Terry D., Matter of

• Citation: 81 N.Y.2d 1042,619 N.E.2d 389,601 N.Y.S.2d 452
• Parties: , 619 N.E.2d 389, 85 Ed. Law Rep. 239 In the Matter of TERRY D., a Person Alleged to be a Juvenile Delinquent, Respondent.
• Decision Date: 10 June 1993
• Court: New York Court of Appeals

Page 452

601 N.Y.S.2d 452

81 N.Y.2d 1042, 619 N.E.2d 389, 85

Ed. Law Rep. 239

In the Matter of TERRY D., a Person Alleged to be a Juvenile Delinquent, Respondent.

Court of Appeals of New York.

June 10, 1993.

[81 N.Y.2d 1043] O. Peter Sherwood, Corp. Counsel of New York City (Linda H. Young, Elizabeth S. Natrella, Pamela Seider Dolgow and Scott A. Korenbaum, of counsel), for New York City Bd. of Educ. and Linda Marks, appellants.

James H. Tatem, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be reversed, without costs, appellants' cross motion to quash granted, and the certified question answered in the negative.

The juvenile delinquency petition and underlying complaint allege that on September 18, 1990, respondent Terry D., then one week shy of his 16th birthday, entered a classroom at Brandeis High School in Manhattan, cursed the teacher, blocked her exit and punched her in the head. Respondent was charged with various acts of juvenile delinquency.

At respondent's request, a Family Court Judge issued a subpoena duces tecum directing Brandeis' assistant principal to produce in court "the names, addresses and telephone numbers of each student and non students who were in the classroom" at the time of the incident. The subpoena was duly served, and when the assistant principal did not comply, respondent moved to have her held in contempt and the witness and Board of Education cross-moved to quash the subpoena.

In support of the contempt motion, respondent's attorney averred that "the names, addresses and telephone numbers requested are the potential witnesses to the offenses," and in opposition to the motion to quash, he stated that the information was sought "for only one purpose, to wit, to locate each [witness] and subpoena him or her to appear in court to testify as to the incident in question and what each saw."

The motions were decided as follows:

"Motion to quash partially granted. If Linda Marks [the assistant principal] is willing to produce the persons whose names were requested by respondent at a time and place to be chosen together by Mr. Tatem [respondent's counsel] and Ms. Marks, the names and other identifying information need not be provided. If such an arrangement is not acceptable to Ms. Marks, the motion to quash is denied and Ms. Marks is directed to produce the information as to names and telephone numbers or times the children can be brought to answer a telephone at school."

The assistant principal and Board of Education appealed and the Appellate Division, 182 A.D.2d 406, 582 N.Y.S.2d 681, affirmed by a three-two vote. That court granted leave to appeal, and we now reverse.

The Family Court is a State-wide court of record whose processes, warrants and mandates may be served and executed throughout the State (N.Y. Const., art. VI, § 1; Judiciary Law § 2 [8]. Like other courts of record, the Family Court may subpoena a witness to testify (Judiciary Law § 2-b ; Family Ct. Act § 153) and "is also authorized to issue a subpoena duces tecum in accordance with * * * the applicable provisions of the CPLR." (Family Ct. Act § 153.)

Because the statutory subpoena authority is so broad, and the recipient may be subject to contempt sanctions for failure to comply (Family Ct. Act § 156; Judiciary Law § 750[3]; Matter of Spector v. Allen, 281 N.Y. 251, 258-259, 22 N.E.2d 360), by necessity courts have imposed limitations on the use of subpoena power. Generally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence (People v. Gissendanner, 48 N.Y.2d 543, 551, 423 N.Y.S.2d 893, 399 N.E.2d 924). "Rather, its purpose is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding' " (Matter of Constantine v. Leto, 157 A.D.2d 376, 378, 557 N.Y.S.2d 611, affd. for reasons stated 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392).

On this record, the inexorable conclusion is that the purpose of the subpoena duces tecum was to obtain otherwise unavailable discovery. The discovery provisions of the Family Court Act do not require blanket disclosure of the names of all eyewitnesses (see, Family Ct. Act §§ 330.1-335.2), and thus respondent would ordinarily be required to unearth this information through his own investigation. Of course, if the presentment agency were aware of potentially exculpatory statements made by an eyewitness, the information would have to be disclosed upon request (see, People v. Vilardi, 76 N.Y.2d 67, 75-76, 556 N.Y.S.2d 518, 555 N.E.2d 915; Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215). Similarly, prior statements made by a presentment agency witness that relate to the subject matter of his or her testimony must be disclosed prior to cross-examination (Family Ct. Act § 331.4[a].

Respondent, however, cannot use the procedural mechanism of a subpoena duces tecum to expand the discovery available under existing law (see, People v. Gissendanner, 48 N.Y.2d, at 551, 423 N.Y.S.2d 893, 399 N.E.2d 924). Yet in view of his motion papers it is evident that this is precisely what respondent sought to do. Thus, Family Court abused its discretion in denying appellants' motion to quash.

The dissent agrees as to the governing legal principles, but differs only as to whether there was an abuse of discretion in applying those principles to the facts before us. In the dissent's view, the purpose of the subpoena was to "secure the attendance of witnesses" (dissenting mem, at 1045, at 453 of 601 N.Y.S.2d, at 390 of 619 N.E.2d). While it is true, of course, that the Constitution protects the right to require the attendance of witnesses (dissenting mem., at 1046, at 454 of 601 N.Y.S.2d, at 391 of 619 N.E.2d; Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1000, 94 L.Ed.2d 40), and that ultimately respondent may have sought to compel the witnesses' attendance at a hearing with a subpoena ad testificandum, it is plain (and indeed fully conceded by respondent) that the function of this subpoena was to locate all eyewitnesses. Accordingly, there is no merit to the suggestion that respondent's constitutional rights are implicated in these circumstances.

Given this result, it is unnecessary to reach the statutory issues addressed by the dissent.

SMITH, Judge (dissenting).

Contrary to the decision of the majority, I find no abuse of discretion by either the Family Court or the Appellate Division. Moreover, respondent's effort to secure the attendance of witnesses to the alleged incident for which he has been charged is clearly within his rights. Accordingly, I dissent.

Respondent has been charged with juvenile delinquency in that on September 18, 1990, he entered a classroom at Brandeis High School in Manhattan, cursed a teacher and struck her. A subpoena duces tecum was issued by a Family Cour...