Opinion
Ind. No. 72622/2022
06-20-2023
The PEOPLE of the State of New York v. Dorothy HIRSCH, Defendant.
Mark Bederow, Esq., for Dorothy Hirsch, 212-256-9491, [email protected] Thomas Salmon, Assistant District Attorney, for the People, Office of the Queens District Attorney, 718-286-6165, [email protected]
Mark Bederow, Esq., for Dorothy Hirsch, 212-256-9491, [email protected]
Thomas Salmon, Assistant District Attorney, for the People, Office of the Queens District Attorney, 718-286-6165, [email protected]
David J. Kirschner, J. By indictment filed September 2, 2022, defendant is charged with one count of criminal possession of a weapon in the second degree (PL § 265.03 [2]), a class C violent felony, eight counts of criminal possession of a weapon in the second degree (PL § 265.03 [1] [b]), all class C violent felonies, eight counts of criminal possession of a firearm (PL § 265.01-b [1]), all class E felonies, and other related charges.
By motion submitted March 6, 2023, defendant moves for an order pursuant to CPL § 245.30 (3) to compel the prosecution of material and information related to searches of Glenn Hirsch's apartment and vehicle. Specifically, defendant requests: (1) disclosure of the names of the police officers who searched Glenn Hirsch's apartment; (2) photographs and/or video from the searches; (3) vouchers and/or any documentation of items recovered from the searches and (4) any documentation related to these searches, including but not limited to DD5s and grand jury testimony. In papers filed May 1, 2023, the People oppose. In papers dated May 5, 2023, defendant replied. After review of the motion papers, other papers on file with the court, and prior court proceedings, defendant's motion is GRANTED to the extent indicated herein.
It should be noted at the outset, however, that defendant seeks such relief solely under CPL § 245.30. She does not, by this motion, challenge the validity of the People's certificate and supplemental certificates of compliance with discovery disclosure obligations under CPL § 245.20, nor does she seek relief under CPL § 30.30 (5). Nevertheless, while this Court believes the People satisfied their initial disclosure obligations under CPL § 245.20 in as much as their initial Certificate of Compliance and Statement of Readiness are valid and were filed in good faith, it also finds that the circumstances presented warrant such order. And as an exercise of its discretion in furtherance of the interest of justice, this Court does so.
Criminal Procedure Law § 245.20 (1) obligates the People to provide a defendant with a detailed, though non-exhaustive, list of "items and information that relate to the subject matter of the case and are in the possession, custody or control" of the People soon after the commencement of the criminal action against them (emphasis supplied). CPL § 245.20 (2) further requires the People to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one ... [and make] available for discovery where it exists but is not within the prosecutor's possession, custody or control...." Once the People automatically provide the discovery items enumerated in CPL § 245.20 (1), they must then serve defendant with a valid certificate of compliance as a condition precedent to the People's declaration of trial readiness ( CPL § 30.30 [5] ).
Criminal Procedure Law § 245.30 (3) provides in pertinent part that the court,
"in its discretion may, upon a showing by the defendant that the request is reasonable and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, order the prosecution ... to make available for disclosure to the defendant any material or information which relates to the subject matter of the case and is reasonably likely to be material (emphasis supplied)."
Effectively, then, CPL 245.30 (3) grants a defendant the right to apply for additional discovery beyond that which is required by CPL 245.20 (1), provided the request is "reasonable", and defendant is unable without undue hardship to obtain the "substantial equivalent" by other means. Like 245.20, 245.30 requires it relate to the subject matter of the case. Unlike 240.20, though, 245.30 adds "is reasonably likely to be material."
Here, the material defendant seeks is connected to the June 1, 2022, search warrant application relating to the investigation of a murder allegedly committed by Glenn Hirsch, defendant's legal husband from whom she had been separated since 2019 (see affirmation of defendant's counsel at p 1). She claims such material is indispensable to her defense as it directly relates to negating the mens rea elements of the crimes with which she is charged. Moreover, defendant notes that similar—if not identical—facts are contained in probable cause affidavits proffered in support of the search warrant applications in both her and Glenn Hirsch's matter. By way of example, defendant highlights that the firearms ballistic reports, which served as a basis for defendant's indictment, all list "Glen Hirsch" as the defendant (see affirmation of defendant's counsel, Exhibit L).
The People contend the items defendant seeks are neither relevant nor discoverable under CPL 245.30 (3) because they are not otherwise discoverable under CPL 245.20 (2) since they do not relate to the subject matter of the case. In other words, according to the People, if it is not related for purposes of one section it cannot possible be related for the other. Merely because materials may not be subject to automatic obligatory disclosure, however, does not necessarily preclude it from being otherwise subject to discretionary disclosure. Still, it is difficult to argue with the People's logic: if not related to the subject matter for one, it is not related for the other. Such an interpretation, though, would render CPL 245.30 (3) entirely superfluous. Alas, yet another in a seemingly endless line of legal quagmires the courts are constrained to crack.
But there may be a distinction. In additional to requiring the material sought be related to the subject matter of the case, CPL 245.30 (3) also requires it be "reasonably likely to be material." The People contend such material is unrelated and immaterial since it does not, as defendant argues, negate any offense charged under a theory of constructive possession. Constructive possession indicates that "a person exercises a level of control over the area in which the property found ... sufficient to give him or her the ability to use or dispose of the property." (CJI2d [NY], Constructive Possession; People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ). In this sense, then, the material defendant seeks is related to the subject matter of the case since her defense necessarily involves whether she knowingly possessed, constructively or otherwise, the firearms recovered from her residence. This, the People do not dispute.
Of course, the absence of a definition, explanation, or other guidance from the Legislature on "relates to the subject matter of the case" is but another statutory void. Perhaps it would have been useful, perhaps not. Regardless, unlike 245.20 (1), which requires only that the shopping list contained therein be related to the subject matter, 245.30 (3) requires a finding it is likely to be materially related to the subject matter ( People v. Castellanos , 72 Misc.3d 371, 148 N.Y.S.3d 652 [Sup. Ct., Bronx County 2021, Clancy, J] ). If it strikes at the heartbeat of a strategic defense, it probably is. And here, this Court finds it does.
As such, it is ORDERED that the People shall disclose to defendant (1) the names of the police officers who searched Glenn Hirsch's apartment; (2) photographs and/or video from the searches; (3) vouchers and/or any documentation of items recovered from the searches; and (4) any documentation related to these searches, including but not limited to DD5s and NYPD paperwork.
It is FURTHER ORDERED that the People deliver to this Court a copy of the grand jury minutes relating to Glenn Hirsch, for the purpose of conducting an in camera inspection of the material to determine its relevance as it relates to defendant's application.
It is FURTHER ORDERED that this Court makes no determination as to the admissibility of use for any of the documents to be closed under this order. Any such determinations are reserved and deferred to the trial court.
It is FURTHER ORDERED that, upon disclosure of the above-identified material and information shall be made available to defense counsel only and those employed by counsel or appointed to assist in the defense and be used by defense counsel solely for the purpose of preparing the defense in this criminal action. Counsel may show, but not provide—physically or otherwise—copies of such material provided under this order for the purposes of preparing a defense in this action.
This constitutes the decision and order of this Court.