The Defendant is charged by two separate two-count indictments, both charging the crimes of criminal sale of a controlled substance in the third degree, a class B felony (Penal Law §220.39[1]) and criminal possession of a controlled substance in the third degree, a class B felony (Penal Law §220.16[1]). The charges arise out of incidents which are alleged to have occurred on March 21 and April 7, 2006 in the Village of Lake Placid, Essex County, New York, and are alleged to have involved a confidential informant working with law enforcement.

Following the Defendant's arraignment on May 18, 2006, the Defendant served a demand for discovery on June 8, 2006. In that demand, Defendant sought, among other things, "[a]ny taped or other electronic recordings, which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transaction, including but not limited to all tapes of radio transmissions, surreptitiously recorded conversations, tapes of telephone calls, e-mails, and video tapes, if any, as well as any telephone printout and precinct telephone switchboard records or telephone log entries.". In its' reply to the demand, the prosecution acknowledged that there were conversations "tape recorded via a body wire worn by . . ." a confidential informant which taped conversations the prosecution [*2][*3]intended to offer into evidence^[FN1]. However, the prosecution refused to disclose the tape recordings in spite of the clear mandate of CPL §240.20(1)(g).

On June 6, July 11, August 8, September 5 and October 3, 2006, settlement conferences were conducted by the Court in an effort to resolve the case and during those conferences, the existence of the tapes were discussed and the prosecution adamantly refused to disclose the tapes without a court order, asserting the need to protect the confidentiality of the informant. At the conferences on August 8, September 5 and October 3, 2006, a plea offer was discussed, but when defense counsel asked to listen to the tapes so that he could provide effective legal advice to this client with regard to the plea offer the prosecution refused to make the tapes available and advised that the offer would be withdrawn if defense counsel listened to the tapes. The reason stated for such refusal was that the tapes would reveal the identity of the confidential informant.

An omnibus motion pursuant to CPL Article 255 was timely filed, and as part of the motion the Defendant sought an order directing disclosure pursuant to CPL Article 240, and in particular disclosure of the tape recordings. The prosecution filed answering papers in which it continued to oppose disclosure of the tape recordings, notwithstanding that it intended to use the tape recordings at trial. No cross motion for a protective order was sought by the prosecution to protect the confidential informant. By decision and order dated October 17, 2006, the Court granted certain aspects of the Defendant's omnibus motion, including the Defendant's request for disclosure of the tape recordings, and the Court immediately ordered such disclosure.

A pre-trial settlement conference was held on October 24, 2006, at which the Court was advised that the recordings had still not been disclosed. The Court ordered immediate disclosure of the recordings, and scheduled the case for trial during the January, 2007 trial term and a pre-trial conference on January 17, 2006 at 11:00 a.m.

On November 20, 2006, counsel for the Defendant filed a motion requesting a pre-trial audibility hearing and directing the prosecution to furnish certain items of discovery which were still outstanding. No papers were submitted in opposition or response to the motion. Following the return date, and on December 7, 2006, the Court issued an order on default scheduling a pre-trial audibility hearing for December 22, 2006 at 9:30 a.m., directing the prosecution to disclose certain information, documents and materials within three days of the order, and directing the prosecution to furnish certain other items of discovery for an in camera inspection by the Court on December 22, 2006. None of the items of discovery directed to be disclosed within three days of that order were timely provided to the Defendant. Moreover, approximately two days before the audibility hearing (and more than two months after disclosure was ordered), the prosecution disclosed to the Defendant's counsel a compact disk purporting to contain a recording of a transaction between the Defendant and the confidential informant on March 21, 2006.

At the audibility hearing on December 22, 2006, an affirmation from an Assistant District Attorney was filed purporting to respond to the Court's December 7, 2006 order requiring in camera disclosure of certain documents, items and information. Attached to the affirmation as exhibits were copies of the confidential informant's criminal history from the New York State Division of Criminal Justice Services website and a chart of the sentences for felonies under [*4][*5]Penal Law Articles 220 and 221.

The prosecution produced five cassette tapes and the compact disk which were marked as People's Exhibits 1 through 6. Once again, it was represented by the prosecution that the identity of the confidential informant was disclosed in the tape recordings. After spending more than two hours listening to four of the cassette tapes, and the prosecution conceding that another tape was inaudible and the Defendant stipulating to the audibility of the compact disk, the Court rendered a determination that all of the cassette tapes were inaudible and inadmissible at trial. An order precluding the use of the cassette tapes at trial was issued on December 23, 2006. As part of that order, the Court directed the parties to submit sworn statements regarding whether and to what extent sanctions pursuant to CPL §240.70 should be made due to failure to timely comply with this Court's orders of October 17, 2006 and December 7, 2006 and advise the Court and the Defendant of the inaudibility of the cassette tapes prior to any motions being filed, decisions and orders rendered thereon, or the audibility hearing.

While there is no general constitutional right to discovery in criminal cases (Weatherford v. Bursey, 429 US 545, 559, 97 SCt 837, 845, 51 LEd2d 30; Matter of Miller v. Schwartz, 72 NY2d 869, 532 NYS2d 354, 528 NE2d 507), CPL §240.20 "is generally construed as a mandatory directive, compelling the People to provide the items when sought by the defendant (Preiser, Practice Commentaries, McKinney's Cons.Laws of NY, Book 11A, CPL §240.20, at 221)" (People v. DaGata, 86 NY2d 40, 44, 629 NYS2d 186, 189, 652 NE2d 932, 935).

"The criminal discovery procedure embodied in article 240, adopted in substance from Rule 16 of the Federal Rules of Criminal Procedure (see Denzer, Practice Commentary, McKinney's Cons.Laws of NY, Book 11A, CPL art. 240, p. 466; Judicial Conference Report on the CPL, Appendix B, McKenna, Memorandum and Proposed Statute Re Discovery, McKinney's 1974 Session Laws of New York, pp. 1860, 1868), evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence (see Notes of the Advisory Committee on the Proposed 1974 Amendment to Rule 16 of the Federal Rules of Criminal Procedure). In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice."(People v. Copicotto, 50 NY2d 222, 226, 428 NYS2d 649, 652, 406 NE2d 465, 468)

The prosecution is not only obligated to seek convictions, but it also has a duty to see that justice is done (People v. Steadman, 82 NY2d 1, 7, 603 NYS2d 382, 384, 623 NE2d 509, 511). "In their role as public officers, they must deal fairly with the accused and be candid with the courts (see, People v. Pelchat, 62 NY2d 97, 105, 476 NYS2d 79, 464 NE2d 447; see also, People v. Vilardi, 76 NY2d 67, 76, 556 NYS2d 518, 555 NE2d 915; People v. Simmons, 36 NY2d 126, 131-132, 365 NYS2d 812, 325 NE2d 139)" (id., 82 NY2d at 7, 603 NYS2d at 384, 623 NE2d at 511). [*6][*7]The prosecution has willfully failed to comply with the provisions of CPL §240.20(g) and §240.40 within the meaning of CPL §240.70, and in so doing violated its duty to the defendant and the court. Despite representing that the tapes would be used at trial, the prosecution refused to disclose the tapes in response to the Defendant's discovery demand, opposed the Defendant's motion for disclosure, failed to turn over the tapes or compact disk within the time directed by this Court's order, and failed to listen to the tapes and advise the court of their inaudibility so that a two-plus hour hearing could be avoided. Moreover, because the tapes were inaudible, disclosure would not have revealed the confidential informant's identity, thereby rendering the prosecution's excuses and refusals specious. The misrepresentations and dilatory tactics, which this Court finds to constitute bad faith, have been calculated to prevent the defendant from having certain information crucial to his defense until the eve of trial and place the defendant at a disadvantage. As a result, sanctions pursuant to CPL §240.70 are appropriate^[FN2], and the District Attorney is prohibited from introducing into evidence at trial (1) any recorded conversations allegedly made during the course of the criminal transactions on March 21 or April 7, 2006 upon which the charges in the indictments are premised, and (2) any testimony from a witness who is alleged to have overheard but not been physically present at such transactions as to what such witness heard by means of the transmitted conversations.

Also, the District Attorney is hereby immediately directed to disclose to the Defendant's counsel the following information, whether in written or other form, including but no limited to all records pertaining to such information:

the precise terms of the cooperation agreement between the confidential informant, law enforcement and/or the prosecution,

the criminal history report of the confidential informant, whose identity was directed to be disclosed by prior order of this Court, maintained by the New York State Division of Criminal Justice Services, the "buy sheets" from the alleged transactions involving the defendant, and

all other information submitted to the Court for in camera inspection at the December 22, 2006 audibility hearing.

Finally, the defendant's discovery sanction request for a copy of the pre-sentence reports pertaining to the confidential informant is denied. Such reports are confidential (see CPL §390.50) and do not constitute Rosario material (see People v. Figueroa 258 AD2d 280, 685 NYS2d 53, leave to appeal denied 93 NY2d 970, 695 NYS2d 56, 716 NE2d 1101; People v. Morris, 153 AD2d 984, 545 NYS2d 427, leave to appeal denied 75 NY2d 922, 555 NYS2d 40, 554 NE2d 77; People v. Mayers, 100 AD2d 558, 473 NYS2d 263, leave to appeal denied 62 NY2d 651, 476 NYS2d 1046, 464 NE2d 998). [*8][*9]

IT IS SO ORDERED.

Order signed this 29th day of January, 2007, at Elizabethtown, New York.

ENTER

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Richard B. Meyer
Essex County Judge