BILL NUMBER:S7429

TITLE OF BILL:  An act to amend the criminal procedure law, in relation
to a subpoena duces tecum

This measure is being introduced at the request of the Chief Administra-
tive Judge upon the recommendation of her Advisory Committee on Criminal
Law and Procedure.

This measure would amend section 610.40 of the Criminal Procedure Law to
provide that when a party issues a subpoena duces tecum for certain
personal records of a defendant or victim, the adversarial party also
must be provided notice.

CPL Article 610 provides the statutory authority for issuing a subpoena
duces tecum in a criminal case. The service requirements for such a
subpoena are set forth in section 610.40, which provides: "A subpoena
may be served by any person more than eighteen years old.  Service must
be made in the manner provided by the civil practice law and rules for
the service of subpoenas in civil cases." Prior to 2003, there was no
requirement in civil cases for service of a subpoena duces tecum on
other parties in the litigation, and this practice therefore held true
in criminal matters. In 2003, however, the Legislature amended the CPLR
to provide that a subpoena duces tecum must be served on all parties. As
a memorandum from the State Bar CPLR Committee explained, the purpose of
the change was "to ensure that, in civil actions, items requested by the
              

subpoena were properly subject to subpoena power and to allow opposing
parties to test the validity of the subpoena by motion to the trial
judge before such items were produced." However, after recognizing that
the 2003 amendment, on its face, would apply to criminal proceedings,
the Legislature amended the statute a year later to narrow the applica-
bility of such notice to "civil judicial proceedings" (see CPLR
2303(a)). Although the intent of the Legislature was plain, no conform-
ing change was made to CPL 610.40, which continues to provide that the
procedures for serving a subpoena in a criminal case shall follow the
manner of service used for civil cases under the CPLR. Thus, despite its
best efforts, the Legislature did not fix the problem it identified
under the 2003 amendment. In criminal cases, if a strict reading of the
statutes is followed, a subpoena duces tecum is required to be served on
all parties (see People v Lomma, 35 Misc 3d 395 (Sup Ct. NY County
(2013)).

This measure is designed to correct this legislative oversight.  More-
over, it also would amend the current rule that prevents an adversarial
party in a criminal case from getting notice when a party issues a
subpoena for certain personal records of a defendant or victim. Custo-
dians of institutional records have little interest in upholding the
privacy rights of the subject of the records, and without notice, the
subject of the records is not able to raise appropriate objections to
the subpoena. We recognize that such a rule in criminal cases would be
inappropriate for investigatory subpoenas issued by a grand jury. Howev-
er, after the commencement of a criminal action or proceeding, where a

party issues a subpoena duces tecum for personal records of a defendant
or victim, there is little reason to apply different rules in criminal
and civil cases. Without notice, the subject of the records only learns
of the subpoena if the material is attempted to be introduced at trial,
thus providing no mechanism to object before the material is produced
and no objection at all where the material is subpoenaed but used only
for investigative purposes. We believe the current rule in criminal
cases needlessly delays judicial intervention or prevents it altogether
by concealing potential abuses of the subpoena process.

This measure would alleviate these problems by requiring that the party
issuing a subpoena duces tecum for a defendant's or victim's financial,
employment, educational or medical records provide notice of the subpoe-
na to the adverse party.

This measure, which would have no fiscal impact on the public treasury,
would take effect immediately.

Legislative History: None. New proposal.