Opinion
No. 12–031.
2012-04-11
The PEOPLE of the State of New York, v. Eva ZGANJER, Defendant.
Janet DiFiore, District Attorney (Valerie A. Livingston, Assistant District Attorney), for The People. Rocco F. D'Agostino, Esq., White Plains, for defendant.
Janet DiFiore, District Attorney (Valerie A. Livingston, Assistant District Attorney), for The People. Rocco F. D'Agostino, Esq., White Plains, for defendant.
JOSEPH L. LATWIN, J.
The defendant is charged by a misdemeanor information with Unlawful Fleeing a police officer in the third degree in violation of Penal Law § 270.25; and by simplified traffic informations charging Aggravated Driving while Intoxicated in violation of VTL § 1192.2a; Driving while Intoxicated in violation of VTL § 1192.3; with speeding in violation of VTL § 1180–a; Reckless Driving in violation of VTL § 1212; Driving to the left of Pavement Markings in violation of VTL § 1126a; and Failure to Comply in violation of VTL § 1102. These violations are alleged to have occurred on January 14, 2012 at 0412 and 0515 hours.
The defendant was arraigned on the charges on January 24, 2012 with counsel present and the matter was adjourned for open file discovery and motions.
The defendant now moves to: preclude defendants statements, preclude evidence, and ordering disclosure of the identity of a described but unnamed person or in the alternative holding hearings.
The People consented to the following hearings: Mapp, Dunaway, Huntley and Sandoval.
HEARINGS
The Court grants Mapp, 367 U.S. 643 [1961],Dunaway, 442 U.S. 200 [1979], and Huntley, 15 N.Y.2d 72 [1965] hearings upon consent of the People. The Court also grants a Sandoval hearing upon consent of the People. CPL § 240.45 & People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 [1974] insofar as the People are directed to serve upon the defendant and file with the court a list of all prior criminal convictions of the defendant that they intend to use for cross examination purposes or upon their direct case at a trial of this action. Such list shall be served and filed at least seven days before the trial. See, People v. St. Thomas, 2011 N.Y. Slip Op 31715(U) (Rome City Court June 27, 2011). A hearing will be held before the trial judge before the commencement of the trial. At such time, the court will determine which, if any, of said list may be used for such purposes at the trial of this action. The defendant is reminded that he will have the burden of informing the Court of those prior adjudications and convictions that he wishes to preclude, notwithstanding the defendant's right to require the prosecution to notify him/her of any uncharged bad acts that they intend to use at trial for impeachment purposes. People v. Dokes, 79 N.Y.2d 656 [1992];People v. Matthews, 68 N.Y.2d 118 [1986]; See People v. Lee, 73 AD3d 1085, 900 N.Y.S.2d 653 [2nd Dept.2010].
Discovery
Defendant seeks an order pursuant to CPL § 240.20 directing the People to disclose the name and address of the “male” person that spoke to the Police. The People already consented to and provided discovery and inspection of information within the scope of CPL §§ 240.20 & 220.40.
CPL § 240.20 does not specify the identity of witnesses as matters that must be disclosed.
“With respect to the principles of fundamental fairness which govern pre-trial discovery in criminal cases in this State, the Court notes that there is no general constitutional right to discovery in criminal cases under either the United States Constitution ( see, Weatherford v. Bursey, 429 U.S. 545) or the New York State Constitution ( see, Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870). Moreover, it is beyond cavil that the courts possess no authority derived from the common law to order discovery ( see, People v. Colavito, 87 N.Y.2d 423, 426). Indeed, it is now well-settled law in this State that the exclusive authority of the courts to order discovery in criminal proceedings is governed by the terms of CPL Article 240 (People v. Copicotto, 50 N.Y.2d 222, 225), which specifically identifies that material which is subject to discovery by the defense prior to trial to the exclusion of that material which is not identified therein from the scope of discovery ( see, People v. Colavito, supra, at 427; Matter of Brown v. Grosso, 285 A.D.2d 642,lv. denied97 N.Y.2d 605;Matter of Pittari v. Pirro, 258 A.D.2d 202;Matter of Pirro v. LaCava, 230 A.D.2d 909). Stated succinctly, the courts do not possess the authority to grant pre-trial discovery in a criminal case where no statutory basis is provided in CPL Article 240 (Matter of Sacket v.. Bartlett, 241 A.D.2d 97;Matter of Pirro v. LaCava, supra, at 910).” People v. Denham, 25 Misc.3d 1216(A), 901 N.Y.S.2d 909 (Table)[Sup Ct, Westchester County, 2009].
If the Legislature wanted to require the District Attorneys to disclose the identity of witnesses, the Legislature could easily have done so. The failure to include “identity of witnesses” in the list of activities in CPL § 240.20 must be read as an intentional omission of knowing passive acquiescence to its prohibition. Where the Legislature has listed specific items in a statute, the general rule is that the express mention of one thing implies the exclusion of other similar things ( expressio unius est exclusio alterius ). People v. Braunhut, 101 Misc.2d 684, 421 N.Y.S.2d 763 [Crim Ct, Queens County 1979].
A court cannot by implication supply in a statute a provision which is reasonable to suppose the Legislature intended intentionally to omit. When it is urged that a particular statute should be construed to cover a matter not expressly mentioned in the act, the courts frequently assert that, if the legislature had intended the statute to include the matter in question, it would have been easy for them to have said so and to have expressly included it. The court reasons that the failure of the Legislature to include the matter within the scope of the act indicates that its exclusion was intended, and the court refuses to insert the matter in the statute on the ground that it has no power to make such judicial legislation.
In any event, this Court will not grant discovery beyond the confines of CPL § 240.20(1)(a)-(k) unless there is a particularized showing as to why a particular document exists and should be made available. The defendant's papers completely fail to identify any particular document beyond the scope of CPL § 240.20 that has not been produced in open file discovery and fail to address why that document should be made available.
Accordingly, the motion for discovery is denied.
SCHEDULING
This Order is intended to assure that all parties are fully prepared to commence the trial and conduct the trial in an orderly and expeditious manner.
1) At least seven (7) days before the scheduled trial date, the parties shall submit to the Court the following:
Any stipulations or statements of fact or law that have been agreed to by all parties; &
Any pretrial Memoranda of Law a party believes it would be useful to the Court, including Memoranda on evidentiary issues.
2) Exhibits. Photocopies of trial exhibits and other documents are to be made outside the courthouse. Each party should have at least the original for the Court, a copy for the other side, and such copies as it may desire, including copies for each juror, if desired and permitted.
All exhibits must be pre-marked before the commencement of trial. The People's Rosario materials shall be marked “PRos”. The People's exhibits to be introduced into evidence shall be marked in the form “P–1” through “P-n”. Defendant's exhibits shall be marked in the form “D–A” through “D-n”. A list of all exhibits to be offered by each party shall be provided to the Court at the commencement of the trial. Should the exhibit list be amended during the trial, a copy of the updated or amended list shall be provided to the Court. Counsel shall provide one marked set of exhibits for each party.
3) Evidentiary motions. Motions addressing any evidentiary or other issues shall be resolved in limine, at the pretrial conference, but in no event in front of the jury.
4) Proposed Voir Dire. The Court, after swearing in the panel, will initiate the examination of prospective jurors by identifying the Court, the parties, and their respective counsel, briefly outline the nature of the case, and any other matters about which all parties wish Court to inquire. Following the Court's inquiry, the parties may inquire of the panel.
Proposed voir dire questions the parties wish the Court to inquire shall be submitted at the pretrial conference. In addition to a hard copy, proposed voir dire questions should also be submitted on a CD in MS Word or Wordperfect format.
5) Proposed Jury Instructions. Each party shall submit to the Court at the pretrial conference requests to charge the jury and a proposed verdict sheet. In lieu of a verbatim recitation of a current PJI/CJI, the party may simply refer to the PJI/CJI number. Where deviations from or additions to a PJI are requested, the full text of such requests must be submitted in writing, together with any supporting legal authority. In addition to a hard copy, proposed requests should also be submitted on a CD in MS Word or Wordperfect format.
6) Conduct of the trial. Parties should arrange to have enough witnesses available to fill the scheduled trial day(s) even if it means taking witnesses out of order. If a party is out of witnesses, that party must rest. Doctors and other experts will be permitted to testify out of order whenever they are available.
Any party requiring the services of a foreign language interpreter or special services for any person who is hearing impaired or suffers from any other disability shall inform the Clerk of such need immediately.
If any party the needs an easel, video display or other trial aid, they shall bring such item to Court after consultation with the Court officers. Such items shall be set up and ready for use before the start of the trial. If the Court has an item that a party needs, it is the responsibility of the party to assure that the Court's item is operational and compatible with the matter sought to be presented.
The pretrial conference shall take place at the Courthouse on April 24, 2012 at 1000 a.m. Any request for a jury trial shall be made on or before the pretrial conference.
The foregoing constitutes the opinion, decision and order of this Court. Papers:
Affirmation of Rocco D'Agostino dated March 20, 2012; and
Affirmation of Valerie A. Livingston dated April 2, 2012