Opinion
18-0282
03-16-2020
The PEOPLE of the State of New York, Plaintiff, v. Charlene MORISSEAU, Defendant.
Westchester County District Attorney, Mount Vernon branch Charlene Morisseau, Defendant Pro Se
Westchester County District Attorney, Mount Vernon branch
Charlene Morisseau, Defendant Pro Se
Adam Seiden, J.
Defendant is charged by superseding misdemeanor information with Criminal Contempt in the Second Degree (P.L. 215.50). Defendant, pro se, moves for "reconsideration" of the speedy trial motion rendered on August 9, 2019 and issuance of subpoenas upon the Westchester County Department of Safety.
The People oppose the motion.
SPEEDY TRIAL
By Decision and Order dated August 9, 2019 the Court (J. Johnson) denied defendant's third speedy trial motion on this docket. Judge Johnson recused from this case on October 10, 2019. Now on January 13, 2020, some five months after issuance of the decision and three months after Judge Johnson's recusal, defendant now seeks "reconsideration" of the decision issued by Judge Johnson. She argues that since Judge Johnson has now recused herself from this matter, this court should "reconsider" her speedy trial application. Defendant cites to no statutory authority to support her "reconsideration" application.
In opposition to the branch of defendant's motion the People argue that defendant advances no new fact or law that the Court overlooked in its previous decision.
In reply defendant advances numerous new arguments outside the scope of the argument advanced on her original motion, which was reconsideration based on Judge Johnson's recusal.
Defendant's motion is summarily denied as untimely. As this Court held in People v. Buchanan , 60 Misc 3d 861 [City Ct. Mount Vernon 2018], nothing contained in the Criminal Procedure Law provides for leave to reargue. The Civil Procedure Law (CPLR), however, does provided for leave to reargue. "Although ‘the CPLR has no application to criminal actions and proceedings’, ( People v. Silva , 122 AD2d 750 [1st Dept. 1986] several courts have held that the CPLR may be applied in a criminal action where the CPL is silent on the issue at hand." ( People v. Williams , 48 Misc 3d 1217 [A] (Crim Ct. Bronx Co. 2015] (citations omitted). A motion for reargument is addressed to the sound discretion of the court and allows a party to move for leave to renew and/or reargue a decision by the court based on an oversight or misapprehension of law or the relevant facts ( CPLR 2221 ; Foley v. Roche , 68 AD2d 558, 567 [1st Dept. 1979] ). This alleged oversight or misapprehension shall be made to the judge who rendered the decision and order. CPLR 2221 (d)(3) expressly requires that said motion be made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B CPLR 2221 ). Motions seeking leave to reargue filed after the 30-day period, or after the time to take appeal has expired, are untimely. The notice of entry requirement is not applied in the criminal proceeding context due to the procedural differences between civil and criminal matters. In civil matters a notice of entry provides the parties notice of the decision and judgment of the court. Unlike in civil proceedings, appearances in court on criminal cases are routine, and parties are often orally informed by the court of its decision on the record. Both parties are immediately placed on notice of the court's decision when it is distributed, orally and/or in writing. Hence, the formality of service with notice of entry in criminal cases appears largely superfluous (People v. Buchanan , 60 Misc 3d 86, (citing People v. Merly , 51 Misc 3d 858, 31 NYS 3d 751 [Sup Ct. Bronx Co. 2016] ;). As such, the time limitation contained in CPLR 2221 (d) (3), when dealing with a final decision in a criminal matter, should commence from the date the decision is rendered to the parties.
In this instance, the decision on defendant's speedy trial motion was rendered to the parties on August 9, 2019. As such the defendant was to have filed the instant motion to reargue by September 8, 2019. As noted, she filed the instant motion on January 13, 2020, over five months later. Judge Johnson's voluntary recusal has no bearing on the rulings or decisions issued by her prior to her recusal on October 10, 2019. Those decisions and orders still remain valid ( Hudson View II Assoc. v. Miller , 282 AD2d 345 [1st Dept. 2001]. The sole arbiter of recusal is the trial judge, and the decision is best left to that court's personal conscience (Curcio v. Kelly , 193 AD2d 739 [2d Dept. 1993]).
Motion denied.
Subpoenas
Defendant also seeks "reconsideration" of the subpoenas denied by Judge Johnson. She argues that since Judge Johnson has now recused herself from this matter, this court should "reconsider" her subpoenas. The Court has reviewed the files in this docket and has not found any subpoenas denied by Judge Johnson. Nevertheless, Judge Johnson's voluntary recusal has no bearing on the rulings or decisions issued by her prior to her recusal on October 10, 2019. Those decisions and orders still remain valid ( Hudson View II Assoc. v. Miller , 282 AD2d 345 [1st Dept. 2001]. The sole arbiter of recusal is the trial judge, and the decision is best left to that court's personal conscience (Curcio v. Kelly , 193 AD2d 739 [2d Dept. 1993]).
Defendant argues she previously filed a motion for subpoenas seeking two items under the control of the People and the Westchester Department of Public Safety: 1) Audio tape of a phone call to police, identified in police records submitted by the People, and 2) Video surveillance footage that she claims is in the custody of the People.
In opposition to the motion, the People argue that the request for the audio recording pertaining to the July 20, 2015 occurrence is deemed moot as they provided the defendant with a copy of the audio recording in open court on January 13, 2020. The People state the no other audio recordings are known to them or in their possession. As for defendant's request for a surveillance tape, the People state that they are not in possession of any such video and do not represent that any such video ever existed. The People further state that they forwarded a specific and formal request for the surveillance footage to the New York State Courts following the January 13, 2020 court appearance, and as of January 29, 2020, they had not received any communication from the New York State courts that any footage ever existed. If defendant is not satisfied with the People's representations about their efforts to secure a video surveillance tape of the incident, if it ever existed, then she should seek to subpoena the video surveillance footage from the New York State Courts.
The proposed subpoena duces tecum issued to the New Rochelle District Attorney's Office in care of the Westchester County Attorney is irrelevant. The courts of this state have consistently held that a subpoena duces tecum may not be used as a fishing expedition for purposes of discovery or to ascertain the existence of evidence, but rather to compel the production of specific documents that are relevant and material to facts at issue in a pending matter (People v. Robinson , 87 NY2d 877 [App. Div. 2d Dept. 1982] (citing People v. Gissender , 48 NY2d 543 [1979] ). "That requires a demonstration that the records sought are not only relevant, but are ‘sought in connection with the guilt or innocence of the defendant, and not merely on a collateral issue of credibility of a witness" ( People v. Dodge , 73 Misc 2d 80, 81, [Nassau County Ct. 1973]. Courts also have a duty to insure that any items sought to be produced via subpoena do not include things of non-evidentiary value, or information that might be privileged or private (See People v. Magliore , 178 Misc 2d 489, 495, [Crim Ct Kings Cty 1998] ; People v. Henry , 2012 NY Misc. LEXIS 2478. The issuing party must establish that the material sought in the subpoena is reasonably likely to contain information highly relevant to the key issues in the matter. The facts contained in the body of the subpoena must support this contention ( Constantine v. Leto , 157 AD2d 376, 378 ).
Subpoena of New Rochelle Branch of Westchester District Attorney:
The evidence sought by the defendant is not relevant to the prosecution for the charge of Criminal Contempt in the Second Degree.
Motion denied.
This constitutes the Decision and Order of this Court.