The U.S. Supreme Court’s decision in Brady v Maryland, 373 U.S. 83  requires the People to turn over evidence which is material either to the defendant’s guilt or to punishment. Last week in Matter of Phillips v Ramsey, 2007 NY Slip Op 06045, the Second Department held that a state trooper’s personal copy of a police training manual does not constitute Brady material. The matter arose from a DWI prosecution. At a pretrial hearing in a City Court, defense counsel cross-examined the arresting trooper with respect to his performance of a series of standardized field sobriety tests on the defendant at the arrest scene. Defense counsel then called for the production of the trooper’s personal copy of the DWI Detection and Field Sobriety Testing Manual, a police training manual, on the basis that it constituted Brady material. The trooper had testified that a failure to administer a field sobriety test in the manner prescribed by the police training manual rendered the test invalid and, therefore, defense counsel argued that, “if we can show that any of those tests are invalid, that would affect the basis for probable cause to arrest.” The hearing judge ordered the People to produce the manual.
The People then commence an article 78 proceeding in the nature of prohibition to prohibit the hearing judge from enforcing his order. In finding that the trooper’s personal copy of the training manual was not Brady material, the Second Department noted that CPL 240.20(1)(k) provides that the People shall disclose any written report or document concerning, inter alia, a physical examination made by a public servant engaged in law enforcement activity. However, that statute granted no statutory right entitling a defendant to compel a trooper to turn over his personal copy of a police training manual. In addition, the Second Department noted that since the trooper was not a party to the underlying criminal proceeding, the hearing judge from the City Court had no authority to direct him to produce a document at the hearing in the absence of a properly issued subpoena, which under CPL 610.20(3) and CPLR 2307 must be issued by a Justice of the Supreme Court. Thus, since the hearing judge was only from a City Court, he had no authority to issue such a subpoena.