Opinion
No. 2015BX004662.
02-26-2016
The PEOPLE of the State of New York, Plaintiff, v. Derek WILLIAMS, Defendant.
New York City Department of Correction by Mickheila Jasmin, Esq., Assistant General Counsel, for Plaintiff. The Bronx Defenders by Molly Kenney, Esq., for Defendant
New York City Department of Correction by Mickheila Jasmin, Esq., Assistant General Counsel, for Plaintiff.
The Bronx Defenders by Molly Kenney, Esq., for Defendant
DAKOTA D. RAMSEUR, J.
Defendant is charged with Assault in the Third Degree (Penal Law § 120.00[1] ), Menacing in the Second Degree (Penal Law § 120.15 ), and Harassment in the Second Degree (Penal Law § 240.26[1] ). The New York City Department of Correction (DOC) moves pursuant to CPLR 2304 to quash the judicial subpoena duces directing DOC to appear before this court to testify and to provide certain items. Defendant opposes. For the reason set forth below, DOC's motion to quash is DENIED to the extent outlined below.
In deciding the instant motion, the court has reviewed the DOC's Affirmation and Memorandum of Law dated July 9, 2015, Defendant's Affirmation in Opposition dated July 23, 2015, DOC's Reply Memorandum dated August 4, 2015, Defendant's Motion dated November 4, 2015 for leave to file a Surreply to DOC's reply, as well as DOC's Affirmation in Opposition to Defendant's motion for leave to file a Sur–Reply dated November 18, 2015.
Background
The charges in the instant matter stem from an alleged incident involving defendant which occurred inside a DOC correctional facility. The information alleges that on or about January 30, 2015 at approximately 4:05 p.m. inside the Benjamin Ward Central Visit Building, at 1 Halleck Street, County of the Bronx, defendant struck correction officer Captain Reginald Patterson in the face with a closed fist, causing him to suffer swelling and bruising to his face and to seek medical attention for said injury.
On June 9, 2015, upon application of defense counsel, the Hon. Brenda Rivera issued a subpoena duces tecum on behalf of defendant directing the New York City Department of Correction to appear before this court to testy and bring the following items: (i) copies of any and all security tapes, still photographs, and all security surveillance of any format recorded inside of the DOC, Vernon C Bain Center (VCBC) at 1 Halleck Street, Bronx, New York, on January 30, 2015, between the hours of 2:00 p.m. and 6:00 p.m; (ii) copies of any and all DOC incident reports, including Use of Force incident reports, witness statements, occurrence reports, intradepartmental memorandum, log books, search consent forms relating to any incident or occurrence inside of VCBC on January 30, 2015 involving defendant or DOC officer Reginald Patterson or Epifano Vasquez or any other DOC officer with regard to any incident or occurrence involving defendant; (iii) copies of any and all DOC paperwork, including documents generated by the Department of Investigation, the DOC Inspector General, and the Internal Affairs Division, regarding any investigation of the aforementioned officers, or any other DOC officer with regards to any incident or occurrence involving defendant on January 30, 2015; (iv) any and all documents relating to medical diagnosis, treatment and care of defendant on January 30, 2015; (v) documents sufficient to identify each instance in which records of the DOC reflect that DOC officer Reginald Patterson or Epifano Vasquez or any other DOC officer with regards to any incident or occurrence involving defendant in the course of their employment by DOC was charged with having made a false report, or with having made a false or misleading statement in a disciplinary proceeding or investigation, or with respect to a use of force case, was charged with having used force on an inmate or visitor; (vi) any and all paperwork relating to any line of duty injury claimed by DOC officer Reginald Patterson or DOC officer Epifano Vasquez or any other DOC officer with regards to any incident or occurrence involving defendant which was the result of any incident or occurrence on January 30, 2015, including any and all reports relating to any
Contentions
The New York City Department of Correction (DOC) contends that defendant's use of the subpoena duces tecum in the instant matter is wholly improper because defendant is utilizing the subpoena as a discovery tool, thereby circumventing the discovery provisions delineated in the CPL. Specifically, DOC contends that the provisions of CPL Article 240.00 afford defendant the right to obtain certain information, documents, and/or evidence only from the prosecutor at the appropriate time set forth by statute, including, where appropriate, before trial. As such, DOC argues that any items in the subpoena that are discoverable pursuant to the CPL should be obtained from the People at the time set forth by the statute and not from the DOC, a non-party. As for any items not discoverable from the prosecution under CPL Article 240, the DOC argues that such items qualify as Rosario material under CPL 240 .40 and CPL 240.45, to which defendant is not entitled until hearings or trial. DOC also argues that any investigative documents in DOC's possession that contain witness statements relating to defendant's arrest for the crimes charged would also qualify as Rosario material.
Additionally, DOC contends that pursuant to CPL 610.10(3) a subpoena duces tecum “specifically mandates that a witness not only appear, but also bring with him and produce specified physical evidence.' “ DOC argues that, here, defendant is not requesting “physical evidence” but rather is requesting DOC's employment and medical records. DOC argues that disclosure of the records defendant seeks “is governed by CPL Article 240.00, and generally may not be sought via subpoena.” DOC further argues that although defendant may obtain documents if they qualify as exculpatory evidence, he has failed to make such a claim.
In support of its motion, DOC cites various cases including People v. Bagley (279 A.D.2d 426 [1st Dept 2001] ) and Matter of City of New York v. Gentile (248 A.D.2d 382 [2d Dept 1998] ) wherein the appellate court reversed the trial court's order denying New York City Police Department's motion to quash a subpoena duces tecum. DOC contends that the Gentile court explicitly prohibited the use of a subpoena to order discovery or otherwise expand discovery. Accordingly, DOC argues that a subpoena may not be issued to ascertain the existence of evidence that a defendant is not entitled to under the CPL.
DOC further contends that a proper subpoena duces tecum must pass the threshold requirement that the material sought be relevant and material to facts at issue in a pending judicial proceeding. DOC contends that, here, defendant's request for medial and employment records of Correction Officer Patterson and Vasquez “or any other New York City Department of Corrections [sic] officer with regard to any incident or occurring involving [defendant], including all disciplinary reports and Use of Force' records,” is neither specific, nor relevant to the criminal matter. Nor is it necessary for defendant to properly prepare for trial or made in good faith. Rather, defendant is “improperly fishing' for information that is unsupported by any factual basis and fails to bear a reasonable relation to the criminal matter.”
DOC contends that defendant is also utilizing the subpoena duces tecum as a means of obtaining documents which are either not in the DOC's possession or are unrelated to the underlying criminal matter. Specifically, DOC argues that defendant's demand includes documents relating to defendant's medical diagnosis and treatment. However, Corizon Health, DOC's healthcare provider, is the custodian of all medical records and correctional health documentation.
In opposition, defendant argues that DOC had a “full and fair opportunity” to contest the court's prior determination of relevance and materiality given that defense complied with the notice requirement set forth in CPL 2307. Specifically, defendant contends that DOC was first served with notice of defense's motion forty-two days before the motion's return date, which is more than the one day of notice required by CPL 2307. Defendant contends that DOC was next served with notice of defense's amended motion four days before the motion's return date. Defendant contends that the initial service of both motions seeking the subpoena duces tecum and the service of both of the subpoenas were in compliance with CPLR as DOC was the department with custody of the items sought therein, specifically, surveillance from inside DOC Vernon C Bain Center (VCBC); DOC documentation regarding the alleged incident involving defendant and Corrections Officers Reginald Patterson and Epifano Vasquez; personnel and disciplinary records of said officers; medical records for any treatment received by defendant following the alleged incidents and line of duty injury documentation for Officer Patterson and Officer Vasquez. Defendant argues that “by failing to respond to defendant's initial motion—which was properly served and noticed—DOC waived its opportunity to litigate the issue of relevancy and materiality, issues that the court subsequently determined on April 29, 2015.”
In reply, DOC argues that defendant's opposition provides a misleading and inaccurate characterization of the items demanded in the subpoena duces tecum as defendant demands not merely documentation of the underlying incident, but rather a “vast array of documents,” including confidential employee records. DOC contends that such “overly broad demands not only fail to specify any particular incident from the approximate total of 488 days defendant was incarcerated with DOC, but also indiscriminately demand DOC's employee records without providing any rationale as to how they will produce any evidence that is relevant or material to the underlying criminal action.” DOC further argues that defendant's alleged compliance with CPL 2307 “has no bearing on defendant's failure to provide the necessary factual basis demonstrating that it is reasonably likely for the disclosure of DOC's confidential employee records to result in relevant and exculpatory evidence in the criminal prosecution of defendant.” DOC also argues that the subpoena is devoid of any basis for demanding DOC disclose the confidential employee records requested. DOC further contends that defendant has refused to make any attempt to obtain the desired information from the People. DOC argues that, “without [a] good faith showing for disclosing confidential employee records, the court has no choice but to quash or vacate defendant's subpoena duces tecum for discovery against Non-party movant DOC.”
DOC contends that defendant's request for confidential employee records is also improper because it disregards the right to privacy afforded to correction officers pursuant to New York Civil Rights Law Section 50–a (CRL 50–a ). DOC argues that defendants in criminal matters are prohibited from circumventing the parameters set forth in CRL 50–a to independently peruse confidential employee records. Relying on People v. Magliore (178 Misc.2d 489 [Crim Ct, Kings Co 1989] ), DOC further argues that defendant is also prohibited from using CPL 2307 to subpoena such records “when requests to examine records are motivated by nothing more than impeachment of witnesses' general credibility.”
DOC disagrees with defendant's assertion that the court determined the issue of relevancy and materiality on April 29, 2015, and argues that the court cannot determine the relevance and/or materiality of the confidential employee records sought in the subpoena without giving interested parties the opportunity to be heard pursuant to CRL 50–a. Relying on People v. Doe (170 Misc.2d 454 [2d Dept 1982] ), DOC contends that a motion to quash pursuant to CPLR 2304 “is the exclusive vehicle to challenge the validity' of a subpoena duces tecum pursuant to CPLR 2307.” As such, DOC argues that the instant motion provides DOC the opportunity to be heard in opposition to the subpoena duces tecum. Lastly, DOC notes that a review of DOC's records revealed that there are no security tapes, still photographs, or any video surveillance from inside DOC's VCBC for the requested date.
In defendant's motion for leave to file a surreply to DOC's reply, defense counsel contends that DOC raised new arguments in its reply, “some of which were based on defense's not-filed Opposition and some of which were simply new argument not included in DOC's original motion to quash.” As such, defendant requests an opportunity to file a surreply to address those argument “and because no formal Opposition was ever filed in this matter.” Defendant contends that granting leave to file a surreply to DOC's reply “makes good sense and serves the interest of justice.” Defendant further contends that allowing defendant leave to file a surreply “will allow the court a full opportunity to consider all of [defendant's] responses to the issues raised by DOC.”
Defense counsel submitted defendant's Opposition to DOC's motion to quash to the Court during the calendar call. Defense counsel also handed a copy of said Opposition to counsel for DOC during the same calendar call.Although the court provided defense counsel the opportunity to amend the Opposition, no such amendment was ever filed.
DOC opposes defense's motion for leave to file a surreply and argues that were this court to exercise its discretion to grant defendant's such motion, it “must do so when it appears, on the face of the record that defendant has been tasked with overcoming an unfair surprise' that he could not have addressed earlier.” DOC contends that defense counsel has failed to establish the need to overcome an unfair surprise. DOC further argues that a party seeking leave to file surreply is “limited to responding to those issues that were first raised in the reply, not those issues already raised in the earlier motion papers, which should have been made in the movant's opposition papers.” Additionally, DOC contends that defendant's motion for leave to file a surreply is moot in light of the fact that on November 5, 2015 the People served defendant with a “complete copy of all the DOC document for the incident involving defendant” which DOC provided to the People and which the People reviewed and redacted. As to defense counsel's contention that DOC raised new arguments in its reply, DOC argues that it responded to defendant's “unsupported assertions by highlighting case law and statutes that preclude defendant from subpoenaing a municipality for its employment records, including New York Civil Rights Law Section 50–a.” Subpoena Duces Tecum
A subpoena duces tecum “is a process of a court directing the person to whom it is addressed to attend and appear as a witness in a designated action or proceeding in such court, and to “bring with him and produce specified physical evidence.” (CPL 610.10[2], [3] ). Pursuant to CPL 610. 20(3), “[a]n attorney for a defendant in a criminal action or proceeding, as an officer of a criminal court, may issue a subpoena of such court, subscribed by himself, for the attendance in such court of any witness whom the defendant is entitled to call in such action or proceeding.” With respect to a subpoena duces tecum directed to any department, bureau or agency of the state, CPL 610. 20(3) provides that such subpoena “may be issued in behalf of a defendant upon order of a court pursuant to the rules applicable to civil cases as provided in section twenty-three hundred seven of the civil practice law and rules.” (Id. ) Under CPLR 2307, a subpoena duces tecum to be served upon ... a department or bureau ... of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by ... a judge of the court in which an action for which it is required is triable.” Additionally, “[u]nless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the ... department, bureau or officer having custody of the book, document or other thing and the adverse party,” and “at least twenty-four hours before the time fixed for the production of such records unless in the case of an emergency the court shall by order dispense with such notice otherwise required.” (Id. )
The term “subpoena” includes a “subpoena duces tecum. ” (See CPL 610.10[3].)
Discussion
Contrary to DOC's contention, the defendant's use of a subpoenaducem tecum in the instant matter is not “wholly improper.” In People v. Kozlowski (11 NY3d 223, 241 [2008] ), the Court of Appeals noted tha t”[t]he proper purpose of a subpoena duces tecum, of course, is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” With respect to a criminal proceeding, the relevant and material facts “are those bearing upon the unreliability of either the criminal charge or of a witness upon whose testimony it depends.' “ (Id. citing People v. Gissendanner, 48 N.Y.2d 543, 550 [1979].) Here, the People will seek to prove at trial that on or about January 30, 2015 at approximately 4:05 p.m. inside the correctional facility located at 1 Halleck Street, County of the Bronx, defendant struck DOC officer, Captain Patterson, in the face with a closed fist. The subpoena at issue demands surveillance from inside the correctional facility where the alleged incident took place, as well as any and all documentation regarding the incident, including any documents resulting from any investigation of DOC Officer Patterson and Officer Vasquez with respect to the alleged incident; any documents relating to medical diagnosis, treatment and care of defendant on January 30, 2015; any medical records for any treatment received by defendant following the alleged incident; any line of duty injury documentation for Officer Patterson and Officer Vasquez, as well as personnel and disciplinary records of said officers. With the exception of the request for records relating to the personnel and disciplinary records of DOC Captain Patterson and Officer Vasquez, the items requested in the subpoena duces tecum pertain specifically to defendant's alleged conduct inside of 1 Halleck Street on January 30, 2015 which resulted in defendant being charged with Assault in the Third Degree (Penal Law § 120.00[1] ), Menacing in the Second Degree (Penal Law § 120.15 ), and Harassment in the Second Degree (Penal Law § 240.26[1] ). Such items are relevant and material to the facts at issue in the instant matter and are thus the proper subject of a subpoena.
Although DOC argues that any items in the subpoena that are discoverable should be obtained from the People at the time set forth by the relevant statute, none of the items sought are among those which the People are obligated to disclose to defendant under Article 240 of the CPL. Thus, defendant cannot be said to be seeking to circumvent the discovery provisions. “The discovery and subpoena articles of the Criminal Procedure Law each serve different purposes, and are governed by different standards.” (People v. Duran, 32 Misc.3d 225, 228 [Crim Ct, Kings Co 2011].) CPL 240. 20, which governs discovery in criminal matters, provides that upon demand by a defendant against whom an information is pending, the People are required to disclose to defendant certain items. (See CPL 240. 20[1][a]-[k] ). “Items not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated.” (People v. Colavito, 87 N.Y.2d 423, 427 [1996].) As to those enumerated items, the People are required “to make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control.” However, the People are under no obligation “to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain.” (CPL 240. 20 [2] ).
Here, the items sought do not fall within the purview of CPL 240. 20. Notably, DOC fails to specify which, if any, items it believes fall within the purview of CPL 240. 20. Even if the items in the subpoena at issue were subject to discovery under CPL 240. 20, the People were under no obligation to disclose said items as they were not within the People's possession or control. (See People v. Wright, 225 A.D.2d 430 [1st Dept 1996] ) (holding that the People's failure to disclosure certain demanded documents did not violate their disclosure obligations under CPL 240. 20 as the undisclosed documents were not in the possession or control of the People.) It is undisputed that at the time defendant's application for the issuance of the subpoena duces tecum, the items sought therein where not in the People's possession. Nor were the People obligated under CPL 240. 20 to obtain said items by subpoena duces tecum (see CPL 240. 20[2] ). Accordingly, a subpoena duces tecum was the appropriate vehicle for defendant to obtain the items sought therein.
Although the subpoena duces tecum was the proper mechanism by which to obtain the requested security surveillance, DOC notes that they have reviewed their records and no such surveillance exists. As for defendant's request for medical records of his treatment resulting from the alleged incident, upon learning from DOC that said records are in the possession of Corizon Health, DOC's provider, defense counsel has since indicated that the defense will seek out those records from the Corizon Health.
A defendant's subpoena power, however, is not without limitation. (See Matter of Terry D., 81 N.Y.2d 1042, 1044 [1993] ) (“ “Because the statutory subpoena authority is so broad, and the recipient may be subject to contempt sanctions for failure to comply ... by necessity courts have imposed limitations on the use of subpoena power.”) Although a defendant who seeks the issuance of a judicial subpoena duces tecum is not required to make a showing that the item(s) sought “actually contains information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depend,” he must put forth, in good faith, “some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.” (People v. Gissendanner, 48 N.Y.2d 543, 550 [1979].) Here, with the exception of the request for records relating to the personnel and disciplinary records of DOC Officer Vasquez, defendant has made a sufficient showing and cannot be said to be engaged in a fishing expedition or attempting to ascertain the existence of evidence. (Cf. People v. Bagley (279 A.D.2d 426 [1st Dept 2001] ) (reversing trial court's order denying New York Police Department's motion to quash because defendant failed to set forth a predicate to support the contention that the documents sought in the subpoena would bear relevant and exculpatory evidence.) Rather, defendant has identified specific items relevant and material to facts at issue in the pending criminal proceeding. Thus, DOC must comply with the subpoena duces tecum directing DOC to appear before this court to testify and to provide any and all DOC documentation regarding the incident occurring January 30, 2015 at approximately 4:05 p.m. inside the Benjamin Ward Central Visit Building, at 1 Halleck Street. That DOC may have since provided certain documents to the People for their redaction which the People in turn disclosed to defendant does not make the subpoena duces tecum at issue moot. There is no provision in CPL 610. 20 which requires and or allows such redaction by the People without court order.
As to the propriety of defendants request for records relating to the personnel and disciplinary records of DOC Officer Patterson and Officer Vasquez, further consideration is required as such records are presumed confidential. Pursuant to New York Civil Rights Law Section 50–a (CRL 50–a ):
While DOC raised this issue only in its' reply, this court is cognizant of the relevance of New York Civil Rights Law Section 50–a (CRL 50–a ) with respect to the instant motion and therefore addresses it as the general law applicable to this case. As such, defense's motion for leave to file a surreply to address the relevance of CRL 50–a is DENIED. Defense counsel's remaining contention that DOC raised “new” arguments in its reply “based on defense's not-filed Opposition” is disingenuous as defense counsel submitted opposition papers to the court during a calendar call-an acceptable method of submitting motion papers to the court.
“All personnel records used to evaluate performance toward continued employment or promotion ... under the control of a sheriff's department or a department of correction of individuals employed as correction officers law shall be considered confidential and not subject to inspection or review without the express written consent of such ... correction officer or peace officer within the department of corrections ... except as may be mandated by lawful court order.
Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.
If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.”
Here, defendant has failed to set forth facts sufficient to warrant a request for personnel or disciplinary records of Officer Vasquez. First, there is no indication that Officer Vasquez's was involved in the underlying incident. Nor is there any suggestion that it is reasonably likely that Officer Vasquez's record carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends. (See Gissendanner, 48 N.Y.2d 543, 549 ). Although Officer Vasquez served as the deponent in the original misdemeanor complaint filed in the instant matter, he was informed by Captain Patterson. Thus, defendant's use of the subpoena to obtain records pertaining to Officer Vasquez is improper as it appears to be nothing more than a request to peruse records to obtain material for general credibility impeachment. (Id. )
With respect to defendant's request for records relating to the personnel and disciplinary records of DOC Captain Patterson, however, defendant has made a sufficient showing thereby necessitating in camera review of Captain Patterson's personnel or disciplinary records. (Gissendanner, 48 N.Y.2d 543, 551 ) (“on a clear showing of facts sufficient to warrant the judge to request records for review,' an [i]n camera inspection is to be conducted and, if the court then determines that the records contain matter that is relevant and material in the action, such portions may be disclosed to the person who has made the request.”)
Conclusion
DOC's motion to quash is DENIED as to the following: (i) to the extent it exists, copies of any and all security tapes, still photographs, and all security surveillance of any format recorded inside of the DOC, Vernon C Bain Center (VCBC) at 1 Halleck Street, Bronx, New York, on January 30, 2015, between the hours of 2:00 p.m. and 6:00 p.m; (ii) copies of any and all DOC incident reports concerning the alleged incident; (iii) any and all documents in DOC's possession relating to medical diagnosis, treatment and care of defendant on January 30, 2015 with regard to the alleged incident; (iv) any and all paperwork relating to any line of duty injury claimed by DOC officer Reginald Patterson or any other DOC officer with regards to the alleged incident on January 30, 2015 involving defendant.
Accordingly, as to the aforementioned items, DOC is directed to comply with the subpoena duces tecum.
It is further ORDERED that DOC submit to the trial court, for an in camera review, personnel and disciplinary records of DOC Captain Patterson.
This constitutes the Decision and Order of the Court.