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People v. Kosowski

City Court of Rochester, Monroe County

March 3, 2017

The People of the State of New York, Plaintiff,
Elijah Kosowski, Defendants.

          Derek Harnsberger, Assistant District Attorney

          Tracie Hiatt, Assistant Public Defender

          Thomas Rainbow Morse, J.

         Body Camera Scheduling Order

         In the wake of increased public concern over police-citizen interactions, many communities, including Rochester, have received funding to purchase and implement policies regarding the use of body cameras by police officers. [1] As those efforts continue and the existence of relevant digital images becomes more common place, the widespread use of such technology exposes fiscal, logistical and legal issues which need to be resolved to take full advantage of the promise of the legislation and protect the rights of all parties. [2] Although "[f]ootage from body cameras may help both prosecutors and defense attorneys by providing objective evidence relating to whether a confession was voluntary, a search was consented to or justified, or a physical description matched a lookout, " [3] across the country law enforcement budgets are being strained by the personnel costs associated with storage, retrieval and transmission of the images produced. [4]

         Practical Considerations

         In a number of cases recently before this court, defense counsel has sought adjournment of an already scheduled pre-trial hearing due to the inability to review body camera footage before commencing cross-examination of prosecution witnesses. Thus, this court has entertained suggestions from both the prosecutor and a public defender assigned to this court regarding pre-trial production of digital recordings from body cameras worn by members of law enforcement during the course of the investigation leading to or as part of criminal actions presently pending. [5]

         If the People intend to introduce body camera footage at trial, then the recordings are certainly discoverable pursuant to CPL Article 240 in misdemeanor and felony cases. [6] Also, timely production of body camera video might place the parties and the court in a better position to assess whether a good faith basis exists upon which to move to suppress evidence premised on alleged Fourth Amendment violations. [7] In addition, to the extent that they encompass the subject matter of a witness's direct testimony at a pre-trial hearing, the digital recordings may constitute Rosario material. [8] Moreover, if the People have reviewed such footage and have no present intention to use it at trial, counsel for a defendant might be able to successfully assert that the video tape constitutes Brady [9] material which, at the very least, should be provided to and reviewed by the trial judge pending such a determination. [10] The reasoned exercise of discretion regarding a number of those issues could result in significant delays in each proceeding and additional public expense caused by having to recall police witnesses on a subsequent day to be cross-examined once the digital footage has been reviewed. Alternatively, if the hearing were to proceed without the benefit of the tape. the court may need to consider other forms of relief. [11] Either scenario should be avoided if at all possible. [12]

          Calendar Control - A Trial Judge's Inherent Powers

         The Court of Appeals has recognized "the detrimental effects that congestion and backlog in our State's courts can have upon the administration of justice." [13] Given the circumstances outlined above, this court finds it appropriate to consider a pre-hearing/pre-trial scheduling order which will apply to all future criminal actions which involve the use of such digital materials. In doing so, this court recognizes New York's "strong public policy to further orderly trial procedures and preserve scarce trial resources." [14] While the Chief Judge is constitutionally empowered to promulgate rules which apply to all trial courts exercising criminal jurisdiction, [15] "[i]t is ancient and undisputed law that courts have an inherent power over the control of their calendars, and the disposition of business before them, including the order in which disposition will be made of that business." [16] A judge must protect a defendant's constitutional and statutory rights to a speedy trial as well as the expectation of all parties and the public that the courts will ensure constitutional due process.


         Courts should generally "defer to the legislature in matters of policymaking... [and usually] have neither the authority...the ability, nor the will, to micro manage" [17] societal choices such as law enforcement use of body cameras. Nonetheless, judges are "well suited to interpret and safeguard constitutional rights and review challenged acts of our co-equal branches of government - not in order to make policy but in order to assure the protection of constitutional rights." [18] One of the ways courts can fulfill this obligation is to have and adhere to meaningful calendar control benchmarks which measure success recognizing that "hope charts the future [and] vigilance protects it." [19]

         While constitutional and statutory provisions provide support for administrative supervision of the judicial system, [20] such governing authorities cannot possibly envision every action incidental to a trial court's responsibility respecting the handling of a particular case. [21] Of necessity, the inherent power of trial judges must often be determined on an ad hoc basis. The emergence of the widespread use of body cameras by law enforcement and ubiquitous cell phone ...

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