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The motion to quash the subpoena is granted.


A Kings Domestic Violence Lawyer said that, defendant move to have the People produce specified documents. Defendant claims that the records are vital to the preparation of her defense based upon the “Battered Woman’s Syndrome” (BWS). Defendant has commenced three separate proceedings for the documents. Defendant has issued a subpoena for these documents, requested the material under the Freedom of Information Law (FOIL; Public Officers Law § 87), and requested the material under CPL article 240.

On or about January 1, 1988 at approximately 11:00 A.M., at 106 Steuben Street in Kings County, the defendant stabbed her boyfriend to death. Defendant was apprehended at the scene of the crime. Defendant gave three oral statements, one written statement, and a videotaped statement to law enforcement agents. All five statements tell essentially the same story. Shortly before midnight New Year’s Day 1998, defendant attempted to enter her paramour’s apartment with her key. Upon unlocking the door, defendant was able to open the door slightly, but not enough to gain entry. Seeing that the couch blocked the doorway, she believed her boyfriend to be asleep. She pushed the door gently so as not to disturb her paramour. Upon gaining entry into the apartment, defendant observed the victim “having sex” with another person (a person apparently known to defendant). Defendant had an argument with the said person and ordered her to leave the apartment. She left, and an argument ensued between defendant and her boyfriend. At the conclusion of the argument, the victim and defendant went to sleep in different rooms. During the course of the evening, defendant woke up her boyfriend to talk about the evening’s events, but he did not wish to talk about the matter. In the morning after both parties were awake, defendant continued to argue with her boyfriend. At about 11:00 A.M., during an argument, the victim was close to the defendant’s face. The defendant pushed the victim who, in turn, pushed defendant off her chair. Defendant grabbed a knife and stabbed the victim, killing him.

A Kings Criminal Lawyer said that, for this incident, defendant has been indicted on two counts of Murder in the Second Degree. At oral argument on August 18, 1998, defendant represented that an examination of the defendant had been conducted and defendant was found to suffer from Battered Woman’s Syndrome. The court’s records show that defendant received an order of protection against the deceased on October 9, 1996, which expired April 8, 1997. The record also shows that defendant is registered with the Family Protection Registry under Case # 96R072716 and order of protection # 1996-R00465. There is thus a basis to believe that there were prior incidents between defendant and the deceased.

A Kings Order of Protection Lawyer said that, in deciding this motion the court has considered defendant’s omnibus motion, the People’s answer to the omnibus motion, the People’s motion to quash the subpoena, defendant’s answer to the People’s motion to quash the subpoena dated June 2, 1998, defendant’s answer to the People’s motion to quash the subpoena dated August 3, 1998, oral argument on August 18, 1998, the autopsy report, a three-page document signed by Nicole Avery and allegedly sworn to by defendant on October 29, 1998 (a date that at the time the court received the document had not yet arrived–the court received the document on September 29, 1998), addendum to answer re People’s motion to quash the subpoena, and the court file.

The issue in this case is whether Battered Woman’s Syndrome could be use as a defense for committing murder.

The court in deciding the case said that domestic violence is a social as well as a legal issue, with responsibility placed upon the courts, as well as society, to deal with it accordingly. “‘Battered Women’s Syndrome’ is generally recognized in the psychiatric community to explain common reactions of women in abusive relationships”. In one case, the court held that to be admissible, testimony regarding BWS must have a scientific basis for admission and must be beyond the common knowledge of the average juror. Today, courts have commonly held that both requirements are met. BWS has been found to have a scientific basis in this State. “The typical juror hearing the domestic violence case is likely to bring with him or her many misconceptions regarding intra-familial violence.”

Although discretion is left to the courts, Battered Woman’s Syndrome, as a defense, is generally accepted today to explain the reactions of abused spouses or intimate partners. “Learned helplessness is a term that has been applied to the psychological change that abuse causes in a battered woman. After a woman experiences repeated abusive episodes over which she believes she has no control, her ability to develop escape responses is lost, even when escape from the relationship is feasible”. While a situation may appear to have an escape and the time difference between the defendant’s action and the alleged abuse may be significant, BWS explains the mindset of an abused spouse whose perceptions and believed options are different from that of the ordinary juror.

The admission of expert testimony regarding rape trauma syndrome, learned helplessness syndrome and battered woman syndrome was proper ‘to explain behavior on the part of the complainant that might seem unusual to a lay jury unfamiliar with the patterns of response exhibited by a person who has been physically and sexually abused over a period of time.

At oral argument defense counsel represented that the defense in this case would be justification. Calling justification a “defense” is a misnomer. Justification does not negate a particular element of the crime nor does it operate to excuse criminal activity. If the use of force is justified the force is legal and proper. It is the People’s burden to show beyond a reasonable doubt that the use of force was not justified.

In considering justification, a jury must determine whether defendant reasonably believed that the use of deadly physical force was necessary, and whether defendant’s belief was reasonable by objective standards. Evidence of Battered Woman’s Syndrome is relevant to the issues of whether defendant reasonably believed that deadly physical force was necessary and whether that belief was reasonable under the circumstances.

Defendant has issued a subpoena to the District Attorney requesting the following: “Copies of all records, police reports, Criminal Complaints, DD5s, ECAB Sheets, Grand Jury Synopsis Sheets, memo books, follow-up reports, UF-61s, Orders of Protection, Rosario and other discovery material in all cases within the past five (5) years, in which Valerie Seeley was a complaining witness against defendant.” The People have moved to quash the subpoena. A subpoena is a process or mandate of the court and is issued by an attorney as agent of the court and not as a representative of a party to an action. The purpose of a subpoena is to produce evidence at a proceeding, and it is improper to use a subpoena as a discovery tool

It is clear from the facts of this case, the moving papers, the opposition to the motion to quash the subpoena, and the subpoena itself that defendant is using the subpoena as a discovery tool. The subpoena directs production of Rosario and “other discovery material.” The documents such as ECAB sheets, Criminal Complaints, DD5s, etc. are not evidence but merely lead to evidence. The court finds that defendant is using the subpoena process for the purpose of determining what documents exist, and whether those documents support the potential defense. The motion to quash the subpoena is granted.

To Be Con’t…..

The rule is that, there is no Constitutional right to discovery in criminal cases, courts cannot grant discovery where no statutory basis exists. If you are a victim of a battered woman syndrome, seek the assistance of a Kings Order of Protection Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates. Call us.

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