Matter of M.B. v F.T. (2013 NY Slip Op 50540(U))

Matter of M.B. v F.T.

2013 NY Slip Op 50540(U) [39 Misc 3d 1208(A)]

Decided on April 8, 2013

Supreme Court, Bronx County

Duffy, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

On March 27, 2013, this matter came before the Court on oral application by V. Marika Meis, Esq, of The Bronx Defenders ("Movant"), seeking to quash a subpoena duces tecum (the "subpoena") issued by Assistant District Attorney of Bronx County David McCune, Esq., that had been served the previous day on M.B., Esq., an attorney who represents the Defendant F.T.^[FN1] in a matter currently pending before the Grand Jury.

In sum and substance, the subpoena directs M.B. to appear before the Grand Jury on March 27, 2013, to bring before that body any and all video recordings in his possession pertaining to the alleged incident which is the subject of the pending docket against Defendant.^[FN2]

Counsel for M.B. notified ADA McCune that she was seeking to quash the subpoena and both parties appeared before the Court on March 27, 2013, to address the matter orally before the Court. Counsel for M.B. notified the Court that service of the subpoena had only been effected at or around 12:30 p.m. the previous day. Accordingly, the Court heard the oral application, stayed enforcement of the subpoena and thereafter directed the parties to submit any additional information, if they chose, to the Court on or before April 2, 2013.

On April 2, 2013, the Court received a written notice of motion and affirmation by V. Marika Meis, Esq., seeking to quash the subpoena, and, on the same date, received a memorandum of law in opposition to the motion to quash, and exhibits thereto, from ADA McCune, as well as copies of cases.

For the reasons set forth below, the Court directs M.B. to comply with the subpoena to the extent that the requisite videotape recording be turned over to the District Attorney's office forthwith; M.B. shall not personally appear before the Grand Jury. Further, if such evidence is presented to the Grand Jury, no reference to this special proceeding or the possession of the evidence by M.B. or any other person employed by the Bronx Defenders shall be made to or before the Grand Jury.

On August 25, 2012,^[FN3] Defendant was arrested and, on August 26, 2012, brought before the Court and informed of charges set forth in a Supreme Court complaint alleging Attempted Robbery in the Third Degree, PL 110/160.05, Resisting Arrest, PL 205.30, Attempted Assault, 110/120.00(1), two counts of Attempted Criminal Possession of a Weapon, PL 110/265.01(1) and (3), and Harassment, PL 240.26(1). The allegations contend that, on August 25, 2012, Defendant resisted arrest and attempted to take a police officer's gun from his holster. The matter was adjourned to October 22, 2012.

On October 22, 2012, Assistant District Attorney Don Nguyen, Esq., appeared on behalf of the People and Mandy Odier-Fink, Esq., of The Bronx Defenders, appeared on behalf of Defendant. No Grand Jury action yet had occurred in the matter. The parties then consented to an adjournment to November 5, 2012. Defendant, through his counsel, agreed to waive speedy trial time pursuant to CPL § 30.30.

On November 5, 2012, no Grand Jury action yet had occurred in the matter and the parties again consented to an adjournment. Defendant, through his counsel, again waived speedy trial time. The matter was adjourned to November 20, 2012 for a possible disposition.

On November 20, 2012, no Grand Jury action yet had occurred in the matter and there was no disposition of the matter. On that date, Defendant, through his counsel, again waived speedy trial time and represented to the Court that the adjournments had occurred because the People were waiting for defense to provide it with certain documentation and that she now had such documentation.^[FN4] The matter was adjourned to December 14, 2012, Part FB, for possible [*3]disposition.

On December 14, 2012, no Grand Jury action yet had occurred in the matter and there was no disposition. Defendant, through his counsel, again waived speedy trial time, and the matter was adjourned to January 25, 2013, for possible disposition.

On January 25, 2013, new counsel (the subpoenaed party) appeared on behalf of F.T. At that time no Grand Jury action had occurred and there was no disposition. Defendant did not waive speedy trial time and the matter was adjourned to April 11, 2013, for Grand Jury action.

It is axiomatic that the role of the Grand Jury is investigative. CPL 190.05; Kuriansky v. Seewald, 148 AD2d 238, 242 (1st Dept.)(Grand Jury is an investigatory body with broad exploratory powers), app. denied, 74 NY2d 616 (1989). Its function is two-fold — to determine if a crime has been committed and to protect citizens against unfounded criminal charges. Branzburg v. Hayes, 405 U.S. 665, 686-87 (1972); Matter of Grand Jury Subpoenae Dated June 30, 2001, 1 Misc 3d 510, 513 (Sup. Ct., Suffolk Co. 2003); CPL §§ 190.05, 190.55 and 190.65 (Grand Jury investigates crimes and determines if there is sufficient evidence to charge a person with a crime); New York Constitution, Art. I, § 6; CPL 190.05.

In order to perform its investigatory function, the Grand Jury has broad investigative powers. Branzburg v. Hayes, 405 U.S. at 686-87; People v. Huston, 88 NY2d 400, 405-06 (1996). The United States Supreme Court has held that, "the public has a right to every man's evidence," a right limited only by a constitutional, statutory, or common law privilege. United States v. Bryan, 339 U.S. 323, 331 (1950); Blackmer v. U.S, 284 U.S. 421, 438 (1932).

Moreover, Grand Jury subpoenas are presumed valid and a party moving to quash a subpoena must show bad faith or some other ground for invalidity. In the Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d 1012, 1015 (Sup. Ct., New York Co. 1989)(Grand Jury subpoenas presumptively valid and can only be challenged by an affirmative showing of some impropriety), modified, 156 AD2d 294 (1989).

Here, Defendant's counsel has not asserted that the subpoena should be quashed because it seeks attorney work product or information subject to the attorney client privilege. However, as the subpoena at issue has been served upon counsel currently representing Defendant in a criminal matter, Defendant's Sixth Amendment rights under the United States Constitution are implicated. This Court must be mindful that requiring Defendant's counsel to testify or to turn over information may impact Defendant's Sixth Amendment rights under the United States Constitution (as well as the Constitution of New York ) to be represented by an attorney of his/her choice. In the Matter of Stolar to Quash a Subpoena, 196 Misc 2d 175, 177-78 (Sup. Ct., New York Co. 2003); In the Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d at 1022-23. Careful scrutiny of a subpoena of a defendant's current counsel is required to weigh the relevance of the evidence, the good faith of the People in seeking it, the lack of alternative sources and [*4]necessity of the evidence with the potential chilling effect upon the attorney-client relationship, which in some cases might require recusal of counsel. Stolar at 177-78; Stewart at 1023.

Thus, to protect a defendant's Sixth Amendment right to counsel, before a court will require a defendant's attorney to comply with a subpoena issued to such current counsel to appear and produce evidence to a grand jury, the People must demonstrate good faith, the relevancy of the evidence sought, a lack of alternative sources for the evidence, and the necessity of the evidence. Stolar, 196 Misc 2d at 177; Stewart, 144 Misc 2d at 1023-24.

With respect to the issue of the District Attorney's authority to issue a subpoena, the District Attorney is authorized to issue subpoenas to obtain relevant evidence to present to a Grand Jury investigating a matter. CPL §190.50(2). Indeed, the District Attorney is authorized to review such evidence to determine whether it should be submitted to the Grand Jury. See People v. Huston, 88 NY2d at 406 (District Attorney determines what evidence to present and what to exclude); Hynes v. Moskowitz, 44 NY2d 383, 387 (1978); CPL § 190.25(4)(a) (to assist Grand Jury in conducting its investigation, evidence obtained by a Grand Jury may be independently examined by the district attorney).

In addition, one of the functions of the District Attorney is to present evidence before the Grand Jury. CPL § 190.55(2)(duties and authority of district attorney mandate submission of evidence to Grand Jury under enumerated circumstances).

CONCLUSIONS OF LAW

For the reasons set forth below, the motion to quash is denied except to the extent that M.B. shall not appear before the Grand Jury; the item sought shall be turned over to the District Attorney's office forthwith.

As an initial matter, the underlying matter to which the subpoena pertains has not been indicted. The Court notes that Movant's contention that the District Attorney is attempting to subvert the discovery process prescribed by the CPL is without merit as such provisions are inapplicable at this investigatory phase of the process. The underlying proceeding is pre-indictment; not post-indictment. Movant's contention that the investigation phase has concluded stands the Grand Jury process on its head. Indeed, the very subject of the item sought by the District Attorney is a videotape that purports to depict the August 25, 2012 incident which the Grand Jury currently is investigating with respect to Defendant's culpability.

Movant's contention that the subpoena is without legal authority because the witness is unable to authenticate the physical evidence sought also is without merit. Movant's request to quash the subpoena because it was not served upon reasonable notice also is denied.

Finally, the Court finds that Defendant's counsel represented to the People that the videotape would be provided to them. The Court also finds that the evidence sought is relevant and no attorney-client privilege or work product privilege has been asserted, the People have a good faith basis for seeking it, there are no alternative sources from whom the People could obtain such evidence, and the evidence is needed by the Grand Jury. Moreover, in light of the representations made by Defendant's counsel to the People about providing the People with the videotape, the People properly relied upon and Defendant's counsel is bound by such representations.

To ensure that compliance with the subpoena will have no chilling effect on Defendant's relationship with his counsel, the Court directs that M.B. produce to the District Attorney's office [*5]the videotape forthwith but M.B. shall not appear nor testify before the Grand Jury and no mention of the possession of the videotape by M.B. or any employee of The Bronx Defenders shall be made to or in front of the Grand Jury.

The Grand Jury subpoena issued by the District Attorney in the underlying matter is within the District Attorney's authority to issue. See Hirschfield v. City of New York, 253 AD2d 53, 58-59 (1st Dept. 1999)(district attorney has authority to issue subpoenas to investigate crime returnable before the Grand Jury).

As noted above, the District Attorney has broad investigatory powers during the pre-indictment phase of the proceeding, which includes the power to subpoena witnesses and to require such witnesses to bring and produce specified physical evidence. CPL § 190.50(2)(district attorney may call as witness any person believed to possess relevant information or knowledge); CPL § 190.25(4)(a) (to assist Grand Jury in conducting its investigation, evidence obtained by a Grand Jury may be independently examined by the district attorney); CPL § 190.55 (2) (duties and authority of district attorney mandate submission of evidence to Grand Jury under enumerated circumstances); CPL §§ 610.10(3) and 610.25(1)(securing attendance of witnesses by subpoena including requiring such witnesses to produce physical evidence).

Defendant's contention that subpoenaing the videotape is an attempt by the District Attorney to gain discovery to which it is not entitled at this point in the criminal proceeding has no merit. While a Grand Jury may not be used to gather evidence for a prospective trial once an indictment has issued, see Hynes v. Lerner, 44 NY2d 329, 333 (1978)(after indictment issued, Grand Jury subpoena duces tecum may not be used for sole or dominant purpose of preparing pending indictment for trial), where, as here, the case is in the pre-indictment phase, the Grand Jury is entitled to all relevant evidence. In re Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Brotherhood of Carpenters & Joiners, 72 NY2d 307, 315 (1988)(all that is required is that subpoenaed materials be relevant to the investigation being conducted and not overbroad or unduly burdensome); see also Virag v. Hynes, 54 NY2d 437, 444 (1981)(on motion to quash, movant must show materials have no relation to matter under investigation).

Movant's contention that the District Attorney is trying to contravene the discovery provisions of CPL § 240.30 is wholly misplaced. Those discovery provisions become applicable only at the post-indictment phase of a proceeding when a matter is proceeding to trial. Here, Defendant has not been indicted, no formal prosecution of Defendant has commenced, and the discovery obligations and limitations on the parties as set forth in that section of the CPL are not applicable.

Movant's argument that the "investigatory phase" of the proceeding is ended is baseless and sets the purpose of a Grand Jury proceeding on its head. The Grand Jury's very function is investigative. CPL § 190.05. That phase of the proceeding can only be concluded when the Grand Jury does one of the following: (1) Indicts the Defendant, or (2) Dismisses such charges against the Defendant, or (3) Reduces the charges that have been presented to them as against [*6]Defendant. CPL § 190.60. Thus, until such time as the Grand Jury either indicts Defendant, dismisses the charges, or directs the District Attorney to file a prosecutor's information, the matter remains in an investigative phase.

Contrary to Movant's assertions, there is no provision of the CPL that limits the power of a District Attorney to subpoena only individuals who can authenticate the evidence they are compelled to bring or produce to the Grand Jury. Such narrow reading of CPL § 190.50(2) is inconsistent with the Legislature's intent, the function of the District Attorney, and a plain reading of other relevant sections of the CPL which provide for and contemplate subpoenaed evidence to be obtained by a District Attorney for and on behalf of a Grand Jury.^[FN5] See In the Matter of a Grand Jury Subpoena Duces Tecum, Dated December 28, 1992, 157 Misc 2d 432, 441 (Sup Ct., New York Co. 1993)(subpoenaed evidence can be authenticated by someone else).

Moreover, here, the People have represented that they believe there are other individuals who would be able to authenticate the videotape that is sought. Thus, there simply is no merit to the contention that the District Attorney lacks authority to issue a subpoena duces tecum to M.B. even if he cannot authenticate such evidence.

As set forth below, the subpoena duces tecum that is the subject of this proceeding was served on M.B. and is of lawful authority.

To the extent that Movant contends that the subpoena itself is defective or without lawful authority because M.B. cannot authenticate the videotape, such an argument also is without merit. There is no such exception to production of subpoenaed evidence. See e.g., In the Matter of a Grand Jury Subpoena Duces Tecum, Dated December 28, 1992, 157 Misc 2d at 441 (tape recordings made by defendant, now in custody of defense counsel, must be produced; defendant was not only one who could authenticate tape recording; other persons on tape would be able to authenticate it).

Moreover, tape recorded or videotaped evidence may be authenticated in a number of ways. See New York v. Patterson, 93 NY2d 80, 84 (1999); People v. Ely, 68 NY2d 520, 527 (1986). Testimony of a person who has been recorded that the tape consists of a complete and accurate recording may authenticate it, as will testimony of a witness to the incident or to the taping of the incident. Patterson at 84; Ely at 527. Testimony by a person on the tape, as well as expert testimony that the tape has not been edited or altered, will also suffice to authenticate it. Id.

Although the less than 24 hour period from the time M.B. was served with the subpoena [*7]at issue and the return date of the subpoena typically would not be deemed "reasonable notice," the Court finds that, based on the facts of this case, the notice was adequate, particularly since the Court stayed enforcement of the subpoena to allow Movant additional time to supplement its oral motion to quash. (The Court also gave the People the same amount of time to supplement their oral opposition to the motion.)

The Court also notes that Defendant's counsel M.B., as well as counsel who preceded M.B., have long been aware that the People sought to obtain such evidence. See Affirmation of V. Marika Meis, pp. 5-6. Indeed, the Court is persuaded by the People's contention that Defendant's counsel agreed to provide such evidence to the People and the record supports that contention. See Footnote 4, supra.

Moreover, Movant does not contend that such evidence is not in the possession of M.B. Indeed, Movant has so admitted that it is in the possession of M.B. See Affirmation of V. Marika Meis, p. 5. As there is no contention that the evidence sought is voluminous or difficult to obtain or retrieve, the original short turn-around time between service and response did not cause an undue burden to Movant on those bases.

Accordingly, as no prejudice resulted to Defendant or M.B. as a result of the short time between service of the subpoena and its original return date, Movant's application to quash on this basis is denied.

C.Defendant's Sixth Amendment Right to Counsel Does Not

The Court notes that no attorney-client privilege or work product has been asserted by Movant, nor does such appear to exist. Accordingly, those are not bases upon which to quash the subpoena at issue.

Nonetheless, since the subpoena at issue has been served upon counsel currently representing defendant in this criminal matter, Defendant's Sixth Amendment rights under the United States Constitution are implicated. Accordingly, the People must show good faith, relevancy, lack of alternative sources, and necessity, before a Court will require Defendant's counsel to comply with such subpoena. In the Matter of Stolar to Quash a Subpoena, 196 Misc 2d at 177; In the Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d at 1022-23.

The Court is satisfied that the People issued the subpoena in good faith and not for the sole or dominant purpose of preparing a pending indictment for trial. See In the Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d at 1023. Indeed, the Court finds that "trial preparation" is not even part of the purpose for which the People are seeking the subpoenaed information. Here, the People have been seeking to view the videotape - which Defendant's prior counsel had advised them is exculpatory - from the time they learned of it from Defendant's former counsel. People's Memo. in Opp. at 2-3, 7.

Moreover, the Court finds the People had a good faith belief that Defendant's counsel was going to give the People the videotape. See Footnote 4, supra; see also People v. Qualls, 70 NY2d 863, 865 (1987)(counsel entitled to rely upon opposing counsel's in court representation, as an officer of the court); reconsideration denied, 70 NY2d 1002 (1988); Smith v. Smith, 235 [*8]N.Y.L.J 124, 2006 NY Misc. Lexis 2851, *57-58 (Sup. Ct., West. Co. 2006)(attorney has ethical duty to be truthful in representations to the court); Matter of Schildhaus, 23 AD2d 152, 156 (1st Dept. 1965).

It appears, based upon the exhibits submitted by the District Attorney's office in opposition to the motion to quash as well as the Affirmation of Movant, that M.B.'s decision not to provide the videotape to the People was communicated to Assistant District Attorney McCune on or about March 22, 2013; the Grand Jury originally was scheduled to end on Friday, March 29, 2013. Thus, the subpoena was issued by the People on March 26, 2013, only four days after it learned the videotape would not be provided by M.B., in order to provide the Grand Jury relevant evidence to the matter being investigated by that body.

Moreover, as noted below, the necessity for the Grand Jury to view such videotape only became evident to the People after Defendant testified and such testimony, according to the People, was wholly contradictory to the testimony provided to the Grand Jury by a police officer about the same incident. Thus, the short turn-around time of the issuance of the subpoena to the date of production - March 26, 2013 for March 27, 2013 - does not undermine the good faith with which it was issued by the People under the facts of this case.

There can be no real dispute that the information sought by the subpoena duces tecum in this matter is relevant to the Grand Jury's inquiry. See Hynes v. Moskowitz, 44 NY2d at 387 (so long as subpoenaed materials relate to a legitimate Grand Jury investigation, it would defy common sense to deprive district attorney access to them). The videotape purportedly depicts the very incident that is the subject of the Grand Jury's investigation. Thus, it is highly probative and relevant. Cohens v. Hess, 92 NY2d 511, 513-14 ("all facts having rational probative value are admissible, unless some specific rule forbids"), quoting 1 Wigmore, Evidence § 10, at 667 (Tiller rev. 1983); see People v. Combest, 4 NY3d 341, 349 (2005) (videotape of arrest and early questioning of defendant by detectives relevant and crucial to Defendant's claim of lack of voluntariness of his later statement, overcoming any privilege news organization may have).

There is no contention by either party that M.B. does not possess the evidence sought or that it is available elsewhere. Indeed, the People have asserted that the videotape was taken by Defendant's son and has not been disseminated to anyone other than Defendant and Defendant's counsel. People's Memo. in Opp. at 6.

Moreover, at the time the People learned of the existence of the videotape, they reasonably relied on defense counsel's representation that she was going to give the videotape to the People. See Footnote 4, supra. Accordingly, at that time there was no basis for the People to seek an alternative source for the evidence. At this juncture, it appears no such other source exists and, even if such other source did exist, there is no time for the People to seek it as the Grand Jury, which originally was set to end on March 29, 2013, now is scheduled to end on April 9, 2013.^[FN6] [*9]

The People have asserted that the testimony before the Grand Jury by a police officer at the scene about the incident that transpired on August 25, 2012 is markedly different than the testimony given by Defendant to the Grand Jury about the same event. A videotape account depicting such events is crucial to the fact finding function of the Grand Jury in determining whose testimony to credit. Thus, the videotape is needed for the Grand Jury to effectuate its duty to investigate the matter. People v. Livingston, 175 Misc 2d 322, 324-25 (County Ct., Broome Co. 1997)(People's failure to show the videotape of defendant's field sobriety test impaired the integrity of the Grand Jury; not a fair presentation of evidence, and did not include evidence which might avoid needless prosecution).

The Court is mindful that a defendant's trust relationship with his attorney could be compromised if such attorney were required to appear and testify before the very body that is investigating that defendant. In the Matter of Stolar to Quash a Subpoena, 196 Misc 2d at 1023; In the Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d at 1023. Here, however, such situation is not mandated. The People have represented that persons other than M.B. may be able to authenticate the videotape at issue. Indeed, Movant has affirmatively contended that M.B. cannot authenticate such evidence. Accordingly, there is no need for M.B. to appear or testify before the Grand Jury; rather, M.B. need only produce the evidence to the District Attorney so that the District Attorney may present it to the Grand Jury.

In order to ameliorate any potential chilling effect that compliance with the subpoena by M.B. may have on the attorney-client relationship between Defendant and M.B., the Court directs that M.B. shall not have to appear before the Grand Jury; he need only provide to the District Attorney's office the requisite videotape. Moreover, the Grand Jury shall not be informed that M.B. or any employee of The Bronx Defenders was in possession of such videotape.

CONCLUSION

For all of the reasons set forth above, the Court orders M.B. to comply with the subpoena duces tecum to the extent that M.B. provide the videotape at issue (or an exact duplicate) to the District Attorney's office, forthwith. The Court further orders that M.B. shall not have to appear before the Grand Jury and the Grand Jury shall not be informed that M.B. or any employee of The Bronx Defenders was in possession of such videotape.

The Court considered the following in deciding the motion: Notice of Motion, dated April 1, 2013, Affidavit of V. Marika Meis, Esq., in Support of Motion, and accompanying Memorandum of Law, filed on April 2, 2013; People's Memorandum of Law, filed April 2, 2013. [*10]