New York State Court of Claims

New York State Court of Claims

THORPE v. THE STATE OF NEW YORK, #2002-031-013, Claim No. 100110, Motion No. M-64918


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 10, 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.
In his claim filed on April 5, 1999, Claimant Omar Thorpe alleges that he was assaulted by several correction officers at Lakeview Shock Correctional Facility on December 28, 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 the assignment of counsel to represent him in this matter.

Defendant objects to specified portions of Claimant's motion as set forth below.


Claimant requests that the following ten witnesses be produced at trial:
  1. Correction Officer Stevenson;
  2. Correction Officer J. Attea;
  3. Correction Officer R. Lata;
  4. Correction Officer S. Tilley;
  5. Sergeant. E. Hulton;
  6. Inmate Chris Wiggins 96-R-4033;
  7. Inmate Darrel Capers 98-R-2563;
  8. Inmate Sabater 96-A-6009;
  9. The head nurse at the facility at the time of the incident; and
  10. Dr. J. Alves.
Claimant alleges that, with the exception of C.O. Stevenson, each of the Correction Officers and Sergeant Hulton witnessed and participated in the assault against him. Correction Officer Stevenson apparently witnessed but did not participate in the alleged assault. Each of these individuals also prepared a written report concerning what occurred. Of these individuals, Defendant objects to producing only Officers Lata and Stevenson. Defendant points out that Officer Lata is no longer employed by the Department of Correctional Services. He is therefore no longer subject to Defendant's control and need not be produced. As for Officer Stevenson, Defendant asserts that he could not give testimony that relates to the incident and that Claimant has failed to address how this officer's anticipated testimony might be relevant. However, Officer Stevenson is, in fact, the only witness to the alleged assault who is not also alleged to have been a perpetrator of the assault. I also note that he prepared a written report indicating that he witnessed the incident. For these reasons, I find that Claimant's request is reasonable and I direct Defendant to produce Officer Stevenson at the time of trial.

Claimant requests the production of three inmates to give testimony at the trial. However, he does not clearly state the nature of the anticipated testimony of each of the identified inmates. He merely states generally that he spoke with these inmates after the incident and that they would give testimony concerning the incident or concerning "previous knowledge of incidents with claimant and themselves." (Claimant's affidavit page 2 paragraph B). Claimant does not indicate which of these three inmates witnessed the incident and which he intends to call for other reasons. It can be assumed that inmate Sabater, with whom Claimant was fighting at the time of the incident, witnessed the altercation, and Defendant does not oppose producing him for the trial.

Defendant does object to producing the other two named inmates. Defendant points out that inmate Capers is no longer incarcerated, having been released to parole on November 24, 2000. For this reason, I find that the State is not obligated to produce him at trial. With regard to inmate Wiggins, Defendant asserts that, since the purpose of his testimony is not clearly set forth in Claimant's moving papers and since there is no record of him having witnessed the incident, Defendant should not have to produce him at trial. I agree. Claimant has failed to sufficiently set forth grounds which would justify an order compelling Defendant to produce inmate Wiggins at the trial.

Claimant's request that Defendant produce the nurse who treated him just after the incident is certainly reasonable and meets with no objection from Defendant. Defendant has identified this individual as Nurse B. Degan. However, Claimant also requests the testimony of Dr. J. Alves, the medical director at Southport Correctional Facility. Apparently, Dr. Alves is familiar with Claimant's current physical condition. Defendant objects to this request, stating that the burden of producing Dr. Alves, which includes travel from Southport, the loss of his services as the medical director at Southport, and the necessity of finding someone to cover his duties during the trial, is not justified by Claimant's application. Again, I agree. Claimant does not identify Dr. Alves as a fact witness with information relevant to the claim in this matter. Claimant was not seen by Dr. Alves at the time of the incident or anytime shortly thereafter. Claimant has failed to demonstrate that his testimony is necessary for the prosecution of this claim. I decline to order that Dr. Alves be produced at trial, however, Defendant is directed to have Claimant's ambulatory health records available for review by Claimant and the Court at the time of trial.


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

Claimant has also attached 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 his 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 that the original photographs of him taken after the incident be produced at trial. 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. I have examined the underlying claim and find that this matter involves neither a fundamental right, nor is of sufficient complexity to warrant assignment of counsel (see, Matter 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, without the necessity of subpoenas, the following individuals to give testimony at the trial of this matter: Correction Officer Stevenson; Correction Officer J. Attea; Correction Officer S. Tilley; Sergeant. E. Hulton; and Nurse B. Degan; and it is further

ORDERED, that Defendant produce, without the necessity of subpoenas, the following documents at the trial of this matter: Claimant's ambulatory health record; 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 is denied.

April 10, 2002
Rochester, New York

Judge of the Court of Claims