At issue in this case is whether the Court should preclude evidence on the basis of the People's failure to provide Defendant with the Summons All Purpose ("SAP") warrant which resulted in his initial arrest. On the record before us, we find that preclusion of the evidence is not warranted.

The People contend that on November 2, 2007, Police Officer Anthony Rivelli saw the Defendant, known to him from a previous gun arrest, enter a New York City Housing Authority ("NYCHA") building and proceeded to run the Defendant's name through "the central command." (People's Aff. ¶3). Finding that the Defendant had an open SAP warrant, Officer Rivelli proceeded to enter the NYCHA building and knock on Defendant's door. Id. Defendant answered the door and allegedly admitted that he had not gone to court. Id. After Defendant was handcuffed, he indicated that he wanted to get his keys and coat from the bedroom. Id. Officer Rivelli escorted the Defendant to his bedroom, and allegedly observed a black handgun sticking out between the box spring and the mattress of Defendant's bed. Id. Upon inspection, the firearm was found to be loaded. Defendant was then placed under arrest for Criminal Possession of a Weapon. Id.

On November 3, 2007, Defendant was arraigned on a one count complaint charging Defendant with violating PL § 265.01[1], Criminal Possession of a Weapon in the Fourth [*2]Degree, a class A misdemeanor.^[FN1] Defendant now moves to preclude both the physical evidence seized (i.e. the firearm) and Defendant's statements on the basis of the People's failure to provide the SAP warrant on which the Defendant was initially arrested. The People oppose, arguing that the People cannot be sanctioned for failing to turn over materials which were never in their possession.

CPL § 240.70 provides that "[i]f, during the course of discovery proceedings, the court finds that a party has failed to comply with any of the provisions of this article," the court may impose sanctions, including the issuance of a protective order, prohibiting the introduction of certain evidence or the calling of certain witnesses, or "take any other appropriate action." CPL § 240.70.

A SAP warrant is issued by the court to secure the attendance of a defendant who fails to appear for a court date in response to a summons.^[FN2] When a defendant fails to appear on the date on the summons, the hearing officer recommends a warrant. The summons then goes to a judge, and the judge, in his or her discretion, orders the warrant.^[FN3] The warrant is then created by the Court electronically, and accessible electronically by law enforcement personnel. In most cases, a paper warrant is never generated. The warrant comes to the attention of law enforcement personnel when an individual's name is run through an electronic database. When a defendant is brought into court on a SAP warrant, a handwritten entry is made on the summons that the warrant has been vacated, and the warrant is also vacated electronically, and can no longer be printed out as a warrant, because it no longer "exists."

Defense counsel argues that search warrants are discoverable,^[FN4] that warrants for arrest should also be discoverable, and that a SAP warrant is an arrest warrant and should therefore be discoverable. (Bannister Affirmation ¶¶ 6, 7, 8).

In support of her argument that arrest warrants should also be discoverable, defense [*3]counsel cites People v. Beniquez, 215 AD2d 678, 628 NYS2d 115 (2d Dept. 1995). In Beniquez, where defendant was initially placed under arrest in New York solely upon the strength of arrest warrants issued by a Puerto Rican Court, the Second Department held that the defendant was entitled to inspect the foreign arrest warrants, and that depriving him of access to the warrants and the right to inquire into their legality denied him the opportunity to contest the lawfulness of his arrest. Id. Unlike the warrants in Beniquez, the warrant here was issued by the local criminal court, the same court in which a summons had already been filed and before which Defendant had failed to appear in response to the summons.

The People argue firstly that they have complied with CPL § 240.20(2) and Discovery by Stipulation. Alternatively, the People argue that trial court may find certain materials non-discoverable merely because such material does not exist, citing People v. Colavito, 87 NY2d 423, 663 NE2d 308, 639 NYS2d 996 (1996). Moreover, the People contend, at no time was a paper copy of the warrant in the possession or control of the prosecutor, nor was a paper copy in the possession or control of the arresting officer.

The fact that a SAP warrant is issued and accessed electronically should not act as a bar to its discoverability. Electronic documents are no less subject to discovery than paper records. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318-19 (S.D. NY 2003)(applying Federal Rules of Civil Procedure); Lipco Elec. Corp. v. ASG Consulting Corp., 4 Misc 3d 1019(A), 798 NYS2d 345 (Sup. Ct., Nassau Co. 2004) (applying CPLR); In re Maura, 842 NYS2d 851, 858, 17 Misc 3d 237, 237, 2007 NY Slip Op. 27316 (Sur. Ct., Nassau Co. 2007) (applying CPLR).

The purpose of pre-trial discovery is to allow the defendant to prepare for trial and avoid "trial by ambush."^[FN5] However, discovery should not be transformed from a shield to prevent ambush into a sword to dismiss a meritorious case for any technical discovery violation. Thus, the Court is authorized to impose a range of sanctions in a criminal case for discovery violations. People v. Jenkins, 98 NY2d 280, 774 NE2d 716, 746 NYS2d 651 (2002); see also People v. Anderson, 66 NY2d 529, 538, 488 NE2d 1231, 1236, 498 NYS2d 119, 125 (1985). Similarly , in civil cases, the CPLR provides for a range of possible sanctions for failure to provide discovery (CPLR § 3126), the goal being to avoid any prejudice to the party seeking the discovery.

Thus, assuming arguendo there to have been a failure to provide discovery, it is within the power of the Court to determine an appropriate remedy. People v. Jenkins, supra . A range of remedies is also available for spoliation of evidence, e.g. when evidence that once existed is lost or destroyed by the party in whose possession it was, thereby rendering it "unavailable" for [*4]disclosure. See People. v. Kelly, 62 NY2d 516, 467 NE2d 498, 478 NYS2d 834 (1984). However, while a range of remedies exist, "[p]reclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction." People v. Jenkins, supra ; see also People v. Myers, 226 AD2d 557, 641 NYS2d (2d Dept 1996) (calling preclusion a "drastic remedy").

The charge in the case before us is not the SAP case upon which a warrant existed. The SAP warrant is nevertheless clearly relevant, and therefore, subject to discovery, as it provided the basis for Defendant's arrest, and the events which allegedly ensued. However, notwithstanding the absence of the actual "SAP warrant," we can easily ascertain whether a valid SAP warrant for Defendant's arrest existed on the date in question by examining the underlying documents, i.e. the summons and the endorsement by the judge that a warrant was ordered when the Defendant failed to appear in court in response to the summons, which presumably could be obtained with due diligence, as well as the court records indicating the warrant's issuance and vacature, which records are attached to the motion papers.

The issue is not whether a paper copy of the warrant was provided to the Defendant in this case, but whether such a warrant was extant and valid on the date the Defendant was arrested, and therefore provided a predicate for the officer to arrest the Defendant. Here, the electronic court records which the People affirm have been presented, and are submitted as part of Defendant's motion papers, show that on April 5, 2007, there was a warrant ordered on summons 2007SK038143, and that on November 3, 2007, when Defendant was arrested, the warrant was vacated. (Crims Appearance History, attached to Defendant's motion papers.)

Given the fact that the documents provided to Defendant make it apparent that a valid SAP warrant was extant on November 2, 2007, the date at issue herein, we do not find substantial prejudice to Defendant arising from the People's professed inability to now produce a paper copy of the warrant for discovery. Accordingly, the "drastic remedy" of preclusion, People v Myers, supra of the gun and/or Defendant's statement sought by Defendant would be highly disproportional to any prejudice suffered by Defendant as a result of the People's inability to provide a physical copy of the warrant for discovery, and the Court declines to grant the requested sanction.

Our order here should not be interpreted as relieving the People from their discovery obligations for documents stored electronically. Should the People fail to produce documents stored electronically, where the non-disclosure results in substantial prejudice to Defendant, the full range of sanctions, including preclusion, remains available. However, given the minimal prejudice suffered by Defendant here, this is not such a case.

Accordingly, Defendant's motion is denied. While I decline to issue the requested sanction of preclusion, the issue of whether an adverse inference charge should be given to the jury, or some other sanction short of preclusion should be imposed, as a result of the People's failure to produce the SAP warrant, is respectfully reserved to the trial judge.

This opinion constitutes the decision and order of this Court.

Dated:July 18, 2008

Brooklyn, New York [*5]

_______________________________

Michael Gerstein

J.C.C.