People v Cutting

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[*1] People v Cutting 2018 NY Slip Op 28374 Decided on November 30, 2018 County Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 30, 2018
County Court, Essex County

The People of the State of New York, Plaintiff,


Cody R. Cutting, Defendant.


Jason M. Carusone, Esq., Warren County District Attorney, acting as special district attorney for Essex County, and Matthew D. Burin, Esq., Assistant Warren County District Attorney), Lake George, New York.

O'Brien and Wood, PLLC (Kevin K. O'Brien, Jr., Esq., of counsel), Albany, New York, for the defendant.
Richard B. Meyer, J.

The People have submitted certain documents for in camera review and a determination as to whether the same constitutes material favorable to the defendant and should thus be disclosed to his attorney. Whether some or all of the documents constitute favorable material depends, in large part, upon whether the defendant will assert the defense of justification at trial. Notably, "a defendant is not statutorily required to provide the People with advance notice of a justification defense (cf. e.g. CPL 250.20), or to specifically plead justification (cf. CPL 220.15)" (People v. Singh, 139 AD3d 761, 763, 31 N.Y.S.3d 168, 171 [2d Dept., 2016], leave to appeal denied, 28 NY3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016]). In resolving the question of whether the documents constitute favorable material disclosable to the defendant, it will be assumed here that such a defense will be raised at trial.[FN1]

"When the accused claims that he acted in self-defense, it is competent to show the general reputation of the deceased for violence; but evidence of specific acts toward a third person, especially when it does not appear that the defendant had heard of it, is inadmissible. [*2]People v. Druse, 103 NY 655, 656, 8 N.E. 733; Thomas v. People, 67 NY 218; Eggler v. People, 56 NY 643; People v. Lamb, 41 NY 360-371." (People v. Gaimari, 176 NY 84, 95, 68 N.E. 112, 116, 14 Bedell 84 [1903]). In People v. Miller, 39 NY2d 543, 551-552, 384 N.Y.S.2d 741, 747-748, 349 N.E.2d 841, 847 (1976) , the Court of Appeals modified the "present New York rule . . . [so as] to permit a defendant in a criminal case, where justification is an issue, to introduce evidence of the victim's prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime of which the defendant stands charged, explaining

"Generally, character and reputation may not be proved by reference to specific acts, except to impeach the credibility of character witnesses. However, the crucial fact at issue, where a claim of justification is presented, is not the character of the victim, but, rather, the state of mind of the defendant. Knowledge of prior violent acts of the victim may weigh heavily upon the mind of a defendant when, as asserted, he moved to blunt the aggression of the victim. Indeed, knowledge of specific instances of violence by the victim may have a more significant impact on a defendant's mental state than any vague awareness of a general reputation for violence. A demonstrated capacity for acts of extreme violence will no doubt install a fear more quickly and more deeply than a veiled threat or knowledge of a generally violent proclivity. For this reason, we believe that a defendant, asserting at trial justification as a defense, ought to be permitted to adduce evidence of violent acts of the victim and his knowledge thereof. At the same time, however, the jury must be cautioned that this evidence may only be considered with respect to the issue of the reasonableness of defendant's apprehensions, and, further, that the character of the deceased and his specific past violent acts are not otherwise relevant to the issues before them.We can discern no valid distinction as to admissibility between violent acts that the victim directed at the defendant and acts which the victim directed towards identified third persons. The crucial factor is not who was the target of the violence, but that the defendant was aware at the time of the incident of the victim's past violent behavior.On the other hand, not all acts of violence committed by the victim in the past are necessarily relevant to the issues presented by a claim of justification. There may be instances where acts are too remote in time or of a greatly different quality than the one which the defendant accuses the victim of committing. In such cases, the trial court may, upon consideration of an offer of proof, decline, in the exercise of its sound discretion, to admit the proof into evidence. (McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559, Supra; 1 Wigmore, Evidence (3d ed.), s 198.) However, that some acts should properly be excluded does not justify a general rule of exclusion. The appropriate test is whether the acts sought to be proved relate reasonably, in time and quality, to the defense raised by the defendant."

Since it is the defendant's knowledge of prior acts of the victim that is important to his justification defense, it is crucial to a determination of disclosure that the defendant disclose any alleged specific acts of violence purportedly committed by the alleged victim of which the defendant was aware prior to the incident on April 22, 2018. Under the above-stated legal principles, the Court cannot be the source of information of any such prior acts attributed to the [*3]alleged victim. Therefore, the defendant is directed to submit to this Court no later than 12:00 o'clock noon on December 5, 2018 a list of any alleged specific acts of violence purportedly committed by the alleged victim against the defendant or any third party of which it will be claimed at trial the defendant had prior knowledge at the time of the April 22, 2018 incident alleged in the indictment. Such disclosure may be made in camera, should defense counsel so desire.

Additionally, the People are to submit a list of witnesses on or before the same date and time identifying who may testify at trial on the People's direct case since certain documents may be disclosable to the defendant in connection with cross-examination on the issue of credibility.

It is so ordered.



Richard B. Meyer, J.C.C. Footnotes

Footnote 1:New York's Criminal Procedure Law contains no mechanism by which the People may obtain advance notice that a defendant will assert a defense of justification, or obtain information on the basis for that defense such as by requesting a bill of particulars or discovery. This is just one of a number of ways in which criminal trials in this state constitute "trial by ambush" by both the People and the defendant.