Hughes v Farrey

[*1] Hughes v Farrey 2006 NY Slip Op 50424(U) [11 Misc 3d 1067(A)] Decided on January 26, 2006 Supreme Court, New York County Beeler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2006
Supreme Court, New York County

Donna M. Hughes, Plaintiff,

against

Paul F. Farrey, Defendant.



101633/04

Harold B. Beeler, J.

Plaintiff Donna M. Hughes moves to compel defendant Paul F. Farrey to submit to an examination before trial and to enforce a previous court order of discovery. Defendant cross- moves inter alia for a protective order vacating the notice of deposition on the ground that submission thereto will violate defendant's constitutional right against self-incrimination.

Plaintiff argues in opposition to the cross-motion that the deposition will not require disclosure of privileged matter because the prohibition against double jeopardy precludes his deposition testimony from being used against him in any criminal prosecution.

FACTUAL BACKGROUND

Plaintiff and defendant married on April 6, 2002. Two months later defendant voluntarily moved out of the marital residence. On June 17, 2002, the parties dined with others at a restaurant and returned to their apartment where they argued. According to plaintiff, defendant then stabbed her with a knife in the abdomen and the arm and tried to force her to swallow muscle relaxants. A neighbor called the police who arrived and arrested defendant.

Defendant was charged in a felony complaint with one count of Attempted Murder in the Second Degree and one count of Assault in the First Degree. In support of these charges, the complaint read as follows: The defendant, with intent to cause the death of another person, attempted to cause the death of such person; and the defendant, with intent to cause physical injury to another person, caused such injury to another person by means of a dangerous instrument.The offenses were committed under the following circumstances:Deponent is informed by Donna Hughes, of an address known to the District Attorney's Office, that informant observed defendant stab her numerous times [*2]about the abdomen and upper right arm causing deep stab wounds to the abdomen and upper right arm and substantial pain, and thereafter observed defendant try to force informant to swallow multiple sleeping pills. (Emphasis added.)

Thereafter, defendant waived grand jury indictment and was prosecuted by a three count Superior Court Information. The first count charged him with An Attempt to Commit the Crime of Murder in the Second Degree in violation of Penal Law §§ 110/125.25(1) in that "defendant, in the County of New York, on or about June 17, 2002, with intent to cause the death of another person, attempted to cause the death of Donna Hughes." The second count accused the defendant of the crime of Assault in the First Degree in violation of Penal Law §120.10(1) in that "defendant . . . with intent to cause serious physical injury to another person, caused such injury to Donna Hughes, by means of a dangerous instrument, to wit, a knife." The third count accused defendant with Assault in the First Degree under subdivision Penal Law §120.10(3) charging that "under circumstances evincing a depraved indifference to human life, [defendant] recklessly engaged in conduct which created a grave risk of death to another person and thereby caused serious physical injury to Donna Hughes."

On December 11, 2002 defendant pled guilty to the third count of the Superior Court Information, Assault in the First Degree in violation of Penal Law §120.10(3) in full satisfaction of the charges contained therein. In his plea allocution defendant admitted stabbing plaintiff with a knife but made no mention of forcing her to swallow sleeping pills or muscle relaxants. Defendant was subsequently sentenced to a five-year definite prison term under which he is currently incarcerated.

Thereafter, plaintiff commenced the instant civil action alleging battery, intentional and negligent infliction of emotional distress, and negligence. By decision and order, dated March 9, 2005, this Court granted plaintiff's motion for summary judgment with respect to the first and second causes of action for battery based upon defendant's having stabbed plaintiff with a knife. The Court held that, as a result of his guilty plea and admissions to the use of the knife, defendant was collaterally estopped from denying the conduct which underlay these causes of action.

The third cause of action, also for battery, which was not the subject of the summary judgment motion, alleges that defendant forced plaintiff to swallow muscle relaxants. Defendant contends that he remains subject to criminal prosecution for this conduct until the five-year statute of limitations for felonious assault expires because the Superior Court Information by which he was prosecuted never charged him with any crime in relation thereto. Defendant further argues that a future prosecution remains a possibility because the tort of battery involves intentional conduct whereas the crime of Assault in the First Degree (Penal Law §120.10(3)) to which he plead guilty contains the different element of recklessness.

Plaintiff maintains that defendant's actions of repeatedly stabbing her with a knife and then immediately thereafter forcing her to swallow muscle relaxants or sleeping pills as she lay nearly unconscious constitute parts of the same "criminal transaction." Since Criminal Procedure Law §40.20(2) bars prosecution for two offenses based upon the same criminal transaction, plaintiff contends that defendant is not entitled under the facts of this case to invoke his right against self-incrimination.

DISCUSSION [*3]

The Right Against Self-Incrimination and Its Application to Civil Proceedings

The Fifth Amendment to the United States Constitution protects individuals from being compelled to testify against themselves. It applies to the states through its incorporation into the Constitution's Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6-11 (1964).

For a witness in a civil case, the right against self-incrimination differs from that retained by a defendant in a criminal case. See e.g. Steinbrecher v. Wapnick, 24 NY2d 354 (1969). The right in a civil case is not absolute. Id. A witness cannot refuse altogether to be deposed. Id. The privilege must be asserted in response to specific questions. CPLR § 4501 ("A competent witness . . . [is not required] to give an answer to a [relevant question] which will tend to accuse himself of a crime"); see also State v. Carey Resources, 97 AD2d 508, 509 (2d Dep't 1983). Blanket refusals to answer all questions are not permitted. State v. Carey Resources, Inc., 97 AD2d at 509 ("a blanket refusal to answer cannot, absent unique circumstances not present here, be sustained"). Furthermore, the right against self-incrimination does not relieve the witness of explaining its invocation. Access Capital v. DeCicco, 302 AD2d 48 (1st Dep't 2002). The witness cannot refuse to answer without asserting that answering would have an incriminating effect. Steinbrecher, 24 NY2d at 361-362.The right against self-incrimination may be invoked so long as there is a realistic possibility, not a probability, that the answer to a question can be used in any way to convict him of a crime. Hoffman v United States, 341 U.S. 479, 486 (1951).

The witness is deemed the best judge of whether an answer will be incriminating, unless it is perfectly clear that the witness is mistaken. David Webb, Inc. v. Rosenstiel, 66 Misc 2d 29 (Sup. Ct. New York County 1970), affd 36 AD2d 691 (1st Dep't 1971). The witness is especially given the benefit of the doubt in the pre-trial stage. Estate of Lee B. Fisher v. Commissioner of Internal Revenue, 905 F.2d 645, 649-50 (2d Cir. 1990) (Defendant is not required to prove the hazard of self-incrimination with the same burden required to establish a claim, citing Hoffman). However, where it is clear that a prosecution would be barred by double jeopardy or the statute of limitations, a witness may not invoke the privilege against self-incrimination. Brahm v. Hatch, 169 AD2d 263 (3d Dep't 1999).

Double Jeopardy

The Fifth Amendment to the United States Constitution protects against a second prosecution for the same offense in what is commonly known as the "double jeopardy" clause. Specifically, it encompasses three protections: against a second prosecution for the same offense after acquittal, against a second prosecution after a conviction, and against multiple punishments for the same offense. See e.g. Grady v. Corbin, 495 U.S. 508 (1990). Like the Fifth Amendment protection against self-incrimination, double jeopardy is applicable to the states through the Due Process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). The New York State Constitution's double jeopardy provision Art I, § 6 also prohibits a person from being placed twice in jeopardy for the same offense.

In Blockburger v. United States, 284 U.S. 299, 304 (1932), the United States Supreme Court enunciated the test as to whether a subsequent prosecution violates the Constitution's double jeopardy clause: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." [*4]

Like many other jurisdictions, New York has enacted legislation which provides greater double jeopardy protection than that afforded under the basic federal constitutional standard under Blockburger. CPL Article 40; see People v. Dean, 56 AD2d 242, 247 (4th Dept 1977). A successive prosecution in New York must be lawful under New York's heightened protective standard regardless of whether such prosecution would otherwise pass muster under Blockburger. Besides barring a second prosecution for the same offense, CPL § 40.20(2) prohibits a second prosecution for two offenses based upon the same act or criminal transaction defined as follows:

Conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point in time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.

A witness is entitled to invoke the right against self-incrimination as long as it is reasonably possible that he may face a successive prosecution, notwithstanding the protection afforded by CPL § 40.20(2). Estate of Fisher v. Commissioner, 905 F.2d 645, 650 (2d Cir. 1990) ("the claimant must show a reasonable possibility that his own testimony will incriminate him, not establish it by a preponderance of the evidence"). However, even under a reasonable possibility standard, any further prosecution of the instant defendant for his alleged criminal conduct toward plaintiff in their apartment on June 17, 2002 is barred by the double jeopardy rule.

In arguing that he may still be charged with additional crimes defendant erroneously focuses on his guilty plea rather than on the nature of the previous prosecution. In this regard, defendant ignores the definition of a previous prosecution found in CPL § 40.30 for purposes of determining the propriety of the second proceeding pursuant to CPL § 40.20. CPL § 40.30(1)(a) states that "a person is prosecuted' for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or any jurisdiction within the United States, and when the action (a) Terminates in a conviction upon a plea of guilty; or (b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn." A Superior Court Information and a felony complaint are accusatory instruments. CPL § 1.20(1). "A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court . . . [and] (b) includes the filing of all further accusatory instruments directly derived from the initial one." CPL § 1.20(16).

A review of the Superior Court Information and the felony complaint in the underlying criminal action reveals that defendant is incorrect in arguing that there was no previous prosecution for any offense based upon an attempt to force plaintiff to swallow pills. The felony complaint and the Superior Court Information charged him with the crime of Attempted Murder in the Second Degree for trying to force plaintiff to swallow sleeping pills. Furthermore, the criminal action terminated with defendant's plea of guilty to Reckless Assault in the First Degree, the third count of the Superior Court Information. For purposes of CPL Article 40 it is irrelevant that defendant's guilty plea was to a crime against plaintiff with a knife rather than to one based upon forced ingestion of pills. Any plea, as long as it resulted in the termination of the criminal action, precludes subsequent prosecution for any offenses charged in either of the two accusatory [*5]instruments. Accordingly, defendant cannot be again prosecuted for the crime of Attempted Murder in the Second Degree since that offense was charged in both the felony complaint and the Superior Court Information.

Defendant could be prosecuted for another offense under two possible statutory exceptions: if the new offense has substantially different elements and is based in the main on acts clearly distinguishable from those of the previously-adjudicated offense (CPL § 40.20(2)(a)), or if the latter offense contains an element which is not an element of the earlier offense and the statutory provisions of the offenses are designed to prevent very different kinds of harm or evil (CPL § 40.20(2)(b)). The first exception would not apply to defendant because a prosecution for forcing plaintiff to swallow sleeping pills would be based on the identical acts underlying the charge of Attempted Murder in the Second Degree terminated by his guilty plea.

A subsequent prosecution for Reckless Endangerment in the First Degree might be a feasible exception under CPL § 40.20(2)(b) because it contains an element not found in the earlier offense. The charge of Reckless Endangerment in the First Degree involves recklessly engaging in conduct which creates a grave risk of death to another, under circumstances evincing a depraved indifference to human life. That is distinct from Attempted Murder in the Second Degree which involves a defendant with intent to cause the death of another, attempts to cause that person's death.

CPL § 40.20(2)(b) has a second prong to examine in order to determine if an exception to double jeopardy applies, whether the statutory provisions of the offenses are designed to prevent very different kinds of harm or evil. Both crimes seek to criminalize the risk created by an actor's conduct. See People v. Chrysler, 85 NY2d 413 (1995). Each crime addresses the same kind of harm or evil as the other by their mutual focus on the prevention of grave injury or death to another. There is no reasonable possibility that CPL § 40.20(2)(b) would allow for a subsequent prosecution for Reckless Endangerment in the First Degree.[FN1] See Schmidt on behalf of McNell v. Roberts, 74 NY2d 513, 522-523 (1989) (Because both crimes are "intended to punish thieves and to protect the interests of property owners . . . the instant case falls outside the exception of CPL 40.20(2)(b)"); Wiley v. Altman, 52 NY2d 410, 414 (1981) (Petitioner could not be prosecuted in New York under CPL § 40.20; his case did not fall within the exception contained in CPL § 40.20(2)(b) because "both the Maryland prosecution, based though it was on that State's conspiracy statute, and the present prosecution for murder under this State's laws were directed at a like goal; punishment for the unlawful taking of a particular human life").

Accordingly, there is no valid constitutional or statutory basis for defendant to resist being deposed. Plaintiff's motion to compel defendant to submit to a deposition is granted and defendant's cross-motion to vacate the notice of deposition is denied. Other Discovery Issues [*6]

Defendant's application to stay any further discovery pending appeal of the Court's prior order granting plaintiff's motion for partial summary judgment is denied. To the extent plaintiff has not already provided defendant with medical authorizations for all treatment relating to the claims herein, she is directed to do so on or by March 8, 2006. Having provided no lawful basis for his noncompliance, defendant is directed to answer plaintiff's interrogatories and respond to plaintiff's document request on or by March 8, 2006.

WHEREFORE, it is hereby

ORDERED, that plaintiff's motion to compel defendant's deposition is granted and defendant's cross-motion to vacate the notice of deposition and stay all further discovery pending appeal of the Court's prior partial summary judgment order is denied; and it is further

ORDERED, that plaintiff's motion to compel defendant to answer plaintiff's interrogatories and respond to plaintiff's document requests is granted and defendant is directed to comply on or by March 8, 2006; and it is further

ORDERED, that defendant's cross-motion to compel plaintiff to provide medical authorizations is granted to the extent that plaintiff has not previously provided the requested medical authorizations and plaintiff is directed to comply on or by March 8, 2006; and it is further ordered

ORDERED, that plaintiff serve this order with notice of entry upon defendant forthwith. This constitutes the decision and order of the Court.

Dated: January 26, 2006 E N T E R :

__________________________

HAROLD B. BEELER, J.S.C. Footnotes

Footnote 1:A subsequent prosecution for either Attempted Intentional Assault in the First Degree or Attempted Intentional Assault in the Second Degree would be impermissible even under the less restrictive Blockburger constitutional standard since each of these crimes is the "same" offense as Attempted Murder in the Second Degree because no additional must be established if Attempted Murder in the Second Degree has been proven. See People v. Biggs, 1 NY3d 225, 230-31 (2003) (Holding that Intentional Murder in the Second Degree and Manslaughter in the First Degree are the same crime for purposes of double jeopardy because it is impossible to intend to kill a person without simultaneously intending to seriously physically injure him).