On March 11, 2022, a Warren County Grand Jury returned Indictment IND-70129-22/001 which charged Jason E. Sharpe (hereinafter "defendant") with one count of Strangulation in the Second Degree (PL § 121.12), one count of Rape in the Third Degree (PL § 130.25[3]), and one count of Criminal Contempt in the First Degree (PL § 215.51[b][iv]). The defendant was arraigned on that indictment in Warren County Court on March 25, 2022 with the assistance of counsel. At that arraignment the People filed a Certificate of Compliance, a Notice of Trial Readiness, and various statutory notices and demands. On May 16, 2022, the defendant filed an omnibus motion seeking various relief. On June 17, 2022, the People filed their affirmation in opposition. On July 18, 2022, the Court issued a Decision and Order. On July 21, 2022, the defendant filed an Affirmation in Support of a Motion Pursuant to CPL §§ 245.30(2) and (3). On August 3, 2022, the People filed an Affirmation in Opposition to the Defendant's Motion Pursuant to CPL §§ 245.30(2) and (3). Having reviewed the defendant's motion and the People's opposition the Court holds as follows:

Defense counsel has renewed his request for a court order granting defense counsel access to the scene of the alleged crimes (i.e., the Complainant's apartment) to photograph the apartment. The People have opposed this request.

CPL § 245.30(2) provides that:

"Without prejudice to its ability to issue a subpoena pursuant to this chapter and after an accusatory instrument has been filed, the defendant may move, upon notice to the prosecution and any impacted individual, agency, or entity, for a court order to access a [*2]crime scene or other premises relevant to the subject matter of the case, requiring that counsel for the defendant be granted reasonable access to inspect, photograph, or measure such crime scene or premises, and that the condition of the crime scene or premises remain unchanged in the interim. 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. The court may deny access to the premises when the probative value of access to such location has been or will be preserved by specified alternative means. If the court grants access to the premises, the individual or entity with ownership or possessory rights to the premises may request law enforcement presence at the premises while defense counsel or a representative thereof is present."

Although defense counsel has failed to include an affidavit of service attesting to the fact that the Complainant received statutory notice of this request, defense counsel did include in his motion a letter which was ostensibly mailed to the Complainant affording her with such notice.

Defense counsel has generically argued that he is in need of access to the Complainant's apartment to (1) inspect the alleged crime scene in relation to the Complainant's alleged sequence of events as the alleged incident unfolded within the apartment, (2) photograph the apartment's permanent fixtures and layout, (3) refresh the defendant's and possible witnesses' recollections, and 4) formulate a defense strategy. More specifically, defense counsel argues that his request for access is to determine whether there is a television located in the bedroom and whether the television is, or has the capability to be, connected to a cable jack in the wall. Defense counsel also specifically asserts that the inspection is needed in order to ascertain how close the Complainant's apartment is to other apartments at the complex, and whether neighbors at the apartment heard any yelling or noises.

In light of the intrusive nature of the instant request, the Court does not find that defense counsel has a "need for access to the premises." CPL § 245.30(2). What defense counsel has expressed in his motion papers is a "want" or "desire" to inspect the premises so that counsel can walk the alleged crime scene. This desire does not rise to the level of a need for access such that the defendant would otherwise be "deprived of evidence or information relevant to the case." Id. As defense counsel concedes on page 2, paragraph 6 of his motion, the residence he seeks inspection of was the "shared residence of Mr. Sharpe and the Complainant." Accordingly, the defendant himself has direct knowledge of the layout, fixtures and furnishings of the Complainant's apartment. Secondly, if it is a layout which defense counsel is seeking, nothing is preventing defense counsel from reaching out to the owners/managers of the Complainant's apartment complex and requesting a copy of the floor plan for the Complainant's apartment. Such a request would not only accomplish defense counsel's goal of obtaining a floor plan and layout of the apartment but would also avoid the intrusiveness of invading the Complainant's personal residence. Indeed, upon this Court's internet search of the subject apartment complex it was quickly revealed that the Complainant's apartment complex website offers not only floor plans but also photographs of their apartments. With respect to defense counsel's desire to observe the structural building where the Complainant's apartment is located, nothing is preventing defense counsel from traveling to that location and making that observation.

With respect to defense counsel's request to photograph the permanent fixtures within the apartment, the only ostensible permanent fixture referred to is the existence or nonexistence of a cable jack wall outlet in the bedroom. Defense counsel argues that he needs to inspect the bedroom to determine whether there is a television present, and whether there is a cable jack wall outlet accessible to that television in order to ascertain the veracity of the Complainant's allegation that the defendant made a statement to her after the alleged rape parroting a phrase which was uttered on the television show House which was playing on the television in the bedroom at that time. Again, the defendant himself ought to be able to provide this information to defense counsel. Further, a television is not a fixture, and as eight months have elapsed since this alleged incident there is no telling whether the television (if any) may have been moved or removed since the alleged date of occurrence. Moreover, a review of page 24, line 16 of the Grand Jury transcript reveals that the Complainant testified that the show House was playing on a DVD. Accordingly, to allow defense counsel at this juncture to enter the Complainant's apartment, specifically her bedroom, would do nothing to answer the questions of defense counsel. Were defense counsel to be granted access and determine that, upon the date of his entry, there was no television in the bedroom and no cable jack in the wall it would not advance his alleged theory that a House DVD was not playing on the television in the bedroom on December 11, 2021. Since the defendant's arrest the television could have been moved or removed entirely from that bedroom. As the allegation is that the show House was playing on a DVD the presence or absence of a cable jack would be of no consequence.

Finally, defense counsel argues that he is in need of inspecting the interior of the Complainant's apartment in order to determine which neighbors may have heard yelling or screaming during the alleged altercation. This desire to canvass the neighbors can be accomplished without needing to go inside the Complainant's apartment. Nothing is preventing defense counsel from knocking on the doors of the neighbors above, below, beside, or across from the Complainant's apartment.

Accordingly, the defendant's motion for access to the premises of the Complainant made pursuant to CPL § 245.30(2) is hereby denied. In light of the foregoing decision the People's argument regarding the constitutionality of CPL § 245.30(2) is rendered moot.

Here, the defendant avers that any injuries or redness depicted on the Complainant's body in photographs disclosed by the People actually depicts the Complainant's normal skin condition and/or a self-inflicted injury. For these reasons the defendant seeks a court order permitting the photographing of the Complainant's hands, face, and neck pursuant to CPL § 245.30(3). The People have opposed the defendant's request.

CPL § 245.30(3) provides, in pertinent part, that the "court in its discretion may, 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." (Emphasis added). What the defendant is seeking is "high-quality photographs that demonstrate that the Complainant always has the marks that she is now alleging were caused by the Defendant." Defendant's Motion, page 3, paragraph 10. It is obvious that, inter alia, for the People to satisfy their burden of proof at trial the Complainant will need to appear and testify. Accordingly, the Complainant will be [*3]required to be physically within the courtroom before the jury and will be subject to direct and cross-examination. At that time the jury will have the ability to view the Complainant, and counsel from both sides of the aisle will be permitted to inquire of her and request that she display her hands, face and neck to the jury so that they may compare what they see in the courtroom to the photographs allegedly taken earlier in time.

As the defendant has other means available to him to illustrate to a jury that the Complainant either does, or does not, have a skin condition as opposed to injuries to her body the Court is hereby denying the defendant's request to photograph the Complainant. In light of the foregoing decision the People's argument regarding the constitutionality of CPL § 245.30(3) is rendered moot.

In the defendant's omnibus motion he requested a court order requiring disclosure to the defendant of any medical records of the Complainant related to this incident, medical records related to any mental health issues/disorders the Complainant may suffer from, and/or any medical records related to any alcohol or substance abuse diagnoses she has received and/or any treatment she has received related to said alcohol or substance abuse. The Court directed the People to interview the Complainant regarding (1) whether any medical treatment was sought or obtained relating to injuries suffered on or about December 11, 2021, (2) whether she has any mental health diagnoses and/or has received any mental health treatment, and (3) whether she has an alcohol or substance abuse diagnosis and/or has received any alcohol or substance abuse treatment. On July 27, 2022, the Court received a letter with an attached 1-page "Memorandum of Complainant's Response To Questions"^[FN1] wherein the People provided the Complainant's answers to the above-noted questions. The Court has reviewed the Complainant's responses and do not find that they give rise to or constitute CPL § 245.20(1)(k) evidence.

Accordingly, the defendant's motion for disclosure of the Complainant's medical records is denied.

The foregoing constitutes the Decision and Order of this Court.