Opinion
# 2012-049-001 Claim No. 110802
01-17-2012
ENCARNACION v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-049-001 Claimant(s): BERNABE ENCARNACION Claimant short name: ENCARNACION Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110802 Motion number(s): Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Bernabe Encarnacion, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: January 17, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On November 9, 2011, claimant Bernabe Encarnacion submitted to this Court a document labeled in part "request for a subpoena ad testificandum." By that submission, Encarnacion seeks a subpoena to secure the testimony of one Sammy Felciano, whom he asserts has information relevant to his claim no. 110802,for which a trial is now scheduled on February 17, 2012 by videoconference from Elmira Correctional Facility (Elmira).
While claimant's application references both claim nos. 110802 and 110893,the proffered testimony relates only to the former claim.
Claim no. 110802 arises out of several incidents Encarnacion alleges to have taken place at Southport Correctional Facility (Southport) between January and February 2003. Only one of those allegations is relevant to the present application. According to claimant, while he was at a disciplinary hearing on February 4, 2003, a correction officer removed "five big yellow envelopes of legal papers" from his cell. Appended to his claim is an administrative grievance dated February 5, 2003, in which Encarnacion made the same allegations, identifying the officers at issue as Officers Deming and Murray, and attributing the account of what happened to inmate Sammy Feliciano.
The administrative grievance also included an "affidavit" signed by Feliciano and dated February 4, 2003. On that date, according to Felciano's statement, he saw Officers Deming and Murphy enter claimant's cell while Encarnacion was away at his hearing. Feliciano then saw them leave the cell with "a few yellow envelopes." The statement further avers, without indicating the basis for Feliciano's knowledge, that the officers "never returned these envelopes." Feliciano's statement is made under penalty of perjury, but not notarized.
Felciano states that his submission is "self-notarized" in accordance with 28 USC § 1746, which permits the submission of affidavits sworn under penalty of perjury, but not notarized, in federal proceedings.
Defendant State of New York responded to Encarnacion's application by letter dated November 30, 2011. The letter states that the defendant does not object to the production of Feliciano, but because Feliciano will need to be transported to Elmira from Attica Correctional Facility, and such transport requires "additional safety and security measures . . . which will far exceed the mileage and witness fee," Encarnacion "must be responsible" to bear these costs.
Discussion
A claimant acting pro se is not authorized to issue a subpoena on his own, and thus can only compel a witness' testimony with court approval (CPLR § 2302[a] and [b]). To obtain such approval, the claimant must show that the information sought is "material and necessary" to his claim, and either cannot be obtained from other sources or is otherwise necessary for trial (Johnston v State of New York, UID No. 2011-018-206, Claim No. 118393, Motion No. M-79228, Fitzpatrick, J. [Feb. 10, 2011]; Allaway v State of New York, UID No. 2010-030-532, Claim No. 114865, Motion No. M-78069, Scuccimarra, J. [Apr. 7, 2010]; see also Cerasaro v Cerasaro, 9 AD3d 663 [3d Dept 2004] [showing of "special circumstances" - that information is material and necessary and cannot be obtained elsewhere - necessary whenever information is sought to be subpoenaed from third party]).
In this case, Encarnacion alleges - and has alleged consistently since his administrative grievance proceeding - that Feliciano is the only witness to the claimed removal of documents from his cell. Indeed, Encarnacion does not contend that he has any personal knowledge of this event, beyond what he learned from Feliciano. Thus, the evidence this witness would provide, according to Encarnacion's proffer, is material and necessary to his claim, and there is no other apparent source that could provide it.
As noted, the defendant does not address the sufficiency of claimant's showing as to the necessity of the witness to the claimant's case. Rather, the State's position on this application relates only to the costs of security for transporting the witness, which it believes should be borne by Encarnacion.
The statute, however, simply does not make provision for defendant to be compensated for all expenses associated with the inmate witness's travel. While CPLR § 2303[a] states that "[a]ny person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day's witness fee," those expenses are specifically delineated in CPLR § 8001 at fifteen dollars for an attendance fee and twenty-three cents for each mile of travel to the place of attendance. Thus, such cases that have addressed this issue all hold that the payments set forth in § 8001 are the only reimbursement to which the State is entitled for producing a prisoner as a witness at trial (see e.g., Matter of State of New York Dept. of Correctional Servs. (C.S.E.A.), 142 Misc 2d 380, 381-82 [Sup. Ct., Orange County 1989]; Johnston, supra; Thomas v State of New York, UID No. 2008-030-577, Claim No. 113367, Motion No. M-75593, Scuccimarra, J. [Nov. 14, 2008]).
Should the defendant believe these costs are unduly onerous, it may avoid them by stipulating, solely for purposes of the trial in this matter, to the veracity of Feliciano's proffered testimony as set forth in the document labeled his "affidavit." There is, however, no basis in statute to impose the cost-shifting defendant requests.
In light of the foregoing, claimant's application is granted, subject to the following terms: Defendant is directed to notify the Court within seven days of this decision if it will stipulate as set forth above, or if Mr. Feliciano is no longer in its custody. In the absence of either submission, defendant shall within such time period provide claimant with a letter, with a copy to the Court, stating its calculation of the mileage fee at $.23 per mile for the travel of Feliciano to Elmira Correctional Facility. By February 8, 2012, claimant shall provide to the New York State Department of Corrections and Community Supervision payment in the amount of $15.00 plus the mileage fee calculated by defendant as set forth above. If such payment is timely made, defendant shall ensure Mr. Feliciano appearance to testify at the February 17, 2011 trial of this claim. To avoid the delay and confusion that may result from a pro se inmate having a subpoena served for the production of another prisoner, the witness shall be made available without resort to subpoena.
January 17, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims