Opinion
175 Misc.2d 742 673 N.Y.S.2d 486 The PEOPLE of the State of New York, Plaintiff, v. Corey ARTHUR and Montoun Hart, Defendants. 1998-98,108 Supreme Court of New York Supreme Court, New York County, November 14, 1997.
Anthony Ricco, Goltzers&sAdler, New York City (George R. Goltzer, of counsel), Marlon G. Kirton, New York City, for Corey Arthur, defendant.
Robert M. Morgenthau, District Attorney, New York County (Eugene R. Hurley, III, Karin Dell'Antonia and Jeanne Olivo of counsel), for plaintiff.
MARCY L. KAHN, Justice.
Defendant Corey Arthur is charged with murder in the first degree (PL § 125.27 [1] [a] [vii]) and other crimes. He has moved for an order declaring that a heightened standard of care and scrutiny be applied to all phases of this case and for an order compelling discovery of various items. The People oppose both motions, except to the extent that they have already provided discovery or are in the process of doing so. The People have also cross-moved for statutory reciprocal discovery and for a protective order delaying disclosure of certain portions of the applications underlying search warrants issued in this case.
I. FACTUAL BACKGROUND
Defendant and his co-defendant, Montoun Hart, are each charged with murder in the second degree (PL § 125.25[3]) and two counts of robbery in the first degree (PL § 160.15[2], [3]). Defendant Arthur is also charged with an additional count of murder in the second degree (PL § 125.25[1]) and, as noted, murder in the first degree. The People contend that on May 30, 1997, defendants caused the death of Jonathan Levin while engaged in the attempted commission and commission of the crime of robbery. Specifically, they allege that defendants tied up Jonathan Levin in his apartment at 205 Columbus Avenue with tape, cut and stabbed him with a sharp instrument, and forcibly seized from him a Chase Manhattan Bank ATM card and PIN number. According to the People, defendant Arthur killed Jonathan Levin by shooting him in the head with a pistol. The People allege that the ATM card was subsequently used to withdraw funds from Jonathan Levin's account at Chase Manhattan Bank, which moneys defendants divided between them.
II. PROCEDURAL HISTORY
Defendant was arrested on June 7, 1997 and arraigned on the indictment on July 7, 1997. As conceded by the defense, the People have accorded defendant extensive discovery in this case, commencing even prior to defendant's arraignment on the indictment, and in many respects exceeding statutory requirements, including some information bearing on mitigation.
Specifically, in response to a defense request, the People vouchered numerous items recovered as a result of the execution of a warrant to search the crime scene (the apartment of Jonathan Levin), and subsequently afforded the defense access to the apartment. On June 26, 1997, the People furnished the defense with a copy of the voluntary disclosure form ("VDF") pertaining to co-defendant Hart, which provided CPL § 710.30 notice of the contents of alleged statements made by Hart and identification procedures pertaining to Hart, a list of numerous items allegedly obtained from defendants and from the crime scene, and information concerning identification and fingerprint evidence. Discovery of defendant's own statements to the police was afforded on June 27, in advance of his arraignment on the indictment. Additionally, on July 3, 1997, still prior to arraignment, the People furnished defendant with the VDF in his case which contained notices pursuant to CPL § 710.30, as well as notice of additional items obtained from defendants and from the crime scene. At defendant's July 7 arraignment, the People provided defendant with numerous forensic reports. On July 18, the People served additional statement notice pertaining to each defendant.
On July 22, 1997, the People responded to defendant's June 20 discovery demand, providing numerous police reports, additional forensic reports, a list of additional property omitted from the VDFs, a list of the names, addresses and birth dates of witnesses claiming to have seen Jonathan Levin the day after the alleged murder, and a list of numerous police personnel participating in the investigation. They also provided the defense with opportunities to inspect evidence they had obtained from Chase Manhattan and NYNEX, as well as numerous items concerning, inter alia, Jonathan Levin, the high school at which he had taught defendant, defendant's own high school records, and the high school records of four other students.
The People subsequently turned over to the defense all documents which they intend to introduce at trial. Included among these materials were all documents recovered from the crime scene which mention either of the defendants or are otherwise linked to either defendant, as well as all documents referencing Jonathan Levin's alleged purchase, acquisition or use of controlled substances. They have also made available to defendant any item recovered from any premises or automobile occupied by either defendant which mentions Jonathan Levin or is otherwise linked to him. The People have also provided 911 tapes and other audiotapes and videotapes to defendant.
What is at issue on this motion is defendant's entitlement to various other items. The People have refused to disclose prior to trial the names, addresses, and dates of birth of their witnesses, any statements they have made, any impeaching evidence as to those witnesses, police reports, statements made by defendant to individuals other than law enforcement personnel, items of a personal nature belonging to Jonathan Levin which they claim are irrelevant to the case, and any additional evidence of a mitigating nature, which they claim would pertain only to a capital sentencing proceeding, contending that defendant has failed to establish entitlement to these materials under CPL §§ 240.20, 240.40, or any other provision of law. In response to defendant's contention that certain of these items constitute Brady material which must be disclosed prior to trial, they assert that Brady material need not be disclosed prior to trial and that evidence of a mitigating nature does not constitute Brady material.
Much of the People's opposition to defendant's demands relates solely to the timing of, and not defendant's entitlement to, discovery. They argue that a heightened due process standard applies only at the sentencing proceeding of a capital case and not at the pretrial or trial stages. They also maintain that in most instances, disclosure shortly before trial would be adequate, even as to potential Brady material, and with respect to evidence relating to mitigation, they contend that it need not be turned over until after conviction and prior to the sentencing proceeding, citing CPL § 400.27(14). They further argue that impeachment material constitutes Rosario, rather than Brady, material and is, therefore, subject to disclosure pursuant to CPL § 240.45, and that the rule set forth in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), entitles defendant to disclosure, as opposed to discovery.
III. MOTION FOR ORDER FOR DECLARATION OF HEIGHTENED STANDARD OF CARE AND REVIEW
The parties agree that a heightened standard of due process pertains in capital cases. Defendant asserts that this standard should be applied at all stages of a capital case, based upon legislative intent, state constitutional law, decisions rendered under the predecessor statute, and federal constitutional law. The People, on the other hand, argue that a heightened standard of due process applies only at a capital sentencing proceeding and not at the pretrial or trial stages, citing California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983), and other cases. They also note that numerous courts of coordinate jurisdiction in this state have rejected the application of heightened due process in a capital case prior to the sentencing proceeding.
Defendant's initial arguments merit only brief discussion. While the Legislature, in reinstating the death penalty, enacted special protections for capital defendants, e.g., specially trained and appointed counsel (Jud.L. § 35-b), additional time for pretrial motions (CPL § 250.40[3]), individual voir dire of prospective jurors (CPL § 270.16), and direct appeals as of right to the Court of Appeals (CPL § 450.80[3]), there is no specific legislative provision requiring a trial court to apply heightened scrutiny or more exacting substantive standards to every aspect of a capital case. The Legislature's express amendment of certain provisions of existing law, taken together with its failure to modify other provisions creates an inference of a legislative intent to leave such existing provisions intact. (McKinney's Statutes § 240; see People v. Heard, N.Y.L.J., May 17, 1996, at 26, col. 6 [Sup.Ct., N.Y.Co.1996] ).
To the extent that defendant seeks an interpretation of the New York State Constitution as requiring an expansion of defendant's due process rights during the guilt phase, this court is without authority to make such a determination. A trial court is constrained not to announce new, non-interpretative, policy-driven constructions of the State Constitution, for to do so would impinge upon "the policy and rule-making function traditionally perceived as the exclusive domain of the Court of Appeals." (People v. Keta, 165 A.D.2d 172, 177-178, 567 N.Y.S.2d 738 [2d Dept.1991], rev'd on other grounds sub. nom. People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593 N.E.2d 1328 [1992]; see also Hope v. Perales, 150 Misc.2d 985, 1000, 571 N.Y.S.2d 972 [Sup.Ct., N.Y.Co.1991] [Ciparik, J.], aff'd on other grounds, 189 A.D.2d 287, 595 N.Y.S.2d 948 [1st Dept.1993], rev'd on other grounds, 83 N.Y.2d 563, 611 N.Y.S.2d 811, 634 N.E.2d 183 [1994] ).
Furthermore, the Court of Appeals' decisions upon which defendant relies which reversed death sentences due to procedural errors under New York's prior capital punishment statute are not apposite. These decisions impose no stricter standards on trial courts in capital cases. (See, e.g., People v. Jackson, 14 N.Y.2d 5, 247 N.Y.S.2d 481, 196 N.E.2d 887 [1964]; People v. Rensing, 14 N.Y.2d 210, 250 N.Y.S.2d 401, 199 N.E.2d 489 [1964]; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961]; People v. Miller, 6 N.Y.2d 152, 188 N.Y.S.2d 534, 160 N.E.2d 74 [1959]; People v. Leyra I, 302 N.Y. 353, 98 N.E.2d 553 [1951] ). In addition, these decisions antedated the Supreme Court's announcement in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), that a heightened standard of care was required by the Eighth Amendment in capital cases. Finally, many of the concerns raised in these decisions have been addressed directly through statutory enactments, such as provisions expressly setting forth the standards to be applied on appellate review (CPL § 470.30[1]).
Defendant's argument concerning the implications of the federal Constitution, however, requires closer attention. Because I believe both sides here have misapprehended the teachings of the Supreme Court as to the higher standard to be applied in capital cases, I find it necessary to examine those decisions in some detail.
In Woodson v. North Carolina, the Supreme Court acknowledged that:
the penalty of death is qualitatively different from a sentence of imprisonment, however long.... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
(428 U.S. 280, 305, 96 S.Ct. 2978, 2991).
The recognition that "death is different" has been echoed in subsequent cases, each premised on the Court's stated concern that while the discretion of a capital sentencing jury must be channeled (see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 [1972] ), it is also of critical importance that a capital sentencing determination be made on an individualized basis (see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 [1978]; Woodson, supra ). The goal to be served is "the fundamental respect for humanity underlying the Eighth Amendment...." (Woodson, supra, at 304, 96 S.Ct. at 2991).
Although the Court has refrained from developing any systematic approach or substantive rubric for applying a higher standard in capital cases, it has, on a case-by-case basis, insisted that unique safeguards be employed to insure that death is the appropriate sentence in a given case. (See, e.g., Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 [1986] [voir dire on racial bias of sentencing jury required in interracial murder cases]; Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 [1980] [instruction on lesser included offense required in cases where evidence would support conviction for non-capital crime]; Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 [1977] [prohibiting imposition of death sentence based on presentence report which defendant had no opportunity to review]; see generally, C. Steiker and J. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L.Rev. 355, 398-401 [1995]).
It is clear that these decisions applying a higher standard of review in capital cases emanate from the Eighth Amendment's cruel and unusual punishment clause. As explained in California v. Ramos, supra, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 3452, in these cases "[t]he Court ... has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." It is upon this language, as well as upon the Eighth Amendment origins of the Court's "death is different" doctrine, that the People here rely in urging that application of heightened scrutiny pertains only during the sentencing phase of a capital proceeding. While many courts of coordinate jurisdiction have rejected the notion that heightened due process standards apply to all aspects of a capital case, most of these courts have merely declined to apply the standard at the particular stage of the proceedings urged, without stating expressly that a higher standard had no application outside of the sentencing proceeding itself.
In my view, while not applying heightened due process to all aspects of a capital case, the Supreme Court's decisions neither expressly nor implicitly limit invocation of a higher standard to the sentencing proceeding. At the outset, the Supreme Court has never mandated that any specific procedures be employed in state capital prosecutions, and, while approving bifurcated proceedings (see Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 [1976] ), the Court has never expressly required that a separate sentencing proceeding be held in order to assure compliance with constitutional standards. (See McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 [1971] ).
Instead, the Court's concern has been to insure the reliability of the death sentence determination, regardless of the specific mode of proceedings employed in a particular state. 8 To this end, the Court has required that a heightened standard of reliability must be utilized in terms of fact finding in the context of a capital case. For example, in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), a decision subsequent to California v. Ramos, supra, the Court applied a heightened standard of due process in a habeas corpus proceeding to invalidate a state's post-conviction procedures for determining the sanity of a death row prisoner. The Court stated:
In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. See, e.g., Spaziano v. Florida, 468 U.S. 447, 456 [104 S.Ct. 3154, 3160, 82 L.Ed.2d 340] (1984) (additional citations omitted). This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different. See Woodson v. North Carolina, 428 U.S. 280, 305 [96 S.Ct. 2978, 2991, 49 L.Ed.2d 944] (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (additional citations omitted).
Although the condemned prisoner does not enjoy the same presumptions accorded a defendant who has yet to be convicted or sentenced, he has not lost the protection of the Constitution altogether; if the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact, then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being. Thus, the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.
(Id. at 411-412, 106 S.Ct. at 2602-2603).
In Ford, the Court applied a heightened standard of due process to proceedings occurring after the conclusion of the sentencing phase, because the central concern where the death penalty may be imposed is that all of the fact finding relating to the determination of the death sentence be held to the highest standards of reliability in order to ensure a basis for confidence in the sentence. "[C]onsistent with the heightened concern for fairness and accuracy that has characterized our review of the process requisite to the taking of a human life," the Court stated, "the fact finder must 'have before it all possible relevant information about the individual defendant whose fate it must determine.' " (Ford, supra, at 413-414, 106 S.Ct. at 2604, quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 [1976] [plurality opinion]). The Court's express statements in Ford, as well as its focus on applying, even in a post-conviction habeas review, "no less stringent standards than those demanded in any other aspect of a capital proceeding" (id. at 411-412, 106 S.Ct. at 2603) to a fact-finding hearing relating to the sentencing determination, suggests that a heightened due process standard applies not at a particular time in a capital prosecution, but rather to a particular function, i.e., the making of factual determinations relating to sentencing.
Further support for this conclusion is found in Beck v. Alabama, supra, 447 U.S. 625, 100 S.Ct. 2382. There, the Court held that a guilt phase jury in a capital case may not be prohibited from considering a lesser included non-capital offense, when a reasonable view of the evidence would have supported such conviction. The Court acknowledged that it had never held that lesser included offenses had to be charged in non-capital cases as a matter of due process, but opined that the risks inherent in failing to require such a charge in a capital case were constitutionally intolerable under the Eighth Amendment. (Id. at 637, 100 S.Ct. at 2389, citing Gardner v. Florida, supra, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204 [opinion of Stevens, J.] ["[D]eath is a different kind of punishment from any other which may be imposed in this country...."]). The Court held that in cases in which the evidence leaves some doubt as to an element of the capital offense, the failure to give the trial jury the third option of finding the defendant guilty of a lesser included offense would enhance the risk of an unwarranted conviction, a circumstance which cannot be countenanced in a capital case. (Beck, supra, at 637-638, 100 S.Ct. at 2389-2390). The Court explained:
To insure that the death penalty is indeed imposed on the basis of "reason rather than caprice or emotion," we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. [Footnote omitted]. The same reasoning must apply to rules that diminish the reliability of the guilt determination.
(Id. at 638, 100 S.Ct. at 2390). Without the third option of the lesser included non-capital offense, the jury could face a Hobson's choice of either convicting of a capital offense as to which guilt had not been proven or acquitting merely to avoid the punishment of death. Finding that the Alabama statute at issue impermissibly forced the jury to decide on guilt of a capital crime without having any standards to guide its judgment, the Court held that providing the option of the lesser included non-capital offense was necessary to eliminate such extraneous factors from influencing the jury's decision-making process.
Similarly, in Turner v. Murray, supra, 476 U.S. 28, 106 S.Ct. 1683, the Court found that the failure to voir dire jurors as to racial bias could have resulted in the imposition of a sentence of death through whim or caprice. There, the Court found a violation of the defendant's Sixth Amendment right to an impartial jury and vacated the sentence. The Court did not reverse the judgment of conviction, however, as in that case, the jury had no greater discretion to find the defendant guilty of the capital crime than it would have of a non-capital crime, and because of the greater degree of subjectivity it found inhering in the jury's sentencing determination as contrasted with its guilt or innocence finding. (Id. at 38s&sn. 12, 106 S.Ct. at 1689s&sn. 12 [but see concurring opinion of Brennan, J., finding that conviction should have been overturned as well]). Although in Turner, the Supreme Court relied upon the defendant's Sixth Amendment rights without specifically invoking its Eighth Amendment jurisprudence, the decision established a higher degree of scrutiny for the selection of a jury which would make a capital sentencing determination.
The connecting thread running through the Supreme Court's decisions applying heightened scrutiny in capital cases is that the Eighth Amendment requires that a higher level of scrutiny be applied at any stage of a capital case that directly affects the sentencing determination: a heightened standard of reliability is required in determining that death is the appropriate punishment, whenever that determination is being made. This may require the establishment of additional safeguards at various times during a capital proceeding, e.g., during post-conviction proceedings, despite the diminution in rights afforded to convicted individuals (Ford ); during the guilt phase, in charging the jury (Beck ); or even prior to commencement of the trial, during jury selection (Turner ), to the same extent as is necessary during the sentencing proceeding itself (Gardner ). What is crucial is that a heightened standard of reliability be employed whenever the fact finding process as to the appropriateness of the death penalty is affected.
Under New York's capital punishment scheme, the trial, or guilt phase, of a capital proceeding is uniquely interwoven with the sentencing proceeding. With two exceptions not at issue here , the aggravating factor(s) which a New York capital sentencing jury will weigh against mitigating factors to determine the appropriate sentence are established during the trial, and may not be relitigated during the sentencing proceeding. (CPL § 400.27[3]). This is the case even if alternate jurors are substituted (CPL § 400.27[2]) or if a new jury is empaneled at the commencement of the sentencing proceeding (CPL § 400.27[6]).
In Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), the Supreme Court upheld a Louisiana statute which permitted a sentencing jury to rely on an aggravating factor which had already been established at trial, based on the premise that the narrowing constitutionally required by Furman may occur during the guilt phase of the proceeding. Under the New York statute, as was true with the Louisiana statute in Lowenfield, the determination that the murder at issue is one of the few that state policy makes eligible for a sentence of death is made during the guilt phase, not during the penalty phase. Put otherwise, a portion of the sentencing determination in a capital case under our statute always takes place during the trial, and prior to the commencement of the sentencing proceeding.
Thus, in my view, the Supreme Court's decisions applying heightened scrutiny, as well as the inherent structure of New York's unique capital punishment legislation, support defendant's position to the extent that he urges that the higher procedural standards designed to assure greater reliability of a capital sentencing decision are not cabined strictly within the capital sentencing proceeding authorized by CPL § 400.27. Any aspect of a capital case which directly affects the reliability of the fact finding process regarding sentencing should be subject to heightened scrutiny. While certain stages of capital litigation would rarely, if ever, present such a circumstance (e.g., grand jury proceedings or arraignment), the same cannot be said of the discovery process. For example, the inability of the defense in a capital case to have access prior to trial to information bearing directly on either aggravating or mitigating factors, whether or not such information was exculpatory, and to pursue its own investigation of such information in advance of trial, could prevent the jury from considering evidence which could be dispositive of its sentencing determination in a given case, or, at the very least, from "hav[ing] before it all relevant information about the individual whose fate it must determine." (Jurek v. Texas, supra, 428 U.S. at 276, 96 S.Ct. at 2958).
Nonetheless, neither the extensive briefing and arguments of counsel nor this court's own exhaustive research has unearthed any precedent from any other jurisdiction for the issuance of the type of declaratory judgment presently sought by defendant that a higher standard of care and review be applied to all aspects of capital case, and in this court's view, issuance of such an order would be inappropriate. Accordingly, his motion seeking such an order is denied. It is appropriate, however, for the court to consider the need for heightened standards whenever it is addressing any aspect of the case which directly affects the reliability of the fact finding process regarding sentencing. To the extent that defendant's Eighth Amendment rights are implicated in his motion to compel discovery under CPL Article 240, they will be addressed in section IV of this opinion.
All parties have been repeatedly advised by this court, and are reminded, that this court views this case and the awesome issues it presents with the utmost seriousness, and will do all within its power and authority to ensure that all available safeguards are employed to protect the defendant's constitutional and statutory rights at all stages of the case.
IV. MOTION TO COMPEL DISCOVERY
A. Legal Standards
1. CPL § 240.20
In a criminal case, defendant may obtain discovery as of right only of items which are statutorily authorized. (People v. Colavito, 87 N.Y.2d 423, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996]; People v. Copicotto, 50 N.Y.2d 222, 428 N.Y.S.2d 649, 406 N.E.2d 465 [1980]). The legislative scheme established under Article 240 codifies the rules of discovery dictated by constitutional command (CPL § 240.20[1][h]), as well as those required by common law notions of fundamental fairness (CPL §§ 240.20, 240.43, 240.44, 240.45), together with those mandated by legislative policy (CPL § 240.20, 240.30). (Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL § 240.10, at 216). The capital murder legislation did not modify the existing discovery provisions of Article 240.
Section 240.20 requires the People to disclose the items enumerated to the defendant "upon demand," meaning at the time they are sought. (People v. DaGata, 86 N.Y.2d 40, 44, 629 N.Y.S.2d 186, 652 N.E.2d 932 [1995] ). This obligation flows from the underlying legislative policy goals in all criminal cases of enabling the defendant to make a better informed plea decision, minimizing the tactical advantages held by the prosecution and, to some degree, increasing the chances that the jury's determination of guilt or innocence will be an accurate one. (Copicotto, supra, at 226, 428 N.Y.S.2d 649, 406 N.E.2d 465). The court must order discovery as to any material not disclosed on demand pursuant to CPL § 240.20 if it finds that the prosecutor's refusal to disclose such material is not justified. (CPL § 240.40[1][a]).
There is no general constitutional right to discovery in criminal cases, however. (Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 [1977]; Matter of Miller v. Schwartz, 72 N.Y.2d 869, 532 N.Y.S.2d 354, 528 N.E.2d 507 [1988] ). Even in capital cases, discovery has been limited to that which is statutorily mandated. (See Matter of Pirro v. LaCava, 230 A.D.2d 909, 646 N.Y.S.2d 866 [2d Dept.1996], lv. denied, 89 N.Y.2d 813, 657 N.Y.S.2d 405, 679 N.E.2d 644 [1997]; Matter of Kaplan v. Tomei, 224 A.D.2d 530, 638 N.Y.S.2d 350 [2d Dept.1996] ).
In this case, both sides agree that the People must comply with the strictures of CPL § 240.20. Disagreement arises, however, on the application of section 240.20(1)(h), which states:
[e]xcept to the extent protected by court order, upon demand ... the prosecutor shall disclose to the defendant ... [a]nything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.
Defendant's claims of entitlement under CPL § 240.20(1)(h) must be examined in light of the federal constitutional commands of heightened scrutiny under the Eighth Amendment's cruel and unusual punishment clause (super due process), under the Fifth Amendment's due process clause (Brady material), and in light of the Sixth Amendment's guarantee of effective assistance of counsel.
2. Eighth Amendment
As discussed above, the Eighth Amendment requires that a heightened standard of care be applied to fact finding respecting a capital sentencing determination. Should discovery directly impact these concerns, defendant' constitutional right to discovery incorporated in CPL § 240.20(1)(h) would be implicated. Specifically, where defendant demonstrates that the material he seeks to discover bears on fact finding relating to the capital sentencing determination itself, e.g., where it directly relates to mitigating or aggravating factors, and could affect the reliability of that determination, it would appear that the Eighth Amendment's heightened due process standards may be applicable and would require that disclosure be made, even at this pretrial stage. To the extent that defendant makes such a showing, the material must be produced in accordance with the provisions of CPL § 240.20(1)(h) and the Eighth Amendment. The People should be guided in their disclosure by the same standard.
3. Brady Issues
In Kyles v. Whitley, supra, 514 U.S. 419, 115 S.Ct. 1555, the Supreme Court reversed both a habeas corpus petitioner's conviction and his death sentence due to a prosecutor's inadequate Brady disclosure, stating that the Court's "duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.... [citations omitted]" (514 U.S. 419, 422, 115 S.Ct. 1555, 1560). In Kyles, the Court relied upon notions of fundamental fairness inhering in the due process clause, without specifically mentioning its Eighth Amendment jurisprudence. These tenets require that the prosecutor furnish to the defendant all material in the People's possession, and within the possession of those with whom it is working on the case (id.), which is "both favorable to the defense and material to guilt or punishment." (Brady, supra, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197; People v. Wright, 86 N.Y.2d 591, 635 N.Y.S.2d 136, 658 N.E.2d 1009 [1995] ). CPL § 240.20(1)(h) makes Brady material subject to the provisions of New York's statutory discovery rules as well. Here, the parties disagree as to the definition of Brady material, the scope of the prosecutor's disclosure obligation, and the time at which disclosure must be made.
a. Brady
Material Defined
To be favorable to the defendant, evidence need not be determinative of guilt or innocence, but must "tend to exculpate" the defendant. (Brady, supra, at 88, 83 S.Ct. at 1197). With respect to the materiality requirement, the Court of Appeals has explained in People v. Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915 (1990), that the standard applicable as a matter of State constitutional law where a specific request for material has been made is that evidence is considered material if there exists a reasonable possibility that the failure to disclose it might have affected the outcome of the trial. (Id. at 73-77, 556 N.Y.S.2d 518, 555 N.E.2d 915, adopting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 [1976] ). With respect to Brady material not specifically requested, the "reasonable probability" of a different outcome remains the standard under People v. Chin, 67 N.Y.2d 22, 33, 499 N.Y.S.2d 638, 490 N.E.2d 505 (1986). However, the "mere possibility that an item of undisclosed evidence might have helped the defense ... does not establish 'materiality' in the constitutional sense." (Agurs, supra, at 109-110, 96 S.Ct. at 2400). Although these cases treated Brady issues retrospectively, whereas the issue is presented here prior to trial, the same standard applies. (Id.).
The People dispute the inclusion of impeachment material and mitigating evidence within the definition of exculpatory evidence.
i. Impeachment evidence
Where a witness' reliability may be dispositive of guilt or innocence, material evidence affecting that witness's credibility constitutes exculpatory evidence. (Giglio v. United States, supra, 405 U.S. 150, 154, 92 S.Ct. 763, 766). Information bearing on a witness' ability to perceive or recall the events in issue, her bias, hostility or motive to fabricate, or any information which, if known to the trier of fact, could possibly affect the outcome of the trial constitutes material evidence affecting the witness' credibility. (People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979]; People v. Cesar G., 154 Misc.2d 17, 23-24, 584 N.Y.S.2d 383 [Crim.Ct., N.Y.Co.1991]; see Giglio, supra [non-disclosure of government's cooperation agreement with witness]; People v. Baxley, 84 N.Y.2d 208, 616 N.Y.S.2d 7, 639 N.E.2d 746 [1994] [recantation by key prosecution witness]; People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219 [1987] [promise of leniency to government witness]; People v. Cwikla, 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070 [1979] [cooperation agreement]; People v. Rensing, supra, 14 N.Y.2d 210, 250 N.Y.S.2d 401, 199 N.E.2d 489 [witness' psychiatric history]; People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853 [1956] [correction of inaccurate testimony by government witness]; People v. Shulman, supra, 172 Misc.2d 535, 658 N.Y.S.2d 794 [bad acts of critical prosecution witnesses which are "directly probative of (such) witness' veracity about matters on which he testifie(s) at the trial," citing People v. Shakur, 169 Misc.2d 961, 648 N.Y.S.2d 200 (Sup.Ct., N.Y.Co.1996) ] ).
Impeachment evidence which concerns only collateral issues, however, is not exculpatory, and need not be disclosed as Brady material. (Cesar G., supra ). Accordingly, evidence of prior inconsistent statements, bad acts, criminal convictions and other general impeachment material not qualifying as exculpatory under the definition above need only be disclosed to the extent required by the provisions of CPL §§ 240.44 and 240.45.
ii. Mitigating evidence
The capital sentencing scheme in our state contemplates a weighing by the jury at the sentencing proceeding of aggravating factors and mitigating factors to determine whether the sentence of death should or should not be imposed. (CPL § 400.27[11]). Aggravating factors, with two limited exceptions (see CPL § 400.27[7][a], [b]), must be established at trial and, once established, may not be relitigated at the sentencing proceeding. (CPL § 400.27[3]). Mitigating factors, on the other hand, may be established at the sentencing proceeding. (CPL § 400.27[6]). If the sentencing jury determines that the aggravating factor or factors for a count of murder in the first degree substantially outweigh the mitigating factor or factors established for that count beyond a reasonable doubt, and further decides unanimously that a sentence of death should be imposed, it may then direct that a sentence of death be imposed. (CPL § 400.27[11]).
Contrary to the People's position, it therefore appears irrefutable that evidence which is material either to an aggravating factor or to a mitigating factor would be material to the defendant's punishment. Such evidence, if favorable to defendant, clearly comes within the sweep of Brady and must be disclosed with other Brady material. (See United States v. Storey, 956 F.Supp. 934 [D.Kan.1997] [approving pretrial discovery concerning mitigating factors pursuant to Brady ]; United States v. Beckford, 962 F.Supp. 804 [E.D.Va.1997] [in capital case, prosecution required by Brady to afford pretrial disclosure to defense of mitigating evidence in its possession]; Garcia v. State, 622 So.2d 1325 [Fla.1993] [mitigating evidence that another person was the shooter should have been disclosed under Brady, despite its failure to exculpate defendant on murder charge]; People v. Arroyo, supra, Ind. No. 97-13, slip op. [Co.Ct., Schoharie Co. Aug. 27, 1997] [evidence tending to deny or explain statutory aggravating circumstance or tending to support existence of mitigating circumstance constitutes Brady material]).
The Supreme Court has made clear that the sentencing authority in a capital case must be permitted to consider any circumstances that might warrant a lesser penalty than death. (See Lockett v. Ohio, supra, 438 U.S. 586, 98 S.Ct. 2954; Woodson v. North Carolina, supra, 428 U.S. 280, 96 S.Ct. 2978). The New York Legislature specifically incorporated this requirement in CPL § 400.27(9)(f), which provides that a mitigating circumstance is "[a]ny other circumstance concerning the crime, the defendant's state of mind or condition at the time of the crime, or the defendant's character, background or record that would be relevant to mitigation or punishment for the crime."
Despite the breadth of section 400.27(9)(f), however, the inclusion of mitigating evidence as Brady material does not entitle defendant to unlimited access to the victim's property. Here, for example, it does not require production of lesson plans or other documents reflecting the victim's views of capital punishment, as such information does not relate to any "circumstance concerning the crime" and thus, would not be admissible at a sentencing proceeding as a mitigating factor under CPL § 400.27(9)(f) or Lockett, supra. (See Robison v. Maynard, 829 F.2d 1501 [10th Cir.1987] ).
b. Duty of Prosecutor
With regard to the nature of the People's obligation, the prosecution has a continuing duty to turn over clearly exculpatory material in its possession to the defendant "upon request." (Brady, supra, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197). If the subject matter of the defendant's specific request is material, or if there is a "substantial basis" for claiming it is material, it is reasonable to require the prosecution to respond to it either by providing the information to the defense, or by submitting it to the court. (United States v. Agurs, supra, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399). Indeed, "[w]hen the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable." (Id.). A prosecutor's good faith belief that the exculpatory evidence is unpersuasive does not excuse its non-disclosure. (People v. Baxley, supra, 84 N.Y.2d 208, at 213, 616 N.Y.S.2d 7, 639 N.E.2d 746; see also United States v. Beckford, supra, at 811 [non-disclosure not justified by prosecutor's uncertainty as to sufficiency of evidence to establish a mitigating factor]). The prosecutor should resolve close questions in favor of disclosure. (Agurs, supra, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399). The requirements of Brady go beyond the limits of knowledge of the prosecutor assigned to the case, extending to other prosecutors in the same office (Giglio v. United States, supra, 405 U.S. 150, 92 S.Ct. 763), and impose a duty to learn of any favorable evidence known to members of other agencies acting at the prosecution's behest in the case. (Kyles v. Whitley, supra, 514 U.S. 419, 115 S.Ct. 1555).
It is the prosecutor's duty to identify and disclose information within the State's possession which constitutes Brady material.
[T]he prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached.
(Kyles v. Whitley, supra, 514 U.S. 419, 115 S.Ct. 1555). The fact that this is a potentially capital case creates no reason to depart from the usual procedure in criminal cases, which is to rely on the prosecutor's representation as to the existence of Brady material, unless there is some reason to question it. (See United States v. McVeigh, 923 F.Supp. 1310, 1314 [D.Colo.1996] ).
Where a question does exist as to the exculpatory nature of specifically demanded material, however, the duty of identifying Brady material should not be left entirely with the prosecutor. Judicial involvement may be necessary to assure that all material subject to production is in fact disclosed:
While a prosecutor must of necessity "have some discretion in determining which evidence must be turned over to the defense" (People v. Fein, 18 N.Y.2d 162, 171-172 [272 N.Y.S.2d 753, 219 N.E.2d 274] ... [citations omitted]), where, as here, there was some basis for argument that material in the possession of the prosecutor might be exculpatory, deference to the prosecutor's discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court.
(People v. Consolazio, 40 N.Y.2d 446, 453, 387 N.Y.S.2d 62, 354 N.E.2d 801 [1976], cert. denied, 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100 [1977] ). Thus, where some basis has been advanced that the material might be exculpatory, the trial court must conduct an in camera review to determine the merits of the claim. (Id.).
In attempting to define the necessary showing which would trigger an in camera review, the Court of Appeals has explained that the term "some basis" is not capable of precise definition:
In the context in which it is used here, it certainly contemplates more than purely subjective assertion of a defendant's desire for information. On the other hand, a defendant is not required to demonstrate, in advance of the holding of the inquiry he seeks, that inquiry will in fact necessarily result in a finding of materiality. Between these extremes, in most instances, disclosure rests within the compass of the Trial Judge's sound discretion, exercised in the perspective of the issues in the particular case, the nature of the other proof known to him and other relevant circumstances, including the risk of reprisal, if any, against the witness whose identity is revealed. Beyond that, except to the extent that we do so by our decision in cases such as the present one, the quest for what Brandeis called "the true rule" must await the step-by-step and case-by-case evolution characteristic of the common law.
(People v. Andre W., 44 N.Y.2d 179, 185, 404 N.Y.S.2d 578, 375 N.E.2d 758 [1978] ). The Court then suggested ways in which the trial court could determine whether there is "some basis" to believe that the prosecution may possess potentially exculpatory evidence. In some cases, the prosecutor's representation that evidence is inculpatory might be sufficient to deny a Brady motion. In other instances, the court might find it necessary to interview allegedly exculpatory witnesses in chambers, or to hold a formal hearing in counsel's presence as to whether Brady material is in the People's possession. (Id.; see People v. Poole, 48 N.Y.2d 144, 149, 422 N.Y.S.2d 5, 397 N.E.2d 697 [1979] ).
In this case, hundreds of documents have been recovered from the crime scene and vouchered by the police. The defense has thus far been afforded the opportunity to review only a small portion of these documents. This court has no intention of taking on the prosecutor's duty to ferret out and disclose Brady material. Accordingly, only in instances in which the defense has identified a specific situs of information and has demonstrated some basis for believing it to contain material which is exculpatory will this court undertake an in camera review.
c. Timing of Disclosure
The concept of fundamental fairness on which the requirement of Brady disclosure is premised is designed to ensure that the defense receives exculpatory information at a meaningful point in the proceedings, i.e., when counsel still has a significant opportunity to put the information to use. (People v. Cortijo, 70 N.Y.2d 868, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987]; People v. Brown, 67 N.Y.2d 555, 505 N.Y.S.2d 574, 496 N.E.2d 663 [1986], cert. denied, 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161 [1987] ). In some cases, the production of such information during the prosecution's case (Cortijo ) or even subsequent to a Wade hearing and during cross-examination of an identifying witness at trial (Brown ) will suffice to afford the defendant a "meaningful opportunity" to put the information to use.
On the other hand, in situations in which the requested information could help the defense chart its course for the investigation and defense of the case, a meaningful opportunity may be lost if production of the information is delayed until commencement of trial. For example, merely advising the defense of the contents of a witness' exculpatory statement while refusing to identify the witness prior to trial has been held a denial of due process under Brady, where such a tactic would have effectively prevented the defense from attempting to develop information from the witness in time to use it at trial. (People v. Thomas, N.Y.L.J., June 17, 1993, at 24, col. 6 [Sup.Ct. N.Y.Co.1993], citing People v. Rivera, 119 A.D.2d 517, 501 N.Y.S.2d 38 [1st Dept.1986] ). And in Vilardi itself, the Court emphasized that "[i]t [was] the reasonable possibility that the undisclosed evidence might have led to a trial strategy that resulted in a different outcome ... that require[d] reversal." (76 N.Y.2d 67, 78, 556 N.Y.S.2d 518, 555 N.E.2d 915). Similarly, in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985), the Supreme Court observed that the failure to respond completely to a specific request could create a misleading impression that certain evidence did not exist, which could cause the defense "to abandon lines of independent investigation, defenses or trial strategies that it otherwise would have pursued."
CPL Article 240 by its terms requires that discovery material be produced by the People "upon demand" of the defendant prior to trial and, in most cases, within 45 days of arraignment. (CPL §§ 240.20, 240.80). Case law in this state holds that disclosure of exculpatory evidence in the People's possession must be made "in advance of trial." (People v. Springer, 122 A.D.2d 87, 504 N.Y.S.2d 232 [2d Dept.], lv. denied, 69 N.Y.2d 717, 512 N.Y.S.2d 1044, 504 N.E.2d 412 [1986]; People v. Saddy, 84 A.D.2d 175, 178, 445 N.Y.S.2d 601 [2d Dept.1981], citing United States v. Bryant, 439 F.2d 642 [D.C.Cir.1971] ).
Trial courts in our state have long recognized that information which is clearly exculpatory should be disclosed at the earliest possible opportunity in advance of trial, in order to permit the defense sufficient time to investigate it and present it at trial. (People v. Jackson, 168 Misc.2d 182, 186, 637 N.Y.S.2d 158 [Sup.Ct. Bronx Co.1995]; People v. Hunter, 126 Misc.2d 13, 15, 480 N.Y.S.2d 1006 [Sup.Ct. N.Y.Co.1984]; People v. Bottom, 76 Misc.2d 525, 528, 351 N.Y.S.2d 328 [Sup.Ct., N.Y.Co.1974] [Brady decision prohibits suppression of favorable evidence "upon request" and does not limit disclosure to any particular stage of proceedings]). Postponing disclosure of such information tends to put the strategic planning of the defense in the hands of the prosecution to the same extent as a total failure to disclose, making the prosecutor the architect of a case, a circumstance that does not comport with minimal standards of justice. (People v. Hunter, supra, citing Brady, supra, at 88, 83 S.Ct. at 1197).
This consideration has been recognized in the ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a) (3d ed.1993):
A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.
(Emphasis added).
In a capital case, the need for exhaustive investigation and thorough trial preparation by the defense team is of paramount importance, given the potential consequences of the case. Every effort must be made to disclose exculpatory information at a sufficiently early point in the proceedings to afford the defense a meaningful opportunity to investigate it and evaluate its application to its strategy for either the trial or sentencing proceeding, or the fundamental fairness required by due process may be lacking. (See United States v. McVeigh, supra, 923 F.Supp. 1310, 1315 [recognizing that purpose of Brady disclosure is to give defendants fair opportunity to prepare defense well in advance of trial and ordering immediate disclosure]). Indeed, the relevant time for defense counsel to consider mitigating evidence is generally in advance of trial. (See ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1 [1988]
[investigation of matters relating to penalty phase should commence "immediately upon counsel's entry into the case ..."). The investigation will also assist counsel in determining the propriety of entering into plea negotiations with the prosecution.
Of course, the determination of the adequacy of the timing of the disclosure will depend upon the nature of the information and its potential impact on the defense of the case. To the extent that the prosecution has concerns about witness safety or intimidation, appropriate safeguards, including the issuance of protective orders and limiting disclosure to counsel, may be sought by the People. (See People v. Andre W., supra, 44 N.Y.2d 179, 404 N.Y.S.2d 578, 375 N.E.2d 758; CPL § 240.50[1] Of course, the determination of the adequacy of the timing of the disclosure will depend upon the nature of the information and its potential impact on the defense of the case. To the extent that the prosecution has concerns about witness safety or intimidation, appropriate safeguards, including the issuance of protective orders and limiting disclosure to counsel, may be sought by the People. (See People v. Andre W., supra, 44 N.Y.2d 179, 404 N.Y.S.2d 578, 375 N.E.2d 758; CPL § 240.50[1]).
The People argue that CPL § 400.27(14), authorizing discovery after conviction in aid of the sentencing proceeding, relieves them of any obligation to provide discovery relevant to sentencing until after the conclusion of the trial. That section, however, contains no requirement that discovery of such evidence be delayed until after conviction. Rather, the statute merely requires disclosure "at a reasonable time prior to the sentencing proceeding ... unless previously disclosed...." Section 400.27(14), therefore, can only be read as requiring production of any items not yet turned over, and not as creating any limitation on the pretrial requirements of CPL § 240.20(1)(h).
The People's reliance on cases such as United States v. Higgins, 75 F.3d 332 (7th Cir.1996), United States v. Woodley, 9 F.3d 774 (9th Cir., 1993), United States v. Gordon, 844 F.2d 1397 (9th Cir.1988), and United States v. Escobar, 842 F.Supp. 1519 (E.D.N.Y.1994), as authority for the proposition that the People are not obliged to provide Brady material prior to trial is unpersuasive. These and other cases cited by the People are similar to People v. Cortijo, supra, 70 N.Y.2d 868, 523 N.Y.S.2d 463, 517 N.E.2d 1349, in that they involve appellate review of post-trial claims of Brady violations, and hold merely that no blanket rule requiring pretrial disclosure of Brady material is required, provided that disclosure is made when it is still of substantial value to the accused. Notably, none of these cases involved a capital charge. Application of the Cortijo rule in a capital case, for the reasons stated, generally will require disclosure at the earliest possible moment and well before trial.
The prosecution's argument that pretrial provision of Brady material is not mandated because the obligation is one of disclosure, rather than discovery is similarly unavailing. While the prosecutor's obligation to disclose exculpatory information does not automatically entail a duty to produce it (People v. Jenkins, supra, 41 N.Y.2d 307, 309, 392 N.Y.S.2d 587, 360 N.E.2d 1288), CPL § 240.20(1)(h) as noted, makes the requirement one of discovery as well. Of course, once an exculpatory witness is identified to the defendant, the prosecutor's duty ends, provided that the witness is equally available to the defense. (People v. Rahman, 155 Misc.2d 60, 63, 587 N.Y.S.2d 826 [Sup.Ct., N.Y.Co.1992] ).
The People's reliance on cases such as United States v. Presser, 844 F.2d 1275 (6th Cir.1988) and United States v. Higgs, 713 F.2d 39 (3d Cir.1983), to justify delaying their disclosure of witnesses' exculpatory statements is also misplaced. These cases interpret a provision of the federal Jencks Act which specifically prohibits disclosure of witnesses' statements until after the witness' direct testimony. (See Presser, supra, at 1283; 18 U.S.C. § 3500[a]; but see United States v. McVeigh, supra, 923 F.Supp. 1310, 1315 [Brady obligations neither altered nor modified by fact that information is contained in witness statements or grand jury testimony]). In this case, of course, the Jencks Act is inapplicable. In New York's statutory scheme, the discovery rule of CPL § 240.20(1)(h) is neither expressly nor implicitly overridden by the Rosario disclosure provisions of CPL §§ 240.44 and 240.45.
4. Sixth Amendment
Defendant asserts that expanded and pretrial discovery in this case is also mandated by the Sixth Amendment, arguing that without such discovery, counsel will be unable to adequately prepare for trial.
No portion of the Sixth Amendment, however, entitles defendant to discovery beyond the requirements of CPL § 240.20, even in a capital case. (See Matter of Pirro v. LaCava, supra, 230 A.D.2d 909, 646 N.Y.S.2d 866). The cases cited by defendant, e.g., Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), do not hold otherwise.
B. Legal Conclusions
Applying the above principles to the issues raised by defendant's motion, the court's legal conclusions are summarized as follows:
1) Names, addresses and birth dates of witnesses
This information is discoverable prior to trial, except to the extent that such information is subject to the People's pending motion for a protective order (see People v. Rivera, supra, 119 A.D.2d 517, 519, 501 N.Y.S.2d 38), and with the further restriction that the information provided shall be used solely by defense counsel and persons working under their direction, and shall not be disclosed to defendant nor anyone else. Alternatively, in lieu of such disclosure, the People may arrange for such individuals to be interviewed by defense counsel at a time convenient to all parties.
2) Impeachment evidence relevant to prosecution witnesses
To the extent that such evidence consists of information concerning a witness' ability to perceive and recall relevant events, the witness' potential bias, hostility, or motive to fabricate, or constitutes other information which, if known to the trier of fact, could possibly affect the outcome of the trial, it must be produced along with other Brady material. This includes information pertaining to cooperation agreements, witness recantation, impairment of memory or communications skills at times relevant to the case due to substance abuse or mental illness, or bad acts of prosecution witnesses which are directly probative of credibility on matters which are the subject of the witness' testimony. Other impeaching information, however, is not exculpatory and need not be disclosed prior to trial. (See CPL § 240.45).
3) Statements of witnesses and of the co-defendant, together with information bearing on the voluntariness of such statements
Except to the extent such information must be produced pursuant to the Brady/Giglio rule, witnesses' statements and information regarding the circumstances under which they were made are not subject to disclosure prior to trial. (CPL § 240.45). Statements of the co-defendant are subject to discovery pursuant to CPL § 240.20(1)(a), and to the extent not previously provided, must be turned over in accordance with the statutory requirements. Defendant has shown no standing on this record to seek discovery of information relating to the voluntariness of the co-defendant's statements.
4) Statements made by defendant to individuals other than law enforcement officers
To the extent the People intend to use such statements at trial on direct, cross-examination, or rebuttal, and to the extent they may be inadmissible as involuntary within the meaning of CPL § 60.45, the People must disclose them to the defense at this time to enable defendant to avail himself of suppression procedures pursuant to CPL §§ 710.20(3) and 710.40(1).
5) Personal items belonging to the alleged victim recovered from the crime scene
To the extent there exists a substantial basis for concluding that such material is exculpatory, the prosecution must disclose it to the defense. Where defendant has demonstrated some basis for believing that the material might contain exculpatory information, it must be turned over to the court for in camera review. The balance of this material is beyond the scope of discovery.
6) Mitigating evidence relevant to any prospective sentencing proceeding
This information is discoverable prior to trial pursuant to CPL § 240.20(1)(h) and Brady, supra, and must be disclosed at this time.
7) Other police reports
To the extent defendant seeks additional material beyond the substantial amount of police reports already provided, his request is beyond the scope of discovery, except to the extent it is subject to production as Brady or Rosario material.
8) Timing of disclosures
Discovery of the information subject to production under Article 240 is directed to occur within fifteen days of the date of this Order, except to the extent it is either the subject of the People's pending motion for a protective order or other direction of this court. Brady material must be disclosed on a continuing basis pursuant to CPL § 240.20(1)(h) as soon as the People become aware of it. Disclosure of exculpatory witness statements should not await Rosario production on the eve of trial pursuant to CPL § 240.45, but must be turned over with other Brady material.
C. Specific Demands
The court's specific holdings applying these rules to each item sought are reflected below.
V. PEOPLE'S MOTION FOR RECIPROCAL DISCOVERY
The People move for reciprocal discovery pursuant to CPL §§ 250.20 and 240.30(1). The People also move for an order precluding defendant from offering any psychiatric evidence at trial, due to his failure to serve notice pursuant to CPL § 250.10 within thirty days of entry of his plea of not guilty to the indictment.
Defendant is reminded of his continuing obligation under CPL § 240.60 to comply with the People's request. Accordingly, once defendant determines he has information subject to discovery under the terms of CPL § 240.30 which he intends to introduce at trial, he must provide it to the prosecutor. In view of the complexities of the case, defendant must furnish such discovery to the People no later than thirty days prior to trial. The People's application pursuant to CPL § 250.10(2) is denied as premature, without prejudice to its renewal thirty days prior to trial.
Should defendant perceive a need for relief from this directive on constitutional or other grounds, he may refuse the demand and seek a protective order or leave to present evidence in camera. (CPL §§ 240.35, 240.80, 240.90[3]).
VI. CONCLUSION
For all of the foregoing reasons, defendant's motion for an order declaring that heightened scrutiny be applied to all phases of this case is denied. Defendant's motion to compel discovery is granted to the extent indicated, subject to this court's resolution of the People's pending motion for a protective order. The People's motion for reciprocal discovery is granted to the extent indicated.