That routine police reports may not be obtained by the defendant's subpoena in a criminal case does not wholly exempt the Police Department from the subpoena provisions of the Criminal Procedure Law, properly invoked.

Defendant stands charged with resisting arrest, attempted assault in the third degree, and disorderly conduct, arising from an incident that occurred in front of the 14th/Midtown South Police Precinct, located at 357 West 35th Street in Manhattan. The information alleges that on March 1, 2008, at about 6:00 p.m., defendant, while in front of the precinct stationhouse, shouted, "Fuck you"; "f[ou]ght[] with" a named police lieutenant; and yelled and screamed, "Fuck these cops[.] They won't give me my stuff back." It is further alleged that when another named police officer approached defendant, defendant attempted to punch the officer and resisted being handcuffed by twisting his body and flailing his arms.

Nonparty New York City Police Department (NYPD) moves to quash a judicial subpoena duces tecum (see CPLR 2304), issued on behalf of defendant,^[FN1] seeking "all [*2]surveillance tape footage from NYPD security located at the inside and outside entrances of the [1]4th precinct - Midtown South precinct, located at 357 West 35th Street, NY, NY on March 1, 2008 from approximately 5:00 p[.]m[.] to 7:00 p.m."^[FN2] Movant contends that a defendant cannot invoke the court's subpoena power to obtain property whose procurement is regulated by the rules governing discovery.

To be sure, a defendant cannot use a subpoena as a means to circumvent the discovery statutes (see Matter of Terry D., 81 NY2d 1042, 1045 [1993] [citation omitted]). This is not to say, however, that no item in the possession of the New York City Police Department can ever be the subject of a valid subpoena.^[FN3] The discovery and subpoena articles of the Criminal Procedure Law serve different purposes, and are governed by different standards — the one does not render superfluous, or ineffective, the other. The discovery provisions are meant to control, among other things, the right of the defendant to ascertain certain information possessed by the opposing party — the People. Some of this information must be disclosed within a specified period of time after arraignment on an accusatory instrument that may serve as the basis for prosecution of a criminal action (see CPL 240.20 [1] [a]-[k]; 240.80); some, at a pretrial hearing (see CPL 240.44); and some, before the People's opening address at trial (see CPL 240.45 [1]; People v Rosario, 9 NY2d 286 [1961]).

A defense subpoena, by contrast, enables the defendant to obtain, from a nonparty, evidence relevant to the issues material to the trial itself. Although the Police Department is not a party to a criminal action prosecuted by the District Attorney (see People v Bagley, 279 AD2d 426, 426 [1st Dept 2001]; see also County Law § 700 [1]), police reports are among the quintessential material required to be obtained, and disclosed, by the People at the statutorily mandated time (see Rosario, 9 NY2d 286). After all, the People must disclose "[a]ny written or recorded statement," made by a witness called or intended to be called, "which relates to the subject matter of the witness's testimony" (CPL 240.44 [1]; 240.45 [1] [a]). Police reports, of course, generally consist of recorded statements of the police witnesses themselves, and often contain statements of other witnesses, as well.^[FN4] Moreover, also discoverable (even earlier than witness statements) are a variety of other items routinely generated by the police — irrespective [*3]of whether the People intend to introduce the item, or call a particular witness, at trial — including reports concerning physical or mental examinations or scientific tests (see CPL 240.20 [1] [c]); photographs (see CPL 240.20 [1] [d]); and documents containing exculpatory information (see CPL 240.20 [1] [h]; Brady v Maryland, 373 US 83 [1963]).

Inasmuch as trial courts may neither broaden the scope of material subject to disclosure (see People v Colavito, 87 NY2d 423, 427 [1996]), nor require that such material be provided earlier than statutorily mandated (see Matter of Catterson v Rohl, 202 AD2d 420, 423 [2d Dept 1994] [court may not order that Rosario material be provided prior to trial]; Matter of Hynes v Cirigliano, 180 AD2d 659, 659 [2d Dept 1992] [no right to discovery prior to indictment]; but cf. CPL 240.40 [1] [c] [permitting a court to order early disclosure of property that the People intend to introduce at trial]), a defendant "cannot use the procedural mechanism of a subpoena duces tecum to expand the discovery available under existing law" (Terry D., 81 NY2d at 1045 [citation omitted]).

A defendant typically seeks to review police reports in order to find out — that is, to "discover" — whether impeachment material, or leads to potential defense evidence, exist. But a defense subpoena duces tecum may not properly be used as a discovery tool "to ascertain the existence of evidence" (Terry D., 81 NY2d at 1044 [citation omitted]). Rather, its proper function is to enable the defendant to obtain actual evidence that he hopes to use to challenge the People's case at trial (see id.; Matter of Constantine v Leto, 157 AD2d 376, 378 [3d Dept 1990] ["purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (internal quotation marks and citation omitted)], affd for reasons stated 77 NY2d 975 [1991]). Accordingly, since routine police reports are generally subject to discovery, the defense may not obtain them by means of subpoena, absent the proffer of "a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence" (Bagley, 279 AD2d at 426 [citations omitted]).^[FN5]

But in this case defendant does not seek to subpoena merely routine police reports created in connection with the investigation of the crime of which he stands accused. Rather, he endeavors to obtain surveillance tapes depicting the very incident giving rise to the criminal charges. Even confidential police personnel records may be subject to subpoena when the defendant establishes that the solicited data is "relevant and material to the determination of guilt or innocence," and not sought solely in the speculative hope of unearthing possible "impeachment of witnesses' general credibility" (People v Gissendanner, 48 NY2d 543, 548 [1979]).^[FN6]

The surveillance tapes at issue here comprise a live, and potentially complete, visual memorialization of the actual events alleged to constitute the crimes with which defendant is [*4]charged.^[FN7] That being so, they are plainly relevant and material to — indeed, perhaps dispositive of — defendant's guilt or innocence, such that "the quest for [their] contents is not merely a desperate grasping at a straw" (Gissendanner, 48 NY2d at 550).

Nor is the subpoena "an attempt to conduct a fishing expedition" (id., 48 NY2d at 547 [internal quotation marks omitted]). The information alleges that defendant engaged in the charged conduct "at about 18:00 hours" (6:00 p.m.). The subpoena seeks only those tapes portraying events at a very specific, and highly relevant, time and place — "the inside and outside entrances" of the precinct house, "from approximately 5:00 p[.]m[.] to 7:00 p.m."

Finally, the tapes are not "otherwise procurable reasonably in advance of trial by exercise of due diligence" (United States v Nixon, 418 US 683, 699 [1974]; see also Constantine, 157 AD2d at 379 ["material exculpatory evidence unavailable from other sources"], affd for reasons stated 77 NY2d 975). First, since they contain no statements of a witness, they are not Rosario material. And second, unless the People intend to introduce them at trial, they are not discoverable under CPL 240.20 (1) (g) (tapes or other electronic recordings).

Thus, inasmuch as these police surveillance tapes comprise specific evidence relevant and material to his guilt or innocence, defendant is entitled to obtain them by subpoena duces tecum.

Accordingly, the motion to quash must be denied.