Sacket v. Bartlett

• Decision Date: 02 April 1998
• Citation: 241 A.D.2d 97,671 N.Y.S.2d 156
• Parties: , 1998 N.Y. Slip Op. 3058 In the Matter of James SACKET, as District Attorney of Schoharie County, Petitioner, v. George R. BARTLETT III, as Schoharie County Judge, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 156

671 N.Y.S.2d 156

241 A.D.2d 97, 1998 N.Y. Slip Op. 3058

In the Matter of James SACKET, as District Attorney of

Schoharie County, Petitioner, v. George R. BARTLETT III, as Schoharie County Judge, et al.,

Respondents.

Supreme Court, Appellate Division,

Third Department.

April 2, 1998.

Dennis C. Vacco, Attorney General (Jill Gross Marks, of counsel), Albany, for petitioner.

O'Connor, O'Connor, Mayberger & First P.C. (Dianne Bresee Mayberger, of counsel), Albany, for George R. Bartlett III, respondent.

Barry J. Fisher, Capital Defender Office, Albany, for Donna Arroyo, respondent.

Mlynarski & Cawley P.C. (Joseph F. Cawley, of counsel) and Aswad & Ingraham (Thomas A. Saitta, of counsel), Binghamton, for Daniel Edwards, respondent.

Raymond A. Kelly, Jr., Albany, for Cary Wayne McKinley, respondent.

Richard A. Brown, District Attorneys Association (Bruce Seeliger, Albany, of counsel), Kew Gardens, for New York State District Attorneys Association, amicus curiae.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

MERCURE, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] ) to, inter alia, prohibit respondent Schoharie County Judge from enforcing those portions of his orders which directed petitioner to disclose certain discovery material by certain dates.

A Schoharie County Grand Jury indicted respondents Donna Arroyo, Daniel Edwards and Cary W. McKinley (hereinafter collectively referred to as the criminal defendants) for the crimes of murder in the first degree, murder in the second degree, conspiracy in the second degree and criminal possession of a weapon in the second degree as the result of the May 12, 1997 shooting death of Arroyo's husband; petitioner, the Schoharie County District Attorney, has filed notice of his intention to seek the death penalty as to each of them. Subsequent to their arraignment, the criminal defendants served discovery demands. The discovery they sought was extraordinarily broad and burdensome and extended far beyond the requirements of CPL article 240, in many cases requiring the prosecution to compile historical and statistical data, to divulge its own work product and, in fact, to document its very thought processes. ¹ In his response, petitioner acknowledged his intention to comply with CPL article 240 and also to fulfill his obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219, and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, but otherwise refused to comply with the demands dictated by the criminal defendants. The criminal defendants each moved to compel petitioner's full and timely compliance and respondent Schoharie County Judge partially granted the motions, directing broad disclosure and imposing a December 17, 1997 deadline for compliance.

On or about December 15, 1997, petitioner commenced this CPLR article 78 proceeding seeking to prohibit the County Judge from enforcing those portions of his orders dated October 17, 1997, October 31, 1997, November 7, 1997 and November 12, 1997, and adhered to upon reargument on December 8, 1997, which directed petitioner to (1) provide defense counsel with testimony, exhibits and other information relating to the Grand Jury's proceedings, (2) create documents for disclosure to defense counsel, (3) obtain and provide disclosure of documents and information from persons and agencies not within petitioner's control, (4) disclose material at a time earlier than provided for in CPL article 240, and (5) disclose material that is not discoverable under CPL article 240. By order entered January 16, 1998, this court granted petitioner's motion for a stay pending determination of the proceeding. We also granted the New York State District Attorneys Association permission to file an amicus brief.

As a threshold matter, we conclude that the petition has not been rendered entirely moot by petitioner's agreement, subsequent to commencement of the proceeding, to permit "open file discovery". Although we agree with respondents that the proceeding is moot as related to the materials that have already been produced (see, Matter of Briggs v. Halloran, 241 A.D.2d 830, 831, 660 N.Y.S.2d 474, 476), the fact remains that petitioner has not fully complied with County Court's orders. It appears that petitioner has not produced and continues to challenge so much of the County Judge's orders as requires the production of the Grand Jury minutes and related exhibits and instructions, oral statements that do not constitute Brady material, a list of all persons who were interviewed but who will not be called as witnesses, an inventory of all evidence supporting the element of intent to commit a crime, autopsy tapes, information regarding Edwards' alleged waiver of extradition from Florida, and the personnel and disciplinary files of the interrogating police officers. To the extent that this proceeding will determine whether petitioner must disclose these additional materials, it will affect the parties' rights (cf., Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876) and is therefore not moot (see, generally, Solondz v. Barash, 225 A.D.2d 996, 999, 639 N.Y.S.2d 561).

We also reject the contention that the petition should be dismissed in view of the fact that "[t]he extraordinary remedy of prohibition does not lie as a means of seeking collateral review of an error of law (no matter how egregious the error might be) in a pending criminal proceeding". To the contrary, prohibition has been frequently employed as a means of challenging a grant of discovery exceeding statutory or constitutional bounds (see, Matter of Hynes v. Hall, 240 A.D.2d 746, 660 N.Y.S.2d 1001; Matter of Catterson v. Jones, 233 A.D.2d 502, 650 N.Y.S.2d 993; Matter of Pirro v. La Cava, 230 A.D.2d 909, 646 N.Y.S.2d 866, lv. denied 89 N.Y.2d 813, 657 N.Y.S.2d 405, 679 N.E.2d 644; Matter of Kaplan v. Tomei, 224 A.D.2d 530, 638 N.Y.S.2d 350), and we are unpersuaded that petitioner was required to move for a protective order or submit materials for the County Judge's in camera inspection as a condition precedent thereto. Notably, the bulk of the challenged disclosure relates to items that are either not in existence or not in petitioner's possession or control. Compelling petitioner to obtain or create the items as a prerequisite to in camera review would have the effect of depriving him of any meaningful relief.

Proceeding finally to the merits, based upon our conclusion that the County Judge exceeded his authority in directing discovery far beyond that prescribed in CPL article 240 and relevant constitutional provisions, the gravity of the potential harm to petitioner and the absence of any other proceeding in law or equity to correct the flaw, we are persuaded to exercise our discretion to grant the petition (see, Matter of Rush v. Mordue, 68 N.Y.2d 348, 354, 509 N.Y.S.2d 493, 502 N.E.2d 170). It is settled law that there is no constitutional right to discovery in a criminal case (see, Matter of Miller v. Schwartz, 72 N.Y.2d 869, 532 N.Y.S.2d 354, 528 N.E.2d 507); rather, "the law of discovery is basically a creature of legislative policy" (Preiser, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 240.10, at 216; see, People v. Da Gata, 86 N.Y.2d 40, 44, 629...