Claimant, an inmate in the Department of Correctional Services, moves pro se
for a judicial subpoena duces tecum to obtain the plea allocution of an
unidentified criminal defendant which occurred during the course of the
claimant's criminal trial, together with the cost of the stenographic minutes.
Claimant alleges in his claim, inter alia, that he was removed from the long
term high security protective custody unit and transferred to another prison
facility in retaliation for exercising his constitutionally protected right to
file legal proceedings and use the law library.
Claimant does not support his request for the judicial subpoena with any
attempt to explain the relevance of the requested transcript nor did he identify
the name of the individual whose allocution transcript is sought. He states
only that during his trial on September 21, 1994, "the trial court held [sic] a
interlocutory plea allocution of another [sic
] defendants case"
¶ 3 of Declaration In Support Of Motion For Subpoena Duces
Tecum). Claimant's failure to establish the relevance of the requested
transcript and his inability to obtain it without the need for a subpoena
requires that his application be denied (see Johnson v State of New
, Ct Cl, June 30, 2006 [Claim Nos. 106601, 106179, 107011, 107138,
106508, 106878, Motion Nos. M-71826, M-71857, M-71858, M-71859, M-71861,
M-71862, UID # 2006-037-013], Moriarity, J.,
In addition, claimant's application is defective to the extent it may be
interpreted as a request for permission to proceed as a poor person so that he
may be exempt from paying the cost of the transcript. CPLR 1101(c) requires
that "[i]f an action has already been commenced, notice of the motion shall be
served on all parties, and notice shall also be given to the county attorney in
the county in which the action is triable...". Failure to serve the county
attorney is itself a sufficient basis for denial of poor person status
(see Sebastiano v State of New York, 92 AD2d 966 ; Harris
v State of New York, 100 Misc 2d 1015 ).
For the foregoing reasons, the motion is denied.
March 30, 2007
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of