Opinion
Index No. 133/2021
03-06-2023
In the Matter of the Application of Neb Morrow, Petitioner, v. Criminal Records Officer, Respondent, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.
Unpublished Opinion
Aaron D. Maslow, J.
The following papers were read on this motion:
Order to Show Cause signed May 19, 2021
Verified Petition dated March 7, 2021
Verification sworn to March 9, 2021
Affidavit in Support of Order to Show Cause sworn to March 9, 2021
Application for Index No., undated
Exhibit A: Letter from Petitioner to Kings County Clerk dated February 4, 2021
Exhibit B: Letter from Kings County Clerk's Office dated February 11, 2021
Exhibit C: Letter from Petitioner to Criminal Records Officer / Clerk, Supreme Court Criminal Term dated February 18, 2021
Letter from Petitioner to Clerk of the Kings County Supreme Court dated March 13, 2021
Letter from Petitioner to Supreme Court Criminal Term dated February 18, 2021
Request for Judicial Intervention dated March 7, 2021, filed May 12, 2021
Affidavit in Support of Application for Fee Reduction sworn to March 9, 2014
Authorization for Correctional Trust Fund Account to be Sent to Clerk of Clerk, undated
NYS Department of Corrections Inmate Balance Screen dated April 7, 2021
Order - Inmate Reduced Filing Fee Application signed April 9, 2021, filed May 12, 2021
Letter from Petitioner to Court dated April 11, 2022, with envelope
How should the Court proceed with a prisoner's two-year-old Article 78 petition seeking to compel production of records from his criminal case when nobody appeared on the return date?
Upon the foregoing papers, and due deliberation having been had thereon, this Court issues the within Decision and Interim Order.
This a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR) by an incarcerated prisoner seeking copies of certain records in his criminal case file, more specifically, "Directing Respondent to Show Cause why said officer should not be compelled to perform the ministerial duty of locating, certifying, copying and sending petitioner a copy of the file herein requested pursuant to CPLR § 8019 and County Law § 925" (Order to Show Cause at 2).
Petitioner's attempt to obtain them began in the winter of 2021 and we now approach the spring of 2023. During the Covid-19 pandemic in 2021 and 2022, Petitioner's Article 78 petition was adjourned various times, and it now comes before this Court, having appeared on the March 1, 2023 motion calendar. At that time, nobody appeared. Assumedly Petitioner did not appear because he was still incarcerated. The order to show cause commencing this Article 78 proceeding directed that service be made upon the Attorney General but there was no appearance by her office.
A review of New York State Department of Corrections and Community Supervision's Incarceration Lookup page on the Internet (https://nysdoccslookup.doccs.ny.gov/ [last accessed Mar. 3, 2023]), reveals that Petitioner, a 54-year-old male, is still in custody at the Sing Sing Correctional Facility in Westchester County, having been convicted in 2010 of robbery in the first degree and sentenced to 21 years to life. In 1996, Petitioner was convicted of other felonies and sentenced to a term of 10 to 20 years; he was released on parole in 2008. Evidently Petitioner committed the crime for which he is presently incarcerated while out on parole. Nonetheless, our judicial system entitles him to have his Article 78 proceeding considered.
Material derived from reliable official government websites may be the subject of judicial notice (see Kingsbrook Jewish Medical Center v Allstate Ins. Co., 61 A.D.3d 13, 20 [2d Dept 2009]).
This Court's review of the papers submitted by Petitioner yields the following information. Petitioner wrote to the Kings County Clerk on February 4, 2021, claiming to have previously written several times regarding his criminal case file. He provided a New York State ID number, the arrest number, an indictment number, and the local precinct number. In pertinent part, he wrote further that he had
requested that [the Kings County Clerk] send me the cost of reproducing a file for which I seek called the Open File Discovery and to certify whether a document containing photographs within that specific file exists or whether it cannot be found.
NY County Law § 925 states that after payment of the fee prescribed therefor, that [the County Clerk] shall diligently search the files and certify the correctness or certify that a document or paper of which the custody legally belongs to [the County Clerk] cannot be found, however, I cannot pay the fee prescribed therefor without [the County Clerk] advising me as to the cost which I've requested several times....
Therefore, I am having my younger brother... send [the Kings County Clerk] the $15 to perform the above search, copy and certification for me and if the cost is lower than the $15, you can remit the change to him.... The date of the Open File Discovery file I seek is March 10, 2010.
An employee of the Kings County Clerk wrote back to Petitioner on February 11, 2021, stating:
Any mail we receive is forwarded to the Supreme Court - Criminal Term. This office only handles civil matters. I am returning your request so that going forward you have the correct address.
The employee provided the address of the Supreme Court, Criminal Term, which is 320 Jay Street, Brooklyn, NY 11201; Att: Criminal Records Request.
Petitioner has also included a copy of a letter dated February 18, 2021 from him to the Criminal Records Officer/Clerk of Supreme Court, Criminal Term (Kings County), which reads in pertinent part:
Dear Criminal Records Officer / Clerk,
I've written twice before, on 12/27/20 and on 1/12/21 trying to locate and obtain records from my criminal records file that was deposited from my case after I blew trial. I wrote [the County Clerk's] office pursuant to CPLR 8019 and County Law 925. Each time I wrote I was referred to this office. No one has responded in over 90 days. This is ridiculous and unacceptable. Be advised, should your office fail to respond 14 days from this date I will commence two actions, possibly three once I find out who is directly responsible to be responsive to requests like this, an Article 78 in Mandamus to compel, a State Claim for damages and possibly a 42 USC 1983 or other Civil Rights Complaint. Again, my arrest number is..., my NYSID..., my indictment... and the precinct of arrest is the 78th precinct. I am looking to locate a specific document in that file, the Mugshot Pedigree which consists of one page with two photos on it, a head and shoulders facial photo and a full body photo on the right side of the page and pedigree info on the left consisting of my name, age, precinct of arrest, arrest number and other identifying information details. Please look into my file and advise as to whether this document is in it and certify whether it is in my file, Open File Discovery of March 10, 2010 or not pursuant to County Law § 925. Thank you.
It is not known whether Petitioner's February 18, 2021 letter was received by anyone in the records office of Supreme Court, Kings County, Criminal Term.
Petitioner thereafter commenced the process of pursuing Article 78 relief. The record contains a petition dated March 7, 2021 (verified March 9, 2021), in which he asserted in pertinent part:
3. This petition challenges Criminal Records Officer, when respondent, Criminal Records Officer, had determined to ignore Petitioner's several requests for a copy of a file in the criminal records held by Respondent.
4. Petitioner wrote... several times, seeking a certified copy of a file within my criminal records, to wit, the Open File Discovery of March 11, 2010. Exhibit A.
5. [The County Clerk's] office, on February 11, 2021, responded, recommending for the third time that I write to the Supreme Court, criminal record's office. Exhibit B.
6. Petitioner wrote the Criminal Records Officer at the address given to him, Supreme Court Criminal Term, 320 Jay St., Brooklyn, NY 11201, for the last time on February 18, 2021, requesting a certified copy of a file in that office. Exhibit C.
...
8. To date, the Criminal Records Officer at this address has refused to respond to Petitioner, not even to acknowledge receipt of the requests.
The petition was accompanied by an affidavit in which Petitioner sought service by mail and a reduction or waiver of the filing fee. A separate affidavit also sought a reduction or waiver of the filing fee. In an order dated April 9, 2021, the Court (Hon. Robin K. Sheares, J.S.C.) found that Petitioner was unable to pay a filing fee and not required to pay it.
The order to show cause commencing this Article 78 proceeding was signed on May 19, 2021 by the Court (Hon. Richard Velasquez, J.S.C.). It directed Respondent to "Show Cause why said officer should not be compelled to perform the ministerial duty of locating, certifying, copying and sending petitioner a copy of the file herein requested pursuant to CPLR § 8019 and County Law § 925." Service upon the Attorney General was to be made by first-class mail on or before July 14, 2021.
Finally, the record contains a letter to the Court dated April 11, 2022, in which Petitioner wrote:
I sent the Court a copy of the Order to Show Cause that you issued, with the Affidavit in Support, Verified Petition and Exhibits on the Attorney General in this matter on July 13, 2021.
Due to the ongoing pandemic scares I've been waiting for the Courts to resume some sense of normalcy to learn of the status of this matter. As I've received nothing, I'm following up on the matter as it is very important that I obtained the document for which I've written to the Criminal Records Officer, but which has not been forthcoming, necessitating this Article 78 matter.
Thank you for your attention and assistance in this matter.
The letter indicates that it was "cc"-ed to Leticia James, the Attorney General.
As noted above, this Article 78 proceeding came before this Court on its March 1, 2023 motion calendar after having been adjourned various times in 2021 and 2022, and nobody appeared.
This Court puzzled why the Attorney General's office did not appear at the call of the case. It is possible that Petitioner may not have actually served the Attorney General but the Court suspects that this is not the case inasmuch as obviously Petitioner is intent on obtaining the records he cited in his correspondence. Technically, Petitioner's April 11, 2022 letter is not sworn to, so in the normal course or events it would not be treated as proof of service. It is also not explicitly detailed as to who sent the papers to the Attorney General. Proper proof of service of the papers on the Attorney General should have been submitted but Petitioner did not do so. However, it is noted that the order to show cause did not order filing of proof of service (cf. Davis v Prack, 136 A.D.3d 1092 (2d Dept 2016]).
The sentence, "I sent the Court a copy of the Order to Show Cause that you issued, with the Affidavit in Support, Verified Petition and Exhibits on the Attorney General," can be construed as either the papers were sent to the Court or to the Attorney General.
It is also possible that what was mailed went awry in the mailstream. In any event, it would make no sense for the Court to have marked the petition off the calendar or denied it due to the nonappearance of Petitioner inasmuch as the latter is incarcerated (cf. 22 NYCRR 202.27).
This Court surmised that perhaps Petitioner eventually received the records he sought or some other response to his request. If that were to be the situation the petition would be moot (see DeFreitas v New York State Police Crime Lab, 141 A.D.3d 1043 [2d Dept 2016]).
This Court deemed it appropriate to determine whether Petitioner had filed a federal lawsuit as he indicated he might do in his February 18, 2021 letter to the Criminal Records Officer / Clerk. If such a lawsuit had been filed and the sought records were referred to therein, it would indicate that they had eventually been provided. This Court's research yielded the information that Petitioner did commence a federal lawsuit, but it was before he embarked on his attempt to procure the subject records. On October 4, 2018, Petitioner filed a pro se petition for a writ of habeas corpus in the U.S. District Court for the Southern District, which was thereafter transferred to the U.S. District Court for the Eastern District. The decision of the Hon. Ann M. Donnelly, U.S.D.J., dated March 31, 2022, denied habeas corpus. The decision recounted that Petitioner represented himself at trial in New York State Supreme Court when charged with robbing a Brooklyn McDonald's at gunpoint on October 13, 2009. In his petition to the federal court, he asserted that "the lawyers who represented him before trial and on his appeal were ineffective, and that the trial judge should have appointed different standby counsel.... He also argued that he was deprived of his right to testify before the grand jury, and faults the trial court's decision not to dismiss the indictment on that basis.... In addition, the petitioner claims that the prosecutor concealed exculpatory evidence, and that the trial prosecutors, police officers and his defense counsel conspired to convict him." (Morrow v Capra, U.S. Dist, EDNY, 18 Civ 5765, Pacer Doc No. 29, Donnelly, J., Mar. 31, 2022)
In her decision, Judge Donnelly recounted in detail the State Supreme Court trial, Petitioner's appeal within the state court system, and how he had represented himself at trial after initially being represented by counsel. Her decision mentioned nothing about the records which are the subject of this Article 78 proceeding. In a subsequent decision, Judge Donnelly denied Petitioner's pro se motion to vacate her prior decision (id. Pacer Doc No. 32, Donnelly, J., Jan. 27, 2023). Again, there is no reference to the sought documents.
Judge Donnelly's decision denying habeas corpus does graphically relate the details of the crime and the evidence adduced at trial against Petitioner.
It has been over ten months since Petitioner wrote to the Court, averring that the order to show cause and supporting papers were sent and it is important that he "obtain the document for which I've written to the Criminal Records Officer" (Letter, April 11, 2022). Presumably Petitioner still wants what he sought back in 2021.
The Court takes judicial notice that Petitioner has represented himself in numerous aspects of litigation in the New York court system, as evidenced by a search of his name on Westlaw. This has included a coram nobis petition for a writ of error, an Article 78 proceeding concerning prison disciplinary action, an Article 78 proceeding against the Departmental Disciplinary Committee concerning one of his criminal defense attorneys, an Article 78 proceeding concerning the inmate pat frisk policy, and an action against the state in the Court of Claims. His litigation experience has extended to the appellate process as well. (E.g., Morrow v State, 181 A.D.3d 1202 [4th Dept 2020]; People v Morrow, 164 A.D.3d 1263 [2d Dept 2018], lv denied 32 N.Y.3d 1175 [2019]; People v Morrow, 164 A.D.3d 919 [2d Dept 2016], lv denied 28 N.Y.3d 1148 [2017]; Morrow v Annucci, 50 Misc.3d 554 [Sup Ct, Cayuga County 2015]. As recently as February 16, 2023, Petitioner filed a notice of appeal from Judge Donnelly's decision which denied Petitioner's pro se motion to vacate her prior decision (Morrow v Capra, U.S. Dist, EDNY, 18 Civ 5765, Pacer Docket, last accessed March 5, 2023).
With this type of litigation experience, Petitioner should have known that proof of service in proper form should have been filed with respect to his Article 78 proceeding.
The April 11, 2022 letter failed to set forth an address to which the papers were mailed and was not in affidavit form, as noted above. Moreover, the letter does not identify with specificity who mailed the papers; a party cannot serve papers on their own behalf (see CPLR 2103 [a]); compare Ruffin v Lion Corp., 63 A.D.3d 814 [2d Dept 2009], with Matter of Conti v Klein, 120 A.D.3d 884 [3d Dept 2014]). His prose could be construed to mean that Petitioner himself performed the mailing or that he undertook the process of mailing through an agent, who deposited the mailed papers in a USPS receptacle. Any personal jurisdictional impediment to this proceeding being considered could, of course, be waived by the Respondent, but the latter has not appeared.
In any event, if indeed the Attorney General received the order to show cause, her office should have submitted papers to the court with respect thereto.
There is also the matter of who is in possession of the records sought by Petitioner - the court system or a state or city department of the executive branch. Petitioner styled the Respondent as "Criminal Records Officer," without being more specific.
An Article 78 proceeding is a special proceeding (CPLR 7804 [a]). "A special proceeding is a civil judicial proceeding in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment (CPLR 411), but the procedure is similar to that on a motion (CPLR 403, 409). Speed, economy and efficiency are the hallmarks of this procedure." (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C401:1). The instant one has taken too long to resolve. Either the appropriate recordkeeper is in possession of what Petitioner seeks or it is not. The speediest means to ascertain whether the sought records were available to be provided would entail contacting the potential recordkeepers, but the Court cannot initiate, permit, or consider ex parte communications outside the presence of the parties or their attorneys (22 NYCRR 100.3 [B] [6]). It is not the role of the Court to act as the ombudsman for Petitioner. Whether the records sought are available and, if so, whether copies were made for him, must be adjudicated within the evidence presented in this special proceeding.
CPLR 7802[d] provides, "Other interested parties. The court may direct that notice of the proceeding be given to any person." While this Court could direct Petitioner to provide notice to certain public officials, doing so would delay resolution of this special proceeding. Therefore, this Court finds it appropriate for its chambers to provide notice of this proceeding to the New York City Corporation Counsel, as potential attorney for an agency which might be in possession of the criminal case records Petitioner seeks. Clearly, the Attorney General, as attorney for potential state agency repositories of the said records, should be notified too in case the presumably mailed set of papers from Petitioner were misplaced or misdirected in the mailstream. Finally, the Kings County District Attorney should be notified as its interest lies in having prosecuted Petitioner and the records at issue relate to Petitioner's attempt to vacate his 2010 conviction. Copies of the Court's correspondence will be mailed to Petitioner.
The Kings County District Attorney defended against Petitioner's federal habeas corpus petition (see Morrow v Capra, U.S. Dist, EDNY, 18 Civ 5765, Pacer Docket, last accessed March 5, 2023).
Meanwhile, Petitioner bears the responsibility of submitting proper proof of service of the order to show cause and supporting papers back in 2021, when they were allegedly mailed. He must also update the Court on the status of his records request and provide any further relevant details; whatever he files with the Court shall be copied to the New York City Corporation Counsel, the Attorney General, and the Kings County District Attorney.
Accordingly, it hereby ORDERED:
(1) This proceeding is adjourned to June 23, 2023.
(2) Petitioner Neb Morrow is directed to submit to the Court proper proof of service of the order to show cause and the papers upon which it was granted, by April 15, 2023 (by mailing it to the Motion Support Office, Supreme Court - Kings County, 360 Adams Street, Room 227, Brooklyn, NY 11201), with copies being served by mailed on the Kings County District Attorney (350 Jay Street, 14th Floor, Brooklyn, NY 11201); the New York City Corporation Counsel (100 Church Street, New York, NY 10007); and the New York State Attorney General (28 Liberty Street, Att'n: Managing Attorney's Office, 16th Floor, New York, NY 10005). "Kings County Supreme Court: Index No. 133/2021" shall be set forth on the envelopes.
(3) The Kings County District Attorney, the New York City Corporation Counsel, and the New York State Attorney General are directed to submit papers in response to the petition and are granted leave to interpose any defenses provided for by law, by May 31, 2023. Copies of any papers submitted shall be served upon Petitioner by first-class mail along with proof of service.
(4) Upon this Court's review of the papers provided for in the preceding two paragraphs, the Court will determine if appearances on June 23, 2023 in this Part by answering persons are necessary.