by Gary Muldoon
Muldoon & Getz
Rochester, New York
“Preclusion” is a remedy that the trial judge may impose if a party fails to give proper notice of intended use of evidence, or fails to provide discovery. See CPL 240.71(1). With discovery, at least, preclusion typically should be used only if the party requesting it can show prejudice by the absence of the sought-after material. People v Bignall, 195 AD2d 997 (4th Dept 1993); People v Berry, 235 AD2d 571 (3d Dept 1997).
Preclusion may be granted against either the prosecution or the defense.
A less drastic means of mitigating the prejudice, such as granting a jury charge or an adjournment to the party prejudiced by the omission, is often more appropriate. In a burglary case, for example, where the allegedly stolen property was lost before trial, an “adverse inference” charge was appropriate, advising the jury that it could consider the prosecution’s failure to produce the items. People v Minnifield, 182 AD2d 1064 (4th Dept 1992).
Preclusion may occur in various situations, including:
• failing to serve a CPL 710.30 notice, for either identification, People v Bernier, 73 NY2d 1006 (1989); see also People v Halikias, 106 AD2d 811 (3d Dept 1984) (arrest photograph); or statements, People v O’Doherty, 70 NY2d 479 (1987).
• noncompliance with discovery, see People v Berry, 235 AD2d 571 (3d Dept 1997).
• ethical violations, see People v Perez, 37 Misc 3d 272 (Sup 2012).
Preclusion may also occur where the defense seeks to raise a defense, but has not complied with discovery obligations, such as:
• alibi, People v Grayson, 201 AD2d 667 (2d Dept 1994); People v Corpas, 150 AD2d 710 (2d Dept 1989).
• psychiatric examination, see People v Wenzel, 133 AD2d 716 (2d Dept 1987) (jury instruction);
Where constitutional rights involved
Where the defense violates a discovery rule, this should not automatically result in preclusion, particularly where a constitutional right is involved, such as the right to call witnesses or to present a defense. But the remedy may be imposed where appropriate. See Taylor v Illinois, 484 US 400 (1988); People v Green, 70 AD3d 39 (2d Dept 2009).
Preclusion vs Suppression
The remedy of preclusion should be contrasted with the remedy of suppression. Two procedural rules associated with preclusion should be noted, both relating to statutory requirement of notice. First, where the prosecution fails to serve a required CPL 710.30 notice, but the defense also moves for suppression and the issue is litigated on the merits, preclusion is waived. People v Merrill, 87 NY2d 948 (1996).
Second, under CPL 450.20(8) and 450.50, the prosecution may bring an interlocutory appeal of an adverse suppression ruling, but may not appeal an order granting preclusion. See People v Laing, 79 NY2d 166 (1992); People v Myers, 226 AD2d 557 (2d Dept 1996).
© 2012 by Gary Muldoon