Retamozzo v. State
| Decision Date | 28 June 2013 |
| Docket Number | Claim No. 115186,Motion No. M-83062,# 2013-049-035 |
| Parties | RETAMOZZO v. THE STATE OF NEW YORK, |
| Court | New York Court of Claims |
Case information
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¦UID: ¦2013-049-035 ¦
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¦Claimant(s): ¦ARMAND RETAMOZZO ¦
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¦Claimant short ¦RETAMOZZO ¦
¦name: ¦ ¦
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¦Footnote (claimant¦ ¦
¦name) : ¦ ¦
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¦Defendant(s): ¦THE STATE OF NEW YORK ¦
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¦Footnote ¦ ¦
¦(defendant name) :¦ ¦
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¦Third-party ¦ ¦
¦claimant(s): ¦ ¦
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¦Third-party ¦ ¦
¦defendant(s): ¦ ¦
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¦Claim number(s): ¦115186 ¦
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¦Motion number(s): ¦M-83062 ¦
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¦Cross-motion ¦ ¦
¦number(s): ¦ ¦
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¦Judge: ¦DAVID A. WEINSTEIN ¦
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¦Claimant's ¦Armand Retamozzo, Pro Se ¦
¦attorney: ¦ ¦
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¦Defendant's ¦Eric T. Schneiderman, New York State Attorney General ¦
¦attorney: ¦ ¦
¦ ¦By: Janet L. Polstein, Assistant Attorney General ¦
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¦Third-party ¦For Nonparties Meggan Dodd and Frederick Hartwell: Office ¦
¦defendant's ¦of the Corporation Counsel of the City of New York ¦
¦attorney: ¦ ¦
¦ ¦By: Karl J. Ashanti, Esq. ¦
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¦Signature date: ¦June 28, 2013 ¦
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¦City: ¦Albany ¦
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¦Comments: ¦ ¦
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¦Official citation:¦ ¦
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¦Appellate results:¦ ¦
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¦See also ¦ ¦
¦(multicaptioned ¦ ¦
¦case) ¦ ¦
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Claimant Armand Retamozzo filed the instant claim on April 29, 2008, seeking to hold defendant State of New York liable for damages pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as section 8-b of the Court of Claims Act. He alleges that on April 28, 2004, he was convicted of and served time in prison for criminal possession of a controlled substance (ecstasy pills or MDMA) in the second and third degrees. The conviction was reversed by the Appellate Division, First Department on October 18, 2005 (see People v Retamozzo, 25 AD3d 73 [1st Dept 2005]), and Retamozzo was acquitted of all charges on May 5, 2006, following retrial. Retamozzo maintains that he did not commit the offense for which he was incarcerated.
At issue in the present motion are two subpoenas ad testificandum Retamozzo has served on employees of nonparty Office of the New York City Special Narcotics Prosecutor ("SNP"). Those subpoenas, which were signed by the Court on January 11, 2013 pursuant to CPLR 2302,1 seek the testimony of Meggan Dodd and Frederick Hartwell (collectively "movants"). Dodd provided claimant, via a letter dated September 25, 2012 (the "September 25 letter"), with documents responsive to a subpoena duces tecum claimant had served on the New York County District Attorney (NYCDA), and which was referred by it to SNP. Hartwell was the prosecutor in Retamozzo's two criminal trials.
The subpoenas were accompanied by a notice of circumstances or reasons disclosure is sought or required. In addition to certain general statements regarding the importance of the information sought, the document listed the following as the specific reasons, among others, as to claimant's need for Dodd's testimony:
"(1) that this action involves questions concerning the authenticity of the non-original items you mailed to Armand Retamozzo on 25 September 2012 . . . ; (2) that this action involves questions concerning the date and time of the locations depicted in the photographs you mailed to Retamozzo on 25 September 2012 purportedly responding to the aforementioned subpoena; (3) that this action involves questions concerning the identity of the photographer(s) of the photographs you mailed to Retamozzo. . . purportedly responding to the aforementioned subpoena; (4) that this action involves questions concerning whether you were required to produce the items identified in the aforementioned subpoena; (5) that this action involves questions concerning whether you produced all of the items identified in the aforementioned subpoena; (6) that this action involves questions concerning the identity of the items called for in the aforementioned subpoena which you have not yet produced; (7) that this action involves questions concerning the identity of the custodian or other qualified witness charged with the responsibility of maintaining the items identified in the aforementioned subpoena which you have not yet produced; (8) that this action involves questions concerning the specific factual basis of your objections to producing some of the items identified in the aforementioned subpoena; (9) that this action involves questions concerning whether your office has already waived the objections you have asserted in response to the aforementioned subpoena; (10) that this action involves questions concerning whether non-privileged portions of the items identified in the aforementioned subpoena can be produced without revealing the portions which you believe are privileged; [and] (11) that this action involves questions concerning whether your office has in its possession, custody or control, items showing, or tending to show, that Retamozzo did not commit the crimes he stood accused of under, or in connection with, New York County Indictment No. 1605/03 . . . ."
Claimant's statement of reasons also set forth certain legal propositions stated in the CPLR and (in item 15) various questions about the alleged underlying offenses at issue in this action, such as whether "Retamozzo constructively possessed a certain controlled substance in or near the vicinity of Washington Square Park on 8 January 2003, . . . whether Retamozzo was approached by a confidential informant in or near the vicinity of Washington Square Park on 8 January 2003, [and] how much money Retamozzo physically possessed in or near the vicinity of Washington Square Park on 8 January 2003."
In regard to Retamozzo's reasons for seeking the testimony of Mr. Hartwell, claimant listed items (1), (11) and (15) as set forth above, and further added a question concerning "the identity, reliability and credibility of the confidential informant involved in the 8 January 2003 RIP operation."
Hartwell and Dodd moved by Order to Show Cause to quash the subpoenas pursuant to CPLR 2304, which order was signed by the Court on February 14, 2013. In a memorandum of law accompanying that motion, movants argue that they have "no relevant knowledge" of the information sought in the subpoenas. In addition, Hartwell and Dodd contend that Retamozzo failed to show that he "is unable to obtain the information from alternative sources" or "through other channels of discovery" (Mem. in Support at 2).
In support of those contentions, the motion papers include Dodd's and...
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