Opinion
230 OP 17–01262
04-27-2018
In the Matter of Sandra DOORLEY, Monroe County District Attorney, Petitioner, v. Melchor E. CASTRO, Acting Monroe County Court Judge, and Marquise Walker, Criminal Defendant, Respondents.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR PETITIONER. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT MARQUISE WALKER, CRIMINAL DEFENDANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR PETITIONER.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT MARQUISE WALKER, CRIMINAL DEFENDANT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner commenced this CPLR article 78 proceeding seeking to prohibit Melchor E. Castro, Acting Monroe County Court Judge (respondent), from enforcing an order directing petitioner to permit the attorney for respondent Marquise Walker, a criminal defendant (hereafter, defendant), to inspect a video recording of an interview of a child victim conducted by an advocate from the Bivona Child Advocacy Center (Bivona) in Rochester for the purpose of determining whether it constitutes exculpatory evidence. We agree with petitioner that respondent acted in excess of his authorized powers in ordering disclosure to defendant's attorney. Although respondent could have viewed the video recording in camera in order to make a determination whether it contained exculpatory evidence, he declined to do so.
Defendant was indicted on charges of predatory sexual assault against a child ( Penal Law § 130.96 ) and course of sexual conduct against a child in the second degree (§ 130.80[1][a] ) with respect to a then three-year-old child. In discovery material provided to defendant, there was a police report indicating that the alleged victim had been interviewed by a Bivona advocate and that the interview had been video recorded. Defendant's attorney orally requested disclosure of the video recording, and petitioner opposed the request. Respondent orally ordered petitioner to disclose the video recording before a pretrial hearing in the criminal matter, despite the fact that neither the child nor the Bivona advocate would testify at the pretrial hearing. Petitioner filed a petition seeking to prohibit respondent from enforcing that oral order and sought a stay of enforcement.
Before any determination was made on the request for a stay, respondent issued a written order acknowledging that the video recording did not constitute Rosario material and that he thus lacked any authority to order its disclosure on that ground (see CPL 240.45[1] ). Instead, respondent concluded that the video recording could potentially contain exculpatory evidence, which petitioner would be obligated to disclose under Brady v. Maryland, 373 U.S. 83, 87–88, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ; see CPL 240.20[1][h] ; People v. Santorelli , 95 N.Y.2d 412, 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000] ). Respondent determined that neither he nor the "untrained prosecutor" could make the determination whether the person interviewing the child "employ[ed] suggestive interrogation techniques." Rather, "only defense counsel, with full knowledge of the defendant's case[, could] make the proper assessment." As a result, respondent again ordered petitioner to permit defendant's attorney to inspect the video recording.
Petitioner filed an amended petition seeking to prohibit enforcement of both the oral order and the written order. One day after respondent issued his written order, he issued an amended order correcting typographical errors and making no substantive changes. We thus conclude that it is of no moment that the amended petition seeks to prohibit enforcement of the original order instead of the amended order (see e.g. Moody v. Sorokina, 56 A.D.3d 1246, 1247, 866 N.Y.S.2d 891 [4th Dept. 2008] ; Hillman v. Eick, 8 A.D.3d 989, 990, 779 N.Y.S.2d 794 [4th Dept. 2004] ; Kabelac v. Harding, 127 A.D.2d 1011, 1011–1012, 513 N.Y.S.2d 314 [4th Dept. 1987], appeal dismissed 70 N.Y.2d 746, 519 N.Y.S.2d 1033, 514 N.E.2d 391 [1987] ; see generally Matter of Kolasz v. Levitt, 63 A.D.2d 777, 779, 404 N.Y.S.2d 914 [3d Dept. 1978] ).
"The remedy of prohibition generally lies when a court acts without jurisdiction or when a court exceeds its authorized powers in a proceeding over which it has jurisdiction" ( Matter of Phillips v. Ramsey, 42 A.D.3d 456, 458, 839 N.Y.S.2d 223 [2d Dept. 2007] ; see Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [1996] ). It is an "extraordinary remedy [that] lies only where there is a clear legal right to relief" ( Matter of Van Wie v. Kirk, 244 A.D.2d 13, 24, 675 N.Y.S.2d 469 [4th Dept. 1998] ).
Discovery in criminal matters is "a creature of legislative policy" ( Matter of Sacket v. Bartlett, 241 A.D.2d 97, 101, 671 N.Y.S.2d 156 [3d Dept. 1998], lv denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998] [internal quotation marks omitted] ). As a result, prohibition may be appropriate "where a court exceeds its statutory authority by ordering the People to make disclosure which they are not required to make pursuant to the governing statutes" ( Phillips, 42 A.D.3d at 458, 839 N.Y.S.2d 223 ; see Sacket, 241 A.D.2d at 101, 671 N.Y.S.2d 156 ; Matter of Pirro v. LaCava, 230 A.D.2d 909, 910, 646 N.Y.S.2d 866 [2d Dept. 1996], lv denied 89 N.Y.2d 813, 657 N.Y.S.2d 405, 679 N.E.2d 644 [1997] ).
Here, respondent properly acknowledged that he lacked any authority to order the early disclosure of the video recording as potential Rosario material. Where, as here, the witnesses are not called to testify at a pretrial hearing, Rosario material need not be disclosed until "[a]fter the jury has been sworn and before the prosecutor's opening address, or in the case of a single judge trial after commencement and before submission of evidence" ( CPL 240.45[1][a] ; see CPL 240.44[1] ). A writ of prohibition would thus be appropriate if a judge were to order early disclosure of Rosario material (see Matter of Briggs v. Halloran , 12 A.D.3d 1016, 1017, 785 N.Y.S.2d 578 [3d Dept. 2004] ).
Pursuant to CPL 240.20(1)(h), the People must disclose and make available to a criminal defendant "[a]nything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States." That requirement includes evidence in the People's possession, custody, and control that is favorable to the defense and material to the defendant's guilt or punishment (see Brady, 373 U.S. at 87–88, 83 S.Ct. 1194 ; Santorelli, 95 N.Y.2d at 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 ; People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915 [1990] ). Such material must be disclosed when counsel still has a meaningful opportunity to put it to use (see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ), such as for "investigat[ing] additional avenues of exculpatory or impeaching evidence" ( People v. Wagstaff e, 120 A.D.3d 1361, 1364, 992 N.Y.S.2d 340 [2d Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ).
As a general rule, a prosecutor possesses some discretion in deciding what evidence should be disclosed to the defense (see People v. Consolazio, 40 N.Y.2d 446, 453, 387 N.Y.S.2d 62, 354 N.E.2d 801 [1976], cert denied 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100 [1977] ) but, "where a request [for Brady material] is made and there is ‘some basis’ for believing that the prosecutor may be in possession of potentially exculpatory material, ‘deference to the prosecutor's discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court ’ " ( People v. Andre W., 44 N.Y.2d 179, 184, 404 N.Y.S.2d 578, 375 N.E.2d 758 [1978] [emphasis added]; see People v. Contreras, 12 N.Y.3d 268, 272, 879 N.Y.S.2d 369, 907 N.E.2d 282 [2009] ). Nevertheless, "[d]iscovery which is unavailable pursuant to the statute may not be ordered based on principles of due process because ‘there is no general constitutional right to discovery in criminal cases’ " ( Pirro, 230 A.D.2d at 910, 646 N.Y.S.2d 866, quoting Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507 [1988], rearg. denied 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428 [1988] ; see Matter of Brown v. Blumenfeld, 296 A.D.2d 405, 406, 745 N.Y.S.2d 54 [2d Dept. 2002] ).
Here, there has been no determination that the video recording contains exculpatory evidence, and thus defendant has no right to disclosure thereof. Inasmuch as respondent required petitioner to disclose evidence before determining whether defendant is entitled to such disclosure, we conclude that respondent acted in excess of his authority and that a writ of prohibition is the appropriate remedy (see e.g. Matter of Hoovler v. DeRosa, 143 A.D.3d 897, 900–901, 40 N.Y.S.3d 147 [2d Dept. 2016] ; Brown, 296 A.D.2d at 406, 745 N.Y.S.2d 54 ). We therefore grant the amended petition and grant judgment in favor of petitioner.
It is hereby ORDERED that the amended petition is unanimously granted without costs and judgment is granted in favor of petitioner as follows:
It is ADJUDGED that respondent Melchor E. Castro, Acting Monroe County Court Judge, is prohibited from enforcing the order dated July 31, 2017, as amended for clerical errors on August 1, 2017, under Monroe County indictment No. 2017–0305.