People v. Wright

• Citation: 343 N.Y.S.2d 944,74 Misc.2d 419
• Parties: The PEOPLE of the State of New York v. Willie WRIGHT, Defendant.
• Decision Date: 23 February 1973
• Court: United States State Supreme Court (New York)

Page 944

343 N.Y.S.2d 944

74 Misc.2d 419

The PEOPLE of the State of New York v. Willie WRIGHT, Defendant.

Supreme Court, Trial Term, New York County, Part 44.

Feb. 23, 1973.

Frank S. Hogan, Dist. Atty., N.Y. County, for the People.

Robert Kasanof, Legal Aid Society, New York City (Helen Sadow, New York City, of counsel), for defendant.

JAMES J. LEFF, Justice:

Willie Wright, charged with robbery, asks for a bill of particulars, for pre-trial discovery and for suppression at his impending trial of physical evidence and testimony of identification. He is represented by the Legal Aid Society.

The particulars sought are:

'a) The exact time and place the defendant, Willie Wright, allegedly committed the crimes charged;

'b) The exact date, time and place of arrest of the defendant, Willie Wright;

'c) The exact date, time and place the defendant, Willie Wright, was identified as the perpetrator of the alleged crimes;

'd) The property of every nature and description taken from the person of the defendant, Willie Wright, and whether seized pursuant to warrant;

'e) The property of every nature and description allegedly taken from the complainant, Booker Tillery, during the alleged commission of the crimes charged, and where from his person taken;

'f) The specific acts allegedly attributable to the defendant, Willie Wright, under each and every count of the indictment.'

Discovery is sought of:

'(a) any written or recorded statements, admissions or confessions made by defendant;

'(b) any and all evidence favorable to defendant; and

(c) any and all reports, papers and forms of the New York City Police Department relating to this case: forms UF--61, DD--19, UF--6, 911 tape, Department of Corrections forms 239A, 85A, 111A, arrest disposition sheets; and all other papers concerning the investigation and arrest of the defendant.'

The branch of the motion seeking suppression asks for an order:

'Pursuant to Section 710.20 of the Criminal Procedure Law suppressing (a) physical evidence seized in violation of the defendant Willie Wright, constitutional rights and (b) potential testimony identifying the defendant, Willie Wright, as the perpetrator of the alleged crimes, . . .'.

The district attorney has submitted a memorandum in opposition in which he supplies the date, time and place of the occurrence, holds forth the promise that 'within 30 days prior to trial, the defense will be provided with all written or recorded statements made by the defendant, . . .', suggests that 'all motions concerning identification and suppression should be respectfully referred to the appropriate trial part', and concludes by noting that 'all other information requested is evidentiary and not discoverable under CPL 240.20.'

This response hardly furthers the progress of the case toward its ultimate resolution.

The indictment in this case is one of several hundred before me in Supreme Court, New York County, Part 44. Part 44 has been reserved almost exclusively for the trial of cases in which the defendants are indigents and in which the defendant's attorney is either an attorney with the Legal Aid Society or has been appointed by the Appellate Division under Article 18--B of the County Law. This case is, in its present posture, no different than a hundred other robbery cases like it. The issues common to these cases are identification, the essential details of the incident, the issue of possession of a weapon where alleged, and the character of the property alleged to have been stolen.

A high proportion of the cases in this part have been resolved by plea. The practice now has the blessing of the United States Supreme Court. In Santobello v. New York, Chief Justice Burger said:

'The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining', is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities' (404 U.S. 257, at page 260, 92 S.Ct. 495, at page 498, 30 L.Ed.2d 427 (1971)).

In a memorandum circulated January 10, 1973 to judges by the Administrative Board of the Judicial Conference, the Board said, in part:

'. . . plea discussions are a necessary and desirable part of the administration of criminal justice. Although limitations on available funds for the courts make the settlement of most cases by agreement a necessity, we are also convinced that the process has intrinsic benefits which would commend its continued use in many cases even if funds were available to support a substantially increased reliance on trials. There are risks, of course, in a system which relies extensively on the informal disposition of criminal cases, but we believe that the risks can be minimized if procedures are established which ensure that any agreement which is reached accurately reflected in the record of the proceedings and that the defendant is fully informed of all the relevant consequences of his consent.

We therefore deem it to be the duty of every judge sitting in a court of criminal jurisdiction in New York State to encourage discussions between an Informed prosecuting attorney and An informed defense counsel and, with the consent of the parties, to participate in such discussions whenever it appears to him that negotiations may serve to dispose of a criminal case by agreement or to clarify issues which are actually in dispute between the parties.' (Emphasis supplied).

Discovery in criminal cases in New York has been slow in coming (See Denzer Practice Commentary, McKinney's CPL article 240, page 465).

If scholarship would be helpful to encourage expansion of discovery, the supply is ample. Developments of the Law, Discovery, 74 Harv.L.Rev. 940.

Discovery in Federal Criminal Cases, a Symposium at the Judicial Conference of the District of Columbia Circuit, 33 F.R.D. 47.

Ground Lost and Found in Criminal Discovery, Traynor, 39 N.Y.U. Law Rev. 228.

In sum, the old reasons for denying discovery no longer hold water and trial courts have decided that the time is now for discovery in many situations where it has not been granted before. In Zellman v. Metropolitan Transportation Authority, 1973, 40 A.D.2d 248, 339 N.Y.S.2d 255, the Second Department in a personal injury action said:

'We have reviewed our prior holdings and have now concluded that the names of eyewitnesses to the occurrence, even if obtained by investigation, are discoverable if they are material and necessary to the prosecution or defense of the action.'

In Mosca v. Pensky, 73 Misc.2d 144, 341 N.Y.S.2d 219 (1973), Mr. Justice McCullough directed a defendant to produce a liability insurance policy insuring him for the subject accident. Judge McCullough said, in part:

'The discovery provisions of article 31 of the CPLR are not to be read in a vacuum but must be construed in tandem with other pertinent regulations so as to move cases that have been on the calendar for a long period of time, especially where of dubious merit (Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186). Accordingly, the word 'evidence' as used in CPLR 3101(a) has not been strictly construed and is broad enough to encompass any relevant information (West v. Aetna Cas. & Sur. Co., 49 Misc.2d 28, 266 N.Y.S.2d 600, mod. 28 A.D.2d 745, 280 N.Y.S.2d 795) including information that might not be admissible at trial (Avila Fabrics v. 152 W. 36th St. Corp., 22 A.D.2d 238, 254 N.Y.S.2d 609; Turner v. Town of Amherst, 62 Misc.2d 257, 308 N.Y.S.2d 547). Indeed, the statutory phrase 'material and necessary,' has been expanded by the Court of Appeals in a landmark decision to include discovery of any relevant information that serves to reduce 'delay and prolixity' (Allen v....