New York State Court of Claims

New York State Court of Claims

THORPE v. THE STATE OF NEW YORK, #2002-031-012, Claim No. 99684, Motion No. M-64919


Claimant's motion to compel production of witnesses and documents for trial is granted in part and denied in part. Claimant's request for assignment of counsel is denied

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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for an order compelling Defendant to produce certain witnesses and documents at the trial of this matter:
  1. Notice of Motion filed March 22, 2002;
  2. Affidavit of Omar Thorpe, sworn to March 13, 2002;
  3. Affirmation of Wendy E. Morcio, Esq., sworn to April 5, 2002;
  4. Filed documents: Claim and Answer;
  5. April 2, 2002 correspondence from Omar Thorpe;
  6. April 10, 2002 correspondence from Wendy E. Morcio, Esq. and attached exhibit.
In this claim filed on January 22, 1999, Claimant Omar Thorpe alleges that he was assaulted by a correction officer at Lakeview Shock Correctional Facility on November 5, 1998. With this motion, Claimant seeks a Court order compelling the production of certain witnesses and documents at the trial of this matter, which is scheduled for May 6, 2002. By letter dated April 2, 2002, Claimant also requests that counsel be appointed to represent him in this matter. This request is also addressed below.

Defendant objects to specified portions of the motion as set forth below.


Claimant requests that the following witnesses be produced:
  1. Correction Officer M. Vanzile;
  2. Correction Officer J. Hahn;
  3. Correction Officer J. Reimer;
  4. Correction Officer J. Tamarazio;
  5. Sergeant. K. VanVolkenburg;
  6. Inmate Kenneth Johnson;
  7. The "2 to 10 shift head nurse of Lakeview S.I.F.C., name unknown."
Claimant alleges that each of the Correction Officers and Sergeant VanVolkenburg witnessed the incident and wrote reports concerning what occurred. Claimant does not clearly state the purpose for the testimony of inmate Kenneth Johnson or of the head nurse. It is inferred, however, that Inmate Johnson witnessed the incident and that the nurse treated Claimant for his injuries shortly after the incident.

Defendant agrees that the request for Correction Officers Hahn and Vanzille are reasonable and does not object to producing these individuals to testify at trial. Defendant objects to producing Officers Reimer and Tamarazio, and Sergeant VanVolkenburg on the grounds that Claimant does not mention these individuals in the claim, that they only arrived on the scene after the altercation had begun, and that their testimony would be cumulative. Defendant therefore asserts that producing all five of these individuals would be unnecessarily burdensome. However, each of the Correction Officers and Sergeant VanVolkenburg were eyewitnesses to at least some portion of the incident during which Claimant alleges he was assaulted. As such, I find Claimant's request that each be made available for questioning at trial to be reasonable.

Defendant also objects to being ordered to produce inmate Kenneth Johnson 96-A-4160, indicating that inmate Johnson is no longer in State custody. I find that because inmate Kenneth Johnson is no longer in State custody, Defendant is not obligated to produce him at trial.

Defendant identifies Nurse Bonnie Degan as the nurse on duty at the time of the incident. Although Claimant's request regarding the head nurse is vague, as he fails to specify the date or dates to which he is referring, I find that Defendant's identification of Nurse Degan as the proper person to give testimony is accurate and that Nurse Degan should also be produced at the time of the trial.


Claimant has asked for the audiotape recording of his Tier III disciplinary hearing related to the incident, as well as a transcription of this recording. Defendant asserts that it no longer has the audiotapes in its possession, but has and is willing to produce a transcript of the recording. I find that production of the transcript will be sufficient.

Claimant has also attached copies of his previous demands for discovery and inspection to his motion papers and asks that "every document requested" be produced at trial. This request is overly broad and has not been justified or explained by Claimant. Claimant has implied, however, that he lost certain documents relating to his claim, which possibly include Defendant's responses to these discovery demands. Defendant does not oppose producing copies of its responses to Claimant's demands at trial and I find that this will adequately address Claimant's concerns.

Finally, Claimant requests production at trial of the original photographs taken of him shortly after the incident. Defendant does not oppose this request and I find that it is reasonable in any event.
Appointment of Counsel
In his April 2, 2002 request for appointment of counsel, Claimant asserts that he has attempted unsuccessfully to retain an attorney to represent him and that he believes that this matter is too complex for him to proceed pro se. Defendant disagrees with Claimant's assessment and urges the denial of Claimant's request. Defendant also points out that Claimant neglected to mention that his previous application for the same relief was denied by Judge Lane in an order filed April 13, 1999. I have examined the underlying claim and concur with Judge Lane's assessment that the matter involves neither a fundamental right, nor is of sufficient complexity to warrant assignment of counsel (see, Mater of Smiley, 36 NY2d 433; Matter of St. Luke's-Roosevelt Hosp. Ctr. 159 Misc 2d 932, 936, modified and remanded, 215 AD2d 337).

Based on the foregoing, it is;

ORDERED, that Claimant's motion is granted in part and Defendant is directed to produce the following individuals to give testimony at the trial of this matter: Correction Officer M. Vanzile; Correction Officer J. Hahn; Correction Officer J. Reimer; Correction Officer J. Tamarazio; Sergeant. K. VanVolkenburg; and Nurse Bonnie Degan; and it is further

ORDERED, that Defendant produce, without the necessity of subpoenas, the following documents at the trial of this matter: the transcript of Claimant's Tier III disciplinary hearing regarding the incident at issue in this matter; the original photographs of Claimant taken shortly after the incident; and copies of Defendant's various discovery responses made during the course of preparing this claim for trial; and it is further

ORDERED, all other relief requested in Claimant's motion, including his request for appointment of counsel, is denied.

April 8, 2002
Rochester, New York

Judge of the Court of Claims