Sequence No. 4 Doc. Nos. Notice of Motion — Exhibits and Affidavits Annexed 34-40 Cross Motion — Exhibits and Affidavits Annexed Answering Affidavit and Exhibits, Memorandum of Law 45-47 Reply Affidavit 50-51 AND ADDITIONAL POST-SUBMISSION PAPERS The following papers numbered ____ to ___were read on these motions (Seq. No. 4 ) noticed on _______and duly submitted as No.on the Motion Calendar of ____________ Upon the foregoing papers, the motion listed above is decided in accordance with the annexed decision and order. Upon the foregoing papers, the motion of the defendants for leave to serve a non-party subpoena is granted as follows: The defendants move pursuant to CPLR 2307 for an Order issuing a subpoena directing the New York County District Attorney’s Office to produce copies of its entire evidentiary file in connection with People v. Dalone Jamison, New York County Indictment Number 4176/2015, including but not limited to video footage, audio tapes, photographs, investigation reports, recorded interviews, witness statements, and transcripts. These consolidated wrongful death actions arise out of a shooting which occurred on October 12, 2015, at premises located at 915 Broadway in New York County. The criminal action was tried before a jury, resulting in a conviction on July 19, 2018. Defendant Dalone Jamison was convicted of manslaughter in the first degree and other charges, and was sentenced on February 22, 2018 to a term of incarceration of 39 years. Defendant’s appeal of his sentence is pending. The District Attorney’s Office contends that the subpoena is overly broad on its face, as it seeks the “entire” file held by the prosecutor’s office. Secondly, the District Attorney’s Office argues that the file is needed in connection with a pending appeal. Lastly, the District Attorney’s Office contends that witness statements and identifying information is privileged and confidential; that the plaintiff failed to show that the disclosure sought could not be obtained from sources other than from the nonparties; and that prosecution memos, status reports, notes, legal research are confidential work product. Long after submission of this motion, the District Attorney’s Office submitted a copy of an Order of the trial court in the criminal proceeding. (Order, Supreme Court, New York County, Criminal Term, Laura Ward, J.S.C.) The order, dated June 19, 2017, issued pursuant to former CPL 240.50, grants a protective order. The order provides, in relevant part: “Defendant is required to maintain in the exclusive possession of his attorney of record discovery material disclosed by the People. Such discovery material must be used for the exclusive purpose of preparing for the defense of this criminal action. No copies of such discovery material are to be provided to defendant or his family, friends, associates, or any other persons, and upon completion of the proceeding, all such discovery materials must be returned to the Court.” Discussion As a threshold matter, the Court notes that the District Attorney has submitted additional papers long after submission of the motion, without any showing of cause for the delay. Nevertheless, this Court has the discretion to consider papers submitted in an untimely manner. (Sanchez v. Steele, 149 AD3d 458, 52 N.Y.S.3d 88 [1st Dept. 2017].) Although no reason is advanced for failing to submit these papers with the initial opposition to the motion, the plaintiffs have had a full opportunity to respond, and no prejudice has been shown. Given the gravity of the matter, including the risk of harm underlying the issuance of a protective order in a criminal proceeding, this Court considers the additional submissions. “CPLR 3101(a) is to be liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’ (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406, 235 NE2d 430, 288 NYS2d 449 [1968]). Pursuant to CPLR 3101 (a) (4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the ‘circumstances or reasons’ requiring disclosure” (Ferolito v. Arizona Beverages USA, LLC, 119 AD3d 642, 990 N.Y.S.2d 218 [2d Dept 2014]). “[D]isclosure from a nonparty requires no more than a showing that the requested information is ‘material and necessary,’ i.e. relevant to the prosecution or defense of an action” (Id. [citing Matter of Kapon v. Koch, 23 NY3d 32, 34, 988 N.Y.S.2d 559, 11 N.E.3d 709 (2014)]). Initially, there is no showing that providing copies of the content of the District Attorney’s files would hinder the prosecution of the pending criminal appeal. It does not appear that preparation of the District Attorney’s brief or argument of the appeal is imminent. In arguing that discovery is warranted, plaintiffs draw an analogy to decisions interpreting the Freedom of Information Law. (Public Officers Law article 6.) In particular, Public Officers Law 87(2)(e)(iii) precludes release of information which would “identify a confidential source or disclose confidential information relating to a criminal investigation.” The Court of Appeals has held that this section applies only if the agency establishes (1) that an express promise of confidentiality was made to the source, or (2) that the circumstances of the particular case are such that the confidentiality of the source or information can be reasonably inferred. (Matter of Friedman v. Rice, 90 N.E.3d 800, 802, 30 NY3d 461, 466, 68 N.Y.S.3d 1, 3 [2017].) In Matter of Friedman v. Rice (supra), the Court held that that identifying information and statements gathered in the course of a police investigation from witnesses who do not testify at trial are not presumptively confidential. That case involved the investigation of sex crimes against children, where a conviction was obtained after a guilty plea. In holding that the Second Department applied the wrong standard — a standard not applied in the other Departments — the Court concluded “[w]here the content of a statement or information and the circumstances surrounding its compilation by law enforcement convince a court that its confidentiality can be reasonably inferred, it may be withheld or released with appropriate redactions pursuant to section 87 (2) (e) (iii). Otherwise, absent an explicit assurance of confidentiality, it may not be withheld or redacted under that FOIL exemption.” (Matter of Friedman v. Rice, supra at 814.) Matter of Friedman v. Rice establishes that witness statements and information in a criminal proceeding are not presumptively immune from disclosure, either based on a FOIL request, or in discovery in a civil proceeding (since civil disclosure is at least as broad as disclosure under FOIL). However, Matter of Friedman v. Rice has limited application here. Matter of Friedman v. Rice suggests that disclosure of the contents of a District Attorney’s file is permissible where the confidentiality of witnesses is not implicated. Here, on the other hand, a protective order was issued, and there is no showing that the protective order is not still in effect. Former CPL 240.50 [1] allowed the issuance of a protective order upon a showing of “good cause,” including a “substantial risk of physical harm” or “intimidation,” and the court may therefore presume that there existed, and continues to exist, a risk that persons providing information to the District Attorney’s Office were subject to physical harm or intimidation by the defendant or others. The existence of a protective order, the fact that the Appellate Division marked “SEALED” on its Order relating to this case, and the pendency of the appeal provide a compelling basis to deny wholesale release of the District Attorney’s file. In deferring to the effect of the protective order, this Court notes that the Order applies to matters given to the criminal defendant in discovery. There is no showing that statements and evidence disseminated at a public trial are subject to the protective order, or remain confidential in any way. Thus, this Court will permit disclosure of matters publicly disseminated at the criminal trial. The Court agrees that any notes of interviews are attorney’s work product, and thus exempt from discovery. (Smith v. City of New York, 49 AD3d 400, 401, 854 N.Y.S.2d 44 [1st Dept 2008]; Siemens Solar Indus. v. Atlantic Richfield Co., 246 AD2d 476, 476, 667 N.Y.S.2d 248 [1st Dept 1998]; Corcoran v. Peat, Marwick, Mitchell & Co., 151 AD2d 443, 445, 542 N.Y.S.2d 642 [1st Dept 1989]; Taylor v. State of New York, 2019 NY Misc. LEXIS 7052, 2019 NY Slip Op 52166(U), 66 Misc 3d 1229(A), 125 N.Y.S.3d 528 [Court of Claims] [in wrongful conviction case, holding that notes taken by Assistant District Attorney were protected work product]). The Court notes that plaintiffs have not specifically sought Grand Jury materials, and in addition, failed to demonstrate the requisite compelling and particularized need so as to obtain access to the Grand Jury materials. (People v. Fetcho, 91 NY2d 765, 769, 698 NE2d 935, 676 NYS2d 106 [1998]; Williams v. City of Rochester, 151 AD3d 1698, 55 N.Y.S.3d 843 [4th Dept. 2017].) Accordingly, the motion is granted only to the extent of permitting discovery of items entered into evidence at the criminal trial itself, and transcripts of the public proceedings at the trial (excluding any discussions or proceedings not held on the record in open court, or any pre-trail or ex parte hearings). The arguments not addressed herein are found to be without merit. It is therefore ORDERED that the motion of plaintiffs for an order issuing a subpoena to the New York City Police Department is granted to the extent of permitting release of items entered into evidence at the criminal trial itself, and transcripts of the public proceedings at the trial (excluding any discussions or proceedings not held on the record in open court), which are contained in the file of the District Attorney of New York County in connection with People v. Dalone Jamison, New York County Indictment Number 4176/2015, and it is further ORDERED that the motion is denied as to transcripts, attorney’s notes and investigative reports, and other items not publicly disclosed at trial, and it is further ORDERED that upon presentation to the Court via submission through Room 217 of a subpoena drafted in accordance with the foregoing, together with a copy of this Decision and Order affixed thereto, the Court will so order said subpoena. This is the Decision and Order of the Court. Dated: November 30, 2020
