County Court, Orange County, July 5, 2022

Gurda, Brady & Associates, Goshen, for defendant.

David M. Hoovler, District Attorney, Goshen, for plaintiff.

Defendant James Mongan also known as "Jimmy" moves for an order, pursuant to CPL 245.30 (2), granting defense counsel and defendant access to the alleged crime scene to inspect, photograph and/or measure the crime scene and directing that the condition of the crime scene remain unchanged in the interim. The People oppose this application, arguing that such will further traumatize the complaining witness and the defendant either has the information he seeks or can gather it through less intrusive alternative means. Defendant further moves, pursuant to CPL 245.30 (3), for an order directing the complainant, GR, to provide the People access to her cell phone for the purpose of making copies of text message exchanges between herself and her then boyfriend Robert Carey during the period of March 8, 2022, through March 10, 2022, and that copies of said text message exchanges be provided to defense counsel. [*2]

The defendant is charged with one count of burglary in the first degree in violation of Penal Law § 140.30 (2), one count of assault in the third degree in violation of Penal Law § 120.00 (1), and one count of criminal mischief in the fourth degree in violation of Penal Law § 145.00 (1). The People allege that defendant knowingly and unlawfully entered the dwelling of GR with the intent to commit a crime therein. He caused damage to a wooden front door and/or a wooden bathroom door, and he caused injury to GR by assaulting her. GR's injuries included bruising and swelling to her arms and legs, as well as substantial pain in her right arm, hand and fingers.

Defendant asserts he has been living for two years in the apartment building where the incident occurred, and that the location where the incident took place "may be" a common area which is used by tenants of the building to access the laundry room and/or for routine ingress and egress of the apartment building. Defendant further alleges that GR "may have" arrogated to herself the area that she now claims to be her apartment, thereby excluding other lawful tenants of the building{**76 Misc 3d at 369} without the legal right to have done so. Defendant claims his presence is necessary, in addition to his attorney, because he has historical knowledge of the layout of the apartment building, which is crucial to understanding the crime scene.^[FN1]

Defendant further moves, pursuant to CPL 245.30 (3), for an order directing GR to provide the People access to her cell phone for the purpose of making copies of text message exchanges between herself and her then boyfriend Robert Carey during the period of March 8, 2022, through March 10, 2022, and that copies of said text message exchanges be provided to defense counsel. Defendant asserts that GR provided a supporting deposition, which identified that she was texting her boyfriend about the incident as it was occurring. Defendant alleges the content of those statements supports his theory that he was simply seeking to enter a common laundry area, as opposed to GR's dwelling. The People have not formally opposed defendant's request, other than to request that the time period be limited in scope to approximately 30 minutes prior to the incident and 30 minutes after the defendant was removed from the scene.

A defendant may move for a court order to access a crime scene or other premises relevant to the subject matter of the case, so that counsel for the defendant may be granted a reasonable opportunity to inspect, photograph, or measure such crime scene or premises (CPL 245.30 [2]).^[FN2] In determining whether to grant an application for such access,

"the court shall consider defendant's expressed need for access to the premises including the risk that defendant will be deprived of evidence or information relevant to the case, the position of any individual or entity with possessory or ownership rights to the premises, the nature of the privacy interest and any perceived or actual hardship of the individual or entity with possessory or ownership rights, and the position of the prosecution with respect to any application for access to the premises" (CPL 245.30 [2]).

Access to the premises may be denied "when the probative value of access to such location has been or will be preserved{**76 Misc 3d at 370} by specified alternative means" (CPL 245.30 [2]). Defendant seeks access to the crime scene, which includes access to GR's private living area where she continues to reside with her boyfriend. The People refer to a letter submitted by GR wherein she states that she is severely traumatized by the incident and that she is "uncomfortable" with the defendant's lawyer coming to her residence. She further asserts it is "irrefutable" that the defendant broke into her residence, not a common [*3]area, which can be corroborated by the landlord and other tenants.^[FN3] The People further argue that numerous photographs and a video recording of a portion of the incident and the area in question at the time in question were provided to the defendant in discovery.

In considering the defendant's expressed need for access to the premises, including the risk that defendant will be deprived of evidence or information relevant to the case, this court finds that defendant already has the information he claims is relevant to the case: he has lived at the location for two years. The defendant has failed to establish that his expressed need for access to the scene outweighs the victim's privacy rights in her own home.^[FN4] The defendant alleges that the incident occurred in a common area, not in her home. Defendant has failed to identify how the discovery provided is insufficient to substantiate his claim, especially given his familiarity with the location.

Defendant, however, should not be limited to the photographs and videotaped evidence provided to him by the People. In weighing the respective interests of the parties, this court finds that counsel for the defendant and his representative investigator shall be granted reasonable access to the premises located at XXXXX, in the Town of Woodbury (XXXXX), Orange County, New York, including any and all common areas, as well as up to and including the threshold of GR's apartment (apt. No. XX). This order shall not include entry into the apartment of{**76 Misc 3d at 371} the complaining witness. Defendant's expressed need is to document a "common area which is used by tenants of the building to access the laundry room and/or for routine ingress and egress of the apartment building."^[FN5]

When a court does grant access to the premises, it is appropriate for the court to require a "law enforcement presence at the premises while defense counsel or a representative thereof is present" (CPL 245.30 [2]). As such, a member of the Town of Woodbury Police Department or an investigator from the Orange County District Attorney's Office shall be present at the specified location while defense counsel and his representative investigator are present.

Regarding defendant's request for text messages between the complainant and her boyfriend, the law provides that the court, in its discretion, and upon a showing by the defendant that the request is reasonable and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, order the prosecution, or any individual, agency or other entity subject to the jurisdiction of the court, to make available for disclosure to the defendant any material or information which relates to the subject matter of the case and is reasonably likely to be material (CPL 245.30 [3]). Text message communications between the complaining witness and her boyfriend at the time of the incident, regarding the subject matter of the incident, are relevant and it is reasonable for the defendant to request the same. [*4]Defendant does not appear to have any other means of obtaining this potentially relevant evidence. The complaining witness, therefore, shall provide the People access to her cell phone for the purpose of making copies of text message exchanges between herself and her then boyfriend Robert Carey during the period of March 8, 2022, through March 10, 2022. Copies of said text message exchanges shall be provided to the court within 30 days of this order for an in camera inspection by the court.

Now therefore, it is hereby ordered that Christopher Gurda, Esq., and his representative investigator be granted reasonable access to the premises located at XXXXX, in the Town of Woodbury (XXXXX), Orange County, New York, including any and all common areas, as well as up to and including the threshold of GR's apartment (apt. No. XX) within 30 days of{**76 Misc 3d at 372} this order; and it is further ordered that within this specified time frame the individual, agency, and/or entity with possessory or ownership rights shall provide Christopher Gurda, Esq., and his representative investigator reasonable access to XXXXX, in the Town of Woodbury (XXXXX), Orange County, New York, including any and all common areas, as well as up to and including the threshold of GR's apartment (apt. No. XX) to inspect, photograph, and measure; and it is further ordered that within this specified time frame the condition of the specified location shall remain unchanged; and it is further ordered that a member of the Town of Woodbury Police Department or an investigator from the Orange County District Attorney's Office shall be present at the specified location while defense counsel and his representative investigator are present; and it is further ordered that the complaining witness shall provide the People access to her cell phone for the purpose of making copies of text message exchanges between herself and her then boyfriend Robert Carey during the period of March 8, 2022, through March 10, 2022, and that copies of said text message exchanges be provided to the court within 30 days of this order for an in camera inspection by the court.