People v. Washington

• Decision Date: 04 April 1994
• Citation: 196 A.D.2d 346,612 N.Y.S.2d 586
• Parties: The PEOPLE, etc., Respondent, v. Joshua WASHINGTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 586

612 N.Y.S.2d 586

196 A.D.2d 346

The PEOPLE, etc., Respondent, v. Joshua WASHINGTON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 4, 1994.

Philip L. Weinstein, New York City (James M. Branden, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Michael Gore, and Caroline R. Donhauser, of counsel), for respondent.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie and Linda Cantoni, of counsel; Sharon Y. Brodt, on the brief), amicus curiae.

Before MANGANO, P.J., and THOMPSON, BRACKEN, SULLIVAN and BALLETTA, JJ.

MANGANO, Presiding Justice.

The primary question to be resolved on the instant appeal is whether an audiotape of an autopsy performed by the Office of the Chief Medical Examiner (hereinafter OCME) constitutes Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; see also, CPL 240.45[1][a], which must be turned over by the prosecution to the defense. In our view, this question must be answered in the negative. ¹

I

On April 25, 1991, the defendant was convicted, after a nonjury trial, of manslaughter in the first degree, arising out of the fatal stabbing of one Kevin Gregg.

During the course of the trial, Dr. Joaquin Gutierrez, an Associate Medical Examiner who performed the autopsy on the victim's body, testified for the prosecution that the cause of death was a six-inch deep stab wound to the chest, which penetrated the heart. According to Dr. Gutierrez, the victim also suffered a stab wound to the right temple, a laceration on the top of the head, and several minor abrasions. Dr. Gutierrez testified that the stab wound to the head would not have caused death. Finally, Dr. Gutierrez testified that one knife might have caused both stab wounds, but it was possible that two different knives had been used.

On December 6, 1993, this court affirmed the defendant's judgment of conviction (see, People v. Washington, 199 A.D.2d 294, 604 N.Y.S.2d 593), and leave to appeal to the Court of Appeals was denied on February 22, 1994 (see, People v. Washington, 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502).

On November 18, 1993, while the defendant's direct appeal was pending, the defendant filed a motion pursuant to CPL 440.10, to vacate his judgment of conviction on the ground that the People had violated the Rosario rule by failing to turn over, inter alia, an audiotape made by Dr. Gutierrez of the victim's autopsy. ²

After receiving opposition papers from the People, the Supreme Court, by order dated January 3, 1994, denied the defendant's motion on the ground that the People did not have control over the OCME audiotape.

II

In People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, the Court of Appeals held that the People are obligated to give the defendant, for use during cross-examination, any nonconfidential written or recorded statements of a prosecution witness that relate to the subject matter of the witness's testimony. It is well settled that disclosure under the Rosario rule is required only when the material sought is within the People's actual or constructive possession, custody, or control (see, People v. Reedy, 70 N.Y.2d 826, 523 N.Y.S.2d 438, 517 N.E.2d 1324). The two classic examples which have been held to satisfy this latter requirement are documents in the custody of the Police Department (see, People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011) and the State Division of Parole (see, People v. Fields, 146 A.D.2d 505, 537 N.Y.S.2d 157), which are both, concededly, law enforcement agencies. In People v. Fields (supra), the Appellate Division, First Department, relying in part on the People's concession, reversed a conviction because the prosecution failed to turn over to the defense the notes of the defendant's parole officer taken during an interview with a prosecution witness. In defining the functions of a law enforcement agency, the First Department held (People v. Fields, supra, at 508-509, 537 N.Y.S.2d 157):

"[A] parole officer is an employee of what is in effect, a law enforcement agency, the State Division of Parole. Pursuant to CPL 2.10(23), a parole officer is a peace officer with the power to take such action as making warrantless arrests, using physical and deadly force in executing an arrest or preventing an escape, carrying out constitutionally permissible warrantless searches, and possessing and taking custody of firearms not owned by the peace officer for the purpose of disposing or guarding such firearms (CPL 2.20). Moreover the whole purpose of the parole officer's interview with [the arresting officer] was to prepare parole violation charges against defendant, and if defendant were, at the conclusion of the appropriate proceedings, ultimately found to be guilty of those charges, he would likely be returned to prison to serve additional time. Violating a person's parole and sending him back to prison is certainly a prosecutorial function".

Apart from the police and probation departments, the courts of this State have consistently refused to expand the scope of the Rosario rule (see, e.g., People v. Tissois, 72 N.Y.2d 75, 531 N.Y.S.2d 228, 526 N.E.2d 1086 [statements made by a prosecution witness to a social worker for a child welfare agency were not in the People's possession or control and were not Rosario material]; People v. Fishman, 72 N.Y.2d 884, 532 N.Y.S.2d 739, 528 N.E.2d 1212 [untranscribed plea minutes of prosecution witness were not Rosario material]; People v. Reedy, supra [victim's personal written version of crime was not in the People's possession or control and was not Rosario material]; People v. Flynn, 79 N.Y.2d 879, 581 N.Y.S.2d 160, 589 N.E.2d 383 [accident report filed by complainant with State Department of Motor Vehicles was not within the People's possession or control and was not Rosario material] ³; People v. Berkley, 157 A.D.2d 463, 549 N.Y.S.2d 392 [statement by a rape victim to a Victim Service Agency was not within the People's possession or control and was not Rosario material]; People v. Letizia, 159 A.D.2d 1010, 552 N.Y.S.2d 732 [victim's statement to the Crime Victim's Compensation Board was not in the People's possession or control and was not Rosario material]; Matter of Dwayne H., 173 A.D.2d 466, 570 N.Y.S.2d 89 [operations report created by an employee of the Board of Education was not within the constructive possession or control of the presentment agency and was not Rosario material].

III

With respect to the precise issue raised on the instant appeal, there are precedents at the appellate level which have held, under related scenarios, that OCME is not a law enforcement agency. Specifically, in United States v. Rosa, 11 F.3d 315 [2d Cir.], the United States Court of Appeals for the Second Circuit held that the language of Rule 803(8) of the Federal Rules of Evidence, excluding from evidence reports that are prepared by "law enforcement personnel", did not apply to employees of OCME. Similarly, in People v. Santiago, 200 A.D.2d 370, 606 N.Y.S.2d 200, the Appellate Division, First Department, held that the failure to preserve evidence by members of the medical examiner's office, who were not law enforcement personnel, was not attributable to the People.

The holdings in United States v. Rosa (supra), and People v. Santiago (supra), are clearly supported by the history, composition, and duties of OCME.

OCME is an independent agency created by the New York City Charter and is affiliated for administrative purposes with the Department of Health of the City of New York (NY City Charter § 557[a], [c]. The medical examiners who staff OCME do not exercise the powers of peace officers. Rather, they are doctors who are qualified as pathologists and microscopists (NY City Charter § 557[a], [c]. Indeed, the principal function of OCME is to officially determine the cause of death when death occurs under any one of several distinct circumstances (i.e., "from criminal violence, by casualty, by suicide, suddenly when in apparent health, when unattended by a physician, in a correctional facility or in any suspicious or unusual manner" (N.Y. City Charter § 557[f]; see also, Administrative Code of City of N.Y. §§ 17-201; 17-203). OCME cannot bring criminal charges against anyone. Its sole purpose is to give an impartial scientific determination of the cause of a person's death and not to determine whether an individual is guilty, or not guilty, of a crime.

Ultimately, the defendant's argument rests on (1) New York City Charter § 557(g) which requires OCME to deliver to the District Attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality, and (2) Administrative Code of City of N.Y. § 17-205 which provides that "[t]he appropriate district attorney * * * may require from the chief medical examiner such further records, and such daily information, as [he or she] may deem necessary".

The mere fact that the District Attorney has access to records generated by...