People v Soto

[*1] People v Soto 2007 NY Slip Op 51435(U) [16 Misc 3d 1115(A)] Decided on July 17, 2007 Supreme Court, Queens County Erlbaum, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 1, 2007; it will not be published in the printed Official Reports.

Decided on July 17, 2007
Supreme Court, Queens County

The People of the State of New York

against

Frankie Soto, Defendant.



3141/2006

William M. Erlbaum, J.

The People have filed a demand for reciprocal discovery dated May 7, 2007, and a motion to compel disclosure dated May 30, 2007, seeking the release of audio recordings of the complainant made by investigators employed by defendant's counsel.[FN1] The defendant concedes that such recordings exist and that he is in possession of said recordings. He has filed two affirmations, one dated May 14, 2007 and one undated, in opposition to the People's demand and motion seeking disclosure.

The defendant is charged under indictment number 3141/2006 with Tampering with a Witness in the Third, Criminal Contempt in the First Degree, and related charges. On December 18, 2006, the People served the defendant with a demand for discovery. The People submit that they are entitled to the audio recordings in question as disclosure is required under the discovery provisions of the Criminal Procedure Law.[FN2] The defendant submits that he is under no obligation to release the recordings to the People because he has no intent to introduce the audio recordings at trial on his case. Furthermore, he states that he does not plan to introduce the audio recordings [*2]for impeachment purposes.[FN3]

CPL 240.30[1][b] states that upon a demand by the People, a defendant shall "disclose and make available to them for inspection, photographing, copying or testing . . . any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial". CPL 240.10[4] defines "at the trial" as part of either the People's or defendant's

direct case.[FN4]

Based upon the plain language of CPL 240.30[1][b] and CPL 240.10[4], the People's motion for disclosure is denied. The statutes indicate that the defendant is only required to disclose the recordings if he intends to use them at trial, and the defendant has stated that he has no such intent.

The Court has considered the holding of People v. Perez, 171 Misc 2d 76 [NY Sup. Dec 05, 1996], aff'd, 272 AD2d 86 [1st Dept 2000], leave denied, 95 NY2d 837 [2000], relied upon by the People. In that case, the People moved to compel the defendant to release to them a copy of tape-recorded interviews by the defense of the complainant. The defendant opposed on the ground that there was no authority for the court to sanction such disclosure. The Court held that CPL 240.30 was controlling and that the People were entitled to the tapes. However, unlike the case at bar, the defendant in Perez did not state that he had no intention of using the tapes at trial.[FN5] Therefore, Perez is distinguishable from the case at bar. [*3]

Additionally, in the instant case, the People argue that even if a defendant does not intend to introduce into evidence a recording, disclosure of the recording is still required when the defendant "reasonably predicts" (see, Perez, id. at 77) using the evidence for impeachment purposes. The People submit that it is reasonably predictable that the defense in this case will be using the recordings, or their contents, for impeachment purposes should there be any inconsistencies in the complainant's testimony at trial, and therefore the tapes should be released to the People. However, the People have not provided this Court with any compelling New York authority substantiating this proposition. Though the People cite Perez to support this argument, the underlying cited authority is the holding in an Oregon Court of Appeals case (see, State v. Young, 94 Ore App 683 [1989]) interpreting Oregon's discovery statutes, discussed in Perez.[FN6] In fact, the court in Perez based much of its analysis on the laws of sister states. Therefore, without any controlling or persuasive New York case law, and in light of the plain language of CPL 240.30[1][b], this Court is not swayed by the People's position.

Accordingly, the People's motion for disclosure of the audio recordings of the complainant which are in the possession of the defendant is denied at this time. The defendant is ordered to preserve the tapes in question subject to any application that may be made at trial based on circumstances as they may evolve.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

................................

William M. Erlbaum, J.S.C. Footnotes

Footnote 1: Though the People specifically request an audio recording made on April 25, 2007, the defendant states that he is in possession of two recordings, one made on April 25, 2007, and another made on June 14, 2007. This decision will treat the People's request as seeking disclosure of both recordings.

Footnote 2: The People also submit that the tapes are not protected from disclosure as attorney work product. As the defendant does not dispute this allegation, there is no need for the Court to address this argument.

Footnote 3: On page 2 of his undated affirmation, at paragraph 5, defense counsel states, "At this time we do not plan to introduce the tapes for the purpose of impeachment". Though the defense is apparently being very precise with his choice of words, specifically the clause "at this time," the Court would note that the essence of the defendant's position is that he does not intend to use the recordings at trial.

Footnote 4: This Court also interprets "at the trial" to include evidence introduced by either party during cross-examination of a witness proffered by the other party on their direct case, i.e. impeachment evidence (see also, People v. Sean C., 205 AD2d 302 [1st Dept 1994], appeal denied, 83 NY2d 1007 [1994]). For example, if the defendant were to introduce evidence which would impeach a witness presented on the People's direct case, that evidence would be introduced "at the trial", and depending on the evidence, disclosure may be required.

Footnote 5: The Court notes that the Perez court stated, at page 78, that defense counsel, in opposing release of the tapes, did "not take refuge behind the word intend". In using the word "refuge" this Court wonders if the Perez court would have reached a different conclusion, and would not have granted disclosure of the tapes, had defense counsel also stated that the defense had no intention of using the tapes at trial.

Footnote 6: The issue regarding discovery of the tape recordings was not discussed in the appeal of Perez, 272 AD2d 86 [1st Dept 2000], leave denied, 95 NY2d 837 [2000].