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People v. Vega

Supreme Court, Bronx County

October 17, 2017

The People of the State of New York, Plaintiff,
Lamarr Vega, Defendant.

          Ralph A. Fabrizio, J.

         The issue before the Court is whether the defendant's application, made pursuant to the Civil Practice Law and Rules (CPLR), seeking an "access order" in which the Court would direct private individuals to open their home to defense attorneys and investigators to have it photographed and measured, is statutorily and/or constitutionally mandated. The home was the scene of several sex offenses alleged to have occurred five years ago. The current residents of the home have no relation to the crime, and have refused requests from the defendant to allow his attorneys into their home. The Court denies the application.

         Defendant stands indicted for, inter alia, Predatory Sexual Assault Against a Child (Penal Law § 130.96). The allegations are that defendant, on three separate occasions in 2012, sexually assaulted a child, his then ten-year-old stepdaughter, inside the residence defendant shared at the time with the child's mother and the child at 453 East 185th Street in Bronx County. The alleged crimes were not reported immediately, and defendant was not indicted until October, 2015.

         In the years between the crimes alleged and the bringing of criminal charges, the defendant, the complaining witness and her mother, all moved from the residence. The home is now occupied by individuals who have no relation to the case. It is not known when they moved in, or whether other individuals might have also lived there after the defendant moved out. On May 22, 2017, defense investigators went to the residence and attempted to gain access to take photographs and measurements inside this private home. The current residents did not allow them to enter their home.

         On August 18, 2017, defense counsel emailed a request to the Court, copying the People. Counsel stated that she "would like to seek an access order to view and photograph the location of the crime, which is a private residence and occupied by individuals not related to the case." The People responded to counsel's email on August 21, 2017, stating, "In regard to the request to go to the residence, I would only ask that the People be given the opportunity to go there at the same time so as not to inconvenience the residents unnecessarily on multiple occasions." The Court told the parties it would hear the application on the next court date, which was scheduled for September 26, 2017.

         On Wednesday, September 20, 2017, defendant served the People with a notice of motion, made pursuant to CPLR §3120(1)(ii), seeking a court order to allow him access to the private residence for the purpose of photographing and measuring the rooms inside the home. The motion was made returnable six days later, on September 26, 2017. The motion is also noticed to the person defendant believes is the current owner/occupant of the private residence. A defense investigator went to the residence on three occasions to "serve" motion papers on these private individuals. The investigator filed three affidavits with the Court: two are called affidavits of "attempted service, " and the third is an affidavit of "service." According to the affidavits, the investigator first went to the residence on September 19, 2017 at 11:10 a.m. The investigator states he rang the doorbell four times, and waited ten minutes. Nobody answered. In a second affidavit, the same investigator states he went back to the residence at 2:30 p.m. that same day. Once again, he rang the doorbell four times, and waited ten minutes. Nobody answered. A different investigator returned the next day, September 20, 2017, at about 5:30 p.m. This investigator rang the bell. The person who answered the door was not the current owner/occupant of the private home. That individual told the investigator the person he was looking for was not at home. The investigator states that the individual he spoke with "accepted the documents on behalf of" the named owner. The person who accepted the papers is described, inter alia, as a man who "is in his mid-40s."

         On September 26, 2017, the case was called into the record. Defendant made reference to the written motion seeking an access order. As it turned out, the motion had been filed with the court clerk on September 20, 2017, at 2:30 p.m., hours before it was left with the person named in the affidavit of service at the private home. Since it had not been served on the People eight days in advance, and it was filed too close to the return date, the application did not appear on the Court's motion calendar. The motion papers were not before the Court. During the calendar call, the prosecutor said the current resident and his wife were in the audience. The prosecutor explained that the resident telephoned her after he received the motion papers, because the prosecutor's name was on the notice of motion. The resident asked the prosecutor, inter alia, whether he had to come to court on September 26, 2017. She told the individual she was unable to give him legal advice. The prosecutor and defense attorney said they spoke with the resident that day and he said he did not want to give either side permission to enter his home.

         The Court expressed concern about its legal authority to order these residents, with no connection to the matter, to allow the defense investigators, attorneys and the prosecutor into their residence. Defendant argued, inter alia, that the authority came from the CPLR, case law, and the constitution. These same grounds are stated in the motion papers. The Court directed the People to file a written response to the motion. The individuals in the audience were not asked to speak, on or off the record. The People filed an affirmation in opposition to the motion. They have also annexed a copy of the blueprints on record with the New York City Department of Buildings. The blueprints show the configuration and measurements of each of the rooms at the residence.

         The motion for access to independently photograph and measure the rooms is denied for a number of reasons. First, contrary to the defendant's argument, the CPLR provides no legal authority for this Court in this criminal matter to grant this application. The legislature has mandated that the CPLR only "shall govern the procedure in civil judicial proceedings... except where the procedure is regulated by inconsistent statute." CPLR § 101. "A 'civil judicial proceeding' is a prosecution, other than a criminal action, of an independent application to a court for relief." CPLR § 105(d). In certain instances, the legislature has specifically made narrow parts of the CPLR applicable to criminal actions through specific statutes in the Criminal Procedure Law. For example, the rules of evidence contained in Article 31 of the CPLR, which are substantive in nature, are made applicable to criminal cases by statute. CPL § 60.10. Several other sections of the CPL incorporate rules and statutes in the CPLR by reference. See CPL § 610.20(3). Other than those limited situations, "the CPLR has no application to criminal actions and proceedings." People v. Silva, 122 A.D.2d 750 (1st Dept. 1986); see People v. Elmer, 19 N.Y.3d 501, 508 n.2 (2012) (recognizing that CPLR's requirement that an appeal could only be taken from a "written order" not relevant in a criminal appeal).

         Although the evidence rules are contained in the same CPLR article as the statute defendant relies on in his motion, no other rule or statute contained in Article 31 is incorporated by reference by any part of the CPL. The reason for that is readily apparent. Article 31 contains the laws and rules applicable to "disclosure" in civil cases. Except for the substantive rules of evidence, the disclosure rules and statutes in Article 31 have no relevance to a criminal case. For example, attorneys in a criminal case are not entitled to petition a court for "supervision of disclosure" by a "referee." CPLR § 3104. A party in a criminal case has no right to depose another party. CPLR Rules 3106, 3113, 3114, 3316 and 3117. There are no interrogatories in a criminal case. CPLR § 3130.

         CPLR § 3120 is entitled "Discovery and production of documents and things for inspection, testing, copying, or photographing." CPLR § 3120(1)(ii) specifically provides that, "After commencement of an action any party may serve on any other party a notice or on any other person a subpoena duces tecum... to permit entry upon designated land or other property in the possession, custody and control of the party or person served for the purpose of inspecting, measuring... photographing...the property."Defendant argues that the individuals currently living in the residence are "third parties" in this criminal action, and that they are therefore subject to being served with only a notice of motion. That is simply not the case. There are only two parties in a criminal case: the People and the accused defendant. See CPL § 240.10(4). Witnesses are not third parties. No private citizen should be made to feel compelled to come to court in a criminal case merely because an attorney served them with a notice of motion advising them they could be the subject of a court order seeking relief that impacts that individual's privacy interests. [1]

         Defendant also refers to his application under the CPLR as a "discovery" motion. CPLR discovery rules are wholly inapplicable to discovery in a criminal case. The CPL contains statutes the legislature enacted to be applied "exclusively" in criminal cases. CPL §1.10(1)(a). Simply put, a criminal defendant's right to discovery is specifically delineated by the rules in the CPL, and not the CPLR. The right to pre-trial discovery in a criminal case is purely a creature of statute, and the legislature has drafted statutes it determined to be necessary and placed them in CPL Article 240. These are the only statutes that define the scope and timing of discovery in criminal matters. See People v. DeGata, 86 N.Y.2d 40, 44 (1995); People v. Thompson, 92 A.D.3d 1139, 1140 (3rd Dept 2012); Matter of Constantine v. Leto, 157 A.D.2d 376, 378 (3rd Dept.1990), aff'd, 77 N.Y.2d 975 (1991). These statutes are the only valid and legal way of obtaining discovery, including reciprocal discovery, in a criminal case, because there is no general constitutional right to obtain discovery in a criminal case. See Matter of Miller v. Schwartz, 72 N.Y.2d 869 (1988) "A criminal defendant may not circumvent the statutes delineating his or her limited right to discovery." Matter of Brown v. Grosso, 285 A.D.2d 642, 644 (2001). Moreover, a court has no right to compel the production of evidence which is not authorized to be disclosed by the CPL. See Matter of Johnson v. Sackett, 109 A.D.3d 427, 431 (1st Dept 2013). [2]

         In terming this a "discovery" motion under the CPLR, the defendant is circumventing the very statutes that codify his right to obtain discovery in this criminal case. Applications to compel discovery in a criminal case authorized under the CPL are governed exclusively by CPL § 240.90, which states that a motion by a defendant to compel discovery "shall be made as prescribed in [CPL] section 255.20." Thus, this type of motion, like any pretrial motion in a criminal case, must be made "within forty-five days after arraignment and before commencement of trial." CPL § 255.20(1). A court is required to entertain a motion filed after expiration of the forty-five day period, "based upon grounds of which the defendant could not, with due diligence, have been previously aware." CPL § 255.20(3). These are the exclusive ways a defendant may seek court ordered discovery in a criminal case.

         Thus, if this application were made under the CPL, it would be untimely. Even if it had been made two years ago, however, the defendant would not be entitled to the relief requested as an item of "discovery." Article 240 of the CPL provides no statutory authority for a court to "compel" private citizens to open their homes to an attorney for a defendant, or to a prosecutor, for the purpose of taking photographs and measuring their rooms. Ironically, if the People were seeking access to a location that had been a "crime scene" several years earlier, for the purpose of gathering evidence or for discovery, they would have to apply for ...

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