People v. Legrande

FRANK J. LaBUDA, J. Defendant, immediately prior to jury selection, made oral application for discovery of the alleged crime scene and now with permission of the court brings an order to show cause Though the defendant's request is not discoverable under CPL article 240 it is discoverable under CPLR 3120. "There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by * * * "a person who possessed a * * * defense asserted in the action * * * "any other person upon notice stating the circumstances or reasons such disclosure is sought or required." (CPLR 3101 [a] [2], [4].) A person who is not a party to an action may be directed by court order to produce or permit the party seeking discovery to inspect, copy or photograph anything in the possession, custody or control of the party served with notice of such request. (CPLR 3120 [a] [1] [i]; [b].) If anything connected to a parcel of real estate is involved in the action the party in control of the land may be required to permit entry by an adverse party or his representative for the purposes of inspection, testing and photographing. (See, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3120:11, C3120:12, at 601, 602.) It is not without precedent in our system of laws that a nonparty to an action, be it criminal or civil in nature, is required to put their property rights on hold for fundamental fairness and due process. Procedures such as a subpoena for a nonparty witness, subpoena duces tecum and search warrants are just some examples of property and privacy rights being balanced. Based upon the above, it is ordered that defendant's attorney Shelley D. Miller or her duly appointed employee shall be permitted to enter onto the premises known as 37 Mountain View Meadows, Town of Liberty, County of Sullivan, for the purposes of diagraming and/or photographing the premises in question, and it is further ordered that said diagraming and/or photographing shall take place within a duration of 15 minutes and there shall be no conversations between the defendant's attorney or her employee and the homeowners, and it is further ordered that the homeowners shall have the right to have a court officer or attendant present upon oral application to the court. [1] The 16-year-old sister of Mrs. Miligros Bonaparte, the owner of the residence in question. [2] As for example, the location of doors, hallways, phones, windows, etc. [3] Assistant District Attorney Bonnie M. Mitzner secured the attendance of the homeowners, Mr. and Mrs. Bonaparte.