New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK , #2004-030-563, Claim No. 105034, Motion No. M-68817


Synopsis



Case Information

UID:
2004-030-563
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105034
Motion number(s):
M-68817
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JOHNATHAN JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 4, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read on Claimant's motion for the issuance of a subpoena ad testificandum pursuant to Civil Practice Law and Rules §2302(b) for the production of inmate J. Boatwright (DIN# 96-A-3745) currently incarcerated at Southport Correctional Facility:
1,2 Notice of Motion, Affidavit in Support by Johnathan Johnson, Claimant
  1. Affirmation by Dewey Lee, Assistant Attorney General
4,5 Filed papers: Claim, Answer After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

Claimant alleges in Claim Number 105034 that he was sexually assaulted on August 5, 2001 by a correction officer during a strip-search procedure at the Special Housing Unit (hereafter SHU) of Green Haven Correctional Facility (hereafter Green Haven). He also alleges that his food tray was marked with an "X" , singling his tray out for the deposit of "...what appeared to be human semans (sic)...." [Claim Number 105034]. In a second cause of action, Claimant alleges incidents occurring on August 7, 2001 at Coxsackie Correctional Facility (hereafter Coxsackie) SHU.

Generally, since Claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion. Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964). Claimant asks that this court issue a subpoena compelling the attendance of a fellow inmate, J. Boatwright (DIN #96-A-3745) at the scheduled trial of this matter on August 27, 2004. Claimant did not provide a proposed subpoena for the Court to execute thus the application is defective procedurally. Additionally, Claimant does not indicate what the necessity for Mr. Boatwright's testimony is, nor can the Court deduce what the materiality, relevance or necessity of his testimony would be from either the Claim or any other papers filed herein. Accordingly, Claimant's application for the issuance of this subpoena is denied on substantive grounds as well.

The Court notes that in his Affirmation the Assistant Attorney General has indicated that Mr. Boatwright still resides at Southport, and that the cost of any transportation and security to bring Mr. Boatwright for trial is $1,200.00, payable by Claimant to Southport Correctional Facility before any transportation would take place, plus the usual statutory witness fees. See Civil Practice Law and Rules §8001(a) Civil Practice Law and Rules. It does not appear that Claimant has been granted poor person status in accordance with Civil Practice Law and Rules Article 11, thus the provisions of Civil Rights Law §79(3)(b) concerning the expenses of transportation and security as a state charge do not apply.

Nonetheless, since Claimant has not established that the testimony of inmate J. Boatwright is material and necessary to the prosecution of the present claim, Claimant's Motion Number M-68817 is in all respects, DENIED.


August 4, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims