Enacts provisions relating to service of a subpoena duces tecum

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.