Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #2©

Issue: Criminal law proceedings that are conducted ex parte or in camera

Most legal proceedings require both sides to submit arguments to a judge in open court. Unilateral contact with a judge is not only disallowed; it is may violate ethical rules. 22 NYCRR §§ 100.3(A)(6), 1200.41. So too with most aspects of a criminal action. Yet there are some situations where contact with a judge, ex parte or in camera, or both, is required.


The following situations are provided for by statute or case law.


Severance

Where a defendant seeks to sever the counts of an indictment, the defense must show both an important testimony to give about one count and a genuine need to refrain from testifying about another. This is to be determined in an ex parte, in camera hearing. CPL 200.20(3)(b)(ii).


Investigative services

Where defense counsel seeks county payment for investigative or expert services, County Law § 722-c provides for the application to be made ex parte.


Attorney work product

A prosecution claim of attorney work product may require in camera inspection to determine if the statement is Brady or Rosario material. People v Dockery, 278 AD2d 427, 717 NYS2d 657 (2d Dept 2000).


Grand jury minutes

Where the defense requests inspection of grand jury minutes, the judge must review these in camera. The court may release grand jury minutes, but the prosecution must be given an opportunity beforehand to argue that release of the minutes would not be in the public interest. CPL 210.30(3).


Material witness proceeding

With a material witness proceeding, CPL article 620, the opposing party is not entitled to notice of or to participate in the proceeding. People v Bond, 264 AD2d 851, 696 NYS2d 179 (2d Dept 1999). The proceeding itself does not occur in camera, however.


Questioning jurors

Where the issue of disqualification of a seated juror occurs, the judge must question the juror in camera, with counsel present. CPL 270.35. Counsel and defendant should be present. People v Buford, 69 NY2d 290, 514 NYS2d 191 (1987). Handling § 18:371.


Subpoenas

A subpoena duces tecum may be sought ex parte. The requirement in civil actions that a copy of a subpoena duces tecum be served on other parties does not apply to criminal actions under CPLR 2303(a), as amended. L. 2004, ch. 26. However, with a subpoena duces tecum upon a municipality, which requires a judicial order, CPLR 2307 requires that notice be given not only to the municipality but to opposing counsel as well.


Discovery

With contested discovery, the court may review ex parte or in camera, and grant a protective order. CPL 240.90(3); People v Mobley, 162 AD2d 305, 558 NYS2d 1 (1st Dept 1990); People v Ellis, 188 AD2d 1043, 592 NYS2d 200 (4th Dept 1992); Handling § 8:114. Police employment records are entitled to confidentiality and should be first reviewed in camera prior to any disclosure. Handling § 18:436. Mental health and other private records may require in camera review before being turned over to counsel. People v Arnold, 177 AD2d 633, 576 NYS2d 339 (2d Dept 1991); Handling §§ 8:84, 8:164. Where a social services agency had investigated a sexual abuse allegation, the defendant had a due process right to have the records reviewed in camera. Pennsylvania v Ritchie, 480 US 39 (1987). Ex parte or in camera review may be appropriate with some discovery, but it should be the exception rather than the rule. With Rosario material, for example, the Court of Appeals noted that " . . . omissions, contrasts and even contradictions, vital perhaps, for discrediting a witness, are certainly not as apparent to the impartial presiding judge as to single-minded counsel for the accused; the latter is in a far better position to appraise the value of a witness' pretrial statements for impeachment purposes." People v Rosario, 9 NY2d 286, 290, 213 NYS2d 448 (1961); see also, People v Bugayong, 182 AD2d 450, 582 NY2d 175 (1st Dept 1992).


Informant and probable cause

here the prosecutor seeks to establish probable cause but has a confidential informant, an in camera Darden hearing is held to establish the informant's existence. People v Darden, 34 NY2d 177, 356 NYS2d 582 (1974); Handling a Criminal Case in New York §9:122.


Search warrant

An application for a search warrant, eavesdropping warrant, video surveillance or pen register are made ex parte. In a motion to suppress based on a search warrant, a court denied discovery and conducted the suppression hearing in camera without defendant's participation. In extraordinary circumstances, a defendant's interest may be subordinated if it would compromise an informant's safety or the integrity of future investigations. The court may additionally deny discovery of a search warrant and its supporting documents. People v Castillo, 80 NY2d 578, 592 NYS2d 945 (1992). In other situations, though, the defense may obtain discovery of the search warrant and underlying application. See CPL 690.50(3); People v Chahine, 150 Misc2d 242, 568 NYS2d 526 (City Crim Ct 1991).


Appellate review

Where the judge has conducted proceedings ex parte, there may be the need for appellate review of what occurred. The transcript of a Darden hearing, grand jury minutes, and ex parte discovery motion papers and testimony, for example, normally remain sealed upon appellate review. People v Darden, supra; People v Frost, 99 NY2d 589, 757 NYS2d 809 (2003); CPL 240.90(3); Handling §§ 9:123, 23:32.


QUOTATION
:
"I saw the angel in the marble and carved until I set him free." -- Michelangelo Buonarroti


SLANGUAGE
:
Jury nullification
A jury's refusal to convict a defendant even though the prosecution has proven its case and there is no defense established. A jury has the power to do so, but New York State does not permit such a jury instruction.
People v Goetz, 73 NY2d 751, 536 NYS2d 45 (1988); Handling § 18:413.

 

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