Greg D. Lubow, Public Defender of Greene County, Catskill, for defendant.
Terry J. Wilhelm, District Attorney of Greene County, Catskill (Dominic J. Cornelius of counsel), for plaintiff.
Daniel K. Lalor, J.
Defendant is charged with two counts of assault in the second
degree in violation of Penal Law § 120.05 (3) and (7) arising out of an alleged incident at the Greene Correctional Facility in Coxsackie, New York, at 7:20 P.M . on September 11, 2000, wherein defendant is alleged to have " head butted" Correction Officer (C.O .) William F. Glasser, causing him physical injury consisting of a laceration to the forehead.
By omnibus motion defendant moved to dismiss " on the grounds that there has occurred a jurisdictional or legal impediment to the conviction of Mr. Nation based upon the People's improper accessing of various records maintained by the Department of Correctional Services (DOCS) and for which Mr. Nation has been promised 'use' immunity." (See CPL 210.20  [h].)
Defense counsel alleged, " upon information and belief, based upon our experience with other inmate cases," that DOCS " routinely provides" the Greene County District Attorney's Office with records generated by prison superintendent's disciplinary proceedings (Tier III proceedings) involving inmates who subsequently become defendants in criminal proceedings in this court. Defendant contends this practice is contrary to DOCS departmental regulation (7 NYCRR 251-3.1), and that receipt of such information by the District Attorney violates the " use immunity" provision of that regulation (7 NYCRR 251-3.1 [d] ). The People have acknowledged, in correspondence copied to the court prior to this case, that such materials, tapes and transcripts have at various times been obtained by them; however, they dispute that the practice is improper or that any violation of use immunity has occurred.
Notwithstanding the exchange of oral arguments on this issue upon the return date of the motion, the moving papers then contained no sworn allegations of fact, even upon information and belief, that this defendant in fact gave immunized testimony at a Tier III disciplinary proceeding in this matter. Accordingly, the motion to dismiss was denied, without prejudice to renewal upon sufficient specific factual allegations.
Defendant now has renewed his motion, providing factual allegations that defendant did testify at a Tier III hearing. The District Attorney has responded, first by affirmation that he has not heard any tape of a Tier III hearing involving this defendant, and in a supplemental affirmation that he " never received any information which was generated from such proceeding." The issue is thus now squarely before the court.
The regulation at issue (7 NYCRR 251-3.1 [d] ) provides that a written misbehavior report furnished to an inmate which forms the basis for a disciplinary hearing must state, " You are hereby advised that no statement made by you in response to the charge, or information derived therefrom[,] may be used against you in a criminal proceeding." Further, defense counsel affirms that this notice was stated to defendant by the hearing ...