Notice of Motion (sic)^[FN1] - Affirmation (Grant) - Exhs. (A-F)..1 - 3

Answering Affirmation (Pruyne) - Exhs. (A-B) ...............4 - 5

Replying Affirmation (Grant) ............................... 6 [*2]

Upon the foregoing papers, it is Ordered and adjudged that this petition is disposed of as follows:

Petitioner is currently the highest ranking female officer in the County Police Department and disciplinary charges have been proffered against her for, as petitioner characterizes same, her alleged failure to properly have recorded time expended on various forms of therapy and treatment she underwent between May 30, 2005 and August 1, 2005, while on duty, for a line of injury duty she previously had sustained.

On March 17, 2006, a departmental hearing pursuant to Civil Service Law Section 75 was convened by the County and Department of Public Safety Services. Petitioner, having been unable to prevail upon the appointed hearing officer to compel the County's production of certain evidence contained in the investigation file relating to petitioner, now seeks the "So Ordering" of a subpoena duces tecum to be served upon the Westchester County Department of Public Safety and which seeks a myriad of evidence, in all forms, obtained by and presumably in the possession of the Department of Public Safety Services, County of Westchester, and any other public or private entities acting at the direction of the Department of Public Safety Services or the County of Westchester, relating to the investigation of Barbara Annis, since January 1, 2005, to date. Petitioner argues that such evidence is "essential to the presentation of a meaningful defense in the disciplinary proceeding brought pursuant to Civil Service Law Section 75 against petitioner" and further claims that without the requested evidence petitioner cannot adequately cross examine and/or present her defense, which will result in a deprivation of her rights to due process and a fair hearing. Petitioner finally argues that "the County is selectively offering various documents from the personnel file, investigative files and line-of-duty injury file but withholding and refusing to afford Petitioner access to highly relevant material for use in her defense."

The County strenuously opposes the petition. According to the County, petitioner is a captain in the police department and a member of the Superior Officers Unit of the Westchester County Police Benevolent Association, Inc. Accordingly, the County maintains that petitioner's rights and the Department's responsibilities are governed by a collective bargaining agreement, which provides that disciplinary proceedings commenced against members are to adhere to the Civil Service Law and Section 273.64 of the Laws of Westchester County ("LWC"). The County claims that petitioner is attempting to re-write the Civil Service Law and LWC §273.64, neither of which provide for the exchange of discovery between the parties involved in a disciplinary proceeding, and that petitioner clearly does not have the right to view the entire internal investigative file into her misconduct in search of exculpatory evidence. The County claims that petitioner's answer [*3]to the charges was in actuality an omnibus demand for open-file discovery of the County's entire disciplinary case against petitioner and a Demand for a Bill of Particulars. In refusing to provide same, the County relies upon that extensive body of federal and state case law and statutes which hold that discovery, even in criminal actions, is not unlimited and that there is no right to unlimited access to everything obtained during the course of a government's investigation.

According to the County, due process procedural safeguards are built into the LWC and petitioner had been afforded all protections thereunder; she was provided with written notice of proposed disciplinary action and the reasons therefor, she was furnished with a copy of the charges preferred against her, she was advised of her right to a hearing on the charges, the right to legal representation and she was afforded the minimum eight days to answer the charges in writing. At the hearing, petitioner will have the opportunity to cross-examine witnesses and inspect any of the documents offered into evidence against her.

Moreover, the County claims that although it was not under an obligation to provide petitioner with a Bill of Particulars, it did in fact serve same upon petitioner; however, it states it also had advised petitioner that the Demand for information evidentiary in nature was improper and would not be provided.

The County states that petitioner had been granted an adjournment of her scheduled disciplinary hearing two months ago in order "to go to court" over this discovery issue. Rather than promptly seeking judicial intervention, five weeks after the granted adjournment, petitioner had served a subpoena duces tecum upon the County which, in contravention of CPLR 2307, had not been signed by a Supreme Court Justice. Petitioner now has brought the instant petition, having noticed same one week before the rescheduled hearing was to have taken place. The County submits that petitioner is "blatantly wasting judicial resources in an attempt to circumvent or prolong her disciplinary hearing."

Alternatively, the County also argues that the proposed subpoena must be quashed because it is overly broad and duplicative, in contravention of CPLR 3120, subdivision 2, containing such words as "any and all," "entire" and "any," and failing to specifically identify the records being sought.

In any event, the County maintains that "much of the information has already been provided to petitioner prior to her motion ..." More than five weeks ago, petitioner received, at County expense, copies of her Department personnel file, the Department police compensation benefit file, also known as the New York General Municipal Law Section 207-c file, stenographic transcripts and copies of audiotape recordings of all Department interviews and the Section 207-c hearing which are the predicate for several charges petitioner is facing. Yet, in her proposed [*4]subpoena, respondent claims that she requests that same again be produced.

By way of reply, petitioner contends for the first time that this is not a request for documents as part of a discovery demand prior to the commencement of a hearing; rather, "[i]t is a request for the production of documents which were expressly referenced by the Assistant County Attorney during his opening statement and referred to by the first witness called by the County, Sergeant Charles Geraci." Petitioner notes that Geraci, during cross-examination, was unable to provide responses to the questions asked without reference to the investigative records, which he had not brought. Petitioner objects to the characterization of petitioner's actions as dilatory, claiming that any delay could have been avoided by respondent's simply producing the relevant records "or, minimally, ensuring his witness brought records to the hearing that he relied on in his direct testimony." It is the County that its delaying this proceeding, submits petitioner, and driving up the defense cost.

Initially, the Court notes that petitioner's replying affirmation makes a decidedly different argument than that proffered in her petition and thus is not properly before this Court. See Squiciari v. Brenner, 276 AD2d 689, 691 (2nd Dept. 2000); In re Allen, 268 AD2d 520, 521 (2nd Dept. 2000); Canter v. East Nassau Medical Group, 270 AD2d 381 (2nd Dept. 2000).

In any event, even with petitioner's new claim that she is not seeking broad-based discovery, but only the production of records referenced by respondent's witness during cross-examination, which claim the Court finds is belied by petitioner's answer to the charges and the broad language employed in the proposed subpoena, same is disingenuous to the extent that the transcript demonstrates that Geraci had referred to the investigative file generally and not any one specific document. Petitioner has not and cannot cite to any controlling law holding that petitioner is entitled to review the entire investigative file.

Discovery is a matter of statute and where no statutory right of discovery is provided, no substantive right of discovery exists. See Brown v. Grosso, 285 AD2d 642, 643-644 (2nd Dept. 2001), lv. to app. den. 97 NY2d 605 (2002). The Civil Rights Law clearly does not provide for the open-type file discovery that petitioner seeks.

Moreover, the purpose of a subpoena is "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding." See Matter of New York State Dept. of Labor v. Robinson, 87 AD2d 877, 878 (2nd Dept. 1982). Generally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence, see People v. Gissendanner, 48 NY2d 543 (1979), or as a "fishing expedition," Matter of New York State Dept. of Labor v. Robinson, [*5]supra, 87 AD2d at 878, or to circumvent statutory discovery provisions. See Matter of Constantine v. Leto, 157 AD2d 376, 378 (3rd Dept. 1990), affd. 77 NY2d 975 (1991). "Rather, its purpose is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding' " Matter of Constantine v. Leto, supra, 157 AD2d at 378, citing People v. Robinson, supra, 87 AD2d at 878. A showing that certain documents carry a potential for establishing relevant information is wholly insufficient; instead, it is incumbent upon the party seeking the subpoena to put forth "some factual predicate which would make it reasonably likely that documentary information will bear relevant and exculpatory evidence." Constantine v. Leto, supra, 157 AD2d at 378 citing Gissendanner, supra, 48 NY2d at 550; see, also County of Nassau Police Dept. v. Judge, 237 AD2d 354, 355 (2nd Dept. 1997).

On this record, the inexorable conclusion is that petitioner's purpose in serving the subpoena duces tecum is to obtain otherwise unavailable discovery in the hope of finding something helpful to her defense, which is not a sanctioned use of a judicial subpoena. See In re Ferro, Kuba, Bloom, Mangano, Gacovino & Lake, P.C., 8 AD3d 563 (2nd Dept. 2004); Suffolk County Medical Examiner v. Guido, 215 AD2d 705 (2nd Dept. 1995); Decrosta v. State Police Laboratory, 182 AD2d 930, 931 (3rd Dept. 1992). Petitioner has failed to make any factual showing to support her contention that the documents sought in the subpoena would bear relevant and exculpatory evidence, see People v. Bagley, 279 AD2d 426 (1st Dept.2001), citing People v. Gissendanner, supra, 48 NY2d 543, and fails to cite any possible line of inquiry in which the sought after records might be employed beyond that of general credibility impeachment. See People v. Gissendanner, supra, 48 NY2d 543, 548-549 (1979).

The Court parenthetically notes, however, that respondent witnesses who may have to review records in order to have their recollections refreshed, properly should have the records with them at the time of their testimony and petitioner thereupon would have the right to inspect any writing used to refresh a witness's recollection while that witness is testifying.Cf. People v. Carrier, 270 AD2d 800 (4th Dept. 2000), lv. to app. den. 95 N.Y,2d 864 (2000).

The petition is denied and this proceeding hereby dismissed.

Dated: May 22, 2006

White Plains, New York

_________________________________ [*6]

MARY H. SMITH

J.S.C.