The following named papers numbered 1 to 3

submitted on this Motion

on May 22, 2012

papers numbered

Notice of Motion and Supporting DocumentsOrder to Show Cause and Supporting Documents1

Opposition to Motion2

Reply Papers to Motion3

The defendant in the underlying criminal action, Luigi F. Celantano, moves by order to show cause, for an order, pursuant to CPLR 2308 and Judiciary Law Article 19, holding non-party Simon Property Group, Inc.^[FN1] in contempt of court on the grounds that it did not comply with a subpoena ad testificandum and duces tecum "so ordered" by this Court on December 28, 2011. The non-party, Simon Property Group, Inc. [*2]("Simon"), opposes the application and the defendant submits a reply.

Initially, the Court notes that where a contemnor is not a party to the underlying action, a contempt proceeding is viewed as a separate special proceeding independent of the underlying action (see Long Island Trust Co. v. Rosenberg, 82 AD2d 591 [2d Dept 1981]).^[FN2] Thus, such a proceeding is guided by the procedural rules which generally govern special proceedings (see CPLR 401 et seq.). In order to obtain jurisdiction over the non-party contemnor, the order show cause is required to be served personally on the contemnor (see Long Island Trust Co., supra). In the instant proceeding, the defendant-petitioner served the order to show cause on Simon pursuant to CPLR §311(a)(1).^[FN3] Accordingly, the Court has obtained jurisdiction over Simon in this special proceeding.

Turning to the issue of the alleged contempt, the Court notes that the defendant-petitioner seeks in his order to show cause an order declaring Simon to be in contempt "pursuant to CPLR §2308 and Judiciary Law Article 19". He makes no explicit indication whether he seeks a finding of criminal contempt or civil contempt.^[FN4]

Inasmuch as the Court is required to make clear at a contempt hearing whether the alleged contempt will be considered as a civil or criminal contempt (see Matter of Drimmer, 97 AD2d 792 [2d Dept1983]), the Court will make such determination in this decision. Although typically the intent of a party initiating a contempt proceeding can be gleaned from the circumstances and the redress he or she seeks, the procedural nuances of this particular matter eliminate a civil contempt as a possibility. Indeed, pursuant to Judiciary Law §753(A):

§753. Power of courts to punish for civil contempts. [*3]

A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: ... (emphasis supplied).

As such, the Court's authority to punish for a civil contempt is limited to those specified instances where a right or remedy of a party to a civil action or special proceeding is defeated, impaired, etc. (see Judiciary Law §753[A]; 21 NY Jur. Contempt §74 ["it would appear that civil contempts can arise only in connection with a civil case"]; Lieberman v. Lieberman, 238 AD 305, 307 [1st Dept 1933] ["Civil contempts cause an injury to a party in a civil action" (quotation omitted)], app. dismissed, In re Estate of Springer, 262 NY 678 [1933]). Accordingly, civil contempt is not an available remedy in the instant proceeding, where the affected right was that of a defendant in a criminal action (cf. People v. Simplice, 189 Misc 2d 588 [Kings County Crim Ct [2001] [non-party found to be in civil contempt for failure to comply with subpoena duces tecum issued in criminal action; court, without elaboration as to the fact that the party whose rights were impaired was a defendant in a criminal action, merely stated that Judiciary Law §753 provides authority to punish for civil contempt]). Thus, this Court deems the defendant-petitioner's application to be one for a finding of criminal contempt.

Pursuant to Judiciary Law §750(A)(3), a Court is authorized to punish as a criminal contempt "[w]ilful disobedience to its lawful mandate". Although not raised by the parties, the Court will first address the threshold issue of whether the mandate in question, the subpoena duces tecum, is in fact a lawful mandate. More specifically, the Court will determine whether it, as a local criminal court, has the jurisdiction, as well as the authority, to issue a subpoena duces tecum in a criminal matter where a defendant has been arraigned on a felony charge and has not yet been indicted.

While local criminal courts do not have trial jurisdiction over felonies (see CPL §10.30[1]), the Criminal Procedure Law does provide local criminal courts with preliminary jurisdiction over felonies (see CPL §10.30[2]). Such preliminary jurisdiction includes the power to arraign defendants on felony complaints, to entertain bail applications on felony complaints, and to conduct preliminary hearings in order to determine whether reasonable cause exists to believe the defendant has committed a felony (see generally CPL Article 180). In addition, a local criminal court can dismiss a felony complaint at arraignment if the complaint is facially insufficient and, upon inquiry, finding that there are no facts or evidence available upon which a facially sufficient instrument can be drawn (see CPL §140.45). The local criminal court retains this preliminary jurisdiction until it is divested of jurisdiction by the filing of an indictment in the superior court (see CPL §10.30[2]).

In the underlying criminal action, the defendant has not yet been indicted on the felony complaint. Accordingly, this Court retains jurisdiction to decide nondispositive matters relating to the felony complaint (see People v. Gervais, 195 Misc 2d 129 [Crim Ct, New York County 2003]). Issues regarding discovery fall within this realm (see People v. [*4]Reese, 23 AD3d 1034 [4th Dept 2005]; People v. Gervais, supra [same]).

However, merely because this Court has jurisdiction regarding issues of discovery does not necessarily indicate that the Court has the authority to issue a subpoena duces tecum in the underlying criminal action. Indeed, discovery cannot be granted in a criminal action absent either a statutory basis or one founded in case law (see People v. Kyriazas, 2002 NY Slip Op 40561U, 2002 NY Misc LEXIS 1727 [Sup Ct Westchester County 2002]). While the instant matter involves "discovery", the provisions of the Criminal Procedure Law which pertain to discovery only concern the disclosure and exchange of information between the parties to the action, i.e., the prosecution and the defendant (see CPL Article 240). Furthermore, there is no constitutional right to discovery (see Brown v. Blumenfeld, 296 AD2d 405 [2d Dept 2002], citing Matter of Miller v. Schwartz, 72 NY2d 869, 870 [1988]).

A review of the pertinent case law reveals that Courts have quashed or disallowed subpoenas or orders permitting access to certain areas controlled or owned by non-parties in criminal actions (see Matter of Brown v. Appelman, 241 AD2d 279 [2d Dept 1998] [prohibiting enforcement of order requiring District Attorney to notify defense of any testing which would consume entirety of sample of evidence, and to allow defense to enter and photograph the interior of crime scene premises]; Matter of Kaplan v. Tomei, 224 AD2d 530 [2d Dept 1996] [prohibiting enforcement of order granting defendant permission to photograph the apartment of the alleged victim of the crime]; People v. Kyriazas, supra [denying defendant's application for order requiring third party to permit photographs and measurements to be taken, and a schematic design to be made of the interior of certain premises owned by such third party]). However, this Court finds that these cases are distinguishable or inapplicable to the instant matter.

In Matter of Brown, supra, the prohibited order required the District Attorney to: (1) notify the defense of any testing of which it knew, in advance, would consume the entirety of any sample of evidence so that a defense representative could view, but not participate in the testing; and (2) notify the defense, after the completion of the crime scene investigation and prior to removal of the crime scene markings, and allow the defense to enter to view and photograph the interior of the premises. In prohibiting the order, the Court stated:

"This Court has consistently held that the Supreme Court and the County Court lack any authority to issue preindictment discovery orders relating to, inter alia, the testing and preservation of physical evidence; in such situations prohibition lies (see Matter of Hynes v. Hall, 240 AD2d 746; Matter of Catterson v. Jones, 233 AD2d 502; Matter of Pirro v. LaCava, 240 AD2d 909). This Court has similarly determined that prohibition lies against orders granting the defense access to photograph the apartment of the alleged victim of the crime (see Matter of Pirro v. LaCava, supra; Matter of Kaplan v. Tomei, 224 AD2d 530)."

However, this Court respectfully finds, through an analysis of Matter of Brown and the [*5]cases cited therein, that the Court's statement in Matter of Brown cited above is unintentionally over-broad and, therefore, subject to misinterpretation. The Court's intention in such statement was to note the Supreme Court and County Court's lack of authority to issue discovery orders directing the People to comply with discovery demands which are not contemplated by statute. Indeed, Matter of Pirro v. LaCava, supra, cited in Matter of Brown, sets forth the Appellate Division's intent more clearly:

"This Court has previously held that prohibition may be an appropriate remedy where the County Court or Supreme Court exceeds its statutory authority by ordering the People to make disclosure which they are not required to make pursuant to the governing statutes" (Matter of Pirro, supra, at 910 [emphasis supplied]).

Accordingly, since this Court finds that Matter of Brown simply holds that the Court cannot require the prosecution to comply with discovery demands outside the scope of CPL §240.20, its holding is inapplicable to the instant matter, where the discovery has been requested from a non-party.

Similarly, Matter of Kaplan v. Tomei, supra, is not particularly illuminating as to the issues at hand. In that case, the Appellate Division granted a petition prohibiting the enforcement of an order of the Supreme Court, Kings County, which granted the application of a defendant in an underlying criminal action to be permitted to photograph the apartment of the alleged victim of the crime. In granting the petition for prohibition, the Court merely stated, without further elaboration: "The extraordinary remedy of prohibition is available in cases, such as here, where a court acts or threatens to act either without jurisdiction or in excess of its authorized powers".^[FN5] The Court made no definitive statement as to whether the Supreme Court was acting outside the scope of its authority by issuing the order (which would then be a compelling argument to this Court that it was not authorized to issue the instant subpoena), or whether there was a jurisdictional problem relating to the order (for one possible example, a circumstance wherein the defendant served the order only upon the People and failed to serve such order upon the non-party apartment owner, thus not acquiring jurisdiction over that party [see e.g. People v. Davis, 169 Misc 2d 977 (Westchester County Ct, 1996)]). In the absence of such clarity, Matter of Kaplan is not instructive.

Finally, in People v. Kyriazas, supra, the Court denied the defendant's application for an order requiring a third party to permit photographs and measurements to be taken, and a schematic design to be made of the interior of certain premises owned by such third [*6]party. In Kyriazas, the Court made its determination primarily on the grounds that it was constrained by the holding of Matter of Kaplan, supra. The Court in Kyriazas was clearly troubled by the apparent constraint of Matter of Kaplan, stating:

"This Court, quite frankly is at a loss to find a logical reason why defendant, facing some 45 charges of sodomy, attempted sodomy, sex abuse, et al., should be denied the limited relief requested, particularly where the subject premises are not presently owner-occupied."

However, as discussed above, Matter of Kaplan provides no clarity to the instant circumstances, nor should it have in Kyriazas. Accordingly, this Court finds the holding in Kyriazas to be unavailing.

Instead, the Court finds that this Court has the authority to issue a subpoena duces tecum in a criminal action directing a non-party to turn over certain discovery materials.^[FN6] The Court agrees with the analysis and holding set forth in People v. Legrande, 182 Misc 2d 375 (Sullivan County Ct 1999). In that criminal action, the Court granted the defendant's application requiring a non-party, the owner of the residence where the alleged subject crime occurred, to permit defense counsel access to the crime scene for the purposes of diagraming and/or photographing the premises in question. The Court first determined that the defendant made a strong showing, based upon due process, fundamental fairness and his right to confront his accusers, that his request is reasonable and material to his defense. Then, after concluding that CPL §240 was inapplicable to the defendant's application, the Court determined that the CPLR subpoena provisions should be applied and that the defendant's request was discoverable under CPLR 3120 (see People v. Legrande, supra; People v. Radtke, 153 Misc 2d 554 [Sup Ct Queens County 1992] ["in either civil or criminal matters, where production is sought from a nonparty witness, or one not a party to the proceeding, the service of a subpoena, together with a notice to produce or notice of deposition, whatever the case may be, is the only available procedure, in terms of jurisdiction, to compel the attendance and appearance of a witness. CPLR 3101(a)(4) sets forth the operative procedure to obtain disclosure from such a nonparty witness and, since there is no corresponding CPL provision, in terms of procedure, it is applicable to both civil actions and criminal proceedings"]). Upon consideration of the non-party's property rights and a balancing of such rights against the defendant's rights of fundamental fairness and due process, the Court determined that the defendant's application should be granted.

The County Court of Westchester County used a similar analysis in a different [*7]procedural scenario in People v. Davis, 169 Misc 2d 977 (Westchester County Ct 1996). In that case, the Court was similarly confronted with the issue of whether it should grant the defendant's motion, inter alia, directing the owners of the crime scene premises to permit defense counsel to inspect and photograph the premises. The Court denied the motion upon the ground that the defendant only served his application upon the District Attorney but failed to serve the owners with the application. However, the Court advised the defendant that he should first seek access of the premises by informally asking the owners for access, and, should that prove unsuccessful, by applying for a subpoena pursuant to the provisions of the CPLR. In so advising, the Court specifically stated that CPLR subpoena provisions would be applicable, since there are no pertinent CPL provisions concerning the discovery of materials from a person who is not a party to the action.

Having determined that this Court had both the jurisdiction and the authority to issue the subject "so ordered" subpoena, the Court will now turn to the primary substantive issue before it: whether Simon willfully disobeyed the "so ordered" subpoena which was the lawful mandate of this Court.

Initially, the Court can appreciate the frustration that the defense counsel obviously experienced in dealing with the various individuals employed by Simon, which defense counsel extensively details in his application and accompanying exhibits. There is no question that defense counsel was subjected to inconsistent and conflicting versions as to the status or even existence of the surveillance footage at issue in his quest to seek compliance with the subpoena, i.e., the turnover of the surveillance footage. A review of the two affidavits submitted by Simon in opposition to the application, one of Joseph J. Morgante, and one of Vincent D'Antone, reveals that while Simon did respond to the subpoena in some manner, they are not entirely clear as to the specific issue of compliance with the subpoena.

In his affidavit, Mr. D'Antone, the Assistant Mall Manager of the Roosevelt Field Mall, states that the surveillance cameras in question are "owned by the Roosevelt Field Mall', and are monitored by Allied Barton Security Services". Mr. D'Antone explains that the surveillance footage is recorded onto a Digital Video Recording system (DVR), and that the footage recorded onto the DVR is ordinarily recorded over after seven days. DVR footage is only preserved by transference onto videotape (VHS) if an injury or other activity likely to result in litigation is documented. Mr. D'Antone acknowledged receipt of a letter on or about December 23, 2011 (the day after the alleged crime occurred), requesting the preservation of certain recorded images.^[FN7] Mr. D'Antone indicates Allied Barton Security [*8]Services ("Allied") was then instructed to review all images recorded in the parking garage during the requested date and time (although Mr. D'Antone does not indicate who instructed Allied to do so). Allied reported back that none of the recorded images contained any unusual activity. Therefore, Allied did not transfer any of the images onto VHS. On or about December 28, 2011, the mall was served with the subject subpoena, which was forwarded to the mall's legal department in Indiana for handling.

In his affidavit, Mr. Morgante, an Allied employee and the Assistant Director of Security at the Roosevelt Field Mall, explained that the surveillance cameras in question record at intervals, in order to maximize the time frame recorded on the DVR and thus do not depict continuous or fluid motion or activity. He further explained that the majority of cameras are aimed at the emergency call boxes and are intended to record activity in the immediate vicinity of the call boxes, which are located along the outer perimeter of the parking garage. The other cameras view small sections of travel area within the parking garage, but do not track vehicle or pedestrian activity throughout the parking garage. Mr. Morgante stated that he observed the defendant being arrested on December 22, 2011, and later that evening, he viewed the images recorded by the surveillance cameras "in an attempt to learn more information about the arrest." However, no part of the arrest, or any activity that preceded it, was recorded. Upon the mall's receipt of defense counsel's December 23, 2011 letter, Mr. Morgante was asked to review the images for the requested date and time period. He again reviewed the footage and did not observe any unusual activity of any kind, including the arrest or any activity that preceded it. On or about January 5, 2012, Mr. Morgante was advised that the mall's legal department was inquiring about the existence of recorded images in the parking garages for the same date and time period. Mr. Morgante advised that the images had been recorded over in the ordinary course of business, in that none of the images contained any activity which was likely to result in litigation.

The Court finds that the fact that Simon internally reviewed the surveillance footage and concluded that nothing relevant could be observed has absolutely no bearing upon the issue of whether it complied with the subpoena, and more specifically, whether it wilfully disobeyed it. The fact remains that, pursuant to the affidavit of service, Simon received the subpoena on December 28, 2011, one day before the footage was allegedly scheduled to be deleted (i.e., 7 days after December 22, 2011, the date of the alleged crime). Simon makes no indication of what steps it took, if any, to preserve the footage upon receipt of the subpoena. Its internal determination that the footage was not relevant did not absolve itself of its obligation to preserve and turn over such footage upon receipt of the subpoena, [*9]instead of passively allowing the footage to be deleted. Mr. D'Antone states that, at some unspecified point after the subpoena was received, it was forwarded to "the mall's legal department in Indiana to handle". However, once again, the issue remains unclear as to what steps Simon took, upon receipt of the subpoena, to attempt to comply with the subpoena, other than to passively let the footage be deleted upon its own satisfaction that nothing pertinent was found within the footage. The Court recognizes that the limited amount of time between receipt of the subpoena and the scheduled deletion of the surveillance footage may have precluded compliance, but Simon never states as much. It merely repeatedly relies on its internal determination of lack of relevance as well as the fact that the footage had been deleted, rather than stating anything affirmative regarding their attempts to comply with the subpoena upon its receipt but before the alleged deletion of the footage. Furthermore, although it might appear that compliance with the subpoena has now been rendered impossible because of the alleged deletion of the footage, it is not entirely clear to this Court that the footage has been overwritten and permanently deleted such that it is no longer recoverable, or whether it is possible that, although "deleted", such footage could be salvaged.

The Court also recognizes that defense counsel may have contributed in part to his difficulty in obtaining consistent information from Simon, since, as Simon states in its opposition, defense counsel apparently never disclosed the specific purpose for his inquiry as to the surveillance footage. However, the Court also notes that if Simon truly had difficulty with the request, it could have moved to quash the subpoena. Simon did not make such a motion.

Accordingly, a hearing is required to determine whether Simon wilfully disobeyed the subpoena.^[FN8] Of specific relevance at such hearing are the issues of (1) what Simon did, if anything, upon receipt of the subpoena, to attempt to prevent the deletion of the surveillance footage; and (2) whether the footage, although allegedly "deleted", may still be salvageable. As such, the defendant's application is granted to the extent that the parties are directed to appear at a criminal contempt hearing on August 23, 2012, for the determination of the issues as outlined above.

The foregoing constitutes the decision and order of the Court.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE [*10]

Dated:July 24, 2012