New York State Court of Claims

New York State Court of Claims

DICKENS v. THE STATE OF NEW YORK, #2004-019-582, Claim No. 100119, Motion No. M-69056


Synopsis


Claimant's motion for subpoenas of inmate witnesses is granted in part and denied in part and request for transfer is denied.

Case Information

UID:
2004-019-582
Claimant(s):
DARRYL DICKENS, #97-A-0167
Claimant short name:
DICKENS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100119
Motion number(s):
M-69056
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DARRYL DICKENS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 6, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, has made letter applications to the court seeking the issuance of subpoenas compelling the attendance of two nonparty inmate witnesses at his trial scheduled for November 15, 2004, as well as an order directing his transfer to Southport Correctional Facility.[1] The State of New York (hereinafter "State") opposes the motion. A trial of this claim is scheduled to commence at Elmira Correctional Facility on November 15, 2004.

This claim arose on November 2, 1997, while claimant was an inmate at Elmira Correctional Facility and allegedly slipped and fell in a puddle of water under a table in the mess hall seating area.

With respect to his request for the issuance of judicial subpoenas to compel the attendance at trial of two inmate witnesses, claimant avers that the testimony of Anthony Younger, #95-A-3831, and Charles Faletta, no department identification number (DIN), is material and necessary for his trial. More specifically, claimant alleges that both inmates advised a correction officer about the presence of the puddle ten minutes prior to his fall and were present when a correction officer directed the inmates to sit at the table despite the puddle underneath.


It is well-settled that a party seeking the production of an inmate witness must apply to the court and show that the testimony of the witness is material and necessary. (CPLR 2302; Sebastiano v State of New York, 112 Misc 2d 1027). Based upon claimant's allegations, the court finds that the testimony of these witnesses is material and necessary, although only inmate witness Anthony Younger has been identified and located for certain. Specifically, Mr. Younger is currently housed at Sing Sing Correctional Facility. As such, the court will grant claimant's request for the production of inmate witness Anthony Younger, subject to the following conditions. In lieu of inmate Younger's personal appearance at trial, the court will direct his testimony be taken during trial via live video conference. Further, claimant is required to pay a $15.00 statutory witness fee directly to the Department of Correctional Services in advance of trial.[2] If said payment is made by claimant then the State shall ensure that inmate Younger is produced via video conference at the trial scheduled for November 15, 2004.


With respect to the other potential witness, identified by claimant as Charles Faletta, with no DIN number, there is no inmate named "Charles Faletta" listed in the DOCS Inmate Population Information Search on-line database. As such, the court cannot direct the production of an individual whose identity and location is unknown. Consequently, claimant's request for the issuance of a subpoena for one Charles Faletta will be denied without prejudice.


Finally, claimant's request for a transfer to a different correctional facility in order to obtain better legal assistance and/or access to law library facilities is denied inasmuch as this court is not involved with any housing, transfer and/or transport decisions made by DOCS relating to appearances for trial or otherwise.


In view of the foregoing, it is


ORDERED that claimant's motion, Motion No. M-69056, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing.


October 6, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:

  1. Claim, filed April 7, 1999.
  2. Letter from claimant to court, Motion No. M-69056, dated September 1, 2004, and received by the court on September 7, 2004.
  3. Letter from Chief Clerk to claimant, dated September 9, 2004.
  4. Letter from claimant to court, dated September 15, 2004, and received by the court on September 20, 2004.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September 27, 2004, and filed September 29, 2004.

[1]Claimant's letter requests are dated September 1, 2004 and September 15, 2004. Both parties were advised in writing that claimant's first letter was being treated as a motion and was calendared for September 29, 2004. (Letter from Office of the Chief Clerk dated September 9, 2004).
[2]There is no basis to waive the statutory witness fee based on the use of video conferencing. (Price v State of New York, 4 Misc 3d 1008). Obviously, however, no travel expenses for mileage is necessary. (CPLR 8001 [a]). Additionally, even in cases in which poor person status has been granted, which is not the case here, a waiver of such fees is not authorized. (Christian v State of New York, Ct Cl, Benza, J., Claim No. 93478, Motion No. M-57797).