People v Zherka
Annotate this CaseDecided on February 25, 2009
Westchester County Ct
People of the State of New York,
against
Selim Zherka, Defendant.
08-5013
To:Westchester County District Attorney
Mount Vernon branch
Jonathan Lovett, Esq.
Attorney for Defendant
22 Bloomingdale Road
White Plains, New York 10605
Adam Seiden, J.
Defendant Selim Zherka, was charged on October 31, 2008, by violation
information, with two counts of disorderly conduct (PL §240.20 (2) and PL §240.20
(3)) alleged to have occurred at 1 Roosevelt Square, Mount Vernon, New York.
On November 10, 2008, defendant filed a civil action in the Southern District of New York, under 42 USC §1983 (08 Civ. 9647), stemming from the above-referenced incident, alleging a conspiracy by numerous Mount Vernon city officials to violate defendant's federal constitutional rights.
On December 31, 2008, defendant issued a subpoena for the Westchester County District Attorney to appear in this court and testify regarding the facts underlying his October 31, 2008, arrest. Defendant has filed no other motion papers in Mount Vernon City Court on this matter. The People have opposed the subpoena and, on January 21, 2009, moved to quash it. Defendant's opposition to that motion was filed with this court on February 10, 2009. For the reasons set forth below, this court grants the People's motion to quash the subpoena.
A defendant's sixth amendment right to subpoena "witnesses in his favor" is longstanding and applies to the states via the fourteenth amendment. U.S. Const. amend. VI, XIV; Washington v. Texas, 388 US 14 (1967). The Criminal Procedure Law §610.20 (3) further establishes that an attorney in a criminal matter may subpoena "any witness whom the defendant is entitled to call in such action...." Though broad, that right to compel a witness is not unfettered: it is limited in its application to only those witnesses whom the attorney is otherwise "entitled" to call to the witness stand. Taylor v. Illinois, 484 U.S. 400, 410 (1988); People v. Chipp, 75 NY2d 327, 336-337 (1990) (the right to compulsory process "is not absolute" and even at trial "may yield to policy considerations such as the State's interest in the orderly conduct of trials" (citing Taylor, at 414-416)). See also CPL §60.15 (1) (the right to call a witness at a criminal proceeding, "is not absolute" nor does it confer a "right of compulsory process broader than that accorded by the Federal Constitution" Chipp, 75 NY2d at 337).
If the court has discretion to limit cross-examination of a witness, then concomitantly, it has the authority to preclude a witness from testifying where that witness lacks any direct or first hand information about the charges against the [*2]defendant. In People v. King, 148 Misc 2d 859 (Crim. Ct. NY Co. 1990) the court quashed a subpoena for Cardinal O'Connor's appearance in a misdemeanor matter that also charged defendants with disorderly conduct. The defendant, and others, were arrested for disturbing a mass over which the Cardinal presided. However, the defendant in King failed to demonstrate the relevance of the Cardinal's testimony, despite his admitted presence at the mass where the incident took place. The facts in King are especially applicable to the instant matter as, despite the Cardinal's actual presence at the scene of the disturbance (while the District Attorney was not), the King court ruled that the Cardinal's presence, alone, was not sufficient reason to compel his attendance at the criminal proceeding. King, 148 Misc 2d at 861.
The subpoenaed witness in the instant matter, Westchester County District Attorney Janet DiFiore, has provided a signed affirmation that she was neither present at City Hall on October 31, 2008, nor does she have any personal knowledge of the events that led to defendant's arrest. Indeed, the existence of the District Attorney's sworn, signed affirmation contradicts defendant's assertion that the People's claims were "pure hearsay."
The trial court has wide discretion to preclude questioning under the Confrontation Clause of the Sixth Amendment. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); and People v. Ashner, 190 AD2d 238, 246 (2d Dept. 1993) (both cases address the limits on defendant's rights to cross-examine biased or hostile witnesses). Normally, a hostile witness is subject cross-examination (CPL §60.35). However, the subpoenaed witness is not hostile in the traditional legal sense (changed testimony from a prior sworn statement, CPL §60.35). Rather, the witness is hostile within the ordinary meaning of the language in that she herself has sworn that she has no first hand knowledge of or participation in the events that led to the trial's underlying charges and the People's papers indicate they view the subpoena as harassment (People's Affirmation in Support of Motion to Quash, page 19.)
The District Attorney's signed affirmation supports her contention that she has no knowledge of the events leading up to defendant's arrest and thus no relevant information to offer. That affirmation constitutes sworn testimony. (Notably, defendant did not submit an affirmation from the Mount Vernon City Mayor, Clinton Young, despite the fact that defendant relies on a reported (but unsworn) conversation between himself and the Mayor to support his allegation of misconduct by the Westchester County District Attorney.) Even relevant testimony may be excluded when offered in "bad faith." People v. King, 148 Misc 2d 859 (Crim. Ct. NY Co. 1990). People v. Monroe, 30 AD3d 616, 617 (2d Dept. 2006) (evidence that "lacks good faith factual basis," is too "remote" or "speculative" is properly precluded.) As defendant has proffered no non-speculative evidence that the District Attorney's testimony would be relevant, the motion to quash the subpoena is granted.
This constitutes the Court's Decision and Order.
Dated:February 25, 2009
Mount Vernon, New York
____________________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
To:Westchester County District Attorney
Mount Vernon branch
Jonathan Lovett, Esq.
Attorney for Defendant
22 Bloomingdale Road
White Plains, New York 10605
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