This is claimant’s motion for the issuance of a subpoena to compel the
attendance of three individuals, currently incarcerated in the State
correctional system, at the trial of this claim, scheduled for June 22, 2006.
Defendant opposes the motion.
In the underlying claim, claimant alleges that he was the victim of an assault
by correction officers at Southport Correctional Facility on September 4, 2001.
In support of this motion, claimant alleges that the three witnesses whose
testimony he seeks to compel were witnesses to the subject event.
CPLR § 2302(b) provides that a subpoena to compel the attendance at trial
of an incarcerated inmate must be issued by the court. It has been held that
such a subpoena should not be issued absent the demonstration of a
“compelling necessity” for the testimony of the inmates whose
testimony is sought (Sebastiano v State of New York, 112 Misc 2d 1027
Beyond asserting that the three inmates were eyewitnesses to the subject event,
claimant does not address many important factors, such as where these inmates
are currently housed; whether they would agree to appear and testify or whether
force would be involved in enforcing a subpoena; what such testimony would be;
or whether each inmate possesses unique information so that his testimony would
be something more than cumulative (see Price v State of New York
, 4 Misc
3d 1008[A] ). Such considerations become crucial when one considers the
impact that judicially-compelled transportation of inmates around the State
could have on legitimate security and fiscal concerns.
Additionally, although this claim was filed in 2001, it does not appear that
claimant made any effort, until March of this year when the claim was scheduled
for trial, to obtain the testimony of the three sought inmates using disclosure
devices, such as depositions (oral or on written questions) or interrogatories,
that could have been conducted under court supervision and could have obviated
the necessity to request that they be transported to trial (see Price
v State of New York, supra). Balancing all of the relevant factors, the
relief sought by claimant is not warranted.
Although not addressed by the parties, the court’s file reflects two
items that should be addressed. In its response to claimant’s disclosure
demands, defendant stated that it had a copy of a videotape of the subject
incident which would be made available to the court at trial, and it provided
claimant with copies of the Use of Force Report and other documents pertaining
to the disciplinary charges that arose from the events at issue herein.
Although the court denies claimant’s motion for the issuance of subpoenas,
defendant is directed to produce the videotape and any documents in its files
pertaining to the subject incident at trial.