New York State Court of Claims

New York State Court of Claims

OCTAVE v. THE STATE OF NEW YORK, #2000-001-064, Claim No. 97393, Motion No. M-62068


The Court (1) denies claimant's motion compel production of discovery; (2) amends its May 25, 2000 Daily Report only insofar as to extend the deadline for claimant to file a Note of Issue and Certificate of Readiness; and (3) sets the claim for trial on Thursday, April 5, 2001, at 10:00 a.m.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Lewis B. Oliver, Jr.By: Mark A. Edwards, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 24, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion to compel production of discovery pursuant to CPLR 3101 and 3120: Notice of Motion, dated July 7 and filed July 10, 2000; Affidavit in Support of Mark A. Edwards, Esq., sworn to July 7 and filed July 10, 2000, with annexed Exhibits A-J; Affidavit in Opposition of Michael C. Rizzo, Esq., AAG, sworn to July 24 and filed July 26, 2000, with annexed Exhibit A.

This claim is based on the alleged misidentification of claimant McGregor D. Octave ("claimant") as a drug dealer known as "Dre". Claimant was arrested and incarcerated until it was discovered that he had an alibi for the time of the alleged drug sale.

This is a motion to compel production from defendant State of New York ("defendant" or "the State") of certain items sought by claimant in discovery as well as the production of witnesses for examination. This motion follows extended negotiation of discovery disputes at conferences (see, Daily Report dated February 2, 2000; Daily Report dated April 20, 2000; and Daily Report dated May 25, 2000). In that most recent Daily Report, the twelve demands for additional depositions and the twenty-one demands for additional documents or other items were addressed individually, and certain of the items were marked as possibly requiring subsequent motion practice.

By the instant motion, counsel for claimant seeks an order compelling production of the witnesses and documents originally demanded except insofar as their production has already been ordered by the May 25, 2000 Daily Report. It appears, from consideration of the Affidavit in Support of Mark A. Edwards, Esq. (sworn to July 7 and filed July 10, 2000, with annexed Exhibits A-J ["Edwards Aff."]) that the following items remain in dispute:
Original photographs: At issue are a 1995 mug shot of Dre and a still photo taken from an undercover surveillance videotape. Claimant acknowledges that defendant has produced an original of the mug shot that was in the custody of the Albany Police Department, but has stated that it does not possess an original of the still photo that was used (Edwards Aff., ¶ 14). Counsel for defendant states unequivocally, "The defendant has provided originals and duplicate originals of all applicable photographs in its possession" (Affidavit in Opposition of Michael C. Rizzo, Esq., AAG, sworn to July 24 and filed July 26, 2000, with annexed Exhibit A ["Rizzo Aff."], ¶ 4). The Court cannot compel production of something that does not exist.

Videotape(s): According to claimant's counsel, there are two distinct and different videotapes showing a December 18, 1996 purchase of crack cocaine by an undercover operative. Claimant contends that the copy obtained by way of the Rensselaer County Public Defender ("Public Defender video") is significantly different from the copy obtained from the State Police ("State Police video"), but it is not clear what he wishes the Court to do about such difference, if it exists, at this juncture.

What counsel for claimant is clearly requesting, however, are videotapes of three other undercover transactions involving "Dre." The "buy sheets" from each of the transactions contain a written description of the transaction, and the description for the December 18th transaction was taken from comments that State Police Investigator Samuel Mercado is shown dictating on the video. Since "[t]his seems to have been Inv. Mercado's method of operation in recording information from drug buys," he reasons that there would be videotapes of the other transactions, which would also include the "buy sheet" description being dictated. Defendant has stated on several occasions, however, that according to the "buy sheets" themselves, only one of the three transactions was taped in any fashion, and that one had an audio tape only. The State acknowledges that the tape cannot be located and indicates that the search for it continues. Once again, the Court cannot compel the production of something that does not exist.

New York State Police Field Manual: Standards and procedures to be used by police in identifying suspects and determining whom to arrest are clearly relevant to this claim (Boomer v State of New York, Ct Cl, unreported decision filed May 31, 2000, Collins, J., Claim No. 98463, opn at 7). At his deposition, Investigator Mercado stated that one document, the State Police Field Manual, contained instructions on identification, primarily "how to set up, for example, a show-up, a lineup, a photo array" (Edwards Aff., Exh. J, p 11). Defendant has agreed to provide claimant with "procedures regarding ‘lineups,' ‘show-ups,' and ‘photo arrays'" (Rizzo Aff., ¶ 6) and, further, to provide an identifying title or description for the portion of any of the manuals requested by claimant that might contain the information sought, without conceding that the information would be discoverable (id., ¶ 10). Should any portion of those manuals be identified as relevant and material to this action (in addition to those that defendant has already agreed to produce), a copy of that portion of the manual shall be submitted to the Court for its in camera review and determination. At the present time, there is no specifically identified document that the Court could compel defendant to produce.

Additional Depositions: Claimant has deposed, among others, State Police Investigator Mercado, but seeks another examination of this officer to question him about his "encounter" with "Dre" during a 1994 trial[*] and about an incident in January 1997, in which "Dre" tentatively identified Mercado as a police officer. Information about both of these events was available to claimant and his counsel at the time of the original deposition: the Appellate Division opinion was public record and the identification was noted on the "buy sheet" for that event and in notes of an Investigator Wilkinson, both of which were available to claimant at the time of the original deposition (see, Edwards Aff., Exh. J, p 39). While nothing absolutely precludes a second deposition of Investigator Mercado, in the Court's view this step is not warranted. Discovery disputes have already consumed an inordinate amount of time, and a further deposition would inevitably result in additional delay and--if past experience is any guide--new disputes. More importantly, claimant's counsel has failed to convince the Court that Investigator Mercado could or would add anything to the facts already established by the documents. Moreover, the 1994 encounter and the January 1997 incident appear to have little, if any, importance and relevance to the claim. Should it develop otherwise at trial, appropriate steps can be taken.

Notice to Admit: Claimant's Notice to Admit (Edwards Aff., Exh. D) was drafted following the April 20, 2000 conference. The purpose for using this device was to eliminate the need for additional deposition testimony that claimant was requesting at that point. Now this attempt to resolve a dispute has given rise to yet another dispute.

A notice to admit (CPLR 3123) is intended to be used with respect to "clear-cut matters of fact" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3123, C3123:1, at 710), such as the authenticity of a document, ownership of an item of personal property or a person's location or activity at a given point in time. The notice to admit is not properly used to determine facts constituting "the very dispute of the lawsuit," material issues or ultimate or conclusory facts (Spawton v James E. Strates Shows, 75 Misc 2d 813, 814; see, Taylor v Blair, 116 AD2d 204); or technical, detailed and scientific information properly subject for expert testimony (Taylor v Blair, supra, at 206-207).

The 102 admissions that claimant seeks to have defendant make, many of them quite complex, go well beyond the type of inquiry for which this disclosure device was intended, and defendant will not be compelled to respond. As it is not the responsibility of either the Court or the opposing party to cull through the requests to identify those few that may be properly answerable (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453), the Notice to Admit is stricken as improper.

For the reasons set forth above, the Court (1) denies claimant's motion; (2) amends its May 25, 2000 Daily Report only insofar as to extend the deadline for claimant to file a Note of Issue and Certificate of Readiness from September 1, 2000 up to and including December 1, 2000; and (3) sets the claim for trial on Thursday, April 5, 2001, at 10:00 a.m. at the Justice Building, 8th floor, Courtroom 4, Albany, New York, which trial date is firm (the parties are referred to 22 NYCRR 206.15 and 22 NYCRR 206.17).

October 24, 2000
Albany, New York

Judge of the Court of Claims

Mercado testified as an expert witness in People v Henry Lamont (227 AD2d 873); "Dre" is Henry Lamont.