74 Misc. 2d 743 | New York County Courts | 1973
Defendant Eugene Cobb makes this application to the court for an order:
1. To inspect the Grand Jury minutes and dismiss the indictment ;
2. To suppress any written or oral statements allegedly made by the defendant ;
3. To discover the names and addresses of all witnesses whose testimony the District Attorney intends to use at the trial; and
4. Directing the District Attorney to file a bill of particulars.
Branch 3 of defendant’s application will be treated first inasmuch as it is the only portion of defendant’s application which need be discussed in depth. Prior to the advent of the Criminal Procedure Law, it was the general rule in the State of New York that it was discretionary with the court whether discovery of potential prosecution witnesses should be permitted. In People v. Lynch (23 N Y 2d 262, 271-272), the Court of Appeals stated as follows: ‘ ‘ There appears to be some disagreement as to whether pretrial release to a criminal defendant of names or statements of potential witnesses is permissible (compare People
The “ Approved Draft of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial ”, section 2.1, provides as follows:
“ 2.1 Prosecutor’s Obligations.
“ (a) Except as is otherwise provided as to matters not subject to disclosure (section 2.6) and protective orders (section 4.4), the prosecuting attorney shall disclose to defense counsel the following material and information within his possession or control:
“ (i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial ”.
Numerous other States require by statute or rule that the defendant be notified prior to trial of potential witnesses to be called by the prosecution (e.g., Alaska Rules Crim. Pro., rule 7, subd. [c]; Ariz. Rules Crim. Pro., rule 153; Ark. Stat., § 43:1004 [1947]; Cal. Penal Code, § 995a; .Colo. Rev. Stat., §§ 39-3-6, 39-4-2 [1963]; Fla. Rules Crim. Pro., rule 3.220, subd. [d]; Idaho Code § 19-1404 [1948]; Ill. Rev. Stat. ch. 38, § 114-9 [1963]; Ind. Stat. Ann., § 9-903 [1956]; Iowa Code Ann., § 772.3 [1950]; Kan. Stat. Ann., § 62-931 [1964]; Ky. Rules Crim. Pro., rule 6.08; Mich. Compiled Laws, § 767.40 [1968]; Minn. Stat. Ann., § 628.08 [1947]; Mo. Rev. Stat., § 545.070 [1969]; Mont. Rev. Codes § 95-1803 [1969]; Neb. Rev. Stat., § 29-1602 [1965]; Nev. Rev. Stat., § 173-045; Okla. Stat., tit. 22, § 384 [1971]; Ore. Rev. Stat., § 132.580 [Supp. 1971]; Tenn. Code Ann., § 40-1708 [1955]; Utah Code Ann., § 77-20-3 [1953]).
With regard to Branch 1, defendant’s application to inspect the Grand Jury minutes is granted to the extent that the court has read and considered the Grand Jury minutes and finds that the indictment is based upon sufficient legal evidence. The application to dismiss the indictment is accordingly denied.
Branch 2 of defendant’s application seeking to suppress statements allegedly made by the defendant is denied as moot inasmuch as the District Attorney represents to the court in his opposing papers that no written or oral statements were made by the defendant.
Branch 4 of defendant’s application seeking a bill of particulars is denied except that the People are directed to provide a bill of particulars to the defendant within 10 days from the date of this decision setting forth the following:
A. The exact time and location of the alleged occurrence;
B. The full name and address of the complainant and his employer at the time of the occurrence;
C. The specific injuries sustained by the complainant; and
D. The abusive or obscene language allegedly used by the defendant Cobb.