At the trial preparation conference (hereinafter TPC) held on January 8, 2001,
claimant made an application to have the deposition transcript of a non-party
witness, who is incarcerated in a state correctional facility, read into
evidence without requiring his appearance at trial. The State objected and the
Court gave the parties until January 31, 2001 to submit memoranda of law
regarding this issue.
Claimant asserts that the testimony of inmate Richie Acosta is important to his
case. Mr. Acosta's deposition was taken at Fishkill Correctional Facility.
Claimant relies on CPLR 3117 (a) (3) (iii) which provides for the use of a
non-party's deposition if "the witness is unable to attend or testify because of
age, sickness, infirmity or imprisonment". Claimant's counsel asserts that,
based on his prior experience, the State would demand payment of approximately
$1,000.00 in order to have Mr. Acosta appear to testify at trial. This is
apparently the cost of transporting Mr. Acosta to Court from the facility at
which he is incarcerated, as well as the cost of his security escort. Counsel
further asserts that claimant has funds of only $2.13 and thus cannot afford to
have Mr. Acosta transported for trial.
In opposition, the State asserts that Mr. Acosta's imprisonment does not render
him unable to attend the trial. The State points out that the Court has
authority to order it to produce the witness at trial pursuant to CPLR §
2302 and Correction Law § 72 (2).
Civil Rights Law § 79 (3) (a) recognizes the right of inmates to maintain
lawsuits and specifically provides that the State will not be liable for any
expense related to the action, including, but not limited to, the expense of
transporting the inmate to, or lodging or guarding the inmate at any place other
than in a state correctional facility.
Civil Rights Law § 79 (3) (b) provides that when an inmate had been given
permission to proceed as a poor person the cost of transporting, guarding and
lodging the inmate shall be a State charge but the Court may direct that the
inmate repay the costs out of any recovery received by the inmate. Claimant
herein has not been granted poor person status.
In an action involving non-inmate parties it was held that where a Court has
ordered that a prison inmate be produced for trial pursuant to CPLR § 2302
(b), the only costs imposed in connection with the production of such witness
are the standard witness fee and travel expenses imposed by CPLR § 2303 and
§ 8001 and not the actual cost of producing the inmate witness (Matter
of State of New York Depart. of Correctional Servs. (C.S.E.A.), 142 Misc 2d
380). Civil Rights Law § 79 had no application in that matter because the
statute refers only to actions or suits in which an inmate is a party. This
distinction between costs levied against inmates and non-inmates for the
identical action raises a substantial equal protection issue in the Court's
Even more on point are the decisions of this Court which are accorded stare
decisis status in this matter. In an action in which an inmate was a party
and he sought to produce an inmate as a witness at trial, the Court stated,
"[i]f inmate litigants - but not free citizens - are required to pay, either in
advance of trial or out of the proceeds of any award, the full, actual costs of
securing the presence of relevant witnesses who are incarcerated, there would be
a significant, and very unequal, impact on the ‘truth-seeking'
process"(Word v State of New York, Claim No. 87174, Motion No. M-57525,
filed 6/18/98. King, J.).
The Court directed that the inmate witness be produced at trial and required
claimant to advance to the State, not the witness only, the statutory witness
and travel fees (see also, Humphrey v State of New York, Claim No.
90231, Motion No. M-58322, filed 10/23/98, Bell, J.).
As the statutory witness and travel fees are considerably less than the
approximately $1,000.00 claimant's counsel asserts the State will require for
transporting the witness to trial, we find that Mr. Acosta's imprisonment does
not make him "unable to attend" the trial as provided by CPLR 3117 and thus,
claimant's request to read the deposition transcript into evidence at trial
without requiring the witness' appearance is denied. Upon proper application of
claimant, the Court will consider whether a subpoena to compel Mr. Acosta's
attendance at trial is proper pursuant to the appropriate statute.
The following papers were read on claimant's motion:
Affidavit of Claimant, Affirmation of Counsel