JOSEPH M. LATONA, ESQ. 716 BRISBANE BUILDING 403 MAIN STREET BUFFALO, NEW YORK (716)

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1 Supplemental Outline on Effective Discovery JOSEPH M. LATONA, ESQ. 716 BRISBANE BUILDING 403 MAIN STREET BUFFALO, NEW YORK (716)

2 INTRODUCTION This outline supplements the thorough course material prepared by Thomas J. O'Hern, Esq. In attempting to obtain effective discovery on behalf of your client, I suggest that you get "back to basics." With the exception in federal court of items required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct (1963), discovery is governed by statute. In New York State, Brady items are required to be disclosed in response to a defense discovery demand [CPL (1)(h)]. In my view, in order to effectively represent your client, you must re-read the pertinent statutes and review any court decisions which interpret its provisions. How many times have we said to ourselves during the course of due diligence research, "I never knew that" or "How could I forget that?" In order to satisfy your "back-to-basics," you must think about your case. The more specific your discovery requests are, the more likely they will be to pin down the prosecution response and set up a clear issue for judicial determination. Particularly with Brady material, whether a defense request sought

3 evidence and/or information which is "material" to the client's case, it is essential that we be specific. A Brady request must be specific in order to be considered "material" to the litigation. A conviction will be vacated when items covered by a specific defense request might have reasonably contributed to an acquittal. People v. Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518 (1990). In New York, the Brady rule encompasses material and information which may prompt a court to grant a suppression motion. People v. Geaslin, 54 N.Y.2d 510, 446 N.Y.S.2d 227 (1981). N.B. The police are not required to interview and/or identify bystanders who blurted out exculpatory statements at the alleged crime scene. People v. Hayes, 17 N.Y.3d N.Y.S.2d 382 (2011). THE NEW YORK DISCOVERY DEMAND Prior to 1979, the defense was required to make a motion to obtain discovery. The law was changed and CPL was enacted which authorizes the discovery of items and information upon a defendant's "demand." 2

4 CPL (1) provides that unless a court orders to the contrary, there are various items which the prosecution "shall disclose" to the defense by making it available for "inspection, photographing, copying or testing." The court order reference is to CPL which provides for the issuance of a protective order. In the absence of such order, the statute provides that all of the material enumerated in CPL must be disclosed. Timing A discovery demand must be served within thirty (30) days of arraignment or within thirty (30) days after the initial appearance of counsel. CPL Scientific Tests - Physical or Mental Examinations Whenever such events occur at the request or direction of a law enforcement agent or by a person whom the prosecutor will call as a trial witness, discovery is mandatory under CPL (1)(c). The scope of this statutory subdivision was best delineated by the Court of Appeals in People v. DeGata, 86 N.Y.2d 40, 629 N.Y.S.2d 186 (1995). 3

5 DeGata involved a rape/sodomy prosecution at which a one-page FBI DNA summary was introduced at trial. The FBI lab had received the pertinent specimens from Suffolk County. The defense repeatedly sought the disclosure of any notes made by FBI laboratory personnel regarding their analysis of the submitted specimens. Despite the trial court's having conducted an in camera inspection of the FBI notes and having concluded that they were not exculpatory, the Court of Appeals held that the defendant's discovery right was violated. The Court of Appeals found that the trial court had abused its discretion not in its having conducted an in camera review but "by refusing defendant access to the documents." 86 N.Y.2d at 45. Interestingly, it was in an omnibus motion that the defense application for the notes was made. In this case, it does not appear that the prosecution argued that the defense had waived its right to any discovery by failing to file a discovery demand. Obviously, it is the best practice to serve the discovery demand and then move for the disclosure of any disputed items. Moreover, the DeGata court expressly mentioned the fact that the defendant could have, but did not, move to compel disclosure under CPL

6 Allegany County Example N.B. A lack of federal involvement in the state investigation and prosecution can compel a different result. See, People v. Santarelli, 95 N.Y.2d 412, 718 N.Y.S.2d 696 (2000). Refusal CPL requires that the prosecution file a written refusal in the event that it challenges the discoverability of an item set forth in a discovery demand. Absent a good cause showing, a written refusal must be made within fifteen (15) days after service of a discovery demand. CPL (2). Under CPL (3), without a written refusal to comply, a discovery demand must be complied with within fifteen (15) days after its service or as soon thereafter as practicable. * Practice Commentary: Obviously, the defense attorney should follow the appropriate procedure in preparing and serving a discovery demand in a timely manner. Also, counsel must be on guard to capitalize on any failure of the prosecutor to timely refuse or challenge the content of a discovery demand. 5

7 Sanctions CPL (1) sets forth the sanctions which may be imposed for a party's failure to comply with a discovery demand. Those sanctions include, among other things, preclusion, court-mandated disclosure and a continuance. In People v. Davis, 52 A.D.3d 1205, 859 N.Y.S.2d 804 (2008), the Fourth Department reversed defendant's murder conviction based upon the prosecution's failure to comply with a defense discovery demand "in a timely manner." The reversal resulted from the belated disclosure at trial of autopsy photos, a medical examiner's report and a firearm analysis. This belated disclosure and the trial court's refusal to grant the defendant a continuance caused the reversal. Court-Ordered Discovery defense motion. CPL (1) governs court-ordered discovery predicated upon a Under this section, the court's options are as follows: (a) It "must" order discovery of any material not disclosed pursuant to a defense discovery demand if the prosecutor's refusal to disclose is "not justified." 6

8 (b) (c) The court must issue an order under the sanction section unless the prosecution has shown good cause for its failure to serve a timely written refusal. The court "may" order discovery regarding any other "property" which the prosecution intends to introduce at trial upon a defense showing that the discovery is "material" to the defense preparation and that the request is "reasonable." * Practice Commentary: Unquestionably, any such item which the prosecution intends to introduce at trial is material to defense preparation and its disclosure is reasonable. Counsel has used, among other items, the following request in a defense discovery demand: A statement identifying each item of "property" which the prosecution intends to introduce at trial. * Practice Commentary: In those instances where the prosecution has refused to provide any such statement, the following excerpt from counsel's omnibus motion has proven successful: Item of the defense discovery demand sought a statement identifying each item of "property" which the prosecution intends to introduce at trial. The prosecution refused to comply, claiming that there is no authority for this request. CPL (1)(c) authorizes the Court, upon defense motion, to direct the disclosure of any "property" which the prosecution intends to offer at trial, upon a showing that the property is material to defense preparation and that the disclosure is "reasonable." CPL (2) provides that on a demand for 7

9 disclosure, the prosecution is not required to obtain property which the defendant can acquire via subpoena duces tecum. The materiality of the defense disclosure request is self-evident, as Item was limited to that "property" which the prosecution intends to introduce at trial. The prosecution cannot honestly advance the contention that an item it will seek to have admitted is not material to defense preparation. The reasonableness of the defense request is apparent, as the pertinent items are those which will be presented at trial for admission into evidence. Consequently, at trial the defense will have the right to conduct a voir dire as to authenticity, integrity and chain of custody of each such item. Judicial economy will be promoted by requiring the prosecution to disclose the information now. Of equal importance is the fact that, by refusing to identify these items, the prosecution is preventing the court from a meaningful exercise of its discretion on the defense discovery motion. (d) This subdivision authorizes a court order for the comparison of a DNA profile with the DNA data banks providing that the comparison is material to defense preparation and is reasonable. Disclosure of the Client's Prior Uncharged Bad Conduct CPL provides that upon the defendant's request, the prosecutor must notify the defense of all specific instances of the defendant's prior, uncharged bad conduct which the prosecution wishes to utilize to impeach the 8

10 defendant's credibility. The statute authorizes the court to direct the disclosure of such material no later than three (3) days prior to jury selection. Prior Witness Statements / Criminal Prosecution CPL provides that at a pre-trial hearing in a criminal case, after a party's witness has concluded his or her direct examination, then certain disclosure obligations are triggered. Those obligations are as follows: (1) Any written or recorded statement, including grand jury testimony, made by that witness relating to the subject matter of that witness' testimony. Obviously, this does not include a criminal defendant. (2) The witness' criminal convictions if known by the party calling him or her. This does not include a criminal defendant. (3) The pendency of any criminal action against that witness if known by the party calling him or her. * Practice Commentary: Obviously, this provides for a significant discovery right available at a felony hearing, suppression hearing, bail hearing or any other pre-trial hearing. This section extends many of the trial discovery rights as set forth in CPL

11 Subpoena Duces Tecum CPL (2) provides that the prosecution is not under any obligation to issue a subpoena duces tecum to procure items to be turned over to the defense. This is true whenever the defendant has the same right to issue a subpoena. In my view, the defense opportunity to utilize a judicial subpoena duces tecum is critical in litigating pre-trial issues such as suppression and/or grand jury defects. Article 610 of the Criminal Procedure Law governs subpoenas. Under CPL (3), a defense attorney may not issue a judicial subpoena duces tecum directed to any government agency or any officer or representative of any such agency. That subdivision refers defense counsel to the procedure set forth in CPLR That CPLR provision requires that an application be made to the court for the issuance of a judicial subpoena duces tecum. The application may be made to the court in which the action is triable or to a Supreme Court justice. The section provides that there be at least one day's notice to the proposed entity to be subpoenaed, as well as the prosecutor's office. 10

12 For an Appellate Division discussion of this procedure, please see Phillips v. Ramsey, 42 A.D.3d 456, 839 N.Y.S.2d 223 (2d Dept. 2007). In Phillips, the trial court had denied a defense application for a subpoena returnable at a probable cause hearing. Based upon the testimony of the arresting trooper at the hearing, the lower court directed that trooper to provide for in camera inspection his own personal copy of the New York State Police DWI Manual. The prosecution objected and ultimately had the lower court decision overruled in an Article 78 proceeding. CPL (2) provides authority for the issuance of a judicial subpoena duces tecum returnable prior to trial. Counsel has successfully argued that this would include material being subpoenaed prior to the commencement of any hearing. Under the statute, the subpoena must provide notice that the items being sought will be retained and the section goes on to require that the retention be in the court. Once the court receives the material, it has the power to permit "a reasonable opportunity to inspect such evidence." Counsel has been successful in seeking and securing such subpoenas provided that the material is delivered to the court which then determines the terms and conditions of inspecting the material. 11

13 Obviously, the court has afforded both sides an equal amount of time to inspect the material. Such a procedure has been endorsed by the Appellate Division, Third Department. People v. Parker, 307 A.D.2d 538, 762 N.Y.S.2d 172 (3d Dept. 2003). * Wyoming County Corrections Officers case [sample subpoenas attached]. CONCLUSION A great criminal defense lawyer once said that information is power. Without exercising effective discovery tools, counsel will not have the information with which to powerfully represent his or her client. 12

14 STATE OF NEW YORK COUNTY COURT : COUNTY OF WYOMING PEOPLE OF THE STATE OF NEW YORK, vs. KEITH SWACK, SEAN WARNER, MATTHEW RADDEMACHER and ERIK HIBSCH, Plaintiff, Defendants. JUDICIAL SUBPOENA DUCES TECUM Indictment No THE PEOPLE OF THE STATE OF NEW YORK TO: CUSTODIAN OF RECORDS NEW YORK STATE DEPARTMENT OF CORRECTIONS 1220 Washington Avenue Albany, New York GREETING: WE COMMAND YOU, that all business and excuses being laid aside you and each of you, appear and attend before one of the Justice of this Court at a Trial Part thereof located at: Honorable Michael F. Griffith, Wyoming County Court 147 North Main Street, Warsaw, New York on the 7 th day of August, 2012 at 9:30 o'clock in the forenoon, and at any recessed or adjourned date to give testimony in this action on the part of the defendant and that you bring with you, and produce at the time and place aforesaid, the following items: With regard to the "Use of Force Report" dated August 9, 2011 regarding the alleged assault upon George Williams and with regard to the "Unusual Incident Report" of August 9, 2011 regarding the alleged assault on George Williams, and with regard to the interrogation of Keith Swack on September 6, 2011, the interrogation of Erik Hibsch of September 7, 2011, the interrogation of Matthew Raddemacher of September 8, 2011 and interrogation of Sergeant Sean Warner of August 28, 2011, and with regard to the affidavit by Robert Stoppacher, M.D. of November 2, 2011, you must produce the following: (1) Any tangible item which contains and/or refers to any of the items specified above and/or any information which was derived from any of the items specified above. (2) Any tangible item which contains and/or refers to any transmittal of any of the items referred to above and/or any communication of any information contained in any such item that was transmitted, together with the identity of the individual and/or entity sending and/or receiving such communication. (3) Any tangible item which contains and/or refers to any communications with Robert Stoppacher, M.D. now in your custody, and all other writings, records and documents relating to the above records and to the issues between the parties in this action. Failure to comply with this Subpoena is punishable as a contempt of Court; and shall make you liable to the person on whose behalf this Subpoena was issued for a penalty not exceeding Fifty dollars and damages sustained by reason of the failure to comply. WITNESS, the Honorable Michael F. Griffith, one of the Judges of the said Wyoming County Court, on the day of, HONORABLE MICHAEL F. GRIFFITH Wyoming County Court Judge NOTICE: THE SUBPOENAED MATERIAL SHOULD BE DELIVERED TO THE CHAMBERS OF THE HONORABLE MICHAEL F. GRIFFITH, WYOMING COUNTY COURT, 147 NORTH MAIN STREET, WARSAW, NEW YORK FURTHERMORE, THE SUBPOENAED MATERIAL WILL BE RETAINED IN THE COURT'S CUSTODY, PENDING FURTHER ORDER OF THIS COURT

15 STATE OF NEW YORK COUNTY COURT : COUNTY OF WYOMING PEOPLE OF THE STATE OF NEW YORK, vs. KEITH SWACK, SEAN WARNER, MATTHEW RADDEMACHER and ERIK HIBSCH, Plaintiff, Defendants. JUDICIAL SUBPOENA DUCES TECUM Indictment No THE PEOPLE OF THE STATE OF NEW YORK TO: NEW YORK STATE POLICE CHIEF COUNSEL'S OFFICE 1220 Washington Avenue Building 22 Albany, New York GREETING: WE COMMAND YOU, that all business and excuses being laid aside you and each of you, appear and attend before one of the Justice of this Court at a Trial Part thereof located at: Honorable Michael F. Griffith, Wyoming County Court 147 North Main Street, Warsaw, New York on the 7 th day of August, 2012 at 9:30 o'clock in the forenoon, and at any recessed or adjourned date to give testimony in this action on the part of the defendant and that you bring with you, and produce at the time and place aforesaid, the following items: With regard to the "Use of Force Report" dated August 9, 2011 regarding the alleged assault upon George Williams and with regard to the "Unusual Incident Report" of August 9, 2011 regarding the alleged assault on George Williams, and with regard to the interrogation of Keith Swack on September 6, 2011, the interrogation of Erik Hibsch of September 7, 2011, the interrogation of Matthew Raddemacher of September 8, 2011 and interrogation of Sergeant Sean Warner of August 28, 2011, and with regard to the affidavit by Robert Stoppacher, M.D. of November 2, 2011, you must produce the following: (1) Any tangible item which contains and/or refers to any of the items specified above and/or any information which was derived from any of the items specified above. (2) Any tangible item which contains and/or refers to any transmittal of any of the items referred to above and/or any communication of any information contained in any such item that was transmitted, together with the identity of the individual and/or entity sending and/or receiving such communication. (3) Any tangible item which contains and/or refers to any communications with Robert Stoppacher, M.D. now in your custody, and all other writings, records and documents relating to the above records and to the issues between the parties in this action. Failure to comply with this Subpoena is punishable as a contempt of Court; and shall make you liable to the person on whose behalf this Subpoena was issued for a penalty not exceeding Fifty dollars and damages sustained by reason of the failure to comply. WITNESS, the Honorable Michael F. Griffith, one of the Judges of the said Wyoming County Court, on the day of, HONORABLE MICHAEL F. GRIFFITH Wyoming County Court Judge NOTICE: THE SUBPOENAED MATERIAL SHOULD BE DELIVERED TO THE CHAMBERS OF THE HONORABLE MICHAEL F. GRIFFITH, WYOMING COUNTY COURT, 147 NORTH MAIN STREET, WARSAW, NEW YORK FURTHERMORE, THE SUBPOENAED MATERIAL WILL BE RETAINED IN THE COURT'S CUSTODY, PENDING FURTHER ORDER OF THIS COURT

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