ADDITIONAL INDEX NUMBER 2022-444 Defendant Shawn Beach moves for an order, pursuant to CPL §245.30[2], requiring the Orange County District Attorney’s Office to make available for disclosure to the defendant access to the premises of 9 Wright Street in Port Jervis, New York 12771. The following papers were read: Notice of Motion-Affirmation of Christopher Pezzullo, Esq. 1-2 Richard K. Moran, Esq.’s Affirmation in Response 3-4 Affidavit of Service Reply Affirmation of Christopher Pezzullo Esq. 5 July 18, 2023 Correspondence from the Office of the New York 6 State Attorney General DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the defendant’s motion for access to the premises of 9 Wright Street in Port Jervis, New York is denied. All other requested relief is denied. The defendant is charged with two counts of Attempted Murder in the Second Degree in violation of Penal Law §110/125.25 and one count of Assault in the First Degree in violation of Penal Law §120.10[1]. It is alleged that on December 11, 2022, in and around the kitchen area of 9 Wright Street, Port Jervis, New York, the defendant swung a hammer at the head of his romantic partner, R.R., who then fled her home. Moments later, the defendant swung the same hammer at M.F., striking him in the head and causing a traumatic brain injury. The defendant now seeks access to R.R.’s private home pursuant to CPL §245.30[2]. The People oppose this request. The People assert that inspection of the premises is not warranted under the circumstances of this case. They further contend that CPL §245.30[2] is unconstitutional because court-ordered inspections deprive the People and crime victims of their respective rights to due process. Specifically, the People assert that CPL §245.40[2]:1) deprives the People of their right to due process because it creates a right for the defendant to move to re-enter private property that the People do not share; 2) deprives crime victims of their right to due process and requires them to obtain counsel so that their position can be meaningfully heard; and 3) deprives private property owners of their due process rights and requires them to obtain counsel so that their privacy interest can be protected. Also, the People contend that CPL §245.30[2] is unconstitutional because it violates the Fourth and Fifth Amendments when the premises sought to be searched is private property. The People assert that CPL §245.30 inherently provides them standing to challenge the constitutionality of the statute by requiring that the People be served with any application for inspection of premises. Further, the People claim that they have standing under the parens patriae doctrine. The Office of the New York State Attorney General was provided notice of this matter and submitted a letter to the Court, advising the Court that the Attorney General has elected not to intervene in this action. LEGAL ANALYSIS 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]). If such an application is made, the defendant must provide notice to the prosecution as well as any impacted individual (CPL §245.30[2]). In determining whether to grant an application for 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]). Defendant was arraigned on the instant indictment on December 27, 2022, and he filed this application on June 22, 2023. The express need for access to the premises that he articulates is that it is “reasonably likely to be material” because the location is where the allegations are alleged to have occurred. Further, defendant concludes that he will be deprived of putting forth a meaningful defense if he is denied the ability to examine and photograph the premises. He asserts that the crime scene photographs and RING camera video footage does not provide a clear outlay of the premises. Access to the premises only may be denied “when the probative value of access to such location has been or will be preserved by specified alternative means” (CPL §245.30[2]). Defendant seeks access to the alleged victim’s home. According to the affirmation submitted by the People, the victim R.R. “strongly opposes allowing defense counsel to enter/inspect any part of her home” (Affirmation of Chief Trial Assistant District Attorney Richard K. Moran, page 3). She characterizes any granting of access to her home “as a further victimization of the family” (Affirmation of Chief Trial Assistant District Attorney Richard K. Moran, page 3). Further, Ms. R. “reports that the current layout of the kitchen area, where this crime is alleged to have occurred, has changed significantly since the date of this offense” (Affirmation of Chief Trial Assistant District Attorney Richard K. Moran, page 3). The People further argue that numerous photographs and videos depicting the crime scene at the time of the crime were provided to the defendant in discovery. Finally, the people assert that the defendant is in a better position than most defendants with respect to knowledge of the crime scene layout as he lived at this home for over a month prior to the occurrence of the incident. Counsel for the defendant claims that after speaking with the defendant about the videos, it appears the layout of the home may be integral in formulating a defense, while at the same time asserting that any changes to the location identified by the People are of no import as long as the general layout of the home remains the same. The expressed need to access the premises is in order to seek information relevant to the case and defendant claims such access is a fundamental necessity recognized by the Legislature by virtue of the enactment of the statute. CPL §245.30 fails to set forth the standard of proof necessary to justify granting such access, but it is clear that the court should engage in a totality of the circumstances analysis and consider the claimed “express need”, the probative value of the evidence sought, alternative means for obtaining the evidence sought, and the victim’s privacy rights. Access is not simply there for the taking by a mere request without demonstrating some necessity justifying such an invasion of privacy. Courts should be mindful of the victim’s rights in an effort to avoid further victimization without just cause (People v. Mongan, 76 Misc.3d 367 [2022]).1 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 lived at the location for over a month and has been provided with videos and photographs of the premises as they appeared at the time of the alleged crime. Certainly, these resources provide an adequate alternate means to the evidence he seeks: the general layout of the home. 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. The defendant also has failed to identify how the discovery provided is insufficient, especially given his familiarity with the location. CONSTITUTIONAL CHALLENGE The Court need not decide the arguments regarding the constitutionality of CPL §245.30[2] raised by the People in light of “the well-established rule that a court should not address a constitutional question if the matter can be disposed of on some other basis” (People v. Diaz, 32 N.Y.3d 538, 548 [2018]). Courts, however, should not be tone deaf to the significant concerns raised in the People’s arguments. Specifically, that the statute may fail to provide an innocent victim or property owner with a meaningful opportunity to be heard when served by a criminal defendant with notice to inspect premises. A District Attorney tasked with prosecuting a criminal case, while adhering a defendant’s statutory rights, is hardly in a position to advocate for a victim or innocent property owner. The statute’s failure to provide resources for those parties raises significant concerns with respect to whether those parties’ due process rights are meaningfully protected. The aforesaid constitutes the Decision and Order of the Court. So Ordered. Dated: August 11, 2023
