient,' and does not warrant the granting of a motion to inspect the minutes (§ 210.30(2), (3) C.P.L.; People v. Banks, 27 Misc.2d 557, 209 N.Y.S.2d 63; People v. Harrington, 9 Misc.2d 216, 169 N.Y.S.2d 342; People v. Glen, 173 N.Y. 395, 66 N.E. 112).

The defendant attempts to supply the necessary reasonable cause by stating that '. . . (he) does not believe that the evidence presented to the Grand Jury was legally sufficient . . . (and) there was no testimony presented to the Grand Jury identifying . . . (him) as the perpetrator of the alleged crimes . . ..' The defendant's papers do not meet the burden of § 210.30(2) C.P.L. The Court, therefore, is not mandated to grant the motion to inspect the Grand Jury minutes (§ 210.30(3) C.P.L.).

The Court has the discretion under § 210.30(4) C.P.L. to grant the motion to inspect, notwithstanding the lack of reasonable cause to believe that the evidence before the Grand Jury was insufficient. In this case, however, the court records indicate that the defendant was arrested almost immediately after the alleged crimes, and the defendant, in his moving papers, states that he gave oral and written confessions to the police. Congested calendars no longer permit exercises in futility. The Court declines to exercise its discretion under this section.

The motions to inspect and to dismiss are denied.

II. AS TO THE BILL OF PARTICULARS

The purpose of a Bill of Particulars is to clarify the indictment and to enable the defendant to adequately prepare or conduct his defense (Practical Commentary to C.P.L. § 200.90 by Richard G. Denzer).

The Court grants the defendant's motion to the extent that the answering affidavit of the District Attorney is deemed a Bill of Particulars.

As to those items of information not supplied by the District Attorney, the motion is denied since the information requested is either evidentiary in nature (§ 200.90(3) C.P.L.), or is not found to be necessary to the defense (People v. Ricci, 59 Misc.2d 259, 298 N.Y.S.2d 637; In re Edgar L., 66 Misc.2d 142, 320 N.Y.S.2d 570). The defendant is granted leave to renew the motion upon a proper showing that the information requested is Necessary, not merely useful, to his defense.

III. AS TO DISCOVERY

(A) WRITTEN STATEMENTS

The defendant has a statutory right to discovery of any written or recorded statement made by him to law enforcement personnel, or to persons acting under their direction or in cooperation with them (§ 240.20(1)(b) C.P.L.). This was established law in New York prior to the enactment of the Criminal Procedure Law (People v. Remaley, 26 N.Y.2d 427, 311 N.Y.S.2d 473, 259 N.E.2d 901; People v. Bach, 33 A.D.2d 560, 305 N.Y.S.2d 677; People v. Quarles, 44 Misc.2d 955, 255 N.Y.S.2d 599; People v. Chirico, 61 Misc.2d 157, 305 N.Y.S.2d 237).

These statements are discoverable whether or not the prosecutor intends to use them at trial, as the statute and case law do not differentiate between inculpatory and exculpatory statements.

The manner in which the defendant's oral statements have been written or recorded is immaterial. If they are summarized, abridged, referred to, or reflected in any book, record or paper in the possession of law enforcement personnel, they are subject to discovery. People v. McMahon, 72 Misc.2d 1097, 341 N.Y.S.2d 318; People v. Zacchi, 69 Misc.2d 785, 331 N.Y.S.2d 86; People v. Bennett, 75 Misc.2d 1040, 1051, 349 N.Y.S.2d 506, 519; § 240.10(1), (2), § 240.20(1)(b) C.P.L.; People v. Powell, 49 Misc.2d 624, 268 N.Y.S.2d 380, 382. In the event that such a recording is contained in exempt or privileged property, that part of such property not affected by this Order may be excised or redacted prior to the defendant's inspection of same (§ 240.10(3) C.P.L.; People v. Bennett, Supra, pp. 1051--1052, 349 N.Y.S.2d pp. 519--520).

The District Attorney is directed to permit the defendant's attorney to inspect and to copy or photograph such statements within thirty (30) days of the entry of this Order.

(B) ORAL STATEMENTS

Is the defendant entitled to the particulars of his oral statements, not recorded or written, but which are within the knowledge of law enforcement authorities and may well be used against him at trial?

In People v. Quarles, 44 Misc.2d 955, 255 N.Y.S.2d 599, the Court was asked to compel pre-trial disclosure of all notes and stenographic minutes of defendant's statements to the police and an Assistant District Attorney. The request was made approximately seven years before the existence of a statutory right to such material. The learned judge, after a consideration of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, determined that the 'Supreme Court has so defined and clarified the Constitutional right to counsel and a fair trial as to compel the pretrial disclosure of this defendant's transcribed or written statements made at the time of his arrest without the assistance of counsel, as 'essential to a fair trial'.' (Quarles, at 44 Misc.2d 957, at 255 N.Y.S.2d 601).

In reaching its conclusion, the Quarles court noted that incriminating statements very often are the core of the People's case and that, in most cases, criminal trials are reviews of that which transpired at the police station, rather than a trial of the basic criminal act itself. The Court, quoting eminent jurists, says:

'To deny pretrial disclosure of defendant's statements is '(t)o shackle counsel so that he cannot effectively seek out the truth and afford the accused the representation which is not his privilege but his absolute right' . . . 'Simple justice requires that a defendant be permitted to prepare to meet what thus looms as the critical element of the case against him. '"' (Quarles, 44 Misc.2d 960--961, 255 N.Y.S.2d 604)

In the Chirico case, Supra, the defendant requested an order directing the District Attorney to produce a written statement made by him to the police while he was not represented by counsel.

The District Attorney opposed the granting of the order for each of two reasons:

1. there was no statutory right to such relief; and

2. the defendant was entitled to view his confession only at the Huntley hearing, which he can demand under § 813--g C.C.P.; but this demand can be made Only after receiving the § 813--f C.C.P. (now § 710.30 C.P.L.) notice that the People intend to offer it at trial; where the People decline to serve that notice, as in this case, the defendant has no right to see his confession.

The Court granted the relief requested for the following reasons:

1. It accepted that Quarles rationale that due process and the right to be represented by counsel are denied if counsel is uninformed about such a substantial matter, and, thus, unable to make reasoned and intelligent decisions. The Court, noting the impact of Supreme Court decisions and the law of discovery in other States, concludes that, '. . . to deny defendant('s) . . . counsel the right to examine a copy of the statement or confession . . . is to deny defendant and his counsel the right to evaluate the case and to prepare a defense.' People v. Chirico, 61 Misc.2d 157, 161, 305 N.Y.S.2d 237, 241.

2. The Court reviewed People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 and ...