Opinion
1063/2003.
Decided June 28, 2004.
For the People of the State of New York, HONORABLE ROBERT T. JOHNSON, District Attorney of Bronx County, New York, By: SARA I. JACOBSON, ESQ., Assistant District Attorney,
For Mark Ochoa, DAVID C. CLARKE, ESQ., The Legal Aid Society, By: STEVEN MECHANIC, ESQ., For Michael Figueroa, BARRY WEISS, ESQ.
In this robbery trial, Defendants jointly move to compel the People, pursuant to Criminal Procedure Law § 240.45 (1), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), to provide them with unredacted copies of the New York State Division of Criminal Justice Services Criminal History Forms (hereinafter referred to as "rap sheets") of the People's witnesses who have either previous criminal convictions or open criminal cases. The motion is denied.
Factual Setting
Prior to the People's opening statement, the District Attorney provided Defendants redacted rap sheets of the two civilian witnesses to be called to testify at trial. They are Fernando Cruz, who has five prior felony and three prior misdemeanor convictions, and Madeline Ruballo, who has one prior felony and four prior misdemeanor convictions. These redacted rap sheets contained the following information: race, gender; height; aliases, city and state in which each alias was given; and for each crime that resulted in a conviction, the arrest number, agency or police precinct that effected the arrest, the date of the arrest; and for each conviction, the docket or indictment number, date of conviction, crime of conviction, date of sentencing, sentence received, court in which the conviction and sentence was rendered, and whether the conviction was vacated.
The following information was redacted from each rap sheets: date of birth and dates of birth provided in the past; social security number and social security numbers provided in the past; current address and addresses provided in the past; dates each alias and address were provided; New York State Identification (NYSID) number; charges upon which the witness was arrested and arraigned or not arraigned; arrest and bench warrant history, including when each was issued, vacated and when the witness returned on the warrant; correctional facilities to which each witness was admitted and the accompanying conditional and maximum release dates; and parole history, including the dates each witness was on parole and when parole was revoked.
Arguments of Counsel
Both defense counsels claim that according to decisions by the Third Department and the Supreme Courts in Monroe and Onondaga Counties, CPL § 240.45 (1) and Brady ( id.) require the People to turn over unredacted copies of witnesses rap sheets to Defendants. See People v. Graham, 283 A.D.2d 885 (3rd Dept. 2001), lv. denied, 96 N.Y.2d 940 (2001); People v. Yusufi, 247 A.D.2d 648 (3rd Dept. 1998), lv. denied, 92 N.Y.2d 863 (1998); People v. Buckley, 131 Misc.2d 744 (Sup.Ct. Monroe Cty. 1986); People v. Howard, 89 Misc.2d 911 (Sup.Ct. Onondaga Cty. 1977). The People counter that nothing in the plain and unambiguous language of CPL § 240.45 (1) or Brady ( id.), nor in any decisions of the Court of Appeals or First Department, require such disclosure. See People v. Pressley, 91 N.Y.2d 825 (1997); People v. Williams, 251 A.D.2d 266 (1st Dept. 1998), lv. denied, 92 N.Y.2d 1030 (1998), lv. denied, 92 N.Y.2d 1040 (1998); People v. Battle, 249 A.D.2d 116 (1st Dept. 1998).
Discussion
Criminal Procedure Law § 240.45 (1) (b) and (c) states, in pertinent part, that:
After the jury has been sworn and before the prosecutor's opening address, . . . the prosecutor shall . . . make available to the defendant: (b) A record of judgment of conviction of a witness the people intend to call at trial if the record of conviction is known by the prosecutor to exist; (c) The existence of any pending criminal action against a witness the people intent to call at trial, if the pending criminal action is known by the prosecutor to exist. The provisions of paragraphs (b) and (c) of this subdivision shall not be construed to require the prosecutor to fingerprint a witness or otherwise cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness.
In Pressley, supra, at 827, the Court of Appeals held that the People are to provide a defendant with "a record of judgment of conviction of a witness called by the People at trial." The First Department used the above-cited language in Williams, supra, at 267, in which it held that "[t]he prosecutor's disclosure of the "record of judgment of conviction" of a People's witness complied with the applicable statutory provisions, which do not require that the prosecutor order a report from the Division of Criminal Justice Services or any other authority concerning the criminal history of the witness (CPL § 240.45)." See also Battle, supra, at 117 ("prosecutor complied with the applicable statutory provision in providing appropriate notice to defendant regarding a prior conviction of a People's witness [CPL § 240.45 (1) (b)]").
Although the Second Department in People v. Perkins, 227 A.D.2d 572, 573 (2nd Dept. 1996), lv. denied, 88 N.Y.2d 991 (1996), lv. denied, 89 N.Y.2d 927 (1996), referred to the prosecutor properly turning over "a so called `rap sheet' regarding one witness," later, in People v. Graham, 289 A.D.2d 417, 418 (2nd Dept. 2001), lv. denied, 97 N.Y.2d 754 (2002), that court explained that:
Contrary to the defendant's contention, the trial court properly denied the defense counsel's demand for production of the NYSIS sheets. The prosecutor complied with his disclosure obligations under CPL § 240.45 (1) (b), (c), and the statute expressly provides that the prosecutor shall not be required to "cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness.
Similarly, the Fourth Department has held that "the disclosure of criminal history records by the District Attorney is required, provided such records are limited to criminal convictions and pending criminal actions of witnesses called by the People in a criminal trial." Williams v. Erie County District Attorney, 255 A.D.2d 863, 864 (4th Dept. 1998). See also People v. Fyffe, 249 A.D.2d 938 (4th Dept. 1998) (People satisfied their statutory obligation to disclose the record of judgment of conviction of [a] witness and were not required to turn over a record of a youthful offender adjudication because it is not a judgment of conviction for a crime), lv. denied, 92 N.Y.2d 897 (1998). Indeed, in Williams, supra, the Fourth Department noted that criminal history records of witnesses used at trial can only be turned over in a Freedom of Information Request (hereinafter referred to as "FOIL"), if they are properly redacted in order to ensure that they do not violate the invasion of privacy exceptions to FOIL. See Public Officers Law, Article 6. Here, the People met their statutory obligation by providing a history of criminal convictions, namely, the docket or indictment numbers, the dates of the convictions, the crimes for which the witnesses were convicted, the dates of sentencing, the sentences received, and the courts in which the convictions and sentences were rendered. Here, the People actually exceeded their duty under CPL § 240.45 (1) by also providing information regarding aliases, where the aliases were given, the agency or police precincts that effected the arrests, the dates of the arrests, and whether the convictions were vacated Defendants' reliance on the Third Department cases of Graham, supra, and Yusufi, supra, is misplaced. Initially, in People v. Moore, 244 A.D.2d 776, 777 (3rd Dept. 1997), lv. denied, 91 N.Y.2d 975 (1998), the Third Department held that the People complied with CPL § 240.45 (1) (b) where they disclosed "a tabular list of the informant's prior convictions, setting forth in each case the date of conviction, the county in which the judgment of conviction was entered and the offense for which he was conviction. We are not convinced that the list so furnished to defendant did not constitute a record of judgment of conviction . . . or that the People were necessarily required to furnish a `rap sheet' or certificates of conviction."
In any event, in Graham, although the Third Department held that the People were required to disclose the rap sheet of a witness who testified at trial, earlier in that same decision, the court used the terms "history of criminal convictions" and "rap sheet" interchangeably. Therefore, it is unclear if the term "rap sheet" in that case referred to the actual New York State Division of Criminal Justice Services Criminal History Form or if it was merely shorthand for a history of criminal convictions. Similarly, in Yusufi, that court rejected a claim that the People erroneously failed to disclose a witness's rap sheet where that witness had only "a 3 ½-year-old charge which to date had not been prosecuted; the record is devoid of any evidence of a judgment of conviction of any active pending prosecution." Yusufi, supra, at 650. The court also noted that it was proper for the trial court to not allow the defendant to inquire into the underlying crime "inasmuch as defense counsel conceded that he had no knowledge that the victim had ever been convicted of a crime." Id.
Regarding the Supreme Court cases from Monroe and Onondaga counties, it is clear that those cases are now outdated. In Buckley, the Monroe County Supreme Court ordered the People to turn over the witness's rap sheets on the basis that, at the time, "[u]nder the New York State's . . . statutory scheme, . . . the People's obligation to provide the NYSIS appears unclear." Buckley, supra, at 746. Similarly, in Howard, the Onondaga Supreme Court ordered the People to turn over the witness's rap sheets. However, Howard was decided in 1977, seven years before the enactment of CPL § 240.45, and Buckley was decided in 1986, two years after its enactment. Since then, all four appellate Department have determined that disclosure of a witness's rap sheets is not required by that statute. Therefore, both of these cases have since been superceded.
Defendants' also claim that the redacted information is Brady ( supra) material. Regarding this issue, it is noted that, unlike the controlling cases from the appellate courts, this Court does not have the benefit of hindsight, and, thus, is unable to determine if there is a reasonable possibility that the information will contribute to the verdict. See People v. Vilardi, 76 N.Y.2d 67 (1990).
Nevertheless, recently the First Department dealt with a similar issue in People v. Downing, A.D.3d, 2004 WL 1171359 (1st Dept. May 27, 2004), in which the People failed to disclose the complainant's true name. Although the First Department never explicitly ruled as to whether such information was Brady ( supra) material, it nevertheless held that reversal was not warranted because "defense counsel extensively impeached complainant's credibility through other background factors, including her lengthy criminal record." Downing, supra. In Downing, the First Department relied on its prior decision in People v. Sibadan, 240 A.D.2d 30 (1st Dept. 1998), lv. denied, 92 N.Y.2d 861 (1998), in which the People failed to reveal a witness's cooperation with the police on prior unrelated matters although they had revealed his favorable plea agreement in exchange for his testimony against the defendant. In that case, the First Department held that the prior agreements were not Brady ( supra) material and reversal was not warranted becuase the current plea agreement "provided ample basis for the jury to question [the witness's] reliability," and the other information would have been cumulative rather than provide an additional basis of impeachment. Sibadan, supra, at 35. See also People v. Richards, 184 A.D.2d 222, 222-23 (1st Dept. 1992) (reversal not warranted where People failed to disclose that one of their witnesses "had two prior convictions under different names, there being no reasonable possibility that the failure to disclose contributed to the verdict. . . . The witness was extensively cross-examined, his testimony corroborated by several other witnesses, and his credibility challenged during summation."), lv. denied, 80 N.Y.2d 1029 (1992); cf., People v. Mickel, 274 A.D.2d 325 (1st Dept. 2000). This finding by the First Department was later reaffirmed by the Southern District of New York on Federal habeas corpus review. See Sibadan v. Schriver, F.Supp.2d, 2000 WL 271694 (S.D.N.Y. March 10, 2000) ("Given the evidence of the witness' cooperation agreement in this case which provided defense counsel with an ample basis to attack the witness' credibility, the nondisclosed evidence of the witness' informant status at an earlier time was clearly not material.").
Conclusion
The fact that the witnesses provided different dates of birth and social security numbers in the past, as well as their warrant and parole histories, is cumulative to the abundant amount of information provided and does not provide additional bases for impeachment. Moreover, the witnesses dates of birth and address, as well as their addresses in the past, New York State Identification (NYSID) numbers, and correctional facilities to which they were admitted, are not factors making for impeachment. As per the charges upon which the witnesses were arrested and arraigned or not arraigned, as explained in People v. Gottlieb, 130 A.D.2d 202, 207 (1st Dept. 1987):
[A witness] may not be impeached on the basis of an accusation of prior criminal conduct. . . . A witness cannot be asked whether he had been arrested or indicted, for an arrest or indictment is a mere accusation of guilt. . . . The vice of the questions . . . [is] the obvious unfairness in permitting the credibility of the witness to be impeached on the basis of someone' accusation in an unrelated matter.
See also People v. Griffin, 242 A.D.2d 70 (1st Dept. 1998) (improper to inquire into unproven allegations), app. dismissed, 93 N.Y.2d 955 (1999); People v. Burwell, 159 A.D.2d 407 (1st Dept. 1990) (error for court to allow cross-examination of witnesses as to prior arrests and to instruct the jury that said arrests could be used in determining the credibility of the witnesses), lv. denied, 76 N.Y.2d 785 (1990).
Moreover, it is well settled that it is within a court's discretion to preclude defense counsel from asking questions of dubious relevance or limiting the cross-examination of the prior bad acts of the prosecution's witnesses. See People v. Burgos, 207 A.D.2d 656 (1st Dept. 1994), lv. denied, 84 N.Y.2d 906 (1994), citing, People v. Arroyo 77 N.Y.2d 947 (1991), and Gottlieb, supra.
ORDERED, that the motion by Defendants is denied.
The foregoing constitutes the decision and opinion of the Court.