People v Ehigie

[*1] People v Ehigie 2004 NY Slip Op 51754(U) Decided on November 4, 2004 Criminal Court, Bronx County Margulis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 4, 2004
Criminal Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

OSAGIE EHIGIE, Defendant(s)



2004BX014113

Ira H. Margulis, J.

Defendant, a teacher employed by the New York City Department of Education, was arrested on March 9, 2004, and charged with Assault in the third degree (PL § 120.00 [1]) Endangering the Welfare of a Child (PL § 260.10 [1]) and Harassment in the second degree (PL § 240.26 [1]). Complainant is a student at a New York City Middle School.

The defendant was arraigned on March 10, 2004 and was released on his own recognizance. On March 29, 2004, in Part AP-2, Judge Tapia set a pre-trial motion schedule and adjourned this matter to May 19, 2004 for People's response and the court's decision.

On April 14, 2004, defendant served a copy of a Notice of Application for Issuance of a Subpoena Deuces Tecum and a supporting affirmation, dated April 12, 2004, on the New York City Board of Education by serving the New York City Law Department by mail. The notice stated in relevant part:

the undersigned will move this court at Part AP-2 on the 19th Day of April 2004 for a subpoena deuces tecum pursuant to the provisions of CPLR 2307 and CPL sections 610.20 and 610.25 (2) requiring the production of certain records of the New York City Department of Education in Part AP-2 of this court on the 7th day of May 2004 on the grounds that such records are material to the defense.

The notice also had a copy of the proposed subpoena attached.

On April 19, 2004, Judge Tapia so ordered defendant's subpoena deuces tecum ordering the New York City Department of Education to produce documents regarding the complaining witness, specifically stating:

bring with you the following: all records, documents, notes, reports, logs and materials of whatever kind and nature concerning [the complaining witness], a student at [a New York City Middle School], Bronx, New York, including, but not limited to:[*2]a.any and all reports, statements, and materials of whatever kind and nature concerning the alleged March 8, 2004 incident between the student ... and the teacher Osagie Ehigieb.any and all information concerning guidance, counseling, history of behavioral problems, and/or history of mental, emotional, and/or psychological conditionc.any and all accusations of misconduct made at any time by the student ... against the Department of Education (or, formerly, Board of Education personnel.

There is no indication in the court's file that the Department of Education was present when the order was signed on April 19, 2004.

On April 30, 2004, the Department of Education moved to quash the subpoena, arguing it was not properly issued and that defendant was not entitled to the complaining witnesses' student records. Judge Oliver granted the Department's motion to the extent that the matter was placed on the all purpose calendar (Part AP-2) on May 19, 2004 for decision.

Defendant also filed a separate omnibus motion (dated April 16, 2004), seeking, inter alia, dismissal of the first count of the accusatory instrument alleging Assault in the third degree. (PL §120.00 [1])

On May 19, 2004, which was set for the People's response and the court's decision to defendant's pre-trial motions, defendant filed his affirmation in opposition to the Department of Education's motion to quash the subpoena and the People filed their reply affirmation to defendant's motion to dismiss the first count of the accusatory instrument.

Now, upon submission of all papers the court's decision is as follows:

DEFENDANT'S SUBPOENA of SCHOOL RECORDS

The New York City Department of Education (the Department) first seeks to quash defendant's subpoena on the grounds he failed to comply with the statutory provisions of CPLR § 2307, which requires a subpoena deuces tecum served upon a department of a municipal corporation be made upon motion before a judge of the court where the action is triable with at least twenty-four hours notice to the department and the adverse party (here the People.)

Here, defendant served notice on the Corporation Counsel by mail on April 14, 2004, four days before the April 19, 2004 return date. The Department did not appear, but instead moved to quash by order to show cause filed and ordered on May 3, 2004.

Although defendant did not give timely notice to the Department by mailing the notice four days before the motion was heard, (CPLR §§ 2103 [b]; 2214 [requiring eight days notice for motion and an additional five days if done by mail]), this court does not see how the Department, who appeared to quash the motion and has set forth its opposition to the motion on the merits, is now prejudiced by defendant's irregular notice. (See, e.g., Piquette v City of New York, 4 AD3d 402, 403 appeal denied 2004 NY LEXIS 2199 [NY September 2, 2004]; Todd v Gull Contracting, 22 AD2d 904. ) [*3]

Moreover, the "twenty-four hour rule" in CPLR § 2307 has been criticized as unnecessary in modern practice and is often ignored. (In re Wilbur F., 42 AD2d 780; Siegel, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, CPLR C2307:1 ["Unless personal delivery or even the telephone or some other electronic device is used, it is impossible to give one day's notice of any motion."])

Accordingly, the court denies the Department's motion to quash on the grounds defendant failed to comply with the notice requirements of CPLR § 2307.

The Department next contends defendant's subpoena must be quashed because he is not entitled to complainant's school disciplinary and psychological records, or other records regarding the incident, and that he has failed to demonstrate that the Department's records contained information related to his guilt or innocence of the charges in this case.

Defendant argues he is entitled to review the records because they contain information concerning complainant's alleged psychological condition that is material to his ability to testify, that complainant's alleged school disciplinary history contains information about prior bad acts which defendant could use at trial to impeach complainant's credibility, and that there may be statements and interviews from witnesses regarding the incident that gave rise to these charges.

A defendant's right to discovery in criminal matters is generally limited to those afforded by CPL §240. (People v Colavito, 87 NY2d 423, 427) However, a defendant may subpoena records held by a third party provided he make a good faith offer of "some 'factual predicate' which would make it reasonably likely that the information sought would establish the unreliability of either the criminal charge or the complaining witness." (In the Matter of Covenant House 21, 169 AD2d 723, 724 [citing People v Gissendanner, 48 NY2d 543, 550].) The "factual predicate" must bear on the "hard issues of guilt or innocense" (Gissendanner, supra at 550), have "particular relevance to the defendant's case" (Id. at 549), and demonstrate the relationship between the material sought to be subpoenaed and the prosecution for the particular crime charged. (Id., People v Coleman, 75 Misc 2d 1090, 1092.) Defendant's general or conclusory allegations that he needs the subpoenaed information will not support his application for a subpoena (Coleman, 75 Misc 2d at 1092; People v Santana, 175 AD2d 821) which must be quashed if need for disclosure is not demonstrated. (Id., see e.g., Covenant House Under 21, 169 AD2d at 724.)

It is therefore proper to quash a subpoena served on a third party if defendant requests information for the purposes of general discovery (Gissendanner, supra, at 550), or in the hopes he may find something useful in the confidential records (Id.), or solely to impeach a witnesses credibility (Id. at 548-549; People v Scott, 212 AD2d 477, 478 [First Dept 1995].) In short, a subpoena cannot be used as a "fishing expedition for the purposes of discovery", (Gissendanner, supra at 550; People v Valentine, 160 AD2d 325 [First Dept 1990]) and be used to discover what would not be discoverable under the CPL.

Moreover, if there is a statutory prohibition to disclosure by the third party, a defendant is not entitled to receive subpoenaed materials. (In the Matter of Covenant House 21, supra at 724)[FN1] [*4]

In the case at bar, defendant seeks, inter alia, complainant's school psychological records.

As a general proposition, "[i]f a witness' mental condition could affect his/her ability to accurately perceive and recall, evidence of such condition is relevant in a criminal prosecution. The jury which must evaluate the witness' testimony should certainly be made aware if a witness has a history of [a mental illness]." (People v Collins, 173 Misc 2d 350, 355 [citing People v Rensing, 14 NY2d 210]; see also, People v Manzanillo, 145 Misc 2d 504, 506.) The issue may become particularly relevant if the People's only witness has a psychiatric history. [FN2] (Id.) Hence, a defendant may seek information from a third party, such as a mental healthcare provider, to establish a complaining witness is unreliable on the grounds he or she has a mental illness. (People v Lowe, 96 Misc 2d 33, 37-38)

While mental health records may be subpoenaed from a third party, a defendant seeking them must still provide a factual predicate showing the information sought relates to the witnesses' ability to testify, or, the unreliability of the criminal charge i.e. the hard facts of guilt or innocence. (People v Manzanillo, 145 Misc 2d 504, 509)

Defendant first argues he is entitled to the complainant's psychological records because the complainant has psychological issues that may affect his ability to testify at trial. To support this argument defendant states, for the first time, in his opposition to the Department's motion to quash, "[o]n information and belief, the complaining witness has a psychiatric history requiring treatment and a significant history of disciplinary problems at school. ... [T]he incident underlying this criminal charge occurred while the complainant was assigned to the schools 'detention room,' as a result of behavioral misconduct at school. Further, upon information and belief, the complainant ... has been suspended from the school on numerous occasions." (Defendant's Affirmation in Opposition to Motion to Quash Subpoena Duces Tecum, at page 2, paragraph 2.) There is no other information provided.

Here, defendant has failed to demonstrate that the records sought in paragraph "b." of his subpoena, seeking all records, documents, etc., "any and all information concerning guidance, counseling, history of behavior problems, and/or history of mental, emotional and/or psychological condition" relates to the People's prosecution against him for Endangering the Welfare of a Child (PL § 260.10 [1]) or Harassment in the second degree (PL § 240.26 [1]). Defendant only provides unsupported allegations that the complainant has an alleged mental illness. Defendant does not show how complainant's alleged behavioral problems, or his alleged psychological condition, is in any way equivalent to the type of mental illness that would prevent a witness from testifying, or require the court's intervention to make a determination that a jury [*5]must be made aware of complainant's mental illness (compare, People v Lowe, 96 Misc 2d 33, supra [court had knowledge of long-standing, ongoing mental illness of sole witness to a crime based upon defendant's investigation and complaining witness' testimony that he suffered from brain damage that impaired his thinking and communicating abilities].)

Defendant next argues that he is entitled to have the subpoenaed psychological records first reviewed by the court in camera so the court may determine if there is any Brady material that must be disclosed to defendant, and relies on People v Manzanillo (145 Misc 2d 504, supra) to support this contention. In Manzanillo, defendant, who was charged with sexual abuse in the third degree (PL §130.55) and endangering the welfare of a child (PL § 260.10 [1]), sought the Department of Education's psychological records concerning a fourteen year old remedial student attending a special education program. (Id. at 505.) There the court found defendant did not make a sufficient showing that he was entitled to access the complainant's records. (Id. at 509.) However, the court did order an in camera inspection of the complainant's psychological records held by the Department to determine if there was potential Brady material that should be turned over to defense counsel. (Id.)

While there is no allegation of learning disability or psychological or other disabilities suffered by the complainant, counsel does allege that complainant has numerous suspensions from school. If complainant has disciplinary issues, information in the files may very well contain Brady material.

Accordingly, the Department's motion to quash defendant's subpoena of the complainant's psychological records is denied to the extent that it is to provide the materials as stated above.

Defendant further argues that the Department's file may contain reports and statements from the complainant and the Department's employees concerning the incident that gave rise to these charges, and in this regard demands, in paragraph "a." of his subpoena, "any and all reports, statements, and materials of whatever kind and nature concerning the alleged March 8, 2004 incident between the [complainant] and the teacher Osagie Ehigie."

While this court has opined, for the reasons stated above, that defendant is not entitled to use the subpoena deuces tecum to obtain evidence of the complaining witnesses prior bad acts, the information concerning the alleged incident contained in the Department's records, if any, that were produced to memorialize the March 8, 2004 incident, may also constitute Brady material.

Accordingly, the Department's motion to quash the subpoena is denied to the extent that it is to provide any written investigation reports and witness statements to the court for an in camera inspection.

Defendant finally requests in paragraph "c." of his subpoena, "any and all accusations of misconduct made at any time by the student ... against Department of Education (or, formerly, Board of Education) personnel." Here, defendant has not made any showing that these records relate to the complainant's reliability as a witness or to the underlying charge. As this information is sought only for general discovery and/or impeachment purposes, its disclosure is not permitted. (See, Gissendanner, 48 NY2d at 550; Scott, 212 AD2d 477, 478, supra; Valentine, 160 AD2d 325, supra.)

Likewise, defendant's argument that because he would be entitled to review complainant's student records in an employee disciplinary proceeding under Education Law § 3020, he is also [*6]entitled to them here, (as this criminal proceeding is of due process and constitutional dimensions) is also rejected. Defendant's rights to discovery in this criminal matter are limited to those set forth in CPL 240, which is his exclusive means of discovery for this proceeding.

Accordingly, the Department's motion to quash the subpoena as to providing the materials demanded in paragraph "c" of defendant's subpoena, (any and all accusations of misconduct made at any time by the student ... against Department of Education (or, formerly, Board of Education) personnel) is granted.

Defendant's argument that the Department's records should be provided pursuant to his subpoena deuces tecum because they contain Rosario material is also rejected. In People v Rosario, the court held a defendant is entitled to review the prior statements of the People's witnesses for cross examination purposes "[a]s long as the statement relates to the subject matter of the witnesses' testimony and contains nothing that must be kept confidential." (People v Rosario, 9 NY2d 286, 289.) As a matter of practice, the People turn Rosario material over to defense at the opening of their case, as required by the CPL. (CPL §240.45 [1] [a][calling for Rosario material to be produced, "[a]fter the jury has been sworn and before the prosecutor's opening address"]; Preiser, McKinneys Cons Laws of NY, Book 11A, CPL 240.45 at 7) Hence,

there is no obligation, at this pre-trial stage, for the People to turn over Rosario material (Id.) Moreover, the People are not responsible for the disclosure of statements that are not within their actual or constructive possession. (People v Flynn, 79 NY2d 879, 882; People v Ortiz, 209 AD2d 332, 334 [1 Dept 1994].) Thus, any controversy concerning what would constitute Rosario material for a particular witness is best resolved by the trial court. (See, e.g., People v Gallardo, 173 AD2d 636, 636; People v Alejandro, 175 AD2d 873, 873.) Accordingly, defendant's argument that the Department's records should be disclosed because they constitute Rosario material is at best premature; accordingly, defendant's application for disclosure via his subpoena duces tecum on Rosario grounds is denied.

The Department is ordered to provide the above mentioned materials to the court by delivering the same to:

Chambers of the Honorable Ira H. Margulis

Bronx Criminal Court, Room 9-14

215 East 161 Street

Bronx, New York 10451

on or before August 16, 2004.

FACIAL SUFFICIENCY

Defendant moves to dismiss the first count of the accusatory instrument alleging Assault in the third degree (PL 120.00 [1]) on the grounds that it is facially insufficient. (CPL §§ 100.40; 100.15 [3]; 170.30 and 170.35 [1] [a])

In order for a count of a misdemeanor information to be facially sufficient, the factual portion must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense charged. The non-hearsay allegations, if true, must establish every element of the crime and the defendant's commission of the crime. (CPL § § 100.15 [3], 100.40 [l]; People v. Alejandro, 70 NY2d 133, 137-39.) In addition, [*7]conclusory allegations will not support a jurisdictionally valid accusatory instrument. (People v. Dumas, 68 NY2d 729, 731)

PL §120.00 (1) provides: "A person is guilty of assault in the third degree when with the intent to cause physical injury to another person he causes such injury to such person. "Physical injury" is defined in PL § 10.00 (9) as an "impairment of physical condition or substantial pain." Notwithstanding, it has been long held that "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives" are not within the definition. (See, In re Phillip A., 49 NY2d 198, 200 [citing the Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330]; People v Rodriguez, 158 AD2d 376, 376-377 [First Dept 1990] leave denied 75 NY2d 969.)

In the instant case, the complainant states the defendant's actions caused him to "suffer substantial pain ... such that deponent sustained swelling to his forehead and sought treatment at a local Bronx Hospital." There are no other facts provided concerning the complainant's pain or any additional facts supporting a physical impairment.

Here, the bare allegation that the complainant suffered "swelling to his forehead" without additional facts, does not prove that he suffered any impairment to the degree requires by PL § 120.00 (1). (In re Phillip A., 49 NY2d at 200; see e.g. People v Jiminez, 55 NY2d 895, 896; People v Oquendo, 134 AD2d 203, 204; People v Strong 179 Misc 2d 809.) In addition, the complainant's bare allegation that he experienced "substantial pain", absent any facts to lead to that conclusion also fail to support the charge of Assault in the third degree. (Dumas, 68 NY2d at 731.) Finally, the fact that the complainant "sought treatment at a local Bronx Hospital", without more, does not support the allegation that he suffered a physical injury. (People v Contreras, 108 AD2d 627.)

Accordingly, defendant's motion to dismiss the first count in the accusatory instrument is granted.

DISCOVERY AND BILL OF PARTICULARS:

The People are ordered to provide responses to defendant's Discovery Demand and Demand for Bill of Particulars to the extent they have not already done so.

SANDOVAL/VENTIMIGLIA:

Issues arising under Sandoval and Ventimiglia are referred to the trial judge.

BRADY:

The People are reminded of their continuing duty to supply all Brady material.

RESERVATION OF RIGHTS:

The defendant's application for an extension of time to file additional motions is denied subject to rights under CPL §255.20 (3) to move for further leave upon good cause shown.

The foregoing constitutes the decision and order of this court.

Dated:November 4, 2004

Bronx, New York Judge of the Criminal Court Footnotes

Footnote 1:20 USC 1232g (2) (B) prohibits educational agencies and institutions, including the New York City Department of Education, who receive federal funding, from disclosing personally identifiable information in educational records unless it is "furnished in compliance with a judicial order, or pursuant to a lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith." Unlike the statute in Covenant House 21, this prohibition is not absolute, and allows for disclosure in response to a lawfully issued subpoena.

Footnote 2: In addition, "[i]f the only evidence against the defendant is the testimony of one witness, the prosecutor is obligated under Brady to investigate such witness to ascertain if any condition impairs such witnesses' ability to perceive, interpret, or recall events." (People v Collins, 173 Misc 2d at 353.) Here it is unclear whether complainant and defendant were alone when the alleged incident occurred. If the complainant is the only witness against defendant, the People have a duty to ascertain if complainant has a psychiatric condition which would prevent him from testifying, which must be made known to defendant.