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Rhian TAYLOR, Claimant, v. STATE of New York, Defendant.
Claimant Rhian Taylor filed this claim on July 25, 2017, pursuant to section 8-b of the Court of Claims Act, alleging that his conviction and sentence for murder and related charges was unjust. Sentenced to an aggregate prison term of 20 years to life, Taylor appealed his conviction. The Court of Appeals reversed, ordering a new trial, based on the trial court's incomplete and misleading response to a jury inquiry. After a retrial, Taylor was acquitted of all counts.1
By Order dated October 18, 2018, this Court granted Taylor's motion for, inter alia, a subpoena duces tecum (the “Subpoena”) directing the Queens County Office of the District Attorney (“QDAO”) to produce records relevant to this claim (“2018 Order”). By the same Order, this Court denied the QDAO's corresponding motion to quash the Subpoena (see Motion No. M-91924). As a result of the 2018 Order, the QDAO provided documents responsive to certain demands but objected to providing five categories of records.
Presently before the Court are two motions: (1) the QDAO's motion for leave to reargue the 2018 Order and for clarification of certain aspects of the same order (Motion No. M-93302); and (2) claimant's cross motion for an order holding the QDAO in contempt and for sanctions (Motion No. CM-93340).
For the reasons that follow, the QDAO's motion is GRANTED, in part, and DENIED, in part (Motion No. M-93302); and claimant's cross motion is DENIED (Motion No. CM-93340).
Motion to Reargue and for Clarification
The QDAO seeks to modify the Court's 2018 Order insofar as it directed the QDAO to provide the following materials in connection with Taylor's criminal trials and murder conviction:
• records relating to the QDAO's material witness motions;
• Assistant District Attorney Karen Ross's (“ADA Ross”) notes of Taylor's jail calls;2
• records relating to the open investigation of the 2014 slashing of Seprel Turner, one of two key witnesses who testified against Taylor at both criminal trials (the other being Anthony Hilton);
• ADA Ross's texts, emails, and social media regarding claimant's criminal trials; and
• records concerning all arrests and prosecutions of Seprel Turner and Anthony Hilton.
(QDAO Notice of Motion 1—2).
Preliminarily, the QDAO's motion is untimely under CPLR 2221 (d) (3), which provides that motions for leave to reargue “shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.” Here, Taylor's counsel served a copy of the Court's 2018 Order (with written notice of its entry) on October 29, 2018, by regular mail.3 The QDAO was therefore required to file its motion to reargue by no later than December 3, 2018 (see CPLR 2221 [d] ; 2103  [providing that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period if the mailing is made within the state”] ). Because the QDAO did not file its motion to reargue until December 7, 2018—four days late—it is untimely.
Additionally, as Taylor's counsel argues, because the QDAO has not made a showing that the Court “overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision” (Schneider v Solowey, 141 AD2d 813, 813 [2d Dept 1988]), the QDAO's motion runs afoul of CPLR 2221 given that “[r]eargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided” (see Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971, 971 [1st Dept 1984]).
The QDAO appears to argue that it is entitled to leave to reargue because of its failure to appear at the oral argument on its motion to quash the Subpoena held by the Court on October 12, 2018, via a telephonic conference.
However, the QDAO had a full and fair opportunity to challenge the Subpoena and, in fact, did so by filing a motion—and a reply affirmation—seeking an order quashing the Subpoena. Plainly and simply, the absence of an opportunity to orally argue a written motion does not provide grounds for reargument under CPLR 2221.
Nevertheless, in the interest of addressing the merits of the QDAO's motion (see e.g. Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 638 [2d Dept 2005] [“The Supreme Court had jurisdiction to reconsider its prior order ‘regardless of statutory time limits concerning motions to reargue.’ ”], quoting Liss v Trans Auto Sys., 68 NY2d 15, 20  [affirming “sua sponte decision to rescind [ ] prior order” under court's discretionary power to “reconsider its prior interlocutory orders during the pendency of the action”] ) and applying controlling law, the Court modifies its 2018 Order, in the interest of justice, to the extent indicated below.
Civil Procedure Law and Rules § 3101 provides for the disclosure of all items “material and necessary in the prosecution or defense of an action,” and the Court of Appeals has interpreted these words liberally to require the disclosure “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406  [internal quotation marks omitted]; see also Wiggins v Kopko, 105 AD3d 1134, 1135 [3d Dept 2013] [“Parties in a civil action are entitled to full disclosure of all matter material and necessary, a discretionary determination based on usefulness and reason.” (internal quotation marks and citation omitted) ] ). The same rule applies “regardless of whether discovery is sought from another party or a nonparty” (Forman v Henkin, 30 NY3d 656, 661  [internal citation omitted] ).
Under the CPLR, “request[s] need only be appropriately tailored and reasonably calculated to yield relevant information” (id. at 664). A party need not demonstrate that “the items the party seeks actually exist” because the very “purpose of discovery is to determine if material relevant to a claim or defense exists” in the first place (id.). Indeed, “[i]n many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence” (id.).
While CPLR 3101 “embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits” (Spectrum Sys. Intern. Corp. v Chem. Bank, 78 NY2d 371, 376 ), it is not without limits. As relevant here, CPLR 3101 makes “privileged matter” and “attorney's work product” absolutely immune from discovery (Teran v Ast, 164 AD3d 1496, 1498 [2d Dept 2018], quoting CPLR 3101 [b]—[c]) and gives conditional immunity to materials “prepared in anticipation of litigation” (CPLR 3101 [d] ). However, “the burden of establishing any right to [such] protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity” (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 404 [1st Dept 2018] [internal quotation marks omitted], quoting Spectrum Sys. Intern. Corp., 78 NY2d at 377).
A nonparty seeking to quash a subpoena served pursuant to CPLR 3101 (a) (4) (see CPLR 2304 [“Motion to quash, fix conditions or modify.”] ) bears the initial burden of showing that the discovery sought is “utterly irrelevant” or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (Kapon v Koch, 23 NY3d 32, 34 ). Only then “does the burden shift to the subpoenaing party to demonstrate that the information sought is material and necessary” (Liberty Petroleum Realty, LLC, 164 AD3d at 404). Moreover, “as a general rule, a party need not show that information sought from a nonparty is unavailable elsewhere” (id. at 406).
Applying these standards, the Court rules as follows concerning the QDAO's motion to quash.
I. Material Witness Documents
The first category of materials addressed in the QDAO's motion consists of material witness documents relating to Taylor's criminal trials. Specifically, ADA Ross had to obtain material witness orders to secure the testimony of Anthony Hilton and Seprel Turner at both trials—despite both witnesses' prior representations at each trial that they testified against Taylor only to avenge the wrongful death of their friend (see Tae Aff at 7—8, ¶ 29).
The QDAO, relying on People v Fermin (150 AD3d 876 [2d Dept 2017], lv denied 30 NY3d 1060 ) and Hogan v Cuomo (67 AD3d 1144 [3d Dept 2009]), argues that the material witness orders bear no relevance to Taylor's present claim. However, the holding in Fermin is inapposite, and the QDAO's reliance on Hogan is misplaced.
Fermin involved the altogether distinct issue of whether a defendant has a right to be present at a material witness hearing where the only matter considered was “whether an eyewitness was willing to attend trial voluntarily or should be compelled to attend via a material witness order” (150 AD3d at 878). In contrast, here, Taylor seeks information about why Hilton and Turner did not voluntarily testify against Taylor.
If Hilton and Turner refused to testify because of threats made either by or on behalf of Taylor—allegations that would presumably be included in a material witness application—then such evidence would be relevant as tending to negate a claim of actual innocence. That Hilton is now deceased is of no moment. The CPLR and controlling case law do not require that Taylor establish the existence of relevant information in the form of admissible evidence. All that is required is that Taylor's request be “appropriately tailored and reasonably calculated to yield relevant information” (see Forman, 30 NY3d at 664), and it is.
As for Hogan, that case cuts against the QDAO's current position. In Hogan, the Third Department affirmed the trial court's denial of a motion to quash by applying the long-standing rule that “[a]n application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” (67 AD3d at 1145 [internal quotation marks and brackets omitted], quoting Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331—332 ).
Applying the Hogan rule here, it cannot be said that disclosure of the material witness records will be futile or “utterly irrelevant.” Given Taylor's claim that he was unjustly convicted based on the testimony of these two witnesses, any information regarding Hilton's and Turner's reasons for declining to voluntarily testify would be, at the very least, arguably relevant.
II. ADA Ross's Notes of Taylor's Jail Calls
Turning to the second category of materials, that is, ADA Ross's notes of Taylor's jail calls (which recordings apparently span hundreds of hours [Tae Aff at 9, ¶ 32] ), ADA Ross's deposition testimony is that she “just took notes as to what the call[s] said” (Tae Aff, exhibit A [Dec. 14, 2017 EBT Transcript] at 87:2—5). Assistant District Attorney Triffon reviewed the notes and found that “they contain slang, references to gang terminology, as well as nicknames and descriptors that ADA Ross, and truly, only ADA Ross, would be able to interpret due to her familiarity with the case, as well as her years of experience as a homicide prosecutor.” (Triffon Reply Aff ¶¶ 5—6 [italics in original] ).
The QDAO objects to the disclosure of ADA Ross's notes because they are “the work product of an attorney” (CPLR 3101 [c]) and were “prepared in anticipation of litigation or for trial” (id. at [d]  ). The “immunity which attaches to work product under subdivision (c) [of CPLR 3101] is absolute, while the immunity conferred on litigation material under subdivision (d) is conditional” (Hoffman v Ro-San Manor, 73 AD2d 207, 211 [1st Dept 1980]).
Attorney work product encompasses “those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect [an attorney's] legal research, analysis, conclusions, legal theory or strategy” (Hoffman, 73 AD2d at 211). Though generally the “mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement [attorney] work product” (Geffner v Mercy Med. Ctr., 125 AD3d 802, 802 [2d Dept 2015] [internal quotation marks omitted], quoting People v Kozlowski, 11 NY3d 223, 244 ), here, ADA Ross's “learning and professional skills” provided her with the ability to identify important recorded passages and the ability to interpret those recordings, which are replete with slang and gang terminology (compare Teran, 164 AD3d at 1498—1499 [holding that trial court erred in granting a motion to compel the production of attorney's files under CPLR 3101 (b) and (c), as the files were “primarily and predominately legal in nature and, in their full content and context, were made to render legal advice or services” (internal quotation marks omitted) ], with Bloss v Ford Motor Co., 126 AD2d 804, 805 [3d Dept 1987] [affirming denial of protective order and grant of motion to compel mere indexes of documents, the indexing of which was not accomplished by using any particular legal skills] ).
On reconsideration, therefore, the Court holds that the QDAO is not required to turn over ADA Ross's notes—and the Court does not reach the QDAO's alternative argument that the notes constitute privileged litigation material.
III. 2014 Slashing of Seprel Turner
The QDAO represents that it has turned over all non-privileged materials regarding the 2014 slashing of Seprel Turner, arguing that whatever materials remain undisclosed are protected from disclosure pursuant to the law enforcement privilege.
However, the existence of such a privilege is questionable (see e.g. Mosey v County of Erie, 148 AD3d 1572, 1575 [4th Dept 2017] [“The question is whether that statutory exemption contained in the Freedom of Information Law ( [FOIL] Public Officers Law art 6) also applies to discovery in civil actions. We conclude that it does not.”], rearg denied 151 AD3d 1783 [4th Dept 2017]; Matter of 91st St. Crane Collapse Litig., 31 Misc 3d 1207 [A] [Sup Ct, NY County 2010] [“Just as the United States Supreme Court has explicitly stated that the ‘Freedom of Information Act creates no privileges,’ this court finds that FOIL creates no law enforcement privilege.”], quoting Chamber of Comm. v Legal Aid Society of Alameda County, 423 US 1309, 1310 ). Mosey and Matter of 91st St. stand for the straightforward proposition that a FOIL exemption does not a privilege make where no such privilege existed at common law prior to FOIL's enactment.
Even assuming such a privilege exists (see Colgate Scaffolding & Equip. Corp. v York Hunter City Services, Inc., 14 AD3d 345, 346—347 [1st Dept 2005] [implicitly acknowledging the existence of such a privilege] ), more is needed than a “conclusory assertion that confidentiality is necessary to the pending investigation” (id. at 346), especially in light of the near-expiration of the applicable five-year statute of limitations under CPL 30.10 (2) (b).
Nevertheless, to the extent that QDAO claims a law enforcement privilege with regard to any material, an in camera review of the material is appropriate (see Espady v City of New York, 40 AD3d 475, 477 [1st Dept 2007] [directing an in camera review of materials allegedly protected by the law enforcement privilege], citing Colgate Scaffolding & Equip. Corp, 14 AD3d at 346—347; Smith v Watson, 150 AD3d 487, 488 [1st Dept 2017] [remitting and directing in camera review of police investigation file “to give the court the opportunity to conduct the proper balancing, in the first instance, of the interests of both parties”] ).
Accordingly, the QDAO is directed to provide any undisclosed material concerning Turner's 2014 slashing to the Court for an in camera review.
IV. ADA Ross's Trial-Related Texts and Social Media
Regarding ADA Ross's texts and social media posts (collectively, “Posts”), the QDAO represents that no such Posts exist except to the extent that ADA Ross communicated via texts on a limited basis to police personnel to coordinate meetings or appearances. As to these texts, the QDAO office asserts that ADA Ross has represented that she stored the texts on a cell phone that she no longer possesses.
Given ADA Ross's representations to the QDAO, the Court reconsiders its 2018 Order as futile and holds that the QDAO is not required to provide ADA Ross's Posts. Taylor's counsel's request for an affirmation by ADA Ross containing the same representations is denied.
V. Arrests and Prosecutions of Anthony Hilton and Seprel Turner
Finally, the QDAO objects to having to disclose “[a]ll records concerning all arrests and/or prosecutions of Seprel Turner” and “[a]ll records concerning all arrests and/or prosecutions of Anthony Hilton” (Subpoena at 2, ¶¶ 4—5)—which the QDAO asserts it has already provided to Taylor (excluding records sealed pursuant to CPL 160.50  [c] and 160.55  [c])—on relevance and several other grounds: (1) Taylor's counsel, who represented him at his criminal retrial, already has these records; (2) the request is too broad because the QDAO does not have jurisdiction over non-Queens County criminal records, which Taylor can obtain himself; (3) aspects of this request go beyond the Subpoena's scope as limited by Taylor's counsel, i.e., post-retrial arrests; and (4) the sealed records cannot be released unless upon notarized request by Hilton (now deceased) or Turner, or upon judicial unsealing order, and no such order has issued.
Initially, although the Subpoena demanded the production of all records concerning Hilton's and Turner's arrests and prosecutions, Taylor's counsel subsequently narrowed the scope of that request to arrests or prosecutions involving “charges of dishonesty or moral turpitude” (see March 16, 2018 Affirmation Opposing District Attorney's Motion to Quash Subpoena Duces Tecum at 21, ¶ 76).
Moreover, while Taylor's counsel applied for and sought unsealing orders to obtain court files relevant to arrests and prosecutions of Hilton and Turner, the same is not true of the QDAO's own files, which Taylor seeks in the Subpoena.
Accordingly, the Court adheres to its 2018 Order directing the QDAO to produce the QDAO's files regarding the arrests and prosecutions of Hilton and Turner to the extent such arrests and prosecutions involve cases of dishonesty or moral turpitude.
Requests for Clarification
The QDAO also seeks clarification to the extent the 2018 Order directs it to produce (1) “Assistant District Attorney Karen Ross's emails regarding [all other categories of records that the QDAO was directed to produce pursuant to the order] (i.e., QDAO Sub. Item No. 9)”; and (2) “[r]ecords relating to non-testifying individuals (i.e., QDAO Sub. Item No. 1 [h] )” (see 2018 Order at 3).
Regarding ADA Ross's emails, both parties agree that they should confer to set parameters, i.e., search terms, for obtaining these. The Court therefore directs the parties to confer to narrow the scope of Taylor's demand for ADA Ross's emails.
As for non-testifying witnesses, the Court's 2018 Order directed the QDAO to provide information about all non-testifying witnesses in connection with Taylor's criminal trials. The QDAO's issue with this aspect of the Court's Order is that neither it, nor the Subpoena, specified witnesses' names. Claimant has clarified, however, that he seeks any portions of the QDAO's files regarding Taylor's trials to the extent they contain “statements of non-testifying witnesses who possessed information pertaining to the underlying shooting, or Claimant's guilt or innocence, arrest or prosecution” (Tae Aff at 12, ¶ 40). The scope of this demand includes statements made by “Simone Winston, Daniel Baker, Kwame McLeod, Mabel McLeod, Winston Barnaby, and any other eyewitness to the shooting” (id.).
Cross Motion for Contempt and Sanctions
Turning to Taylor's cross motion for contempt and sanctions, generally, under CPLR 2308 (a), the “[f]ailure to comply with a subpoena issued by a judge shall be punishable as a contempt of court” and may warrant sanctions, i.e., “a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply.” Though the statute speaks in mandatory terms, the party “moving for civil contempt arising out of noncompliance with a subpoena duces tecum bears the burden of establishing, by clear and convincing evidence, that the subpoena has been violated and that ‘the party from whom the documents were sought had the ability to produce them’ ” (Tener v Cremer, 89 AD3d 75, 78 [1st Dept 2011], quoting Yalkowsky v Yalkowsky, 93 AD2d 834, 835 [2d Dept 1983]). The party must also show that “such disobedience defeats, impairs, impedes or prejudices the rights of a party,” although “the mere act, regardless of motive, is sufficient to sustain a finding of civil contempt” (Commr. of Labor v Hinman, 103 AD2d 886, 887 [3d Dept 1984]; see Judiciary Law § 753 [“Power of courts to punish for civil contempts.”] ).
Here, while Taylor has established that the QDAO failed to respond to the Subpoena, the present record militates against a finding of contempt and imposing sanctions. First, as noted herein, it is clear that at least some of the Subpoena's demands concern material falling outside the QDAO's jurisdiction, i.e., not within its control. Second, this is not a case where a nonparty, on notice of its required responses to a subpoena, responded with inaction; rather, after receiving the Court's 2018 Order, the QDAO reached out to the Court for guidance and was instructed that, to the extent it wished to challenge the Court's Order, it should file a motion to reargue. Third, the QDAO has since responded to the Subpoena and has shown no inclination to disobey the Court's orders generally. Fourth, the QDAO was unclear regarding the scope of some of the Subpoena's demands, and even Taylor's counsel has agreed that it would be wise to confer regarding one such category of demands, i.e., ADA Ross's emails. Lastly, while the QDAO's motion to reargue has undoubtedly slowed the trajectory of Taylor's claim, the Court finds that the delay is insufficient to establish the level of prejudice warranted for a finding of contempt.
Accordingly, Taylor's cross motion for contempt and sanctions is denied.
For the foregoing reasons, it is hereby
ORDERED that the motion to quash is granted as to ADA Ross's notes of Taylor's jail calls; and it is further
ORDERED that the QDAO is directed to provide any undisclosed material concerning Turner's 2014 slashing to the Court for an in camera review within 30 days of the filing and issuance of this Decision and Order; and it is further
ORDERED that Taylor's request for an affirmation by ADA Ross attesting to the nonexistence of her trial-related Posts is denied; and it is further
ORDERED that within 30 days of the filing and issuance of this Decision and Order, the QDAO shall provide its files regarding the arrests and prosecutions of Hilton and Turner to the extent such arrests and prosecutions involve cases of dishonesty or moral turpitude; and it is further
ORDERED that Taylor's cross motion for contempt and sanctions is denied.
1. In connection with this motion, the Court read and considered the following: nonparty Queens County District Attorney's Office's Notice of Motion to Reargue and for Clarification; the Affirmation of Assistant District Attorney Katherine A. Triffon in Support of the Motion for Leave to Reargue and for Clarification of this Court's Order, filed December 7, 2018; Notice of Claimant's Cross Motion to Hold the QDAO in Civil Contempt; the Affirmation of Haran Tae, Esq., in Opposition to the QDAO's Motion for Reargument and for Clarification, and in Support of Claimant's Cross Motion to Hold the QDAO in Civil Contempt, filed January 4, 2019 (“Tae Aff”); the QDAO's Reply in Response to the QDA's Motion to Reargue and Response to Claimant's Cross Motion, dated February 8, 2019; and the Reply Affirmation of Haran Tae, Esq., in Support of Claimant's Cross Motion to Hold the QDAO in Civil Contempt, filed February 19, 2019.
2. ADA Ross is the QDAO attorney who prosecuted Taylor at his trial and retrial.
3. Counsel also emailed a copy of the Court's 2018 Order to ADA Katherine A. Triffon, the QDAO attorney assigned to this matter, on November 2, 2018.
Jeanette Rodriguez-Morick, J.
Response sent, thank you
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Docket No: 130027
Decided: November 08, 2019
Court: Court of Claims of New York.
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