People v. Smith

169 Misc. 2d 258, 646 N.Y.S.2d 228, 1996 N.Y. Misc. LEXIS 192
Procedural entryThis page is a short order in People v. Smith. Read the opinion of the Court — 159 Misc. 2d 77
New York Supreme Court·Decided May 3, 1996·Published

Opinion

[259]*259OPINION OF THE COURT

John J. Brunetti, J.

I. INTRODUCTION

Defendant moves for sanctions, specifically the assessment of postannouncement delay, for the failure of the People to comply with that portion of this court’s pretrial order which directed routine statutory discovery pursuant to CPL 240.20. The People respond by claiming that this court had no authority whatsoever to issue the pretrial order, and more specifically, had no authority to issue the order directing discovery. Because the order was valid both due to the waiver by the People and by authority of the Uniform Rules for Trial Courts, and because the People concede that the order was intentionally violated, the motion for sanctions is granted.

II. FACTUAL HISTORY LEADING TO ISSUANCE OF THE PRETRIAL ORDER AT ISSUE

By administrative order of the Chief Administrator of the Courts, the Uniform Rules for Courts Exercising Criminal Jurisdiction (22 NYCRR part 200) were in full force and effect at all times material hereto. More specifically this court, sitting as a superior court exercising criminal jurisdiction, was bound to take certain action in accordance with the individual assignment system now in effect in the superior criminal courts of Onondaga County. This court became "the 'assigned judge’ ”. (22 NYCRR 200.11 [c].) In accordance with the responsibilities imposed upon this court by 22 NYCRR 200.12, this court took the following action:

1. At the defendant’s arraignment on January 25, 1996, this court issued an order directing that a "preliminary conference” be held on February 5, 1996.

2. At the arraignment on January 25, 1996, this court handed out an unsigned, proposed pretrial order and directed both parties to become familiar with its contents so that it could be discussed at the pretrial conference set for February 5, 1996, and any problems or objections with respect thereto could be addressed at that time.

3. On February 5, 1996, this court conducted a preliminary conference. Neither party raised any objections to the contents of the pretrial order. This court announced in open court that it was signing the pretrial order dated February 5, 1996 and announced the motion schedule contained therein (motions to [260]*260be returnable Mar. 15, 1996). Both parties were directed to conform their copies of the order accordingly. The very introduction to that order begins with the words "pursuant to Rule 200.12 of the Uniform Rules for Courts Exercising Criminal Jurisdiction”.

Section I (B) of the pretrial order provided that within 20 calendar days of its issuance (within 20 days of Feb. 5) the People "shall provide the defendant with copies of or an opportunity to inspect all discovery material required to be provided upon demand by C.P.L. § 240.20 (1)”. The order further provided in section I (E) that the failure of the People or the defendant to comply with section I (B), among other sections, could result in the imposition of sanctions pursuant to CPL 240.70 (1) including assessment of postannouncement delay.

At no time prior to, during or after the pretrial conference did the People object in any way, shape or form to the contents of the order. At no time did the People move to vacate the order. The People simply waited until they were facing a sanctions motion to claim, for the very first time, that the order to provide discovery was a nullity.

The subject matter of the preliminary conference was required by law to include, and did include, a timetable for the completion of "discovery” and the filing and hearing of motions. The court’s order directing a motion schedule and discovery was required by and in compliance with section 200.12 which reads, in part, "[a]t the conclusion of the conference, the directions by the court to the parties * * * shall be * * * incorporated in a written court order”. Therefore, this court’s pretrial order was issued under the authority of and in strict conformity with section 200.12. Finally, section 200.12 provides that the failure of any party to comply with the written directive of the court shall result in the imposition of such sanctions as are authorized by law.

III. THE PEOPLE’S POSITION

The People make it clear that there was no oversight. The People state, unequivocally, that they ignored a court order of which they were concededly aware. The People did not move to vacate the order.

This is not a situation where the People assert a lack of understanding of the order to explain an apparently blatant violation of a written court directive. The People do not argue: "We misunderstood. We felt we at least needed a phone call. [261]*261We’ll arrange for discovery tomorrow”. Instead, the People argue that their defiance of a written directive of a court is justified because the written directive constituted a nullity for which no authority is contained in law. Yet, the People never moved for a protective order pursuant to CPL 240.50, never moved to vacate the pretrial order, and never took an appeal or sought a writ of prohibition. Such claims of invalidity of an order come too late when the penalty for its violation is sought to be assessed. (See, e.g., State of New York v Congress of Racial Equality, 92 AD2d 815, 817 [1st Dept 1983]; Coffey v Orbachs, 22 AD2d 317, 320 [1st Dept 1964].)

IV. THE VALIDITY OF THE PRETRIAL ORDER

A. Facts Demonstrating the People’s Waiver and Consent to . the Order

The requirement of a written demand for discovery contained in CPL 240.20 can be waived by the failure of the People to object to variance of the procedure or by the offer of the People to comply with the statute sua sponte. Both occurred in this case.

Since the CPL provision requiring a written discovery demand is not intended to avoid surprise to the People and the absence of a written demand would not be prejudicial, the initial failure of the People to insist upon a written demand (which is readily apparent from this record) constitutes an irrevocable waiver of the right to insist upon one later when faced with a sanctions motion. Absent some specific claim of prejudice, the written requirement for a motion to inspect and dismiss may be waived by the People by failing to object to a verbal motion. (People v Jennings, 69 NY2d 103.) It necessarily follows that a routine statutory discovery demand is equally waivable by the failure of the People to object to a variance of the procedure provided for in the statute. However, the People did far more than fail to object to a variation, they invited one.

In this case, at the arraignment on the felony complaint in City Court the People offered to waive strict compliance with the requirements of CPL 240.20. The reverse side of the People’s standard notices offers to provide CPL 240.20 routine discovery without a demand upon merely a "written request to the trial assistant”. Notwithstanding the fact that the discovery responsibilities imposed upon the People cannot be limited to a specific "trial assistant” (People v Steadman, 82 NY2d 1), it is nevertheless true that the "trial assistant” did [262]*262receive not only a written request, but a written directive from this court.

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People v. Smith, 169 Misc. 2d 258, 646 N.Y.S.2d 228, 1996 N.Y. Misc. LEXIS 192 (N.Y. Super. Ct. 1996).

169 Misc. 2d 258 (People v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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