Opinion
8410/2018
09-11-2019
The PEOPLE of the State of New York v. Yechiel GOLDSTEIN, Defendant.
For the defendant, Philip J. Smallman, Esq. For the People, Eric Gonzalez, District Attorney Kings County, Brooklyn, NY (Jonathan Hagler, Esq., New York).
For the defendant, Philip J. Smallman, Esq.
For the People, Eric Gonzalez, District Attorney Kings County, Brooklyn, NY (Jonathan Hagler, Esq., New York).
Matthew J. D'Emic, J.
The People move to compel the defendant to produce certain alleged recordings of conversations between the defendant and his prior counsel that were purportedly made by, and remain in the possession of, the defendant. The defendant opposes the motion. Upon review of the parties' papers and the court file, the People's motion is denied.
The defendant was arrested on July 17, 2018 for allegedly violating the terms of two orders of protection directing him to stay away from Sholom Goldstein, who is the defendant's son. During his transport to the precinct, the defendant told Officer Lopez that he had a tape recording of a conversation between himself and his former counsel, Daniel Kogan. The People now seek an order, pursuant to CPL § 240.30, compelling the defendant to produce the recording for their inspection.
Contrary to the defendant's claim, the People do not argue that the defendant is precluded from claiming that his discussion with Mr. Kogan was privileged communication merely because it was allegedly recorded. Rather, the People aver that, upon his voluntary disclosure of the substance of that conversation to Officer Lopez, the defendant waived the privilege.
"The attorney-client privilege generally extends to any ‘confidential communication made between the attorney ... and the client in the course of professional employment’ " ( Matter of Vanderbilt , 57 N.Y.2d 66, 453 N.Y.S.2d 662, 439 N.E.2d 378 [1982], quoting CPLR § 4503 [a] ). However, as is the case here, "a defendant who voluntarily discloses privileged communications to police before trial waives the privilege of confidentiality" ( People v. O'Connor , 85 A.D.2d 92, 97, 447 N.Y.S.2d 553 [4th Dept. 1982] [internal citation omitted] ).
Nonetheless, even assuming such recording exists, the People are not entitled to demand production thereof at this time. A defendant is only required to disclose and make available for inspection, photographing, copy or testing any "tape or other electronic recording which the defendant intends to introduce at trial" ( CPL § 240.30[1][b] ). The People rely on the defendant's statement to the arresting officer, in sum and substance, that he had a recording of his prior counsel, Daniel Kogan, advising him that he could stay with his child long enough to reassure the child that he was happy to see him - which the defendant argued was proof that he lacked the requisite mens rea to commit the crime of criminal contempt. It cannot be reasonably argued that the defendant's statement to Officer Lopez following his arrest demonstrates that defense counsel intends to enter the supposed recording into evidence at trial. The mere possibility that the defendant is in possession of a tape recording that the defense could present for the fact-finder's consideration is insufficient to entitle the prosecution to disclosure. If, however, the defendant intends to present any such recording at trial, it must be produced for inspection, copying or testing by the People, or be subject to preclusion.
The People also erroneously maintain that they are entitled to subpoena any such recording because it would be "relevant and material to the crimes" charged and would not be protected by attorney-client privilege. Such an argument inexplicably overlooks the constitutional protections afforded to every individual accused of a crime. It is axiomatic that the Fifth Amendment privilege against self-incrimination "protects an accused from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature" ( People v. Havrish , 8 N.Y.3d 389, 392, 834 N.Y.S.2d 681, 866 N.E.2d 1009 [2007] [internal quotation omitted] ).
Moreover, the prosecution misconstrues the law concerning the waiver of privilege when a party voluntarily discloses confidential communication and places the substance thereof at issue. The fact that the defendant, prior to being formally charged and obtaining counsel, told Officer Lopez about a possible recording of advice he received from his former counsel regarding the terms of the order of protection does not mean that the defendant placed the substance of the attorney's counsel in issue. The defendant can only be said to have placed the subject matter of the communication in issue if he actually asserts that he lacked the necessary intent to violate the order of protection based on his attorney's advisement as a legal defense. The People may not preemptively compel production.
The People further aver that they are also entitled to disclosure of "all conversations with either Mr. Kogan or any other previous attorneys" pertaining to any legal advice regarding what conduct the orders of protection permitted and prohibited because the defendant "has put his knowledge of [their] terms" at issue - a contention wholly without merit. Even if disclosure of the taped conversation with Mr. Kogan is ultimately required, it would not permit the People to circumvent the privilege afforded to the defendant's communications with his other counsel.
Accordingly, the People's motion to compel production of the alleged tape recording is hereby denied.
This decision shall constitute the order of the court.