25 Misc. 2d 219 | New York County Courts | 1960
The defendant, who with four others, was indicted for murder in the first degree, moves for a pretrial inspection or copies of any statements made by him to any police officer or Assistant District Attorney at the time of his arrest. The homicide is alleged to have occurred on December 2,1959. The defendant was arrested on that day and questioned by the police and Assistant District Attorney orally and steno-graphically. He was arraigned in the Felony Court on the 3d of December, 1959. The first record appearance of counsel was on December 7, 1959, at which time counsel complained to the Magistrate that the defendant “ was compelled to make an involuntary statement against his will by means of fear induced
This motion is necessarily addressed to the discretion of the court. The courts in this and other jurisdictions have indicated a trend to pretrial discovery in criminal cases. (People v. Rogas, 158 Misc. 567; People v. D'Andrea, 20 Misc 2d 1070; State v. Johnson, 28 N. J. 133; Matter of Tune, 230 F. 2d 883 [C. C. A. 3d].) In People v. D’Andrea, a similar application was granted to the extent of directing the prosecution to submit to the court, the statements of the defendant for its own examination. In People v. Higgins (21 Misc 2d 94, 96) I denied an application for pretrial discovery saying: “ There may be cases, however, where there are such unusual circumstances which might justify the granting of an inspection of a defendant’s statement, but in the absence thereof applications of that kind ought not to be granted.” In People v. Stokes (24 Misc 2d 755) an application was made by the defendant, under indictment for murder in the first degree, for permission to inspect pretrial, certain written statements made by him to law enforcement authorities. In that case, the homicide occurred nine years before the defendant’s arrest. The question before Judge Geller was whether or not the court had the power to order pretrial disclosure of such statements and, if so, whether there appeared sufficient grounds to warrant such disclosure. After reviewing the leading authorities, commencing with People ex rel. Lemon v. Supreme Court (245 N. Y. 24), he set forth reasonable standards which ought to be met by applicants for examination of pretrial statements (p. 762): “ A mere assertion by counsel that a defendant cannot recall his statement is not enough. There must be an affidavit by the defendant to that effect with adequate factual support. To establish such claimed inability of recollection a defendant, in addition to giving the facts and circumstances surrounding the taking of his statement, should show the time elapse since the giving of the statement or any other facts which may tend to generally support his contention, such as the length of the statement, his illiteracy or mental incapacity, if any, that the state