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.
: 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
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).