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Defendant Applies for Subpoena Duces Tecum

The defendant applies for three judicial subpoenas duces tecum or subpoena for production evidence to be directed to governmental or municipal entities. These subpoenas would require the production in Court of various police records relating to the crimes charged in the indictment, personnel records of the complainant police officers, records of the District Attorney’s office as to other complaints of assault made by these police officers, and records of the Freeport Human Rights Commission relating to complaints made against these police officers. The District Attorney and the Freeport Police Department have appeared in opposition.

A New York Criminal Lawyer said that at the outset we are called upon to determine what issues may properly be considered upon an application pursuant to CPLR 2307. The defendant contends that CPLR 2307 merely charges the Court with the duty of performing an essentially ministerial act. She argues that the sole consideration before the Court is whether original documents or copies should be produced. This proposition is not without support. However, CPLR 2307(b) provides that, as a general rule, the production of photostatic copies constitutes compliance with a subpoena issued under CPLR 2307(a). As the Practice Commentary recognizes, to construe CPLR 2307(a) as requiring only that the Court decide whether originals or copies are to be produced, renders that statute meaningless in light of CPLR 2307(b). This Court cannot so construe an act of the Legislature. Case law indicates that upon an application for a judicial subpoena duces tecum the Court may consider various issues including the materiality and relevancy of the items sought to be subpoenaed, the specificity of the demand, and the public policy involved, if any.

The use which the defendant intends to make of the items which she would have us subpoena is the decisive factor in determining whether these applications should be granted. A subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence. Rather, it is a Court process which directs an individual to appear together with books, documents, papers or other items in his possession so that by reference to these items he may give testimony relevant to the matter under inquiry and, through the production of evidence, assist in the pursuit of truth. Where it is apparent that a party does not intend or cannot hope to offer testimony which refers to the items subpoenaed but merely seeks discovery and inspection, his application should be denied.

From the Freeport Police Department the defendant would have us subpoena, Inter alia, the personnel profile records of Officers K and H, the complainants herein, and any and all records, complaints, inquiries and investigations, whenever made, pertaining to their performance as police officers. The defendant asserts that these items are necessary to enable a cross-examination of Officers K and H as to their professional competence as well as on their credibility.

A Staten Island Criminal Lawyer said the defendant has failed to inform the Court and we fail to see how the professional competence of the complainant police officers is relevant and material to a prosecution for assault. The defendant does make reference to alleged undue apprehensiveness of assault on the part of Officers K and H and also hints that they have a tendency to use unnecessary physical force. However, at no point does the defendant express an intention of offering a defense of justification nor allege any facts tending to show that that defense is available. At best the defendant appears to be foraging for evidence that such a defense would be reasonable. This is not a proper use of a subpoena duces tecum.

In the instant case the defendant does not merely seek records of criminal conviction, rather she appears to contemplate a broad assault upon the credibility of the complainants through reputation evidence and past vicious, immoral and criminal conduct. Neither method of impeaching credibility permits the offering of testimony referring to the content of the items the defendant would have us subpoena. Thus the only purpose the defendant could have in seeking the production of the items now under discussion would be discovery and inspection. As we have discussed previously, this is not a proper use for a subpoena duces tecum.

A Queens Criminal Lawyer said that therefore, these applications are disposed of as follows: (1) the application for a subpoena directed to the Freeport Human Rights Commission, being unopposed, is granted; (2) the application for a subpoena directed to the Freeport Police Department is granted as to the records dealing with the events at 133 Griffing Place, Freeport, New York. In all other respects it is denied for the reasons stated hereinabove; and (3) the application for a subpoena directed to the Nassau County District Attorney is denied for the reasons stated hereinabove.

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