Opinion
233-2012
06-24-2013
People of the State of New York, v. Paul Novak, Defendant.
Gary Greenwald, Esq. Greenwald Law Offices Attorney for Defendant Paul Novak Hon. James R. Farrell Sullivan County District Attorney Attorney for the People
Gary Greenwald, Esq. Greenwald Law Offices
Attorney for Defendant Paul Novak
Hon. James R. Farrell
Sullivan County District Attorney
Attorney for the People
Frank J. LaBuda, J.
Defendant, Paul Novak (hereinafter, "Defendant") has made a motion for release of redacted grand jury testimony of Investigator Michael Kelly who testified at a Huntley hearing held on June 3, 2013. The People turned over the grand jury testimony of Inv. Kelly as Rosario material, but sua sponte omitted portions of said testimony, claiming they were not the subject of the testimony at the Huntley hearing and therefore not subject to disclosure. Defendant argues he is entitled to a complete copy of the witness' grand jury testimony under Rosario, as no recognized exceptions apply and the People have failed to establish the information is confidential or otherwise exempt from Rosario disclosure.
The District Attorney did not apply for a protective order to redact any portions of Inv. Kelly's grand jury testimony.
FACTUAL BACKGROUND
In the early morning hours of December 13, 2008, a structure fire erupted on a rural road in the town of Tusten. Within minutes, volunteer firefighters from area fire companies were en route. At just past 6:30 am, when they arrived at 222 County Route 25 in the small hamlet of Luna, just outside of Narrowsburg, they found a fully involved and raging inferno that, by the late morning, reduced a once lovely single family home to a pile of smoldering rubble. The flames were so intense, a distant neighbor told a reporter from the New York Post that he thought he was watching the sunrise, until he realized what he was actually looking at.
http://www.nypost.com/p/news/local/burning_question_of_murder_EjFFGJ0swmki465DgFTy6M
Later in the day, when firefighters finally extinguished the last of the stubborn flames, they began the grim task of sifting through the charred remains of the two story house that caved in on itself and settled into the basement to look for survivors and the cause of the fire. The police and fire investigators had information that the home was owned by Paul and Catherine Novak, and that Mrs. Novak lived in the house with the couple's two children and family dog. The couple had separated in March, 2008, and were planning to divorce. Not knowing whether anyone was in the house when the fire started, and having no communication from anyone in the family, emergency personnel began the task of making sure no one was trapped, injured or killed in the fire. They sifted through several feet of hot spots and charred portions of the house that had fallen into the basement.
They came upon an unidentified body first. Later identified, Catherine Novak's lifeless body lay partially burned on the basement floor, in the doorway between the main part of the basement and the utility room. She was covered by several feet of debris, which had fallen on her when the house collapsed into its basement. They next came upon a dog crate. It was sandwiched between pieces of burned and blackened floorboards in the utility room of the basement, apparently having fallen through the first floor when it finally collapsed. In it, the burned body of the family's dog lay motionless. Firefighters alerted State Police investigators who were already present, treating the situation as a potential crime scene. The firefighters continued searching for more victims, knowing two children had lived in the house with Mrs. Novak. No additional human or animal remains were found; the scene was finally cleared at 2:49 pm that day.
Authorities contacted the estranged husband, Paul Novak, who at the time was residing in Glen Cove (Nassau County) with his girlfriend, Michelle LaFrance. Novak informed the police that he had picked up the children from school the previous day, December 12, 2008, and they were with him in Glen Cove. In the meantime, Catherine Novak's body was transported to Catskill Regional Hospital for an autopsy.
At the time, Paul Novak was employed as a paramedic/EMT in New York City.
During the weeks following the structure fire and death of Catherine Novak, arson investigators and police could not determine the cause of the fire; they indicated in their first report there was no evidence of arson. The well qualified pathologist at Catskill Regional Hospital, Wing C. Chau, MD, determined Catherine Novak's death was accidental; that she died from mechanical fixation of the thorax as a consequence of debris falling on her body and compressing her chest. The pathologist indicated that her body was badly burned, in some spots down to the bones, but the back of her body, which lay on the basement floor, was relatively intact and unburned.
State Police investigators spoke with Paul Novak on several occasions after the fire. They spoke with witnesses. They spoke with Novak's girlfriend, LaFrance , who confirmed he was home throughout the evening of December 12 into December 13, 2008. They conducted a full and thorough investigation of Catherine Novak's death and the fire for some time after the incident, and based on Novak's cooperation and responsiveness to their inquiries, as well as his alibi witness, they cleared him of any wrongdoing in connection with the fire and death of his wife. Indeed, independent insurance adjusters ruled the fire accidental and paid Novak on the policies.
Ms. La France was never charged with any crime related to the homicide or her false statement.
Less than one year later, Novak, his children, and LaFrance relocated to Palm Coast, Florida. In early 2012 the relationship between Novak and LaFrance ended, and they parted ways. By the summer of 2012, Novak was living with his children, still in Florida. LaFrance was also still living in the State of Florida, involved in a relationship with a local police officer.
In the spring of 2012, Michelle LaFrance contacted the New York State Police regarding the 2008 fire and Catherine Novak's death. She gave a statement indicating she lied in her 2008 statement about Paul Novak's whereabouts at the time of the incident. LaFrance now stated that Novak was not home at the time of his wife's death; that she knew he and a friend of his, Scott Sherwood (hereinafter, "Sherwood"), the indicted co-defendant herein, drove upstate during the overnight of December 12 to December 13, 2008, to Narrowsburg so Novak could kill his wife.
On or about the 27th day of September, 2012, pre-indictment, New York State Police arrested Sherwood in connection with the December, 2008, death of Catherine Novak. On that same day, Paul Novak, the victim's surviving husband, was arrested in the State of Florida, and charged with murder and arson by felony complaint.
On the 24th day of October, 2012, a Sullivan County Grand Jury indicted Paul Novak, by Indictment #233-2012, charging him with Murder in the First Degree, Grand Larceny in the Second Degree, two counts of Insurance Fraud in the Third Degree, and by acting in concert and together with Sherwood, two counts of Murder in the Second Degree, Burglary in the Second Degree, and Arson in the Third Degree. The Grand Jury also indicted Scott Sherwood, by that same Indictment #233-2012, charging him, by acting in concert and together with Novak, with two counts of Murder in the Second Degree, one count of Burglary in the Second Degree, and one count of Arson in the Third Degree arising from the alleged homicide of Novak's wife.
After his arrest, and prior to retaining counsel, co-Defendant Sherwood made a detailed written statement to the police indicating that Novak paid him to drive Novak from his home in Nassau County to the victim's home in Narrowsburg (Sullivan County) for the purpose of killing his wife. In his statement, Sherwood indicated that when he picked Novak up on the night of December 12, Novak was mixing something he told Sherwood was chloroform. Sherwood stated he used his red Chevrolet Blazer to drive Novak to Narrowsburg later that evening, but that he waited in the vehicle some distance away, hidden in a wooded area, while Novak walked to and from the house. Sherwood stated Novak was dressed in hospital scrubs, surgical booties over his shoes, a hat, and gloves when he returned from the house, and told Sherwood that he strangled Catherine during a struggle because the chloroform did not work. According to Sherwood, Novak also told him he set the house on fire. Novak made no statements to the police after his arrest.
The home, located at 222 County Route 25, Narrowsburg, NY, was the former marital residence of the Catherine and Paul Novak. This case has made international news. The Daily Mail, a London-based newspaper, picked up the story, reporting much of what co-defendant Sherwood told the police. The New York Post reported that friends of the victim indicated Catherine Novak was more afraid of Novak's girlfriend at the time, Michelle LaFrance, than she was of Novak, and was very depressed and distraught over the end of her marriage. The defense maintains the Novaks were on amicable terms and the separation and divorce were proceeding without incident.
DISCLOSURE PURSUANT TO ROSARIO
AT PRE-TRIAL HEARINGS
Pursuant to an omnibus motion, this Court held a Huntley hearing on June 3, 2013, at which the sole witness was Inv. Michael Kelly of the New York State Police. Prior to that hearing, the People disclosed those portions of Inv. Kelly's grand jury testimony they believed were relevant to his anticipated testimony at the Huntley hearing, to wit: his interviews of Novak in December of 2008. On June 3, 2013, after the People's direct examination of Inv. Kelly and prior to defense counsel's cross-examination, Novak's attorney informed the Court that the People redacted certain portions of Inv. Kelly's grand jury testimony, and moved for immediate release of said redacted portions, or in the alternative for in camera inspection of the redacted portions for a determination of whether they were subject to Rosario disclosure or exempt as confidential. The District Attorney opposed the Court's in camera inspection of the redacted portions of the grand jury testimony under People v. Rose, 215 AD2d 875 [3rd Dept. 1995]. The Court reserved decision and indicated it would review the redacted portions, in camera, to determine whether they should be released to Novak's defense counsel, and further ordered that should the Court find the redacted portions were subject to Rosario disclosure, Novak could recall Inv. Kelly for further examination, if necessary.
Disclosure pursuant to Rosario is codified at CPL §240.45, which states in pertinent part,
After 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, the prosecutor shall, subject to a protective order, make available to the defendant:
(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony....[Emphasis added] Prior to trial, however, the rules for disclosure are found at CPL §240.44, which states, Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed: 1. Any written or recorded statement, including any testimony before a grand jury, made by such witness other than the defendant which relates to the subject matter of the witness's testimony.
Failure to disclose pursuant to CPL §240.44 has similar consequences to those for nondisclosure under CPL §240.45.
In People v. Rosario, 9 NY2d 286 [1961], the Court of Appeals held, ...[T]his court is persuaded that a right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination. Id., at 289.
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Our decision presupposes that the statement relates to the subject matter of the witness' testimony, that it is to be used for impeachment purposes only after direct examination and that the necessities of law enforcement do not require that the statement be kept secret or confidential. Id., at 290.
See also, People v. Malinksy, 15 NY2d 86, 90 [1965].
In People v. Poole, 48 NY2d 144 [1979], a case cited by the People, the Court was concerned with whether defense counsel has the right to inspect a prosecutor's file to determine if Rosario material exists. Defense counsel sought to look at an entire file, i.e., "every document" a police officer had filled out in connection with his investigation; the Court of Appeals placed "the responsibility to determine whether or not any relevant statements of the witness exist" on the trial court, not defense counsel, and added it would be improper for defense counsel to peruse a prosecutor's entire file for any relevant information. Id., at 147, 149. The Court indicated, however, that the "letter and spirit of Rosario and its progeny" was to allow for defendants to use prior relevant statements for impeachment purposes. "Of course, for a prior statement to be relevant, it must relate to the subject matter of a witness' testimony." Id., at 150. The primary issue in that case was whether, pursuant to Rosario, defense counsel had the right to "to embark on an unrestrained tour of investigation seeking generally useful information,' which [the Court of Appeals] in Rosario expressly noted was not the purpose of the rule." Id ., at 149. Nothing in the Poole decision, however, was intended to limit a defendant's right to see a witness' statements or notes, even if "nothing in them could assist the defense or that no prejudice would result" from non-disclosure." Id . The holding in Poole was directed not at whether certain material was Rosario, but rather whether a defense attorney has the right to peruse a prosecutor's file to make that determination in the first place.
Likewise, in another case cited by the People, which involved a defense attorney's attempt to look through a prosecutor's file containing a police officer's notes, the Third Appellate Division held, " the representation of a prosecutor, as an officer of the court, ought...to suffice to determine the threshold issue of whether or not [Rosario material exist[s].'" People v. Rose, 215 AD2d 875 [3rd Dept. 1995], citations omitted, emphasis added . In Rose , defense counsel, prior to cross-examination of a police officer at a suppression hearing, sought to look through all of the notes taken by the officer in connection with his investigation. The People argued they had already turned over those portions of the notes pertaining to the officer's testimony at the suppression hearing. Defense counsel did not argue with the People's representation that they turned over all relevant portions of the notes; rather, defense counsel took the position that the defendant, under Rosario, was entitled to " any note that [the officer] took of any nature whatsoever.'" Id., at 877. The Court stated, "Fundamentally, the Rosario rule has never been interpreted so broadly as to grant defense counsel an open invitation to peruse the prosecutor's file'" Id . Like the decision in Poole, supra , the Court was not deciding whether certain material was subject to disclosure under Rosario; rather, these decisions held that as a threshold matter of determining whether material was Rosario, defense counsel could not look through a prosecutor's file to determine what, if anything, he was entitled to see.
Specifically with respect to grand jury testimony, the Rosario rule is more liberally construed. "To deny defendant access to a witness' testimony would ...be improper and erroneous...." People v. Gross, 130 Misc 2d 963, 965 [Sup. Ct. Queens Co. 1986]. "[A]ny common sense interpretation of CPL 240.44(1) requires that...testimony before the grand jury [even] in a collateral proceeding does relate to the subject matter of the witness' testimony' in [a] suppression hearing and should be discoverable." Id . Unlike the situations in Poole and Rose , supra , in which defense counsel sough to examine voluminous amounts of material and the prosecution's entire file, the defense counsel in Gross , as in the case at bar, sought only to obtain the entire grand jury testimony of the subject witness for purposes of impeachment at a pretrial hearing. Likewise, in Matter of Stephen F. Lungen v. Anthony T. Kane , 217 AD2d 849 [3rd Dept. 1995], aff'd, 88 NY2d 861 [1986], a case involving a motion for release of prior grand jury testimony of a witness from a neighboring county pursuant to CPL §190.25, the Court held a defendant is "entitled, under the Rosario doctrine [citation omitted], to pretrial disclosure of any testimony before a Grand Jury...made by a witness scheduled to testify at either a pretrial hearing or the trial itself." Id., citations omitted; emphasis added . The court stated that even in a case seeking disclosure under CPL §190.25 in which the defendant failed to meet the threshold showing of a compelling and particularize need for the grand jury minutes from the neighboring county, which is not the standard under CPL §240.44, the trial court in charge of the grand jury from the neighboring county "properly directed delivery" of the grand jury testimony to the other county for its own in camera review to determine whether that testimony could be released as Rosario material to the defendant. The Court reasoned that in camera inspection in that type of situation protected "the interests of all parties involved." Matter of Stephen F. Lungen v. Anthony T. Kane , 217 AD2d at 851 . In contrast to the cases in which defense counsel sought to inspect all notes of witnesses or entire prosecution files, and the courts conducted an in camera review to determine the relevance of the material and limited Rosario disclosure to relevant material that was the subject of the witness' testimony, neither the Gross nor the Lungen decision limit the extent of disclosure of prior grand jury testimony of a witness who testifies at a pre-trial hearing.
The grand jury testimony of Inv. Kelly only relates to the alleged homicide and investigation in the case at bar.
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While the failure to disclose Rosario material is generally reversible error, the Third Appellate Division most recently held that the People's failure to turn over Rosario grand jury testimony until after a Dunaway/Huntley hearing, while error, was harmless error because "[d]efendant received a full transcript of [the witness'] grand jury testimony prior to trial, was afforded a meaningful opportunity to cross-examine him..., and in fact did so." People v. Carota, 93 AD3d 1072, 1076 [3rd Dept. 2012], citations omitted .
DISCUSSION
In the case at bar, this Court chooses to make no error, harmless or otherwise. After a careful in camera review of the entire grand jury testimony of Inv. Kelly, including the redacted portions, this Court finds no plausible reason why said testimony should not have been disclosed to defense counsel for purposes of cross-examination of the witness during the Huntley hearing. The right sense of justice is that taken as a whole, Inv. Kelly's grand jury testimony relates to the subject of the his testimony at the Huntley hearing, i.e., the alleged homicide of Catherine Novak, People v. Rosario , supra , and defense counsel was entitled to use any portion of it for purposes of impeachment during that pre-trial hearing. Matter of Stephen F. Lungen v. Anthony T. Kane , at 849.
Contrary to the People's argument, defense counsel's request herein is not similar in any manner to the defense requests in Poole and Rose, supra . Novak sought to examine only the grand jury testimony given by Inv. Kelly, the sole witness at the Huntley hearing. Novak did not request disclosure of the People's entire file, nor did he request that the Court examine the People's entire file in camera. Novak did not seek to embark on a mission to find generally useful information; to the contrary, Novak has sought only that information which was the subject of the Huntley hearing—Inv. Kelly's prior testimony before the grand jury as it related to the subject matter of his role in the homicide investigation, from which arose the Huntley hearing. People v. Gross , at 965. Like the Court in Gross, supra , this Court views Novak's request for the prior testimony "a necessary tool for efficient [pre-trial cross-examination] preparation; a right duly granted the defendant both constitutionally and by interpretation of CPL 240.44." Id., at 965. Furthermore, "broad discovery enhances the search for truth and acts to increase the public's confidence in the criminal justice system," id., and is always a consideration for this trial Court.
The Court of Appeals was very clear in Rosario , A pretrial statement of a witness for the prosecution is valuable not just as a source of contradictions with which to confront him and discredit his trial testimony. Even statements seemingly in harmony with such testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness' bias, for instance, or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor. Shades of meaning, stress, additions or omissions may be found which will place the witness' answers upon direct examination in an entirely different light.
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Furthermore, omissions, contrasts and even contradictions, vital perhaps, for discrediting a witness, are certainly not as apparent to the impartial presiding judge as to single-minded counsel for the accused; the latter is in a far better position to appraise the value of a witness' pretrial statements for impeachment purposes. Until his attorney has an opportunity to see the statement, it is asked, how can he effectively answer the trial judge's assertion that it contains nothing at variance with the testimony given or, at least, useful to him in his attempt to discredit such witness? People v. Rosario, 9 NY2d 286, 289, 290 .
This Court will not narrowly construe on the legal protections the Court of Appeals has seen fit to afford criminal defendants in New York. Broad discretion enhances the search for the truth. This Court is satisfied Inv. Kelly's grand jury testimony contains nothing confidential or privileged, notwithstanding the People's case law, which is irrelevant to the disclosure issue raised herein. The People have provided no plausible reason for failing to release the entirety of Inv. Kelly's grand jury testimony or otherwise obstructing the orderly flow of a pre-trial hearing.
Therefore, pursuant to Rosario and CPL §240.44, the People are to immediately provide defense counsel with copies of the redacted portions of Inv. Kelly's grand jury testimony. Should Novak determine it is necessary to re-cross-examine Inv. Kelly on the Huntley issue, he shall notify the Court in writing with notice to the People and the Court will set a date forthwith.
Based on the foregoing, it is
ORDERED that Defendant's motion for release of the redacted portions of the subject grand jury testimony is granted in its entirety; and it is further
ORDERED that the People shall provide Defendant with copies of the redacted portions of the subject grand jury testimony within ten (10) days of the date of this decision and order; and it is further
ORDERED that Defendant shall make application to this Court, within ten (10) days of receiving the redacted portions of the subject grand jury testimony, for re-cross-examination of Inv. Kelly, should Defendant so require.
This shall constitute the Decision and Order of this Court.
DATED:June 24, 2013
Monticello, New York
____________________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate