Opinion
# 2018-053-524 Claim No. 128409 Motion No. M-91913
05-14-2018
MICHAEL WHITE v. THE STATE OF NEW YORK
NEUFELD SCHECK & BRUSTIN, LLP BY: Emma Freudenberger, Esq. HON. BARBARA D. UNDERWOOD, Acting Attorney General BY: Carlton K. Brownell, III Esq. Assistant Attorney General HON. JOHN J. FLYNN, ERIE COUNTY DISTRICT ATTORNEY BY: Donna A. Milling, Esq. Assistant District Attorney
Synopsis
In this Section 8-b claim for unjust conviction and imprisonment, the motion by the Erie County District Attorney to quash a subpoena duces tecum is granted, in part and denied, in part.
Case information
| UID: | 2018-053-524 |
| Claimant(s): | MICHAEL WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128409 |
| Motion number(s): | M-91913 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | NEUFELD SCHECK & BRUSTIN, LLP BY: Emma Freudenberger, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, Acting Attorney General BY: Carlton K. Brownell, III Esq. Assistant Attorney General HON. JOHN J. FLYNN, ERIE COUNTY DISTRICT ATTORNEY BY: Donna A. Milling, Esq. Assistant District Attorney |
| Third-party defendant's attorney: | |
| Signature date: | May 14, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Michael White filed this claim asserting a cause of action based upon Section 8-b of the Court of Claims Act, entitled "Claims for unjust conviction and imprisonment." Mr. White's cause of action is premised upon a claim of wrongful conviction arising from a February 16, 2016 conviction of rape and sexual abuse in the first degree. The present motion is brought by the Erie County District Attorney seeking to quash certain portions of a judicial subpoena duces tecum.
Following his conviction, the claimant was sentenced on May 24, 2006 and was subsequently incarcerated for approximately 6 ½ years and thereafter spent an additional 16 months on parole as a registered sex offender. An appeal to overturn his conviction was unsuccessful and on April 17, 2013, claimant filed a motion seeking DNA testing. On November 7, 2013, as a result of DNA testing that excluded claimant as the source of the male DNA found in the victim, claimant filed a motion in Erie County Court seeking to vacate his conviction in light of this newly-discovered evidence. On March 17, 2014, Erie County Court Judge Sheila A. DiTullio granted the motion. The Erie County District Attorney appealed that decision, which was then affirmed by the Appellate Division Fourth Department (People v White, 125 AD3d 1372 [4th Dept 2015]). On May 7, 2015, an order of dismissal was executed by Judge DiTullio dismissing the indictment. The instant claim was filed on August 24, 2016.
On or about January 29, 2018, this Court granted claimant's motion and issued a subpoena duces tecum to compel the Erie County District Attorney's Office to produce certain documents relating to the investigation, arrest and conviction of claimant for these crimes. On March 1, 2018, the Erie County District Attorney filed the present motion seeking to quash or modify the subpoena. In particular, they seek to quash that portion of their file that contains confidential office forms used for data entry and the status of the case; grand jury minutes and grand jury subpoenas; the medical records of the alleged victim of the crime; and the appellate record and post-conviction proceedings that are public records. In addition, they set forth in detail what documents are not contained within their file that are sought and included in the subpoena and finally, they seek to be reimbursed at the rate of twenty-five cents per page for over 1,000 pages of documents that they believe are responsive to this subpoena. Finally, they seek to exclude that portion of their file that contains criminal history reports of claimant and another named individual, which they contend are exempt from disclosure pursuant to Executive Law § 837 (8) (see 9 NYCRR § 6150.4 [6]).
In the affirmation in opposition to this motion, claimant contends that they should be entitled to receive the grand jury minutes of the testimony of the alleged victim as this was provided as Rosario material to claimant's attorney before the trial. In addition, they contend that they should also be entitled to receive the alleged victim's medical records that were admitted as an exhibit during the trial. Claimant does not address or dispute the remaining issues raised by the Erie County District Attorney.
The Court recognizes and it has long been held that only the court in charge of the grand jury may release testimony from the secrecy requirement of CPL § 190.25 (4) (People v Astacio, 173 AD2d 834 [2d Dept 1991], appeal denied 79 NY2d 824 [1991]). However, in that the grand jury minutes of the alleged victim were already provided to claimant's original trial counsel before his trial, the secrecy requirement as relates to these minutes no longer applies and claimant should be entitled to receive these grand jury minutes. Similarly, the Court is cognizant of the confidential and privileged nature of medical records and that they not be disclosed without proper authorization (CPLR 4504 (a) and HIPAA). However, it has been established by claimant that portions of the alleged victim's medical records were utilized and admitted as an exhibit at the trial. As claimant is entitled to all exhibits that were admitted at the original trial of this matter, he should receive that portion of the alleged victim's medical records that were included as a trial exhibit. Accordingly, it is hereby
Affirmation in Opposition to Motion to Quash or Modify Judicial Subpoena Duces Tecum, Exhibit A at p. 3.
ORDERED, that the motion to quash is granted, in part, as to those documents that would direct the release of the Erie County District Attorney's Office case management system forms; the grand jury subpoenas and minutes that were not disclosed to claimant's trial attorney as Rosario material prior to the trial; that portion of the medical records of the alleged victim, if any, that were not admitted as an exhibit at the trial; the work product, including attorney notes, email and memoranda concerning the post-conviction motion; the criminal history reports of claimant and the other named individual; in response to Requests A and C, those records requested in the subpoena that are not contained in the file of the Erie County District Attorney's Office, including by example but not limited to documents with the Office of the Chief Medical Examiner and the Erie County Central Police Services lab; and in response to Request B, the documents pertaining to claimant's post-conviction proceedings and the appellate record that are public records; it is hereby
ORDERED, that the motion to quash is denied, in part, and the Erie County District Attorney is directed to provide to claimant the grand jury subpoena and minutes of the alleged victim that were provided to claimant's trial attorney as Rosario material prior to the trial; and that portion of the medical records of the alleged victim that were admitted as an exhibit at trial; and it is hereby
ORDERED, that pursuant to CPLR § 3122, the Erie County District Attorney's Office shall be entitled to receive from claimant reimbursement for the reasonable cost to provide photocopies of documents responsive to this subpoena at the rate of twenty-five cents per page, which payment shall be provided by claimant in advance before the release of the documents responsive to this subpoena and as hereby ordered.
May 14, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered: 1. Notice of motion of Donna A. Milling, Assistant District Attorney with attached affidavit sworn to February 27, 2018; and 2. Affirmation in opposition to motion of Emma Freudenberger, Esq., with annexed Exhibits A-C dated March 8, 2018.