New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2007-015-169, Claim No. 111167-A, Motion No. M-72669


Synopsis


Claimant's motion for subpoena duces tecum was denied as he failed to establish the relevance of the requested materials or that he is unable to obtain them without a subpoena.

Case Information

UID:
2007-015-169
Claimant(s):
MARK MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111167-A
Motion number(s):
M-72669
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Mark Mitchell, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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" (see ¶ 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 York, 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., unreported).[1]

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 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).

For the foregoing reasons, the motion is denied.


March 30, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 11, 2006;
  2. "Declaration" of Mark Mitchell dated December 11, 2006


  1. [1]Unreported decisions of the Court of Claims may be found on the Court's website at www.nyscourtofclaims.state.ny.us.com.