People v Doe

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[*1] People v Doe 2009 NY Slip Op 51241(U) [24 Misc 3d 1203(A)] Decided on June 18, 2009 Rochester City Ct Morse, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. As corrected in part through March 12, 2010; it will not be published in the printed Official Reports.

Decided on June 18, 2009
Rochester City Ct

The People of the State of New York

against

John Doe, a/k/a "R.D.," Defendant.



09-01055

Thomas Rainbow Morse, J.



The charge against this youthful offender defendant involves an alleged in-school assault of a fellow student. Prior to trial, defense counsel moved for a subpoena duces tecum for school records relating to the student complainant. Counsel for the defendant alleged as the basis for the subpoena that "[u]pon information and belief [the complainant's] school records will contain records of suspensions and disciplinary measures taken against him." Thus, the argument continues, the subpoena should be signed because the records may contain information about "prior bad acts reflecting a character unworthy of belief." While not clearly delineated in the moving papers, it is clear from the accusatory instrument filed with the court that the alleged assault occurred in a local high school. Counsel for the School District has filed papers in opposition to the application.

In reviewing a request for such a subpoena, some courts have applied language from People v. Gissendanner, 48 NY2d 543, 550 (1979), requiring that the applicant demonstrate the documents sought are "material and exculpatory." While Gissendanner sets the benchmark "for enforcing a third party subpoena duces tecum," People v. Kozlowski, 11 NY3d 223(2008), the Court of Appeals recently refined its holding in that seminal case by recognizing that in most cases it would be "impossible" for a defendant to "show that [the materials] are actually' relevant and exculpatory." Id.at 243. Instead, the unanimous Court focused on the language from Gissendanner noting that the "proper purpose of a subpoena duces tecum...is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding. The relevant and material facts in a criminal trial are those bearing upon the unreliability of either the criminal charge or of a witness upon whose testimony it depends.' " Id. at 242. The Court's rejection of the view that the proponent's papers "must prove" that the records sought are relevant and material does not mean, however, that a subpoena should be issued to explore "general credibility" issues. Gissendanner, supra at 548.

In this court's opinion, the information filed in this case transforms the school record request in this case from a garden variety demand aimed at discovery, Matter of Terry D., 81 NY2d 1042, 1044-45(1993); Matter of Javier D., 249 AD2d 314(2nd Dept., 1998), into a [*2]targeted request for relevant substantive information. The assault is alleged to have occurred in a school setting, and the records may contain first person accounts of the alleged altercation. While in a civil setting denial of such a subpoena from a party present during the incident seeking such Rosario material has been upheld, Board of Educ. of City of New York v. Hankins, 294 AD2d 360, 360(2nd Dept., 2002), it may be that a criminal defendant's constitutional right to compulsory process, United States v. Nixon, 418 U.S. 683(1974), trumps such cases and any alleged statutory student privilege under the federal Educational Rights and Privacy Right. 34 CFR Part 99. That does not mean, however, that a subpoena making records available to the parties should be issued. Instead, the court simply finds that the request coupled with the information filed meets this court's threshold for in camera review. See Kozlowski, supra at 244 FN 12, Gissendanner, supra at 550.

Based on a reading of the documents provided by the School District, it is clear that the records contain no substantive material that is relevant or material to the case before the court. See People v. Singh, 16 AD3d 974(3rd Dept., 2005)(victim's support agency records) lv. denied 5 NY2d 769(2005); People v Plaza, 60 AD3d 1153(3rd Dept., 2009)(county department of mental health records). Moreover, they contain no exculpatory evidence. To the extent the records before this court may embrace information relating to collateral matters such as impeachment, the court finds issuance of a subpoena for such material would be inappropriate.

School records chronicle the educational, emotional and interpersonal maturation of our community's children and adolescents. By definition, such records will almost always encompass adult assessments of student growth areas and document behavior-based learning opportunities. In the most egregious situations, logical consequences for a school child's behavior may even include suspension or expulsion from school. That does not mean, however, that such determinations constitute a finding by school authorities that the student has engaged in "specific immoral, vicious or criminal acts which have a bearing on the witness's credibility." Badr v. Hogan, 75 NY2d 629, 634(1990). Given what science teaches us about the fluidity and course of brain development as it relates to the adult decision making process, it is highly unlikely that impeachment questions derived from records regarding primary and secondary school student behavior will reach a level showing "some tendency to show moral turpitude to be relevant on the credibility issue." Id. Compare People v. McIlwain, 259 AD2d 1046(4th Dept., 199)lv. denied 94 NY2d 798(1999)(court did not abuse its discretion in limiting cross-examination of the robbery victim with respect to matters contained in his school records ).

While it is impossible to say that moral turpitude could never be shown, this court finds that truancy and suspension records, if any, fall far short of that standard. Moreover, in those cases in which it is alleged that the complainant committed an act which would be criminal if he or she was an adult, such records may be available from another source. Accordingly, the defendant's motion for issuance of a subpoena duces tecum for the school records of the complainant in this matter is in all respects denied.

The foregoing constitutes the decision and order of the court.

By:

Dated: June 18, 2009_____________________________________

Hon. Thomas Rainbow Morse, JCC

To:Cara M. Briggs, Esq. [*3]

Greg Clark, ADA

Brian Oathout, APD

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