July 15, 2013
The PEOPLE of the State of New York,
Victor GONZALEZ, Defendant. No. 2012BX057897.
This decision has been referenced in a table in the New York Supplement.
Harry M. Forman, Attorney at Law, Bronx, for Defendant.
Maria D. Melendez, Sidley Austin LLP, New York City, for in Motion LLP (non-party).
JEANETTE RODRIGUEZ-MORICK, J.
In this domestic violence case, Defendant is charged with Penal Law § 120.00(1) and related charges for allegedly assaulting his wife, complainant Perla Guerrera (" Complainant" ), on July 13, 2012.
By motion dated May 31, 2013, non-party inMotion, Inc. (" inMotion" ) moves to quash Defendant's subpoena duces tecum, dated April 22, 2013. For the reasons that follow, the motion to quash is GRANTED.
Defendant served a subpoena duces tecum on inMotion (the " Subpoena" ) demanding the production of all records and correspondence concerning Complainant's consultation with inMotion. (Melendez Aff., Ex. 1.) InMotion is a not-for-profit organization providing free legal services to, primarily, low-income women who are the victims of domestic violence. (Henderson Aff. 1, ¶ 2.) During a five-month period, between September 24, 2012, and January 9, 2013, Complainant consulted inMotion. ( Id. at 1-2, ¶ 3.)
After service of the Subpoena, discussions between the parties about the propriety and scope of the Subpoena ensued. InMotion's pro bono counsel, Maria D. Melendez of Sidley Austin LLP, sent a letter to defense counsel, Harry M. Forman, objecting to the Subpoena on the grounds that it was vague, ambiguous, and overly broad. (Melendez Aff., Ex. 2.) By letter dated May 19, 2013, Mr. Forman faxed a response stating, in part, " [t]he legal way to object to a Subpoena is to make a motion in court to quash it." ( Id., Ex. 3.) Mr. Forman refused to narrow the scope of the Subpoena and demanded that inMotion comply with the Subpoena, move to quash the same, or face a motion for contempt. ( Id. ) On May 20, 2013, and May 21, 2013, inMotion's counsel tried twice more, by telephone, to get Mr. Forman to narrow the scope of the Subpoena. ( Id. at 1, ¶ 5.) While explicitly denying inMotion's request to limit the Subpoena's scope, Mr. Forman did indicate that he was interested in documents and correspondence between Complainant and inMotion relating to " immigration relief' services she purportedly sought from inMotion." ( Id. at 1-2, ¶ 5.)
In moving to quash the Subpoena, inMotion argues that it (1) lacks specificity, as it does not include factual proffers to show that the documents at issue will bear relevant and material evidence; and (2) seeks material protected by the attorney-client privilege. Mr. Forman's Affirmation in Opposition, belatedly filed and bereft of legal arguments, urges the Court to compel production of the subpoenaed materials. In the alternative, Mr. Forman requests an in camera inspection of inMotion's documents to determine whether such material includes allegations of domestic violence by the Complainant in support of immigration relief. (Aff. in Opp. 1.)
A. Relevant Legal Standards
Under C.P.L. § 240.20, defendants may demand discovery within the People's possession, custody, or control. See People v. Wright, 225 A.D.2d 430, 433 (1st Dep't 1996) (limiting the scope of demand for documents under § 240.20(1) to those within the People's possession, custody, or control, since the proper course for obtaining any other documents is by subpoena). However, when defendants seek documents that are not in the People's custody, C.P.L. § 610.20(3) controls and provides that defense counsel may subscribe and serve a subpoena duces tecum, without court order or permission, unless the subpoena is directed to certain entities, such as state agencies.
But the availability of such process does not vest defense counsel with the power to issue subpoenas simply to discover and inspect documents. See People v. Price, 100 Misc.2d 372, 373-74 (Bronx Co. Sup.Ct.1979) (noting that a subpoena duces tecum " has never been intended to provide a means of discovery" and contrasting this view with that of federal courts, which does allow for such discovery and inspection via subpoena). Defense counsel must have a good-faith basis to believe that " some factual predicate [exists] which would make it reasonably likely that the [requested information] will bear such fruit and that the quest for [such] content[ ] is not merely a desperate grasping at straw." People v. Gissendanner, 48 N.Y.2d 543, 550 (1979). " The proper purpose of a subpoena tuces tecum ... is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding." People v. Kozlowski, 11 N.Y.3d 223, 242 (2008).
Thus, if a party moves to quash a defendant's subpoena under C.P.L.R. § 2304, as inMotion has here, defense counsel must show that the subpoena's demands are not merely an attempt to ascertain the existence of evidence. Defense counsel must make a good-faith showing that a " factual predicate" exists substantiating the defendant's entitlement to the production of specified documents or information that are relevant and material. Kozlowski, 11 N.Y.3d at 241 (2008) (" [D]efendants must proffer a good faith factual predicate sufficient for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory." ).
B. Defendant's Subpoena
Here, the Subpoena demands from inMotion " [c]opies of all records and correspondence with Perla Guerrero." (Melendez Aff., Ex. 1.) Neither the subpoena nor defense counsel's Affirmation in Opposition specifically identifies documents sought or theories of relevance or materiality. The Court therefore infers that defense counsel seeks general impeachment evidence. Defense counsel alternatively requests an in camera inspection of the subpoenaed information, presumably to have the Court determine whether any relevant or material information exists in the first instance.
The subpoena, in other words, " merely constitutes a discovery demand directed to a non-party, which is in contravention to the discovery provisions of CPL Article 240." People v. Bagley, 279 A.D.2d 426, 426-27 (1st Dep't 2001). The Court of Appeals has made abundantly clear in Gissendanner and its progeny that compulsory process is not available " when requests to examine records are motivated by nothing more than impeachment of witnesses' general credibility." 48 N.Y.2d at 548.
The motion to quash is therefore granted.
Had defense counsel made the necessary showing under Gissandanner ( cf. United States v. Nixon, 418 U.S. 683, 703 (1974) (turning to the issue of privilege only after determining that the subpoena is enforceable)), the materials sought, if they exist, are protected from disclosure by the attorney-client privilege. " The privilege belongs to the client and attaches if information is disclosed in confidence to the attorney for the purpose of obtaining legal advice or services." People v. Osorio, 75 N.Y.2d 80, 84 (1989); C.P.L.R. § 4503; see also In re Jacqueline F., 47 N.Y.2d 215, 219 (1979) (noting that " [t]hose communications made in confidence to an attorney for the purpose of seeking professional advice are afforded the stature of privileged communications" ).
Here, the correspondence and communication between Complainant and inMotion is privileged because Complainant sought legal advice from inMotion, a legal services provider. (Henderson Aff. 1-2.) This is so even though Complainant also communicated with inMotion's non-attorney staff. Osorio, 75 N.Y.2d at 84 (noting that the attorney-client privilege protects statements made to non-attorney employees). Defense counsel fails to contest the existence of the privilege or argue its waiver. Under such circumstances, the material sought, assuming its existence, need not be disclosed. See People v. Radtke, 219 A.D.2d 739, 739-40 (2nd Dep't 1995) (holding that the attorney-client privilege does not yield where defense counsel seeks information to impeach " general credibility" ).
Moreover, " although the attorney-client privilege may yield in a proper case where strong public policy requires disclosure," id., here, public policy strongly favors protecting the communications with inMotion. See In re Jacqueline F., 47 N.Y.2d at 222 (distinguishing its own factual circumstances, in which disclosure was granted, from cases involving domestic relations " in which a client may legitimately fear reprisals by his or her spouse" ); see also People v. Martinez, N.Y.L.J. 1202610231313, at *1 (Kings Co. Sup.Ct.2013) (granting in a domestic violence prosecution a motion to quash a subpoena, served on a not-for-profit agency that services domestic violence victims, based on the public policy of encouraging " victims to seek help to escape abuse without fear of retribution" ).
For the foregoing reasons, the motion to quash is GRANTED.
This constitutes the Decision and Order of the Court.