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
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
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.
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.
Claim, filed April 7, 1999.
Letter from claimant to court, Motion No. M-69056, dated September 1, 2004, and
received by the court on September 7, 2004.
Letter from Chief Clerk to claimant, dated September 9, 2004.
Letter from claimant to court, dated September 15, 2004, and received by the
court on September 20, 2004.
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September
27, 2004, and filed September 29, 2004.
There is no basis to waive the statutory
witness fee based on the use of video conferencing. (Price v State of New
, 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).