Decision and Order on Motions to Reargue and For Issuance of Judicial Subpoenas Duces Tecum Motion by the People to reargue that portion of the defendant’s pretrial motion which sought discovery of certain policies of the New York State Police, and by the defendant for the issuance of judicial subpoenas duces tecum requiring the State Police to produce such policies and authenticated video recordings of the defendant while at State Police barracks in Plattsburgh, and for the University of Vermont Health Network to produce the medical records of the alleged victim, at trial.The Court has considered the following papers: (1) on the People’s motion, a notice of motion dated October 25, 2018 and affirmation of Michele A. Bowen, Esq. of the same date with exhibits A thorough C thereto, and an affirmation in opposition by Thomas A. Capezza, Esq. dated November 5, 2018 with exhibits A through O thereto; and (2) on the defendant’s motion, a notice of motion dated January 7, 2019 and an affirmation of Thomas A. Capezza, Esq. dated the same date with exhibits A through N thereto, and an affirmation and a memorandum of law by Shannon M. Brundige, Esq., Assistant Counsel for the New York State Police, both dated January 10, 2019 in opposition to the defendant’s motion to the extent it is addressed to the policies and records of the State Police.The defendant is charged by a four-count indictment with having committed the crimes of assault in the second degree (Penal Law §120.05[3]), a class D felony, obstructing governmental administration in the second degree (Penal Law §195.05), a class A misdemeanor, resisting arrest (Penal Law §205.30), a class A misdemeanor, and disorderly conduct (Penal Law §240.20[1]), a violation. The charges arise out of an incident alleged to have occurred on June 10, 2017 in the town of Chesterfield, Essex County, when the defendant allegedly physically assaulted New York State Trooper Shannon Saunders (Saunders), a canine handler, and during the course thereof was attacked by Saunders’ canine which came to Saunders’ defense.The defendant served a notice of discovery upon the People on June 26, 2018 in which the defendant sought, inter alia, the New York State Police policies on use of force, use of canine, and evidence logging. The People served a discovery response dated that same date which did not include or address those items, presumably because the defendant’s notice and request therefor had not been received by the People. Subsequently, on July 30, 3018 the defendant filed a pretrial motion under CPL article 255 in which, among other relief sought, he specifically referenced those policies and requested an order directing the People to disclose the same. In their response to the motion, the People did not in any way address this aspect of the motion, and as a result this Court granted discovery of those policies by decision and order dated October 10, 2018. The People served a supplemental discovery response on October 29, 2018 objecting to the policies and advising that the video recordings previously furnished constitute the entirety of those recordings.The People and counsel for the State Police both correctly contend that such policies are not discoverable under CPL article 240 unless they fall within any of the categories of discoverable material in CPL §240.20 since discovery in a criminal case is strictly controlled by statute (CPL Article 240; see Pirro v. LaCava, 230 A.D.2d 909, 910, 646 N.Y.S.2d 866, 867). “CPL article 240, which should be strictly construed, codifies the full breadth of criminal discovery, including disclosure of evidence guaranteed by the Constitution, required by fundamental fairness and mandated by legislative policy (see People v. Colavito, 87 N.Y.2d 423, 427, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996]; Matter of Briggs v. Halloran, 12 A.D.3d 1016, 1017, 785 N.Y.S.2d 578 [2004]; Matter of Sacket v. Bartlett, 241 A.D.2d 97, 101, 671 N.Y.S.2d 156 [1998], lv. denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998]). ‘Items not enumerated in article 240 are not discoverable as a matter of right’ (People v. Colavito, supra at 427, 639 N.Y.S.2d 996, 663 N.E.2d 308 [citations omitted])” (People v. Alvarez, 38 A.D.3d 930, 932, 830 N.Y.S.2d 848, 851-852, 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660). Discovery in a criminal action is thus far more circumscribed than in civil proceedings where the standard for disclosure is whether the matter is “material and necessary to the prosecution or defense of an action” (CPLR §3101[a]).The People were directed to provide the polices because they failed to oppose that aspect of the defendant’s pretrial motion and since “[n]ormally what is not disputed is deemed to be conceded” (People v. Gruden, 42 N.Y.2d 214, 216, 397 N.Y.S.2d 704, 706, 366 N.E.2d 794, 796 [1977]) “[t]he sworn allegations of fact essential to support defendant’s motion were conceded by the People when they failed to submit opposition papers contesting these allegations (People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794)” (People v. Cole, 73 N.Y.2d 957, 958, 540 N.Y.S.2d 984, 985, 538 N.E.2d 336, 337 [1989]). Thus, the defendant’s motion to compel disclosure of those policies was properly granted since the People did not oppose the defendant’s pretrial motion for discovery of those policies, and because “[g]enerally, parties to litigation, even parties to a criminal prosecution, may adopt their own rules…by the simple expedient of failing to object * * * [and] [t]he burden rests on the parties to protect their own rights by asserting them at the time and in the manner that the Legislature prescribes.” (People v. Lawrence, 64 N.Y.2d 200, 206-207, 485 N.Y.S.2d 233, 237, 474 N.E.2d 593, 597 [1984]).Resolution of the issues raised by the motions to reargue and for issuance of a subpoena duces tecum centers upon whether the State Police policies and records constitute either “property”, as defined in CPL §240.10(3), “required to be disclosed…to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States” (CPL §240.20[1][h]), or are the proper subject of a subpoena duces tecum (see, CPL art. 610). “Items not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated (People v. Copicotto, supra, at 226, n 3, 428 N.Y.S.2d 649, 406 N.E.2d 465; see, Preiser, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 240.10, at 216-217). No such exceptional circumstances are urged or appropriately at issue in this case…” (People v. Colavito, 87 N.Y.2d 423, 427, 663 N.E.2d 308, 311, 639 N.Y.S.2d 996, 999 [1996]). “[I]n general, the subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence (see People v. Coleman, 75 Misc.2d 1090, 1091, 349 N.Y.S.2d 298, 301)” (People v. Gissendanner, 48 N.Y.2d 543, 551, 399 N.E.2d 924, 929, 423 N.Y.S.2d 893, 898 [1979]). A “defendant [must] put forth a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence (Matter of Constantine v. Leto, 157 A.D.2d 376, 557 N.Y.S.2d 611, affd. for reasons stated 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924). Without the factual predicate, defendant’s subpoena merely constitutes a discovery demand directed to a non-party, which is in contravention to the discovery provisions of CPL Article 240 (People v. Bagley, 279 A.D.2d 426, 426-427, 720 N.Y.S.2d 454, 455 [1st Dept., 2018]; see, also, People v. Scott, 60 A.D.3d 1396, 876 N.Y.S.2d 271 [4th Dept., 2009]).Here, the defendant’s motion for issuance of the subpoena duces tecum to the New York State Police is supported by an affirmation of his attorney. The defendant’s counsel contends that the subpoena should be issued because: (1) use of force police policies adopted by law enforcement agencies other than the State Police are public documents available on the internet; and (2) the policies are exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, as there is evidence that Saunders may have been the initial aggressor in the incident which, if true, would be a possible violation of the State Police use of force policy and evidence that Saunders was not performing a “lawful duty”, or a governmental or official function, or attempting to make an authorized arrest, as required to support the assault, obstructing governmental administration, and resisting arrest charges, respectively.The fact that other law enforcement agencies make their use of force or other policies public is not a statutory or constitutional basis upon either discovery can be ordered or a judicial supoena duces tecum issued. Brady material includes any information that would be “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses” (People v. Baxley, 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 10, 639 N.E.2d 746, 749), irrespective of whether the prosecution credits such information (People v. Robinson, 133 A.D.2d 859, 860, 520 N.Y.S.2d 415, 416). Information required to be disclosed pursuant to Brady encompasses evidence and information actually and constructively within the possession of the prosecution or accessible to it, including evidence and information in the possession or control of persons or agencies considered an “arm” of the prosecution or part of the “prosecution team” (see United States v. Avellino, 136 F.3d 249, 255; United States v. Morell, 524 F.2d 550, 555; People v. Steadman, 82 N.Y.2d 1, 603 N.Y.S.2d 382, 623 N.E.2d 509; People v. Lumpkins, 141 Misc.2d 581, 533 N.Y.S.2d 792). It is indisputable that the New York State Police are an “arm” of the People in this case since the alleged victim is a member of that agency who was purportedly acting within the scope of his employment and that agency arrested and instituted the underlying charges against the defendant.With regard to the use of force, use of canine and evidence logging policies, the “defendant failed to set forth a sufficient ‘factual predicate to support the contention that the documents sought in the subpoena[s] will bear relevant and exculpatory evidence’ [citations omitted]” (People v. Reddick, 43 A.D.3d 1334, 1335, 843 N.Y.S.2d 201, 201-202 [4th Dept., 2007]), or to establish that such policies are otherwise discoverable under Brady. Clearly, any violation of the canine and evidence logging policies would have no bearing on whether the confrontation between the defendant and Saunders was initiated by Saunders as the aggressor, and therefore those policies do not constitute relevant and exculpatory evidence. Assuming arguendo that Saunders violated the use of force policy, such would not be evidence that he was the initial aggressor, performing a “lawful duty”, performing a governmental or official function, or attempting to make an authorized arrest. The determinations by a jury of who is the initial aggressor for purposes of a justification defense, whether a lawful arrest was being made or attempted, and whether a member of law enforcement is performing a governmental or official function, rest upon facts1 and law2, not upon whether those facts violate some agency policy. Nor is proof of a violation by Saunders of the use of force policy relevant and material exculpatory evidence within the scope of Brady. The defendant’s motion for issuance of a subpoena duces tecum for such policies is thus denied (see, People v. Bush, 14 A.D.3d 804, 788 N.Y.S.2d 258 [3d Dept., 2005]; People v. Ricketts, 38 A.D.3d 291, 831 N.Y.S.2d 395 [1st Dept., 2007]).To the extent that the defendant contends that the policies may be helpful in cross-examining and possibly impeaching Saunders or other members of the State Police who testify at trial, a general claim such as the one here constitutes nothing more than mere speculation, indicative of an inappropriate “fishing expedition” in which this Court cannot and will not participate. Otherwise, an entire panoply of “property” would come within the ambit of disclosure under CPL §240.20, a result which would be contrary to the requirement that those statutory provisions be strictly construed (see People v. Alvarez, supra.). The People’s motion to reargue is therefore granted, and upon such reargument that portion of the October 10, 2018 decision and order of this Court directing the People to furnish to the defendant the subject policies and records is vacated and that branch of the defendant’s pretrial motion is denied.Turning to the portion of the defendant’s motion for the issuance of a subpoena duces tecum for Saunders’ medical records from the University of Vermont Health Network, a certified copy of such records has been received this date by the clerk of this Court, accompanied by a subpoena duces tecum signed by the defendant’s attorney, and is maintained in a sealed, confidential wrapper. Similarly, the People having represented in their supplemental discovery response that the video recordings of the defendant while at the State Police barracks provided to the defendant constitute “[a]ll recordings”, and having submitted no papers in response or opposition to the motion, no further authentication will be required at trial should the defendant seek to introduce the same into evidence. Those branches of the defendant’s motion are thus denied as moot, leaving for trial any remaining issues of admissibility.It is so ordered.
