76 Misc. 2d 848 | N.Y. Sup. Ct. | 1974
This is an article 78 proceeding brought by Carl A. Vergari, District Attorney of Westchester County, against Hon. Irving B. Kendall, City Judge of Mount Vernon, for a judgment in the nature of prohibition against Judge Kendall restraining him from directing, or proceeding with, the discovery as prescribed by him in three separate criminal actions pending in the City Court, Mount Vernon.
By decision and order dated September 10, 1973, in a criminal action involving a charge against the defendant, James Robinson, for the alleged commission of the offense of harassment, the respondent granted a motion of the defendant “ to the extent that the District Attorney shall, within fifteen (15) days after the filing of this decision, furnish to the attorney for the defendant the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the trial of this harassment action, together with a copy of their relevant written statements, notes and memoranda if any ”. (People v. Robinson, 75 Misc 2d 477.) By decision and order dated October 25, 1973, the respondent granted reargument of the original motion and upon reargument adhered to the original decision of September 10, 1973.. (People v. Robinson, 75 Misc 2d 807.)
By decision and order dated October 30, 1973, in a criminal action involving a charge against the defendant, Nathaniel Thompson, for the alleged commission of the crime of assault in the third degree, the respondent granted a motion of the defendant to furnish a bill of particulars, setting forth, among other things, “ the name and address of each witness to the crime the People presently intend to call, provided that the
By decision and order dated November 14, 1973, in a criminal action involving a charge against the defendant, Marco Pietrangelo, for the alleged commission of the crimes of leaving the scene of an accident without reporting and driving while intoxicated, the respondent granted a motion of the defendant for discovery of, among other things, ‘ ‘ all reports and documents prepared by the Police Department including the County Parkway police, in connection with this case ”.
The petitioner alleges, and it is not denied by the respondent nor by any of the attorneys for the respective defendants, that the District Attorney has no right to appeal the orders of the Mount Vernon City Court Judge. (CPL 450.20; Matter of Proskin v. County Ct. of Albany County, 37 A D 2d 279, affd. 30 N Y 2d 15.)
This court believes that the present proceeding presents three legal questions to be determined, namely:
(1) Is the remedy of writ or order of prohibition available to the petitioner ?
(2) If the first question is answered in the affirmative, should the respondent be prohibited from directing a discovery and inspection of “ any and all police reports containing statements of witnesses ” in respect to the case against James Bobinson; and from the discovery of “ any and all police reports containing statements of witnesses ” in connection with the case against Nathaniel Thompson; and from the discovery of “ the contents of any report made by the police officer complaining and/or any other police officer present at the time the defendant was arrested” in connection with the case against Marco Pietrangelo ?
(3) If the first question is answered in the affirmative, should the respondent be prohibited from directing the petitioner to furnish to the defendants in all three actions aforesaid, in advance of trial, the names and addresses of persons whom the District Attorney intends to call as witnesses ?
(1) The court finds that the writ or order of prohibition is an appropriate remedy to the petitioner in the factual situation involved in the proceeding at bar. (Matter of Lee v. County Ct. of Erie County, 27 N Y 2d 432; Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1.)
The order of the City Court of Mount Vernon directing the District Attorney to reveal the names of witnesses in three
In the Lee case (supra) speaking for the majority of the Court of Appeals, Judge Scileppi prescribed conditions where an article 78 proceeding in the nature of prohibition was appropriate, stating at pages 436 and 437: “Although the use of the writ of prohibition has usually been limited to cases where a court acts without jurisdiction (see, e.g., Matter of Hogan v. Culkin, 18 N Y 2d 330, 335-336; People ex rel. Lemon v. Supreme Ct., 245 N. Y. 24; People ex rel. Stafford v. Surrogate’s Ct., 229 N. Y. 495), it is equally true that ‘ function of the writ * * * [is] not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction. ’ (Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1, 8; see, also, People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504; Quimbo Appo v. People, 20 N. Y. 531; CPLR 7802, subd. [a].) Additionally, in Matter of Culver Contr. Corp. v. Humphrey (268 N. Y. 26, 39-40) we said that the writ is an extraordinary remedy which 1 does not issue where the grievance can be redressed by ordinary proceedings at law or in equity or merely to prevent error which may be readily corrected on appeal. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Hummel v. Trial Term, 184 N. Y. 30; People ex rel. Livingston v. Wyatt [186 N. Y. 383], supra; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463.) It is not available ordinarily as a method of premature appeal. Nevertheless, where the lower court is exceeding its jurisdiction and the writ or order furnishes a more effective remedy, it may be availed of although the error might be corrected by appeal. ’ In the instant case, the order striking the plea was clearly nonappealable to the Appellate Division; thus, if prohibition were not available to Lee, he would be forced to submit to trial without the benefit of his plea and if convicted raise his claim of privilege on his appeal from the judgment of conviction. ’ ’
In the Hogan case (supra) the Court of Appeals reversed in part and affirmed in part an order of the Appellate Division, First Department, which dismissed as a matter of law and not in the exercise of discretion a petition of the District Attorney
(2) This court, having determined that a writ or order of prohibition is a remedy available to the People, now turns to
. The discovery was sought under CPL 240.20 (subd. 3), the pertinent part of which provides: ‘‘ Discovery may be ordered with respect to any other property specifically designated by the defendant, except exempt property ” (emphasis supplied).
CPL 240.10 (subd. 3) defines “ exempt property ” as follows:
“ (a) reports, memoranda or other internal documents or work papers made by s * * police officers * * * in connection with the investigation, prosecution or defense of a criminal action, and
“ (b) records of statements made to such parties * * * by witnesses or prospective witnesses in the case.”
The Legislature of the State of New York clearly has stated its intention in CPL 240.10 (subd. 3, supra) that police reports and records of statements made to police officers by witnesses or prospective witnesses are exempt from any discovery by a defendant in a criminal case. The City Judge clearly exceeded his authorized powers in directing a discovery of police reports containing statements of witnesses and police reports of a complaining police officer or another officer present, and this court finds that an order of prohibition is appropriate and should be granted in order to prevent his unauthorized and illegal action.
Even the decision of Suffolk County Judge Signorelli in People v. Barnes (74 Misc 2d 743), relied upon by the defendants in the City Court actions, which directed the District Attorney to reveal the names and addresses of witnesses, recognized that CPL 240.10 (subd. 3) exempted witnesses’ statements from discovery.
(3) The last question with which this court is concerned is whether or not there should be an order prohibiting the Mount Vernon City Court Judge from directing the Westchester County District Attorney to furnish the names and addresses of the People’s witnesses in the three criminal matters which are the subject of this proceeding.
The record reveals no unusual or exceptional circumstances involved in the three cases in which the Mount Vernon City Court Judge directed the District Attorney to furnish in advance of trial the names and addresses of the People’s witnesses. As a matter of fact, the City Court Judge based his decision primarily on the ‘ ‘ Tentative Draft of Standards Relating To Discovery and Procedures Before Trial ” of the American Bar Association project on minimum standards for criminal justice and upon the decision of Suffolk County Judge ¡Signorelli in People v. Barnes (74 Misc 2d 743, supra).
It seems unusual for an inferior court judge, in the absence of higher authority, to disregard completely the decisions of the courts of record of his own county, upon the basis of one decision of a County Judge in another county and a recommendation of a Bar Association committee.
The City Judge, in the opinion of this court, also disregarded the apparent intent of the New York State Legislature which in 1936 repealed the then section 271 of the Code of Criminal Procedure which had required the names of witnesses to be endorsed on a felony indictment, thus evidencing a legislative intent that witnesses should be protected by not having their names revealed. This court believes also that the City Judge’s directive is inconsistent, in a general way, with the purpose of
This court is of the opinion that in the balancing of the rights of the People and the rights of a victim of a crime against the rights of a defendant, the names of the People’s witnesses should not be disclosed before trial. In most criminal trials, one of the first things a defendant’s attorney states to the jury in his opening statement — and correctly so — is that the burden is upon the People to prove the guilt of the defendant beyond a reasonable doubt, and that the defendant is under no burden to prove anything. Inasmuch as the defendant has no burden to prove anything, and under the New York rule, as distinguished from the Federal rule, the People have few, if any, rights of discovery (even the People’s right to discovery of the names and addresses of alibi witnesses is no longer available [People v. Bush, 33 N Y 2d 921, Dec. 28, 1973]), in the opinion of this court it is unfair to the People to reveal to the defense before trial part of the People’s evidence. All courts properly are concerned that no innocent person shall be adjudged guilty. They should likewise be concerned that the percentage of guilty persons who “beat the rap”, so to speak, is not increased — it already is too high. Once defendants are permitted to pry into the People’s case before trial, in the judgment of this court, the balance between prosecution and defense will have swung too far against the People and the victims of crimes, resulting inevitably in a further increase in the number of persons who have committed crimes ‘ ‘ getting away with it”.
It should be borne in mind that many witnesses in criminal cases are not protected and insulated by place of residence, knowledge and confidence as to how to avoid or disengage themselves from an improper approach by reason of access to their own attorneys for advice, and otherwise, as are more affluent members of society who less often are called as witnesses in criminal trials. Many of these noninsulated witnesses, by reason of the foregoing factors, are in a position where they can be intimidated by persons associated with the criminal element if their identity and place of residence are not kept secret until time of trial.
This court, ab initio, would have decided the disclosure of witness question differently than the respondent City Judge. The Appellate Division, Second Department, however, recently
The court suggests, however, that the learned City Judge might reconsider his decision, or grant a protective order, at least in the case of Nathaniel Thompson, in view of the record of Thompson for violence as set forth in the brief of the District Attorney. In fairness to the City Judge, it does not appear that he was made aware of this record when he directed the District Attorney to furnish the names and addresses of witnesses in connection with the assault charge against Thompson.
Accordingly, this court grants the relief sought by the petitioner to the extent of prohibiting respondent City Court Judge of the City of Mount Vernon from directing petitioner to permit the defendants Robinson, Thompson and Pietrangelo, or their attorneys, to be allowed to inspect police reports, police statements and statements of witnesses made to police officers in connection with the cases of .said three defendants. That part of the relief sought by the petitioner, for an order prohibiting the respondent City Judge from directing the District Attorney to furnish the names and addresses of the People’s witnesses, is reluctantly denied.
