169 Misc. 2d 977 | New York County Courts | 1996
OPINION OF THE COURT
The defendant, Theodore Davis, has been indicted for the crimes of murder in the second degree and criminal possession of a weapon in the second degree involving an incident which allegedly occurred in the Town of New Castle on February 21, 1996.
The defendant now moves, by omnibus motion, for various forms of relief.
MOTION FOR INSPECTION OF CRIME SCENE
Defendant seeks an order permitting counsel to inspect and photograph the alleged scene of the crimes with which he has been charged, i.e., apartment 102 at 1 Barker Street, Mount Kisco, New York (hereafter the Apartment), the area of a United States Post Office wherein defendant was placed under arrest for said crimes, and the area of the headquarters of the New Castle Police Department where defendant allegedly made an oral statement relative to said crimes.
It is uncontested that defendant owns the Apartment jointly with Ms. Eraina Jenkins — an alleged witness to the crimes— and that Ms. Jenkins continues to reside therein while defendant is incarcerated in lieu of bail. Defense counsel has been inside the Apartment on at least one occasion, but was directed to leave by an Assistant District Attorney before completing his inspection of the scene. Preliminarily, the court must confess to some confusion as to why a defendant would require judicial intervention to permit his attorney — or, for that matter, anyone — to inspect and photograph his own property, or by what authority an Assistant District Attorney could direct that attorney to cease doing so. Ms. Jenkins was the only person aside from defendant with an interest in and, therefore, the right to exclude others from the Apartment. Yet, there are no allegations that Ms. Jenkins voiced any objections to defense counsel’s presence or that counsel was engaged in any activity which would have been within the legitimate jurisdiction of the police or the Office of the District Attorney of Westchester County.
Of course, as the People note, the "innocent”, i.e., "uncharged” or "complaining” witness, owner of property also has fundamental rights and interests which must be considered. (See, People v Nicholas, supra.) Clearly, therefore, as a joint owner of the property to which defendant seeks access, Ms. Jenkins has the right to exclude defendant’s attorney from the
Unfortunately, the People are apparently laboring under the unfounded misapprehension that by virtue of a District Attorney’s mandate and authority to prosecute those charged with crimes it appropriates to itself all the rights, privileges and status of those private citizens against whom such crimes were committed or who may be witnesses thereto. This is, however, simply not the case. (See, People v Nicholas, supra, at 948.) The People do not share, nor have they been conveyed, Ms. Jenkins’ rights in the Apartment, nor have they made any showing that she has invested in the District Attorney of Westchester County authority to pursue or protect her interests. In sum, neither the permission, acquiescence or cooperation of the District Attorney is required because the District Attorney does not have possession, control, nor any property interest in the Apartment and, to date, has not made any factual allegations based upon which the People would even have standing to oppose, or to be heard in opposition to, defense counsel’s inspection thereof. Consequently, the District Attorney lacks standing to be heard in opposition to this branch of defendant’s application and, since no affidavit or other papers indicating otherwise have been submitted in Ms. Jenkins’ behalf, it is, in essence, unopposed. Moreover, for the same reasons, the District Attorney also lacks standing to be heard in opposition to defendant’s applications to inspect a United States Post Office and the headquarters of the New Castle Police Department; and, since no papers indicating otherwise have been submitted in behalf of any entity with an interest in said premises, these applications are also essentially unopposed.
Accordingly, for all of the foregoing reasons, to the extent defendant seeks an order of this court prohibiting the District Attorney of Westchester County, or any employees or agents thereof, from interfering with defendant’s right to have his attorney inspect and photograph any of the aforementioned premises — provided, of course, that such efforts do not entail any violations of the Penal Law, United States Code or local ordinance — the application is granted. However, to the extent defendant seeks orders of this court directing the owners of the aforementioned premises to permit defense counsel to inspect
The court suggests that defense counsel first seek access by informal means, i.e., simply ask the appropriate person or entity for permission, and, if rebuffed, that he apply on notice for orders pursuant to CPLR 3120 (b). (See generally, People v Bestline Prods., 52 AD2d 17 [1st Dept 1976], revd on other grounds 41 NY2d 887 [1977]; People v Karpeles, 146 Misc 2d 53 [Crim Ct, Richmond County 1989].)
. Indeed, there is no provision in the whole of the Criminal Procedure Law which permits, prohibits, or regulates the inspection of a crime scene by a defendant or a prosecutor. Despite the People’s implication to the contrary, the fact that CPL 690.05 (1) authorizes the issuance of a search warrant to— and which is, of course, not usually used in connection with, or regarded as a prerequisite to, the postindictment inspection of a crime scene by — a District Attorney, in no way evinces a legislative design to deny, by omission, a defendant the opportunity to inspect a crime scene.
. The People’s reliance upon Matter of Kaplan v Tomei (224 AD2d 530 [2d Dept 1996]) is unavailing. While the underlying determinations — the enforcement of which was prohibited in Kaplan — involved a defendant’s inspection and photography of a crime victim’s property, the appellate court’s single sentence opinion indicates only that said determinations were, "either without [the lower court’s] jurisdiction or in excess of its authorized powers” (at 530). Consequently, it provides no guidance as to whether said determinations were ultra vires because — as the People contend — they were not specifically authorized by CPL article 240, or for some other reason (e.g., Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988] [trial court’s purported dismissal on the merits when no evidence had been presented]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept 1994] [lower court’s determinations directing early disclosure, and ordering District Attorney to create Rosario material, conflicted with express statutory provisions concerning such materials]; Matter of Hynes v Cirigliano, 180 AD2d 659 [2d Dept 1992] [disclosure of enumerated materials was not "discoverable” before indictment]); outside the lower court’s subject matter jurisdiction (see, People v Perrotti, 157 Misc 2d 927 [Just Ct 1993]); rendered without having obtained personal jurisdiction over, or in the absence of notice to, the property owner, or; all of these
. For example, a defendant’s physical appearance at a particular point in time is often relevant to a material issue in a criminal prosecution. Of course, the only way for a defendant to preserve his appearance at that moment, for use at a later stage in the proceedings, is to have a photograph of himself taken. Certainly, even the People would not argue that a defendant should be prohibited from photographing himself. Yet, that is the inevitable conclusion to which their arguments herein would lead since CPL article 240 contains no provision permitting such "Discovery”.
. There are no provisions in the Criminal Procedure Law concerning the discovery — as opposed to the subpoena of a witness or the production for use at trial of evidence in the possession of a subpoenaed person — of items or information from a person who, or an entity which, is not a party to the action. Thus, those provisions of the Civil Practice Law and Rules which are concerned with such process may be applied in a criminal action. (See, e.g., People v Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992] [subpoena duces tecum of nonparty witness]; People v Cortez, 149 Misc 2d 886 [Crim Ct, Kings County 1990] [disobedience of a subpoena]; but see, contra, People v Silva, 122 AD2d 750 [1st Dept 1986] [which is, itself, contradictory to the opinion of the same Court in Bestline Prods., supra].)