| Matter of Johnson v Sackett |
| 2013 NY Slip Op 05663 [109 AD3d 427] |
| August 20, 2013 |
| Appellate Division, First Department |
| In the Matter of Robert T. Johnson,Petitioner, v Robert A. Sackett et al., Respondents. |
—[*1] The Bronx Defenders, Bronx (Jenny Eisenberg of counsel), for Howard Rascoe,respondent.
Petition pursuant to CPLR article 78 for a writ of prohibition to prohibit respondentRobert A. Sackett, a Justice of the Supreme Court, Bronx County, from enforcing anorder of the same court issued on May 13, 2013, precluding the People from calling thecomplainant to testify with respect to the robbery charges in a trial in a criminal actionentitled People v Howard Rascoe (indictment No. 2094/2011), unanimouslygranted, without costs or disbursements, and the respondent Justice is prohibited fromenforcing the order of preclusion dated May 13, 2013.
Petitioner seeks a writ of prohibition to prevent respondent Justice from enforcing apretrial order precluding the People from calling the complainant to testify about therobbery in the impending criminal trial against respondent Rascoe.[FN1]The complainant and Rascoe have known each other for several years. The People allegethat Rascoe assaulted and robbed the complainant, and as a result of Rascoe's conduct,the complainant suffered injuries to his right eye and face. A few days after the allegedassault, the complainant sought treatment at Lincoln Hospital. The medical records fromthat visit indicate that the complainant was using three different psychotropicmedications, and the complainant subsequently apprised the prosecutor that he took thesemedications to treat his bipolar disorder. The complainant stated that he had never beenhospitalized for mental illness.
In a subsequent interview, the complainant advised the prosecutor that he hasauditory and visual hallucinations, which are controlled by medication, but would neithergive the prosecutor a HIPAA authorization nor disclose where he received psychiatrictreatment. Because of the complainant's refusal, the People do not have the complainant'spsychiatric records nor any information, besides the Lincoln Hospital records, aboutwhere the complainant has been [*2]treated. When thecase was sent out for trial,[FN2]the respondent Justice directed the People to produce the complainant and the courtasked the complainant if he would sign the necessary consent forms for the defense toobtain his psychiatric records. When the complainant refused to provide the requestedinformation about the location of his treatment or consent to the release of his records,the court issued an order precluding the complainant from testifying with respect to therobbery.
An article 78 proceeding seeking relief in the nature of a writ of prohibition is anextraordinary remedy and is available to prevent a court from exceeding its authorizedpowers in a proceeding over which it has jurisdiction (Matter of Pirro vAngiolillo, 89 NY2d 351, 355 [1996]; Matter of Holtzman v Goldman, 71NY2d 564, 569 [1988]). "The writ does not lie as a means of seeking a collateral reviewof an error of law, no matter how egregious that error might be . . . but onlywhere the very jurisdiction and power of the court are in issue" (Matter of Brown vBlumenfeld, 103 AD3d 45, 55 [2d Dept 2012] [internal quotation marksomitted]). Here, the court had no authority to issue this preclusion order since the recordswere neither discoverable nor Brady material (Brady v Maryland, 373 US83 [1963]). It is undisputed that the People did not have the complainant's records anddid not know where he had been treated (see People v Hayes, 17 NY3d 46 [2011], cert denied565 US —, 132 S Ct 844 [2011]; People v Walloe, 88 AD3d 544 [1st Dept 2011] [allegedlyexculpatory tape was not Brady material because it never was in the People'spossession or control], lv denied 18 NY3d 963 [2012]). The People had noaffirmative duty to ascertain the extent of the complainant's psychiatric history or obtainhis records (see People v Collins, 250 AD2d 379, 379 [lst Dept 1998], lvdenied 92 NY2d 895 [1998], citing People v Sealey, 239 AD2d 864 [4thDept 1997], lv denied 90 NY2d 910 [1997]). The People advised the defense ofthe information they had regarding the complainant's diagnosis and also apprised thedefense of the complainant's statements regarding his hallucinations. Therefore, no claimcan be made that the People concealed any information from the court or the defense.
It is well settled that neither the defendant nor the court has the "authority to compelpretrial discovery in criminal cases that is unavailable pursuant to statute, and prohibitionlies to prevent an attempt to do so" (Matter of Farrell v LaBuda, 94 AD3d 1195, 1197 [3d Dept2012] [prohibition appropriate to prevent trial court from enforcing order directingprosecutor to perform latent fingerprint analysis by a specific date], lv denied 19NY3d 808 [2012]; see alsoMatter of Cosgrove v Ward, 48 AD3d 1150 [4th Dept 2008] [prohibitionwarranted where court improperly precluded People from introducing certain evidencebased on alleged insufficiency of the bill of particulars]).
People v Rensing (14 NY2d 210 [1964]), relied on by respondent Rascoeand by the trial court, can be easily distinguished. In that case, the trial court denied amotion to set aside the jury verdict even though a month after sentencing, thecodefendant, who was a critical witness against the defendant, was certified as legallyinsane and committed to a state hospital (14 NY2d [*3]at212). In ordering a new trial, the Court of Appeals noted that the codefendant had a longhistory of mental illness, which should have been put before the jury (id. at213-214). The case neither involves a preclusion order nor does it hold that thecomplainant's records must be obtained prior to trial. Rather, it holds that the jury isentitled to know that there is something mentally wrong with the complainant, somethingthe defendant in this case could establish based on the information he already has.
People v Baier (73 AD2d 649 [2d Dept 1979]), cited by the trial court, alsopresents an entirely different situation from the one at issue here. In that case, a clinicalpsychologist was called by the People at trial to assist the jury in evaluating thecomplainant's credibility and mental illness (73 AD2d at 650). The court, however,would not allow the defense to use the voluminous mental health and hospital recordsthat it had subpoenaed for the purpose of cross-examination (id.). That caseinvolves preclusion of the use of records which the defense already had; not an ordersanctioning the People for records that were never in their possession.
It appears that the trial court, in this case, concluded it had the authority to orderpreclusion as a remedy for a possible violation of the defendant's Confrontation Clauserights. In People v Jenkins (98 NY2d 280, 284 [2002]), the court held that"[p]reclusion of evidence is a severe sanction, not to be employed unless any potentialprejudice arising from the failure to disclose cannot be cured by a lesser sanction." In thiscase, it is improper to determine, as the trial court did before the trial commenced, thatpreclusion is the only remedy. Although the complainant has to date refused to provideinformation about the location of his treatment, we do not know for certain whether hewill do so once the trial begins. The complainant already has provided information abouthis diagnosis and the defense knows the medications he was taking at the time of hisadmission to Lincoln Hospital. The defense has sufficient information to explore theissue on cross-examination (seePeople v Blair, 32 AD3d 613, 615 [3d Dept 2006]),[FN3]and the question of whether another remedy, such as an adverse inference instruction,would be appropriate cannot be resolved before trial. Rather, this issue must be decidedat trial based on the responses the complainant actually gives during his testimony.
In addition to determining whether a writ of prohibition is authorized to stop theimplementation of the preclusion order, this Court also must consider whether to exerciseits discretion to grant that remedy (Matter of Pirro, 89 NY2d at 359). In makingsuch a decision, courts consider "the gravity of the harm that would result from the act tobe prohibited and whether that harm can be adequately corrected through an appeal orother proceedings at law or in equity" (id., citing Matter of Rush vMordue, 68 NY2d 348, 354 [1986]; see also Brown v Blumenfeld, 103AD3d at 65). Here, there are significant consequences if the court's ruling is allowed tostand because the complainant will be unable to testify about the events of the robbery.Moreover, a preclusion order is not appealable and absent granting of the writ, theprosecution has no remedy or any way to obtain appellate review (see Matter ofBrown v Schulman, 244 AD2d 406 [2d Dept 1997], lv denied 91 NY2d 806[1998]).
The defense suggests it would be a denial of due process to allow the case to proceedto [*4]trial without the records at issue here. Thisargument ignores the procedural posture in which this question arose. Here, the courtimposed a remedy for nondisclosure of records it had no right to compel the People toproduce in the first place. Although we recognize that defendant has rights here, thecourt cannot create a remedy, unauthorized by statute or case law, in anticipation of whatit believes will be a problem at trial. Concur—DeGrasse, J.P., Freedman, Richterand Manzanet-Daniels, JJ.
Footnote 1: The respondent Justice,who is represented by the Attorney General, has not filed separate papers in opposition tothe writ, but rather submitted transcripts of the relevant proceedings in the trial court.Respondent Rascoe, the defendant on trial, opposes granting of the writ.
Footnote 2: The calendar part judgehad denied a defense motion to compel the prosecution to obtain the complainant'srecords, noting that the determination of whether a remedy was required for the lack ofrecords would be based on "how things play out at trial."
Footnote 3: The papers submitted tothis Court indicate that the defendant and the complainant knew each other before thisincident, but do not indicate whether the defendant has any information about thecomplainant's behavior and mental health history based on their prior connection.