People v Denham

[*1] People v Denham 2009 NY Slip Op 52156(U) [25 Misc 3d 1216(A)] Decided on October 19, 2009 Supreme Court, Westchester County Molea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2009
Supreme Court, Westchester County

The People of the State of New York

against

Kevin Denham, Defendant.



09-0424



Honorable Janet DiFiore

Westchester County District Attorney

County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. Adam D. Citron

Louis A. Ecker, Esq.

Ecker & Ecker, LLP

Attorneys for Defendant

One Executive Blvd.

Yonkers, New York 10701

Richard A. Molea, J.

Upon consideration of the order to show cause submitted on behalf of the defendant, the Court has reviewed the following papers: order to show cause and affirmation in support of counsel for the defendant, Louis A. Ecker, Esq., and the affidavit in opposition and memorandum of law of Assistant District Attorney Adam D. Citron.

RELIEF REQUESTED

By order to show cause, the defendant moves the Court for various forms of relief including: (1) the entry of an order directing the complainant to provide handwriting exemplars to the defense at the direction of an expert forensic document examiner for forensic analysis and comparison with two handwritten letters alleged by the defense to have been drafted by the complainant, and (2) the entry of an order authorizing the expenditure of $1,500.00 by the defense in order to obtain the additional services of a forensic document examiner pursuant to County Law §722-c.

FACTUAL BACKGROUND

[*2]Under the instant indictment, the defendant is charged with a single count of Burglary in the first degree in violation of Penal Law § 140.30(2), five counts of Rape in the first degree in violation of Penal Law § 130.35(1), two counts of Criminal Sexual Act in the first degree in violation of Penal Law § 130.50(1), a single count of Robbery in the second degree in violation of Penal Law § 160.10(2)(a), a single count of Assault in the second degree in violation of Penal Law § 120.05(6), and a single count of Criminal Possession of Stolen Property in the fifth degree in violation of Penal Law § 165.40. The charges brought against the defendant under the instant indictment are derived from allegations that the defendant unlawfully entered the home of the female complainant, repeatedly raped and sodomized her by forcible compulsion and forcibly stole a quantity of US currency and jewelry from her person after punching and choking her with his hands. The victim promptly reported these crimes to law enforcement authorities and identified the defendant as the perpetrator of same. Subsequent to the defendant's apprehension for the crimes alleged by the complainant, he provided the police with a signed typewritten statement through which he contradicted the complainant's account of his conduct and alleged, in substance, that he had engaged in consensual sexual activity with the complainant when he is alleged to have committed the crimes charged.

On April 15, 2009, the defendant was arraigned on the instant indictment before the Westchester County Court (Cohen, J.) and entered a plea of not guilty to all counts charged therein. On May 29, 2009, the defendant filed an omnibus motion with the Westchester County Court (Cohen, J.) seeking various forms of relief which included an application to compel the People to obtain a handwriting exemplar from the complainant. By Decision and Order, filed and entered on July 21, 2009, the Westchester County Court (Cohen , J.) denied that branch of the defendant's omnibus motion which sought to compel the taking of a handwriting exemplar from the complainant by specifically holding that "[t]he defendant's application to have the court order the People to obtain handwriting samples from the complainant is denied". By Trial Readiness Order, filed and entered on July 21, 2009, the Westchester County Court (Cohen, J.) transferred the instant indictment to the Trial Assignment Part (TAP) presided over by this Court, through which an unspecified issue identified as "Handwriting Analysis" was directly referred to this Court. The defense submits that the referral of the "Handwriting Analysis" issue to this Court constitutes leave to re-present his application seeking to compel the complainant to provide a handwriting exemplar to the defense.

In support of the instant application, the defense alleges that the defendant received two handwritten letters from the complainant while he was incarcerated in the Westchester County Jail awaiting the trial of this matter. The defense further claims that the content of these letters would constitute exculpatory material if they were able to forensically establish that the complainant authored them. In an effort to establish the complainant's authorship of the two letters at issue, the defense submitted these letters and a known sample of the complainant's handwriting contained within a file maintained by the Westchester County Clerk's Office to an expert forensic document examiner for forensic analysis and comparison. The report prepared by the forensic document examiner for the defense, submitted as Exhibit C to the instant defense application, indicates that the known sample of the complainant's handwriting was not sufficient for comparison with the two handwritten letters alleged by the defense to have been drafted by the complainant due to the fact that the former sample was drafted in print style writing whereas [*3]the latter sample was drafted in cursive style writing. Accordingly, the defense submits that a known sample of the complainant's cursive style handwriting is required to enable the forensic document examiner to offer an expert opinion regarding the defendant's allegation that the complainant authored the two handwritten letters he claims to have received at the Westchester County Jail.

CONCLUSIONS OF LAW

The defendant moves this Court pursuant to the United States Constitution, the New York State Constitution and CPL 240.40(2)(b)(vi)[FN1] to enter an order directing the complainant to provide a sample of cursive handwriting for forensic analysis and comparison with the two handwritten letters alleged by the defense to have been drafted by the complainant. In support of the instant application, the defense claims that the results of the proposed forensic analysis and comparison of the complainant's cursive handwriting sample might constitute exculpatory material for use by the defense at trial.[FN2]

In the first instance, the Court notes that the defendant's instant application does not concern a request for the disclosure of material which is alleged to be in the possession of the People or other law enforcement authorities, rather it concerns a request that the complainant be compelled to provide a handwriting sample under the authority of a court order despite the fact that she is neither charged with, nor suspected of, the commission of any offense under the law. Upon recognition of the defendant's failure to support the instant application with any specific legal precedent authorizing the extraordinary relief requested herein, the Court will first turn to an analysis and discussion of the legal authorities which govern the issue presented.

With respect to the principles of fundamental fairness which govern pre-trial discovery in criminal cases in this State, the Court notes that there is no general constitutional right to discovery in criminal cases under either the United States Constitution (see, Weatherford v. Bursey, 429 US 545) or the New York State Constitution (see, Matter of Miller v. Schwartz, 72 NY2d 869, 870). Moreover, it is beyond cavil that the courts possess no authority derived from

the common law to order discovery (see, People v. Colavito, 87 NY2d 423, 426).[FN3] Indeed, it is [*4]now well-settled law in this State that the exclusive authority of the courts to order discovery in criminal proceedings is governed by the terms of CPL Article 240 (People v. Copicotto, 50 NY2d 222, 225), which specifically identifies that material which is subject to discovery by the defense prior to trial to the exclusion of that material which is not identified therein from the scope of discovery (see, People v. Colavito, supra, at 427; Matter of Brown v. Grosso, 285 AD2d 642, lv. denied 97 NY2d 605; Matter of Pittari v. Pirro, 258 AD2d 202; Matter of Pirro v. LaCava, 230 AD2d 909). Stated succinctly, the courts do not possess the authority to grant pre-trial discovery in a criminal case where no statutory basis is provided in CPL Article 240 (Matter of Sacket v. Bartlett, 241 AD2d 97; Matter of Pirro v. LaCava, supra, at 910). As a plain reading of CPL Article 240 reveals that a handwriting sample obtained from the complainant in a criminal case is not among the specifically itemized material subject to discovery pursuant to the terms of the statute, the defendant has failed to establish that the relief requested is statutorily authorized.

Similarly, the defendant may not be heard to rely upon a claimed constitutional right to the disclosure of such material, as the courts have definitively declined previous invitation to provide for any constitutional right to enhanced discovery in criminal cases, irrespective of the seriousness of the charges pending against a defendant or the potential sentence which may be imposed (see, Brown v. Appelman, 241 AD2d 279; People v. Davis, 184 Misc 2d 680; People v. Campos, 176 Misc 2d 637). Likewise, the defendant may not seek to circumvent or enhance the limited discovery provided under CPL Article 240 by the use of a trial court's subpoena power (People v. Terry D., 81 NY2d 1042; Matter of Constantine v. Leto, 157 AD2d 376, affd 77 NY2d 975). Furthermore, the principles of equity underlying reciprocal discovery pursuant to CPL 240.40(1)(c)[FN4] do not provide for a different result here, as the defense has failed to establish either that the People would seek to introduce a sample of the complainant's handwriting on their direct case at trial, or that such evidence would bear upon the guilt or innocence of the defendant, or is otherwise material to his defense.

Of further significance to the Court's consideration of the alleged materiality of such evidence, it is noted that the defense has failed to support the instant application with an affidavit from the defendant indicating that he is familiar with the complainant's handwriting style and that he believes that the complainant is the author of the letters defense counsel claims to have been received by the defendant at the Westchester County Jail. Under such circumstances, the Court must conclude that the defense has failed to establish a reasonable probability that the complainant was the author of the subject letters at issue, which compels the denial of the defendant's instant application for an order directing the complainant to provide the defense with a sample of cursive handwriting for forensic analysis and comparison (see, People Fewell, 43 [*5]AD3d 1293, lv. denied 9 NY3d 1033, recon. denied 10 NY3d 862).

Based upon the foregoing, as the Court finds that the defendant has failed to establish any legal entitlement, derived from either applicable statutes or principles of constitutional law, to an order compelling the complainant to provide a handwriting sample for forensic analysis in this case, the defendant's instant application is summarily denied in its entirety.

Any other applications of the defendant are denied, as no further relief has been shown to be appropriate.

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

October 19, 2009

Honorable Richard A. Molea

Acting Justice of the Supreme Court

TO:

Honorable Janet DiFiore

Westchester County District Attorney

County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. Adam D. Citron

Louis A. Ecker, Esq.

Ecker & Ecker, LLP

Attorneys for Defendant

One Executive Blvd.

Yonkers, New York 10701 Footnotes

Footnote 1:Although the defendant specifically cites CPL 240.40(2)(7) as authority for the disclosure he seeks through the instant application, the Court will consider the application as having been brought pursuant to CPL 240.40(1)(c) in the interest of justice, as CPL 240.40(2)(b)(vi) applies solely to discovery applications brought upon motion of the prosecutor.

Footnote 2: Of course, the character of the results of the forensic analysis and comparison of the complainant's cursive handwriting sample as exculpatory would be dependent upon the forensic document examiner's determination that the complainant was the author of the two handwritten letters alleged to have been received by the defendant while he was incarcerated at the Westchester County Jail.

Footnote 3: Despite the absence of authority for the courts to order discovery, the prosecution is independently obligated to disclose to the defense both exculpatory material pursuant to Brady v. Maryland (373 US 83) and Giglio v. United States (405 US 150), as well as potential impeachment material pursuant to People v. Rosario (9 NY2d 286) and People v. Consolazio (40 NY2d 446).

Footnote 4: CPL 240.40(1)(c) provides, in pertinent part, that the court "may order discovery with respect to any other property, which the People intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable".