Scheufler v. Bruno

• Decision Date: 20 January 1999
• Citation: 250 A.D.2d 268,684 N.Y.S.2d 305
• Parties: , 1999 N.Y. Slip Op. 442 In the Matter of Susan SCHEUFLER, Respondent, v. Kenneth BRUNO, as Rensselaer County District Attorney, Appellant, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 305

684 N.Y.S.2d 305

250 A.D.2d 268, 1999 N.Y. Slip Op. 442

In the Matter of Susan SCHEUFLER, Respondent, v. Kenneth BRUNO, as Rensselaer County District Attorney Appellant, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Jan. 20, 1999.

Kenneth R. Bruno, District Attorney (Bruce E. Knoll of counsel), Troy, for appellant.

Kindlon & Shanks P.C. (Laurie Shanks of counsel), Albany, for respondent.

Susan L. Valle, Albany, for New York State District Attorneys Association, amicus curiae.

Before: MERCURE, J.P., CREW III, PETERS, SPAIN and CARPINELLO, JJ.

MERCURE, J.P.

Appeal from a judgment of the Supreme Court (Malone, J.), entered January 11, 1999 in Rensselaer County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to prohibit respondents from conducting an autopsy on the body of petitioner's husband in the absence of a pathologist retained by petitioner.

On January 7, 1999, a felony complaint was filed against petitioner charging her with murder in the second degree based upon her confession that she had caused the death of her husband on July 31, 1997 by placing a pillow on his face so that he could no longer breathe. At the time of the death, no autopsy was conducted and the cause of death stated on the certificate of death was cancer. Pursuant to Public Health Law § 4210(4), respondent Rensselaer County District Attorney sought to exhume the body of petitioner's husband for an autopsy to be conducted by respondent Rensselaer County Medical Examiner. By order dated January 8, 1999, County Court (McGrath, J.) authorized the exhumation and transportation of the body to Albany Medical Center for the autopsy.

By order to show cause dated January 8, 1999, petitioner commenced this proceeding to prohibit the autopsy in the absence of the pathologist retained by petitioner to assist in her defense of the pending criminal action against her. The order to show cause included a temporary restraining order which prohibited the autopsy pending a hearing on petitioner's application. The District Attorney opposed the application and on January 9, 1999 Supreme Court heard oral argument. Based upon the conclusion that this is a unique case in which it would be better to have two experts involved in the "critically important autopsy procedure", Supreme Court ordered that petitioner's pathologist be permitted to attend the autopsy. The District Attorney filed a notice of appeal and this court granted his motion for a preference.

On appeal, the District Attorney contends that any right to information concerning an autopsy is defined by the laws governing discovery. Significantly, CPL article 240, which defines the breadth of criminal discovery in New York (see, Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507; Matter of Sacket v. Bartlett, 241 A.D.2d 97, 101, 671 N.Y.S.2d 156, lv. denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320), does not authorize the courts to compel the attendance of any person at an autopsy. Petitioner, on the other hand, contends that the right she seeks to enforce is not a matter of discovery but instead derives from her 6th Amendment right to counsel. According to petitioner, the presence of her pathologist at the autopsy will "ensure the integrity and fairness of the process". We disagree with both contentions.

First, while there is no question that petitioner's right to counsel attached upon the filing of the felony complaint (see, People v. Brown, 216 A.D.2d 670, 672, 628 N.Y.S.2d 211, lv. denied 86 N.Y.2d 791, 632 N.Y.S.2d 504, 656 N.E.2d 603), that right extends only to a critical stage of the criminal proceeding (see, People v. Harris, 79 N.Y.2d 909, 910, 581 N.Y.S.2d 657, 590 N.E.2d 242). The mere fact that the Medical Examiner's determination may be a critical element of the prosecution's case against petitioner does not make the autopsy a critical stage of the criminal proceeding against petitioner. In our view, petitioner's reliance upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619, is misplaced. In Wade, the court noted that preparatory steps in the gathering of evidence "are not critical stages since there is minimal risk that [her] counsel's absence at such stages might derogate from [her] right to a fair trial" (id., at 228, 87 S.Ct. 1926). The Ash case refused to extend the right-to-counsel holding of Wade to pretrial photographic identifications, stating that "[t]he primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor" (United States v. Ash, supra, at 320, 93 S.Ct. 2568). On the other hand, the District Attorney's analysis fails to distinguish between the gathering of evidence, which constitutes the investigative process, and the compulsion to disclose the evidence so gathered, which is controlled by the discovery statutes. In our view, the provisions of CPL article 240 are essentially irrelevant to the issues raised in petitioner's application (but see, Matter of Brown v. Appelman, 241 A.D.2d 279, 672 N.Y.S.2d 373).

Far more disturbing, though, is the parties' unwarranted presumption that the Medical Examiner serves as an arm of the prosecution and acts under the direction and control of the District Attorney. The Medical Examiner is an appointed county officer who must be a licensed physician qualified to perform an autopsy (see, County Law § 400[4-a] ). The Medical Examiner's general powers, jurisdiction and manner of investigation are codified in County Law article 17-A (see, County Law §§ 671-674). The Medical Examiner is not a peace officer (see, CPL 2.10) and has no law enforcement powers. The Medical Examiner does, however, "have the power to subpoena and examine witnesses under oath in the same manner as a magistrate in holding a court of special sessions" (County Law § 674[4] ). In considering the role of Medical Examiners in New York...