People v Butler

[*1] People v Butler 2018 NY Slip Op 28330 Decided on October 22, 2018 Supreme Court, New York County Farber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 22, 2018
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Melvin Butler, Defendant.



03479N/2017



For the People:

Office of the Special Narcotics Prosecutor

Bridget G. Brennan, Special Narcotics Prosecutor

80 Centre Street

New York, NY 10013

By Assistant District Attorney Daniel J. Koevary

(212) 335-9000

For the Defendant:

The Legal Aid Society

49 Thomas Street

New York, NY 10013

By Angela Chuang, Esq.

(212) 298-5000
Curtis J. Farber, J.

The New York County Defender Service (hereinafter the "NYCDS"), by Angela Chuang, Esq., moves to quash two trial subpoenas issued by the Office of the Special Narcotics Prosecutor for the City of New York (hereinafter "the People"), calling for production of a videotape in the possession of the Defendant's trial counsel. It is uncontested that the videotape at issue is a "copy" of surveillance footage obtained by an investigator in the employ of defense counsel. The investigator acquired a DVD of the video footage from a business located near the scene of the alleged crime. The People believe the videotape will show an attempted sale of crack cocaine between an unapprehended woman and the Defendant, as well as an ensuing struggle between the Defendant and police officers.

The People served defense counsel with the two trial subpoenas on July 18, 2018. One, a subpoena duces tecum, calls for production of the surveillance video purportedly depicting the incident underlying the criminal action. The second, a subpoena ad testificandum, calls for the appearance of a NYCDS employee to testify to the authenticity of the videotape and its chain of custody. The People have filed a memorandum of law in opposition to the motion to quash.

Background and Procedural History

On September 13, 2017, the Defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [1]) and Resisting Arrest (Penal Law § 205.30). On September 19, 2017, the Grand Jury voted an indictment as to both these charges, as well as for Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06 [5]). On October 10, 2017, the Defendant was arraigned on the indictment.

It is alleged, in sum and substance, that on September 13, 2017 at approximately 5:25 p.m., opposite 71 West 112th Street in New York County, Police Officer Juan Espinal observed a woman, with money in hand, walk toward the Defendant who was holding a small object. As police officers approached, the Defendant attempted to place this object in his mouth. A struggle ensued between the Defendant and the officers, during which three small bags containing crack cocaine fell to the ground. A subsequent search of the Defendant's person resulted in the seizure of 15 additional bags of crack cocaine.

Within days of the Defendant's criminal court arraignment, defense counsel sent an investigator to the arrest location to canvas nearby businesses for surveillance video. This investigator was able to obtain a "copy" of footage from one business which assertedly depicts all, or part of, the incident.[FN1] At this investigator's request, the store personnel copied this surveillance footage onto a DVD, with the original surveillance footage remaining at the business location.

The People pursued an antipodal course to a timely investigation. It was not until over eight months had passed, that the People sent any police officers or investigators to the scene to look for surveillance video capturing the incident. By that time, they were unable to obtain any videotape footage from September 13, 2017.

The People first learned that defense counsel was in possession of surveillance footage when they reviewed recordings of the Defendant's telephone calls placed while in custody. On March 16, 2018, more than six months after Defendant's arrest, the People had served a subpoena upon the New York City Department of Corrections for recordings of the Defendant's telephone calls for the period from September 13, 2017 to October 16, 2017. The People received a compact disc containing Defendant's calls on May 8, 2018. In those calls, the Defendant is captured in conversations with unknown third parties stating that his lawyer had sent an investigator to retrieve video of the events leading up to his arrest and the arrest itself. The People cite to one call, from September 23, 2017, in which a woman tells the Defendant that she has seen the video and that it showed the Defendant sitting and talking to two girls, the police approaching, and thereafter Defendant with his hands on the wall.

On May 10, 2018, the People asked defense counsel for a copy of the videotape. Defense counsel refused this request. The People indicate that on May 16, 2018, they then sent an [*2]investigator to the scene and identified two locations which could have video of the arrest location. Workers at both locations informed their investigator that while they had surveillance camera systems, neither retained video from the date at issue.[FN2]

On May 16, 2018, the People made a motion to compel discovery, pursuant to CPL § 240.20 (2). On June 13, 2018, defense counsel responded in opposition to the People's motion.

On July 10, 2018, this Court denied the People's motion to obtain the videotape, ruling it was not subject to reciprocal discovery. CPL § 240.30 (1) states, in relevant part: "Except to the extent protected by court order, upon a demand to produce by the prosecutor, a defendant against whom an indictment . . . is pending shall disclose and make available for inspection, photographing, copying or testing, subject to constitutional limitation: (b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial." (Emphasis added). Because defense counsel indicated that she did not intend to introduce the videotape at trial, this Court ruled the defense was not obligated to provide the People with access to the recording. As such, this Court did not address the constitutional issue raised by the defense, specifically, that being required to turn over the results of their investigation to the prosecution would infringe upon the Defendant's Sixth Amendment constitutional right to the effective assistance of counsel by creating a chilling effect on counsel's obligation to conduct a full and comprehensive investigation of their client's case.

On July 18, 2018, the People served defense counsel with the two subpoenas currently at issue. The subpoenas seek the exact same surveillance videotape which this Court found the People were not entitled to receive under the reciprocal discovery statute.

Analysis

While there are circumstances where the People may obtain evidence by subpoena duces tecum, pursuant to Article 610 of the Criminal Procedure Law, they may not use their subpoena power to circumvent the statutory limitations on their right to reciprocal discovery. "Items not enumerated in Article 240 are not discoverable as a matter of right unless constitutionally or otherwise specifically mandated." (People v. Colavito, 87 NY2d 423 [1996]; Johnson v. Sackett, 109 AD3d 427, 429 [1 Dept 2013], lv denied 22 NY3d 857 [2013] ["It is well settled that neither the defendant nor the court has the 'authority to compel pretrial discovery in criminal cases that is unavailable pursuant to statute, and prohibition lies to prevent an attempt to do so'."]; People v. Perry, 70 AD3d 1063 [3d Dept 2010], lv denied, 14 NY3d 804 [2010]). As previously noted, the discovery statute expressly exempts from defense counsel's reciprocal discovery obligations the production of videotape evidence in their possession, if they do not intend to introduce that evidence at trial.

In this case, the People have failed to demonstrate an applicable exception to the statutory limitations on reciprocal discovery, which would enable them to circumvent the limits of CPL § 240.30 by seeking non-discoverable evidence through their subpoena power. The [*3]People do not contend, nor is there any basis to find, that the defense took possession of the original surveillance tape with the intent of precluding the People from obtaining the evidence through their own investigation. Access to the videotape evidence was equally available to both the prosecution and defense. However, the People made no effort to send either police officers or investigators from the Office of the Special Narcotics Prosecutor to canvass the arrest location for surveillance evidence until eight months after Defendant's arrest, despite the likelihood that businesses located near the crime scene would have recorded the interaction.

It should hardly have come as a surprise to the People that the surveillance video had been deleted by the time they sought it out. It is well known that most video recordings are routinely destroyed or over-written after a short retention period. Even the New York City Police Department ("NYPD") has a recognized policy of destroying 911 recordings after a retention period of three months. (See, e.g., People v. Randolph, 261 AD2d 154 [1st Dept 1999], lv denied 93 NY2d 1025 [1999]). Thus, it was incumbent upon the People to seek out the surveillance evidence on their own, in a timely manner. Having failed to do so, the People cannot now encroach upon the NYCDS's work on behalf of their client to obtain materials that, with the exercise of a minimum of due diligence they could have obtained through their own investigation, and which they believe will aid them in obtaining a conviction.

It is well-established that neither the People nor the defense are obligated to secure evidence which the other party can obtain for themselves, including surveillance videotapes. (CPL §§ 240.20[2], 240.30[2]; People v. McClain, 53 AD3d 556 [2d Dept 2008], lv denied 11 NY3d 791 [2008] [where defendant knew of the possibility that surveillance tape of the incident existed, and believed it would be exculpatory, the prosecutor had no obligation to obtain, by subpoena duces tecum, demanded material which the defendant could himself obtain]). Here, there is no allegation that the Defendant or his counsel in any way caused the destruction of the original videotape. Yet, the People demand access to defense counsel's copy because they did not seek out the videotape on their own from the original source in a timely fashion. The People's current inability to obtain their own copy does not constitute an exceptional circumstance sufficient to justify an intrusion into the investigative findings of the defense.

Notwithstanding their failure to exercise due diligence, the People maintain they are not seeking to obtain discovery at all, but rather, they are seeking specific evidence for trial, which is properly obtained by use of their subpoena power. (Constantine v. Leto, 157 AD2d 376 [3d Dept 1990], affirmed 77 NY2d 975 [1991]). The Court finds this argument unpersuasive. Unlike cases where the prosecution or defense sought items by subpoena that were not listed within Article 240 of the Criminal Procedure Law, the videotape the People are seeking is specifically excluded from disclosure under CPL § 240.30, if, as here, the defense is not intending to introduce it at trial. Thus, while the use of a subpoena duces tecum would have be appropriate to obtain the videotape from the third-party business owner, if voluntary compliance was lacking, it cannot be used to circumvent the limitations of the discovery statute, or to interfere with the attorney-client relationship. As CPL § 240.30 specifies, the People's right to reciprocal discovery from the defense is constrained by constitutional limitations.

The People attempt to equate this subpoena to the defense subpoena duces tecum at issue in People v. Giler, 19 Misc 3d 1137(A) (Crim Ct, NY County 2008). In Giler, defense counsel served the NYPD with a subpoena duces tecum for a precinct station house surveillance video which captured an altercation underlying the assault and resisting arrest charges against his client. The NYPD was a non-party to the criminal action, just as the business owner in this case [*4]is the non-party. The defendant sought discovery pursuant to CPLR § 2307, for records in the control of a department, bureau or agency of the state. The defendant was not seeking a videotape in the possession of the People. As Giler pointed out, the videotape would not have been discoverable from the People under CPL § 240.20, even if in their possession, unless the People either intended to introduce it at trial, or it contained exculpatory material. In denying the motion to quash, the court found the defendant was properly using his right to compulsory process, under the Sixth Amendment, to obtain evidence from a non-party which was vital to his defense. Giler supports the right of the People in this case to subpoena the surveillance tape from the business which had recorded it. However, it provides no support for the People to obtain by subpoena, non-discoverable evidence from a party, here the Defendant's attorney. People v. Duran, 32 Misc 3d 225 (Crim Ct, Kings County 2011), also cited by the People, likewise involved a defense subpoena upon non-party NYPD for videotapes. The Duran court denied the NYPD's motion to quash, noting that the videotape, relevant and material to the issues at trial, would otherwise be unavailable to the defense because the People had no duty to disclose the tape unless they intended to introduce it at trial. None of the cases cited by the People involve a defense subpoena against the prosecutor, to obtain production of a videotape in their possession, which they did not intend to introduce at trial. (See also, People v. Swygert, 57 Misc 3d 913 [Crim Ct, Bronx County 2017]). Instead, these cited cases involve videotapes in the custody of non-parties.

The cases cited by the People, in which the prosecution properly subpoenaed evidence from defense attorneys, are readily distinguishable from the current situation. In those cases, the items being sought involved actual contraband, instrumentalities, or fruits of crimes, which would otherwise have been beyond the reach of law enforcement, by the mere fact that a defendant turned them over to his or her attorney. For example, People v. Kimes, 37 AD3d 1 (1st Dept 2006), lv denied 8 NY3d 881 (2007), involved a far different situation than the one before this Court. In Kimes, the Appellate Division rejected the defendant's constitutional challenges to the introduction of evidence obtained by a prosecution subpoena, which had been served on a private investigator, hired by the defendant's attorney. The evidence at issue in Kimes involved the contents of a duffel bag that the defendant, Sante Kimes, had checked at the Plaza Hotel. At her direction, the duffel bag was retrieved from the hotel by the private investigator. The duffel bag contained a gun as well as fraudulent documents created to finalize the theft of a townhouse from Irene Silverman, the 82-year old woman whom Ms. Kimes and her son were charged with having murdered. Kimes found no violation of the defendant's constitutional rights by the subpoena of the duffel bag from the private investigator. The documents recovered did not contain privileged communications. They were not created by the defendant to consult with her defense counsel. Instead, the documents had been prepared during the planning stages of the crime. Thus, the gun and the documents were contraband as well as actual instrumentalities of the crime. The court further determined that the defendant's right to the effective assistance of counsel, under the Sixth Amendment, was not infringed upon when the People called the private investigator on their direct case at trial. Kimes emphasized that the investigator was not an employee of the defense attorney, nor was he part of the "defense team." Rather, he was a private investigator, hired only to do preliminary investigative work on the case. The present case is distinguishable from Kimes, both because it does not involve actual instrumentalities of a crime, and because the investigator herein is an employee of defense counsel, working with the defense in preparing the case for trial.

In their opposition to the motion to quash, the People place reliance upon cases involving Grand Jury subpoenas. The standards for issuance and review of Grand Jury subpoenas, however, are not equivalent to those for trial subpoenas. The People cite to In Re M.B. v. F.T., 39 Misc 3d 1208(A) (Sup Ct, Bronx County 2013), in which a Grand Jury subpoena was served upon the defendant's attorney, calling for production of a videotape of the incident under investigation. The decision in M.B. v. F.T., in ordering compliance with the subpoena duces tecum, emphasized the broad investigatory powers possessed by the Grand Jury, which are presumptively valid. Nonetheless, even in the Grand Jury setting, the court discussed the need for careful scrutiny when a subpoena is served upon a defendant's attorney. In addition to good faith, the People must show both a lack of alternative sources to obtain the evidence, and the necessity of the evidence. Once those requirements are satisfied, the reviewing court must balance the Grand Jury's interests against the potential chilling effect upon, inter alia, the Defendant's Sixth Amendment rights. The Grand Jury in M.B. v. F.T., had no alternative access to the video of the incident in question, as the original itself was in the defense attorney's possession. In the current action, as previously noted, the People had access to an alternative source, the third-party in custody of the original recording, but failed to pursue it.[FN3] Further, as the court in M.B. v. F.T., explained, the issue of contravention of the discovery provisions of CPL § 240.30 was not before it, since the discovery statute does not come into play until after an indictment has been voted. Moreover, the evidence sought in this case, while relevant, has not been shown to be necessary to the prosecution. The People had already announced their readiness for trial when they served these subpoenas on the defense. They were prepared to prove their case with the police eyewitnesses who are alleged to have observed the Defendant's possession of the cocaine, and who could testify to the events leading up to his arrest. On the other hand, the chilling effect of intruding upon the results of the defense investigation is evident. Defense attorneys will fear taking possession of videotape evidence, or obtaining other evidence by their own investigation, i.e., photographs of the scene, which could bring forth inculpatory material which the People might thereafter seek to obtain by subpoena.

To grant the People access to the fruits of this defense investigation would impinge upon the Defendant's right to the effective assistance of counsel under the New York State Constitution, Article I § 6, and the Sixth Amendment to the United States Constitution. The right to effective assistance requires a defense attorney to competently represent his client. (NYS Code of Professional Responsibility, Rules 1.1). In the exercise of that duty, a defense attorney is required to conduct a thorough pretrial investigation. The failure to do so may result in a finding that a defendant was not afforded meaningful representation. (People v. Oliveras, 21 NY3d 339 [2013]; Strickland v. Washington, 466 US 668, 690-691 [1984]). Recently, in People v. Cruz, 152 AD3d 822 (3d Dept 2017), lv denied 30 NY3d 1018 (2017), the Appellate Division remitted the criminal action to the trial court for a hearing on defendant's CPL § 440.10 motion, wherein the defendant argued he had been denied the assistance of counsel. In Cruz, the defendant was convicted of robbing a man as they sat on the steps of a building, on a public street. Cruz noted that the trial evidence established that defense counsel had been aware that [*5]the incident occurred in an area surrounded by businesses with security cameras. Despite this, defense counsel failed to conduct a pretrial investigation, to ascertain whether those security cameras captured the incident, which could have undercut the victim's claim that defendant had robbed him. Cruz held that: "If defense counsel failed without reason to investigate known proof that had the potential to corroborate defendant's account of events, it 'may have amounted to less than meaningful representation'." (Id. at 825). Here, defense counsel is duty-bound to obtain surveillance tape of the incident, and to ascertain its value to its client's defense.[FN4]

This Court concludes that the People do not have the right to access to the videotape from the defense investigation, where that investigation in no way impeded the People's ability to obtain the same evidence by their own means. The People's failure to seek the evidence in a timely fashion cannot become a basis to obtain the fruits of the defense's own investigation, which are subject to constitutional limitation.

Conclusion

Defendant's motion to quash the prosecutor's subpoena duces tecum, and subpoena ad testificandum, served upon them on July 18, 2018, is hereby GRANTED in all respects.

This constitutes the Decision and Order of the Court.

Dated: October 22, 2018

New York, New York

CURTIS J. FARBER, A.J.S.C. Footnotes

Footnote 1: The Court has not viewed this video, and other than conjecture, neither side has affirmatively stated what, in fact, was captured on the video.

Footnote 2: The People's submission to the Court is wanting in significant details regarding the nature of their efforts to obtain the surveillance videotape directly from the third-party. For example, the People did not provide this Court with an affidavit from their investigator, which could have set forth the locations visited, the identities of the persons the investigator spoke to (who do not appear to have been the store owners or managers), and what those individuals told the investigator about the retention policies for the surveillance video. Instead, the People simply assert the investigator was told the footage no longer existed.

Footnote 3: The People's argument that the third-party storeowner might not have cooperated is pure speculation, since they did not seek the video in a timely fashion. Moreover, when they did attempt to obtain the videotape after eight months, the workers at the stores did not refuse to comply, but instead, indicated the tapes no longer existed.

Footnote 4: The People suggest that if defense counsel believes it cannot be effective if it might later have to comply with a prosecution subpoena for any surveillance footage it obtains, it can avoid turning over inculpatory evidence by viewing the footage at the scene, but not taking custody of it. (People's Memorandum of Law, p. 19). However, this would be neither practical or reasonable. First, the defense attorney would have to conduct the search for surveillance footage, as it would surely be ineffective assistance to rely upon an investigator to determine if footage is inculpatory or exculpatory, in whole or in part. Moreover, a full investigation of the case would need to be conducted before the value of footage could be ascertained. To allow surveillance footage to be destroyed, rather than risk providing access to the prosecution, would create an untenable situation, at odds with defense counsel's duty to its client.