Wong v State of New York

[*1] Wong v State of New York 2008 NY Slip Op 50813(U) [19 Misc 3d 1122(A)] Decided on March 31, 2008 Ct Cl Ferreira, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2008
Ct Cl

David Wong, Claimant, v State of New York, Defendant.



111078



Claimant's attorney:Beldock, Levine & Hoffman LLP

By: Sofia Yakren, Esq.

Jonathan C. Moore, Esq.

Defendant's attorney:Hon. Andrew M. Cuomo

Attorney General of the State of New York

By: Michael Rizzo

Assistant Attorney General

James H. Ferreira, J.

This Decision and Order arises from a motion to compel discovery of documents in a claim for unjust conviction and imprisonment under Court of Claims Act § 8-b. On March 12, 1986, inmate Tyrone Julius was stabbed while in the prison yard at Clinton Correctional Facility and subsequently died. On July 13, 1987, claimant David Wong (hereinafter "claimant") was convicted of the crime of murder in the second degree for the death of Julius. Thereafter, he was sentenced to a term of imprisonment of 25 years to life to be served consecutively to his prior sentence for robbery.

By decision and order dated September 30, 2003, County Court (Lawliss, J.) denied claimant's motion to vacate the judgment of conviction. Upon appeal, the Appellate Division reversed the trial court's order, vacated the judgment of conviction and remanded the matter for a new trial (see People v Wong, 11 AD3d 724 [2004]). The Court concluded that had certain "newly discovered evidencebeen received at trial, a probability exists that the verdict would have been more favorable to (defendant)" (id. at 727). Specifically, the Court noted, among other [*2]things, the credible recantation of a former inmate's testimony, the testimony from witnesses who identified another inmate as the perpetrator, inconsistencies in the testimony of a correction officer who purportedly witnessed the stabbing and certain medical evidence involving the absence of blood on claimant's person or clothing (see id.). During December 2004, the trial court granted the People's motion to dismiss the indictment.

During March 2005, claimant served a notice of intention to file a claim, and during June 2005, the claim was commenced pursuant to § 8-b of the Court of Claims Act. Issue was joined and discovery ensued.

Claimant now brings a motion to compel discovery, and defendant opposes the motion. On October 5, 2007, a conference with the Court was held to discuss claimant's motion to compel. By interim order dated October 15, 2007, the Court directed an in camera review of the following documents:

1.A diagram and/or layout of the Clinton Correctional Facility;

2.Any unusual incident reports of killings which took place at the Clinton Correctional Facility during the three years immediately preceding the date of the alleged murder herein, or March 12, 1986;

3.Personnel files of DOCS Officers Richard Francis La Pierre, Roger Nelson, Michael Anthony Tolosky, Theodore Michael Rascoe, William Lawless, Mark Gordon Wood, Gerard Renadette, Henry Raymond Venne and John Douglas Carey;

4.Medical records of inmate Nelson Gutierrez; and

5.Pathology report(s) of inmate Tyrone Julius.

Defendant complied with the Court's order, and an in camera review of the documents was conducted. The Court now makes the following findings of fact and conclusions of law with respect to claimant's motion to compel.

Civil Practice Law and Rules 3101 (a) provides that " [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." It is well settled that trial courts "possess a wide discretion to decide whether information sought is material and necessary' to the prosecution or defense of an action" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]; see also American Assn. of Bioanalysts v New York State Dept. of Health, 12 AD3d 868, 869 [2004]). "The words, material and necessary', are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Pub. Co., supra at 406).

While the Allen court construed the phrase "material and necessary" to mean "relevant" (see id. at 406-407), trial courts must balance the "competing interests concerning the need for such discovery . . . against any special burden to be borne by the opposing party' " (American [*3]Assn. of Bioanalysts v New York State Dept. of Health, supra at 869, citing Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998] [citations omitted]; see also Matter of Town of Pleasant Val. v New York State Bd. of Real Prop. Servs., 253 AD2d 8, 16 [1999] [trial court must balance the needs of the party seeking discovery against opposing interests such as confidentiality, prejudice or delay]). Moreover, the determination of what is material and necessary, and therefore discoverable, is left to the sound discretion of the lower courts (Andon v 302-304 Mott Street Assocs., 94 NY2d 740, 746 [2000]; see also Nitz v Prudential-Bache Securities, 102 AD2d 914, 915 [1984]).

Diagram of the Clinton Correctional Facility

The Court finds that a diagram of the correctional facility where the incident occurred is relevant to the claim particularly as it may be used to identify the location of various individuals at the time of the incident. Moreover, defendant conceded that the diagram is relevant during the Court's conference on October 5, 2007 and in its opposing papers. Accordingly, defendant is directed to provide claimant's counsel with a copy of the diagram subject to a stipulation and protective order limiting use of the diagram to the preparation or presentation of the claim, and ensuring that such document be kept separate and apart from the publicly available files of this claim.

Unusual Incident Reports and Information on Other Killings

In response to the Court's order for in camera review, defendant produced (1) investigatory reports, photographs and documents pertaining to two previous killings at the facility and (2) a log of incidents at the facility. As to the former, the Court finds no relevance that those killings, which occurred in 1983 and 1985, have any relevance to the killing of Julius in March 1986. Claimant proffers that such information would "provide vital context for the officers' handling of the criminal investigation of Julius's killing ... For instance, a frequent pattern of killings could suggest a climate in which officers face pressure ... to resolve crimes quickly in order to appear attentive and competent." The Court finds these arguments to be speculative and unpersuasive. Moreover, two prior killings do not connote a "frequent pattern." In any event, having reviewed these documents, it is incongruous how such documents for two different deadly assaults at the same facility would be relevant to claimant's ability to prove his innocence by clear and convincing evidence, as required by § 8-b of the Court of Claims Act (see Mike v State of New York, 11 Misc 3d 384, 387 [Ct Cl 2005]). Accordingly, the Court finds that the files and materials relative to these other killings are not relevant to, or probative of, claimant's innocence.

As for the log of unusual incident reports from January 1983 through February 20, 1987, the Court notes that claimant did not request disclosure of the log and, accordingly, the log is being returned to defendant. However, to the extent that the log contains an entry relative to the March 12, 1986 death of Julius, the Court directs defendant to disclose the entry and any incident report arising from Julius's death.[FN1] The materials may be relevant to claimant's case and must be [*4]disclosed in full (see Griffith v State of New York, #2007-015-233, Claim No. 110936, Motion No. M-73668 [Court permitted "only those reports relating to the incident giving rise to the instant claim" to be disclosed]). Any information related to incidents other than the March 12, 1986 death of Julius that appear on that entry page must be redacted.

Personnel Records

The court directed defendant to produce for in camera review the personnel files of correction officers Richard Francis La Pierre, Roger Nelson, Michael Anthony Tolosky, Theodore Michael Rascoe, William Lawless, Mark Gordon Wood, Gerard Renadette, Henry Raymond Venne and John Douglas Carey. Except for the personnel files of Nelson and Lawless, whose files were apparently destroyed pursuant to document retention guidelines, the remaining files were produced by defendant for in camera review.

Under Public Officers Law § 87 (2) (a), an agency may deny access to public records which are "specifically exempted from disclosure by state or federal statute." Civil Rights Law § 50-a-1 provides, with respect to the personnel records of corrections officers, as follows:

"All personnel records, used to evaluate performance toward continued employment or promotion, under the control of ... a department of correction of individuals employed as correction officers ... shall be considered confidential and not subject to inspection or review without the express written consent of such ... correction officer ... except as may be mandated by lawful court order."

"The legislative purpose [behind the statute] was to prevent disclosure of officers' personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding" ( Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155 [1999]). This requirement is designed to curtail fishing expeditions into police personnel files and thereby prevent the release of irrelevant and potentially damaging information (Pickering v State of New York, 30 AD3d 393, 394 [2006]).

Defendant contends that the officers were not notified pursuant to Civil Rights Law § 50-a. In support of that position, defendant relies on Matter of Dunnigan v Waverly Police Department, 279 AD2d 833 [2001], lv denied 96 NY2d 710 [2001]. In Dunnigan, petitioner sought the personnel records of a police officer whose investigation led to petitioner's conviction of several crimes. Respondent objected to such production and moved to dismiss on the ground that petitioner failed to join the police officer as a necessary party. The court agreed that the officer was an interested party who should be given an opportunity to be heard, and that the officer would be "inequitably affected by any judgment rendered in the proceeding" (id. at 835; see also Telesford v Patterson, 27 AD3d 328 [2006] [police officer against whom inmate had filed excessive force complaint was necessary party to inmate's proceeding seeking disclosure of audiotape interview of officer made by Civilian Complaint Review Board as he would be [*5]inequitably affected by any judgment rendered in the proceeding]; CPLR § 1001[a]).

Conversely, the instant claim does not seek relief for any alleged improprieties by the officers. Nor is there anything in the record to suggest that the officers would be inequitably affected by any judgment rendered in this claim for unjust conviction and imprisonment. Accordingly, the Court is not persuaded by defendant's argument that the officers should have been notified pursuant to Civil Rights Law § 50-a.

Nonetheless, a review of the officers' personnel files reveals that the records are, in large part, not "relevant and material in the action" before it (Civil Rights Law § 50-a [3]). The Court has examined each of the personnel files in question and finds that, except for a few documents in Officers Lapierre, Venne and Carey's files [FN2], no other documents in the officers' files can be characterized as relevant and material to the March 12, 1986 murder of Julius. Each personnel record is comprised largely of basic personnel forms, probation evaluations, performance evaluations and ratings, commendations, disciplinary and counseling records and payroll and personnel information. Generally, such personnel records are exempt from disclosure under Civil Rights Law 50-a [1]( see Matter of Gannett Co. v James, 86 AD2d 744, 745 [1982], appeal denied 56 NY2d 502 [1982]. In any event, none of these documents are relevant to the claimant's cause of action for unlawful conviction and imprisonment (compare Pickering v State of New York, 30 AD3d 393 [2006] [documents in state police investigator's personnel file relating to his training and performance were relevant to claimant's causes of action for negligent hiring or negligent training when passenger in vehicle was shot by the investigator]). For these reasons, except for the aforementioned documents from the personnel files of Officers Lapierre, Renadette and Venne, the Court denies claimant's request for the disclosure of the officers' personnel files.

Inmate Medical Record

The Court finds that portions of Gutierrez's medical records shall be disclosed to claimant. Those records include any documents evidencing (1) interactions between Gutierrez and medical personnel on March 12, 1986; (2) injuries to Gutierrez's leg and/or his ability to walk; and (3) Gutierrez's incarceration at Rikers Island and any treatment received by him for injuries sustained while incarcerated there. Disclosure of such information is material and necessary to claimant's assertions that he did not murder Julius and that, in fact, Gutierrez was responsible for Julius's death. Specifically, the claim for unjust conviction and imprisonment is replete with assertions that the person who murdered Julius walked with a limp, and that such person was Gutierrez, whose leg had been broken during an incident involving Julius at Rikers Island. Additionally, since Gutierrez is deceased, disclosure of his medical records would not constitute an unwarranted invasion of personal privacy or endanger the life or safety of any [*6]person (compare Matter of John H. v Goord, 27 AD3d 798 [2006]; Matter of Argentieri v Goord, 25 AD3d 830 [2006]; Matter of Di Rose v New York State Dept. of Correctional Servs., 226 AD2d 846 [1996]).

Pathology and Related Documents Concerning Julius

The claim alleges, among other things, that the wounds that caused the death of Julius would have resulted in blood on the attacker, and that no such blood was found on claimant or his clothing.

In light of these allegations, the Court further finds that copies of certain documents related to Julius's death are relevant to the claim and must therefore be disclosed. Those documents include the three page New York State Police Laboratories Report dated May 29, 1986; the seven page pathology report prepared by the Champlain Valley Physicians Hospital dated March 24, 1986; and the New York State Department of Health certificate of death signed March 25, 1986.Accordingly, it is hereby

ORDERED that M-73302 is granted in part and denied in part in accordance with the Court's foregoing decision: and it is further

ORDERED that defendant shall disclose to claimant the following documents, as prescribed herein, within 20 days from the filing date of this decision and order:

Diagram and/or layout of the Clinton Correctional Facility;

Entry in the unusual incident log concerning the death of Tyrone Julius on March 12, 1986, and any attendant incident report prepared as a result of that death;

Excerpts from the personnel files of Officers LaPierre, Venne and Carey as prescribed by this decision;

Portions of the medical records of Nelson Gutierrez as prescribed by this decision; and

The pathology and laboratory reports of Tyrone Julius as prescribed by this decision. Footnotes

Footnote 1:The interim order for in camera review also directed the production of any unusual incident reports involving killings at the facility on March 12, 1986. Based on the Court's review of the log on the date of the fatal stabbing, it appears the death of Julius was annotated for recordkeeping purposes as CL#2494. To the Court's knowledge, no unusual incident report arising from that incident was produced. If such document exists, it must be disclosed to claimant within 20 days of the filing of this decision (see Roy v State of New York, #2003-031-081, Claim No. 101202, Motion No. M-66732 [October 31, 2003]); Pope v State of New York, #2003-013-008, Claim No. 106277, Motion Nos. M-65872, CM-65927 [March 20, 2003]).

Footnote 2: From Officer Lapierre's file: Letter dated July 15,1987 from District Attorney to Superintendent, Clinton Correctional Facility; Subpoena Duces Tecum dated July 6, 1987; Subpoena For County Court dated June 23, 1987; Grand Jury Subpoena dated September 3, 1986; NYSDOCS Interdepartmental Communication dated March 20, 1986 regarding Unusual Incident #2494. From Officer Venne's file: Subpoena for County Court dated June 23, 1987; Grand Jury Subpoena dated September 3, 1986. From Officer Carey's file: Subpoena for County Court dated June 23, 1987; Grand Jury Subpoena dated September 3, 1986.