BOATSWAIN v. BOATSWAIN (2004)

Introduction

Plaintiff husband moves for an order pursuant to CPLR § 3117(a) 3(ii) and CPLR § 3113(a)3 to take the deposition of a witness to be offered at trial on behalf of plaintiff by issuance of a letter rogatory.  CPLR § 3108 affords parties the opportunity to take a deposition outside of the state by commission or letter rogatory.   Defendant opposes the application.

Background

This is a matrimonial action wherein defendant alleges she was a victim of domestic violence, while in the State of New York, perpetrated upon her by plaintiff husband.   Plaintiff moves for letter rogatory in an effort to take the deposition of Laudell Paul (hereinafter referred to as “ “Paul” ”), defendant's half sister.   Plaintiff contends that “Paul” granted permission for the plaintiff to record telephonic communication between defendant and “Paul” at which time defendant made certain admissions.   Plaintiff alleges that the tape recorded conversation contains statements which are material and necessary to the triable issues of custody and domestic violence.

Plaintiff argues that a letter rogatory is requested because the prospective witness, “Paul”, resides in Toronto, Canada and therefore is not within the jurisdiction of this Court.   Certainly, Toronto, Canada is located more than 100 miles from this Court.   Counsel further posits that “Paul” is physically unable to travel to the State of New York to testify at the time of trial since she is suffering from a blood clot in her lungs.   However, counsel neither annexed an affidavit by a person with actual knowledge nor certified medical documentation corroborating counsel's affirmation.

Defendant contends that the issuance of letter rogatory is an improper disclosure device at this juncture since plaintiff has not shown that an alternate disclosure device is unavailable.   Defendant further states that a deposition and request for letter rogatory is not material or necessary in this action because the testimony sought is not sufficiently related to the issues of an order of protection or child custody to make the effort, expense and inconvenience reasonable.   Defendant requests that if the Court issue letter rogatory or an open commission, the expenses incurred by defendant and her attorney should be paid for in advance by plaintiff.

Discussion

Telephonic Wiretapping

 It is well established that a tape recording of a telephone conversation without a warrant is wiretapping.   In order for a wiretapping to be admitted into evidence there must have been the consent of at least one of the parties to the tape recording.   Wiretapping is defined as the unlawful inception of a telephonic communication (see Penal Law 250.00).   Wiretapping is generally committed when a person intentionally overhears a telephonic communication without the consent of a party to the communication (see Penal Law 250.00(1)).   Without the consent of either party to the conversation, the wiretapping violates section 250.05 of the Penal Law and must be suppressed (see CPLR § 4506;  see also Pica v. Pica, 70 A.D.2d 931, 417 N.Y.S.2d 528 [2nd Dept.1979] ).   Furthermore, without consent, these recordings are inadmissible because the legislature intended to prohibit admission of all illegally intercepted evidence in all court proceedings when it enacted the statutes exclusionary provision.   If, in fact, “Paul” did not consent to the recordings and clearly defendant did not consent to the recordings, then the recordings are inadmissible.   The purpose of the deposition is to ascertain whether or not “Paul” consented to the tape recording.

 It should be noted that the amateur-self made transcript annexed to the motion is insufficient to form a basis of admissible evidence at this juncture.   The trial judge must determine the recordings audibility and authenticity.   After an audibility hearing is held, a recording must be excluded if it is determined that the recording is so inaudible and indistinct that the one would have to guess at what was being said (see People v. Beasley, 98 A.D.2d 946, 471 N.Y.S.2d 383, affd. 62 N.Y.2d 767, 477 N.Y.S.2d 325, 465 N.E.2d 1261;  People v. Graham, 57 A.D.2d 478, 394 N.Y.S.2d 982, affd. 44 N.Y.2d 768, 406 N.Y.S.2d 36, 377 N.E.2d 480).   At this juncture, there has been no request made for a hearing as to the audibility of the tape, but a copy of the tape and certified transcripts must be made available to the defendant's counsel within fourteen (14) days of this date.   If defendant's counsel seeks to have an expert examine the original tape, plaintiff must comply within ten (10) of said request CPLR § 3108:

Commission and Letter Rogatory

 “The general procedure to be employed when a nonparty witness is sought to be deposed on oral questions is to secure a stipulation, or in the alternative to serve a subpoena on the nonparty witness pursuant to CPLR 3106 (subd.[b] ), and to serve notice of the intended examination on each party to the action, pursuant to CPLR 3107.”  (Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 479 N.Y.S.2d 528 [2nd Dept.1984];  citing McNulty v. McNulty, 81 A.D.2d 581, 437 N.Y.S.2d 438;  Spector v. Antenna & Radome Research Assoc. Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843;  Bush Homes v. Franklin Nat. Bank of Long Is., 61 Misc.2d 495, 305 N.Y.S.2d 646).   However, in this case, the nonparty witness, “Paul”, is not only not a resident of the State of New York but she is a resident of a foreign country, to wit:  Canada.   There is no authority for the service of a subpoena on a nonparty witness who is a non resident of New York State (see Wiseman v. American Motors Sales Corp., supra;  citing Judiciary Law 2-b;  Peterson v. Spartan, 40 A.D.2d 807, 338 N.Y.S.2d 352;   Siemens & Halske, GmbH v. Gres, 37 A.D.2d 768, 324 N.Y.S.2d 639;  Israel Discount Bank v. P.S. Prods. Corp., 65 Misc.2d 1002, 1004, 319 N.Y.S.2d 554;  Siegel Practice Commentaries, McKinney's Cons. Laws of N.Y., Book7B, CPLR C2303:7).  “Since the service of a subpoena outside of this state will be ineffective to compel such a witness to appear at an examination, CPLR § 3108 makes available, upon application to the court, the commission and the letter rogatory as devices to secure disclosure.”  (Wiseman v. American Motors Sales Corp., supra ).

 Pursuant to CPLR § 3108, “[a] commission or letters rogatory may be issued where necessary or convenient for the taking of deposition outside of the state.”   The issuance of a letter rogatory is simply a letter requesting a foreign jurisdiction to make available the machinery to take the deposition of a person found in that foreign jurisdiction, under the laws of that particular jurisdiction.   This disclosure device foresees the use of the foreign courts foreign procedures.   Contrasted to a commission, which is direction by a New York court to an appointed commissioner under New York law and who bears the seal of this court, to take testimony (see Siegel Practice Commentaries, McKinney's Cons. Laws of N.Y., Book7B, CPLR 3108:5;  see also Siegel N.Y. Prac. § 360), an open commission proceeds by oral questions and a sealed commission utilizes written questions.

Clearly, the information plaintiff seeks to obtain by deposing “Paul” is relevant to the within action.   This Court rejects defendant's contention that the testimony of this witness is not material or necessary.   The testimony, if true as reported, may impact on the credibility of the defendant as to her claims of domestic violence as well as to the plaintiff's position that the child has been left alone unattended (see CPLR § 3101[a];  see also Stanzione v. Consumer Builders Inc., 149 A.D.2d 682, 540 N.Y.S.2d 482 [2nd Dept.1989];  Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449 [1968];  Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 479 N.Y.S.2d 528 [2nd Dept.1984] ).  “[I]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief, it should be considered ‘evidence material’ ․ in the prosecution or defense” (Allen v. Crowell-Collier, supra).

This court is reluctant to utilize the procedures of a foreign jurisdiction in an effort to determine whether or not the telephonic recording was made with consent.   Unless it is ascertained that nonparty witness “Paul” will voluntarily appear in this court at the time of trial, this court in its discretion, orders a commission.   Furthermore, since oral interrogation is a more effective method to procure information, the parties are directed to proceed by open commission (Stanzione v. Consumer Builders, Inc., supra).   The defendant shall have an opportunity to cross-examine “Paul”.   Moreover, the deposition shall be video recorded so that the Court may observe the demeanor of the witness.   Videotaping a deposition is permitted by CPLR § 3113(b) subject to the detailed provisions of the Uniform Court Rules, 22 NYCRR 101.15.

Plaintiff shall pay the travel expenses of defendant and her counsel to Toronto, Canada by the least expensive available air travel from New York to Toronto and return, if practicable, the same day.

Conclusion

Since “Paul” is a nonparty witness who resides in a foreign jurisdiction, located more than 100 miles from this Court and her testimony is found to be relevant, material and necessary to the prosecution of this action, plaintiffs motion for deposition is granted to the extent that the parties are directed to proceed by open commission for the deposition of “Paul”.   Defendant, on notice and together with defendant's counsel shall make all travel arrangements and schedule the deposition within 30 days after a true transcript and a copy of the tape have been provided.

Plaintiff is directed to settle order on notice.

This shall constitute the decision and order of the Court.

JEFFREY S. SUNSHINE, J.