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County Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff, v. David VAN DYNE, Sr., Defendant.

Decided: January 26, 1998

Howard R. Relin, District Attorney of Monroe County (Larry K. Bernstein, of counsel), for plaintiff. Kevin M. Doyle, Capital Defender (William Easton and Joseph Flood, of counsel), for defendant.

This a decision on a motion by defense counsel seeking relief from the notice requirements of the law and granting permission to the defendant to present judicial subpoenas duces tecum ex parte.   The stated basis for the request is that the defense wishes to prepare evidence in mitigation for the penalty phase of the trial as well as determine whether to present information to the prosecutor's office in advance of their determination to file a notice of intent to seek the death penalty.   The defense asserts that certain agencies have declined to release information to defense counsel even though proper releases have been signed and prepared.   The defense thus faces the dilemma of having to prepare judicial subpoenas duces tecum on notice to the prosecution and thus reveal to the prosecution aspects of the defense strategy and preparation.

The prosecution asserts that a subpoena prepared without notice to the opposing party is not valid in that it fails to comply with the Criminal Procedure Law and thus opposes the motion.

 The law provides that a judicial subpoena duces tecum may be issued only upon notice to the adverse party and the agency having custody of the records unless otherwise ordered by the Court (CPLR 2307;  CPL 610.20 [3] ).   The law further provides that due process requires that a defendant be permitted a fair opportunity to prepare a defense (see, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 [1985] ).   Implicit in that right is the right to gather information without alerting the prosecution to the path of the defense.

 The law generally provides that ex parte judicial applications are improper (22 NYCRR 100.3[B][6];  People v. Paul, 140 A.D.2d 884, 528 N.Y.S.2d 702 [3rd Dept.1988];  Kawasaki v. Kasting, 124 A.D.2d 1034, 508 N.Y.S.2d 762 [4th Dept.1986] ).   The appropriate practice is to seek guidance from the Court regarding the procedure to follow where an attorney believes that ex parte relief is necessary.   Thus, the law provides and courts have approved ex parte applications under specific circumstances in support of motions for severance where the information to support the grounds for severance relief would require revelation of defense strategy (see, CPL 200.20[3][b][ii];  People v. Lane, 56 N.Y.2d 1, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ).

The Court is unpersuaded by the argument that the “provision is honored more in the breech than in the observance in this county” (People v. Mateo, 173 Misc.2d 70, 71, 660 N.Y.S.2d 672 [Monroe County Ct.1997] ) and would instead require that the parties follow the law or seek relief from the notice requirement by application.

The Court would therefore grant the motion allowing the opportunity for the defendant to present ex parte an application for judicial subpoenas and will rule on each application determining whether notice to the adverse party will be required consistent with the law and defendant's due process right to a fair opportunity to prepare a defense.