Opinion
No. CR-008107-22BX
07-07-2022
The People of the State of New York v. Nelson, Defendant.
Unpublished Opinion
Wanda L. Licitra, J.
Upon an affirmation, the People request that the Court issue subpoenas for Mr. Nelson's employment and Criminal Justice Agency records. For the reasons stated below, the People's requests are DENIED.
THE REQUESTED SUBPOENAS
On July 6, 2022, the People requested that the Court issue subpoenas duces tecum demanding the following:
1. From Jewish Child Care Association, a "certified copy of... Nelson's personnel file, including employment application, length of employment, job responsibilities, and disciplinary records."
2. From the Criminal Justice Agency, a "certified copy of... Nelson's records of pre-trial interview."
LEGAL ANALYSIS
As the Court of Appeals explained in 1969, "[i]t is ancient law that no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoena duces tecum." Matter of A'Hearn v. Comm. on Unlawful Practice, 23 N.Y.2d 916, 918 (1969). The Criminal Procedure Law reflects the same. The People have no subpoena power where there is no Grand Jury or pending criminal proceeding. People v. Natal, 75 N.Y.2d 379, 385 (1990). Under C.P.L. § 610.20(4), where there is a pending criminal proceeding, the People must justify a subpoena by showing that "the evidence sought is reasonably likely to be relevant and material to the proceedings." (emphasis added).
Fleshed out, the standard to be applied in issuing subpoenas is whether the subpoena seeks "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding." Matter of Terry D., 81 N.Y.2d 1042, 1043 (1993) (emphasis added). Therefore, it is "unquestionable" that "the People should be able to pinpoint information that is 'relevant and material to the facts at issue '-rather than the need for information about the defendant or other potential misconduct by him." People v. D.N., 62 Misc.3d 544, 553 (Bronx Cty. Crim. Ct. 2018).
A court may demand that the People meet this standard before issuing a subpoena. After all, the People "derive[] [their] authority to subpoena as an officer of a criminal court in which [they are] conducting the prosecution of a criminal action or proceeding." Id. at 550. A subpoena is a "mandate of the court issued for the court." Natal, 75 N.Y.2d at 385; see also C.P.L. § 610.10(2) ("A 'subpoena' is a process of a court."). As a result, it is the court that "retains the ultimate authority on the outer parameters of the People's subpoena powers." D.N., 62 Misc.3d at 550.
Here, the People have not established that the records they seek would be relevant and material to the facts at issue in this pending criminal proceeding. In this case, the People have accused Mr. Nelson, a case worker at the Jewish Child Care Agency, of "grab[bing] the buttocks" of a foster mother during a home visit. Aff. at 1-2. However, by the People's own admission, their subpoenas do not seek evidence relating to that incident. See id. at 2. Instead, the People seek Mr. Nelson's employment records "to inquire whether he engaged in similar behavior with other foster families." Id. (emphases added). The People additionally seek Mr. Nelson's CJA records "to inquire whether he included additional employment information." Id. (emphasis added). Presumably, the People seek to inquire into whether there were possibly any other incidents at other jobs (even though the People do not even know whether he has held any other jobs). "It is prudent," the People conclude, "that the People identify others who may have been similarly victimized." Id. (emphasis added).
These are not the sorts of records for which the People may exercise the Court's subpoena power. "It is important to distinguish the legitimate use of the subpoena authorized by this article from attempts to use one for investigation to determine facts." Peter Preiser, Practice Commentaries, C.P.L. § 610.20. Criminal court subpoenas are not a freewheeling tool for the People to conduct an unlimited and general inquiry into possible violations of the law, unrelated to the case at hand. Instead, the subpoena power is for use to secure evidence relevant and material to the facts at issue in this pending judicial proceeding.
The People's requests for subpoenas are DENIED.
The People are reminded that any application to reargue or renew must be addressed to this Court. C.P.L.R. § 2221(a).
The foregoing constitutes the Decision and Order of the Court.