OWS D17 Trinity's Notice of Motion to Quash

CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: PART JURY 7

------------------------------------------------------ x THE PEOPLE OF THE STATE OF NEW YORK,

NOTICE OF MOTION TO QUASH

-against- Docket Nos.

2012NY0 13767 CHARLES MEYERS, : 2012NY010378 DANIEL BALL, : 2012NY010379 EDWARD ALEXANDRO, : 2012NY010390 JOHN CARHART, : 2012NY010394 ROBERT SMART, : 2012NY013768 THOMAS SEFTON and : 2012NY010393 WILLIAM E. KOOPERKAMP

Defendants. -----------------------------------------------------x

PLEASE TAKE NOTICE, that upon the annexed Affirmation of Jason R. Davidson and

the exhibits annexed thereto, non-party Church-Wardens and Vestrymen of Trinity Church in the

City of New York ("Trinity") will move this Court in Part Jury 7, at the Courthouse located at

100 Centre Street, New York, New York, on June 11, 2012, at 9:30 a.m., or as soon thereafter as

counsel can be heard, for an Order granting the following relief:

a) Pursuant to Civil Practice Law and Rules ("CPLR") §§ 3103(a) and 2304, issuing a protective order and/or quashing the Subpoena Duces Tecum served on Ms. Amy Jedlicka (the "Non-Party Subpoena"); or

b) Alternatively, vacating and/or modifying the Non-Party Subpoena to the extent of limiting the production of documents sought therein; and

c) Granting Trinity such other and further relief as the Court deems just, proper and equitable.

RE\8 1664\0029\473594v3

PLEASE TAKE FURTHER NOTICE, that, pursuant to CPLR 2214(b), any answering

papers and/or cross-motion with supporting papers, are to be served so as to be served at least

seven days before the return date of the motion.

Dated: New York, New York May 3 ,2012

ROSENBERG & ESTIS, P.C. Attorneys for TAniiy

By: Jason R. avidson

733 Third Avenues New York, New York 10017 (212) 984-7700

RE\81 664\0029\473594v3 2

CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: PART JURY 7

THE PEOPLE OF THE STATE OF NEW YORK,

-against-

CHARLES MEYERS, DANIEL BALL, EDWARD ALEXANDRO, JOHN CARHART, ROBERT SMART, THOMAS SEFTON and WILLIAM E. KOOPERKAMP

Defendants. ----x

AFFIRMATION OF GOOD FAITH AND IN SUPPORT OF MOTION TO QUASH

Docket Nos. 2012NY0 13767 2012NY010378 2012NY010379 2012NY010390 2012NY0 10394 2012NY013768 2012NY010393

JASON R. DAVIDSON, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirms the following to be true under the penalties of perjury

pursuant to CPLR § 2106:

2. I am a member of the law firm of Rosenberg & Estis, P.C., counsel for non-party

Church-Wardens and Vestrymen of Trinity Church in the City of New York ("Trinity"). As

such, I am familiar with the facts and circumstances set forth below.

3. I respectfully submit this affirmation in support of Trinity’s motion:

a) Pursuant to Civil Practice Law and Rules ("CPLR") §§ 3103(a) and 2304, issuing a protective order and/or quashing the Subpoena Duces Tecum served on Ms. Amy Jedlicka (the "Non-Party Subpoena"); or

b) Alternatively, vacating and/or modifying the Non-Party Subpoena to the extent of limiting the production of documents sought therein; and

c) Granting Trinity such other and further relief as the Court deems just, proper and equitable.

RE\81664\0029\473594v3 3

PRELIMINARY STATEMENT

The Court should grant Trinity’s motion and issue a protective order striking

and/or quashing the Non-Party Subpoena because: (a) the Non-Party Subpoena is improperly

used for the purpose of discovery to ascertain the existence of evidence; (b) the Non-Party

Subpoena is tantamount to an impermissible fishing expedition insofar as it is overbroad and

vague, and seeks material and/or information that is irrelevant to this action; (c) no "special

circumstances" are present here and the Non-Party Subpoena is premature.

2. Accordingly, as established below, Trinity’s motion for an order striking and/or

quashing the Non-Party Subpoena, or in the alternative vacating, modifying and/or limiting

same, should be granted.

BACKGROUND FACTS

3. On February 8, 2012, Police Officer Steven Valentine signed an accusatory

instrument charging Charles Meyers with Petit Larceny and Criminal Possession of Stolen

Property in the Fifth Degree for an incident which allegedly occurred on December 17, 2011, at

about 6:40 p.m. in front of 50 Times Square in the County of New York, State of New York ("50

Times Square"). A copy of the accusatory instrument is annexed hereto as Exhibit "A".

4. On February 1, 2012, Police Officer Jeffrey Galvin ("P0 Galvin") signed an

accusatory instrument charging Daniel Ball with Criminal Trespass in the Third Degree and

Trespass for an incident which allegedly occurred on December 17, 2011, at about 3:40 p.m.,

inside of 76 Varick Street, in the County of New York, State of New York ("Duarte Location").

P0 Galvin was informed by Ms. Amy Jedlicka that she is the custodian of the Duarte Location

and that the Defendant did not have permission or authority to enter or remain at the Duarte

Location. A copy of the accusatory instrument is annexed hereto as Exhibit "B".

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On February 1, 2012, Police Officer Miguel Cruz ("P0 Cruz") signed an

accusatory instrument charging Edward Alexandro with Criminal Trespass in the Third Degree

and Trespass for an incident which allegedly occurred on December 17, 2011, at about 3:40 p.m.

inside of the Duarte Location. P0 Cruz was informed by Ms. Amy Jedlicka that she is the

custodian of the Duarte Location and that the Defendant did not have permission or authority to

enter or remain at the Duarte Location. A copy of the accusatory instrument is annexed hereto as

Exhibit "C".

6. On February 2, 2012, Police Officer James Louie ("P0 Louie") signed two

accusatory instruments charging John Carhart and William Kooperkamp, individually and

respectively, with Criminal Trespass in the Third Degree and Trespass for an incident which

allegedly occurred on December 17, 2011, at about 3:40 p.m. inside of the Duarte Location. P0

Louie was informed by Ms. Amy Jedlicka that she is the custodian of the Duarte Location and

that the Defendants did not have permission or authority to enter or remain at the Duarte

Location. Copies of the accusatory instruments are annexed hereto as Exhibits "D" and "E"

respectively.

7. On February 2, 2012, Police Officer Ron Vincent, signed an accusatory

instrument charging Robert Smart with Resisting Arrest and Disorderly Conduct for an incident

which allegedly occurred on December 17, 2011, on the corner of 7th Avenue and West 29th

Street in the County of New York, State of New York. A copy of the accusatory instrument is

annexed hereto as Exhibit "F"

On February 8, 2012, Police Officer Mark Ligarzewski signed an accusatory

instrument charging Thomas Sefton with Criminal Trespass in the Third Degree and Trespass for

an incident which allegedly occurred on December 17, 2011, at about 3:40 p.m. inside of the

RE\81 664\0029\473594v3

Duarte Location. P0 Ligarzewski was informed by Ms. Amy Jedlicka that she is the custodian

of the Duarte Location and that the Defendant did not have permission or authority to enter or

remain at the Duarte Location. A copy of the accusatory instrument is annexed hereto as Exhibit

"G59 .

9. The Honorable Matthew A. Sciarrino, Jr. signed as "so ordered" a Subpoena

Duces Tecum on April 2, 2012, issued by Paul Mills, Esq., attorney for the defendants (the

"Non-Party Subpoena"). A copy of the Non-Party Subpoena is annexed hereto as Exhibit "H".

10. On April 16, 2012, Trinity, by and through counsel, sent a letter (the "Objection

Letter") to Mr. Mills noting its objections to the Non-Party Subpoena in a good faith effort to

avoid unnecessary motion practice and waste scarce judicial resources. A copy of the Objection

Letter is annexed hereto as Exhibit "I".

11. On April 17, 2012, Mr. Mills responded to the Objection Letter by electronic mail

("e-mail"). In said e-mail, Mr. Mills withdrew the Non-Party Subpoena with regards to the

criminal cases pending against Charles Meyers and Robert Smart (docket numbers

2012NY013767 and 2012NY010394 respectively), and suggested narrowing down the requests

with respect the remaining defendants. A copy of the e-mail is annexed hereto as Exhibit "J".

12. On April 19, 2012, Mr. Mills consented via e-mail to a continuance for the parties

to work towards resolving the dispute with regards to the Non-Party Subpoena. A copy of the e-

mail is annexed hereto as Exhibit "K".

13. The criminal cases against Daniel Ball, Edward Alexandro, John Carhart, Thomas

Sefton, and William E. Kooperkamp were heard on April 20, 2012 in Part Jury 7. Daniel Ball

and Thomas Sefton accepted the People’s application for an adjournment in contemplation of

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dismissal. The cases against Edward Alexandro, John Carhart and William E. Kooperkamp were

adjourned to June 11, 2012 for trial.

14. On May 4, 2012, Mr. Mills sent an e-mail agreeing to withdraw his demand for

items 1, 3 and 4 of the Non-Party Subpoena but only if Trinity produced all documents in

response to items 2, 5, 6 and 7. Notably, Mr. Mills failed to provide any clarification for the

remaining demands, nor did he narrow them. A copy of the e-mail is annexed hereto as Exhibit

15. On May 14, 2012, Trinity, by and through counsel, sent an e-mail response to Mr.

Mills noting that demands 2, 5, 6 and 7 remain overbroad and are tantamount to a fishing

expedition which inevitably includes materials that do not relate in any way to the issue(s) in the

criminal cases, and thus, are irrelevant. That same day, Mr. Mills advised Trinity to proceed

with its Motion to Quash. A copy of the e-mail exchange is annexed hereto as Exhibit "M".

THE SUBPOENA

16. The subpoena is overbroad in so much as it commands all files, records,

memoranda, or in any form, including computer files or handwritten documents or logs be

disclosed as described below:

a) "Evidence of the fact that on or before December 17, 2011 Ms. Jedlicka was custodian of the Duarte Location as stated in a statement signed by her and filed as a Supporting Deposition to an accusatory instrument in connection with the above captioned criminal cases."

b) "Evidence of the fact that on or before 3:40 p.m. on December 17, 2011 Ms. Jedlicka informed P0 Ligarzewski that she was the custodian of the Duarte Location and that Defendants did not have permission or authority to enter or remain therein."

c) "Any agreement executed prior to December 17, 2011, by and between the true legal owner of the Duarte Location and any other person or entity, providing that the Duarte Location or any part thereof would be open to the public."

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d) "Evidence that on any date in the year 2011 and prior to December 17, 2011, the Duarte Location or any part thereof was open to the public."

e) "Evidence that during the year 2011 and prior to December 17, 2011, the Duarte Location ceased to be open to the public."

f) "Evidence of any decision to alter or terminate the status of the Duarte Location or any part thereof as open to the public."

g) "Evidence of any publication during the year 2011 and prior to December 17, 2011, of the fact that the Duarte Location or any part thereof was no longer open to the public."

ARGUMENT

THE NON-PARTY SUBPOENA WITH RESPECT TO CHARLES MEYERS AND ROBERT SMART SHOULD BE QUASHED AS IRRELEVANT

17. Charles Meyers and Robert Smart were not arrested for crimes relating to the

Duarte Location. Mr. Meyers is charged with Petit Larceny and Criminal Possession of Stolen

Property in the Fifth Degree for an incident which is alleged to have occurred in front of 50

Times Square. Mr. Smart is charged with Resisting Arrest and Disorderly Conduct for an

incident which is alleged to have occurred on the corner of 7th Avenue and West 29th Street.

Amy Jedlicka is not a witness to, and did not sign Supporting Depositions to the accusatory

instruments filed in, either of these criminal cases. Clearly, and as conceded by Mr. Mills, the

evidence sought to be produced by the Non-Party Subpoena is completely irrelevant and

immaterial to these two particular actions. Therefore, the Non-Party Subpoena must be quashed

as to those two criminal actions.

THE NON-PARTY SUBPOENA WITH RESPECT TO DANIEL BALL AND THOMAS SEFTON

SHOULD BE QUASHED AS MOOT

18. The Non-Party Subpoena is moot as to the criminal cases filed against Daniel Ball

and Thomas Sefton. These two criminal cases were resolved on April 20, 2012. On that date,

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both of these defendants accepted the People’s application for an adjournment in contemplation

of dismissal and the cases were adjourned off calendar. Therefore, the Non-Party Subpoena must

be quashed as to those two criminal actions.

THE NON-PARTY SUBPOENA WITH RESPECT TO THE REMAINING DEFENDANTS IS IMPROPERLY USED

FOR THE PURPOSE OF DISCOVERY OR TO ASCERTAIN THE EXISTENCE OF EVIDENCE

19. A subpoena duces tecum may not be used for the purpose of discovery or to

ascertain the existence of evidence. Matter of Terry D., 81 N.Y.2d 1042, 1044, 601 N.Y.S.2d

452 (1993). The proper means of discovery in a criminal case is by motion provided by Criminal

Procedure Law ("CPL") § 240.20. CPL § 240.20(1) lists the items the prosecutor must disclose

to the defendant and make available for inspection upon receiving a demand to produce from her,

and CPL § 240.20(2) requires that the prosecutor make a "good faith effort to ascertain the

existence of demanded property and to cause such property to be made available for discovery

where it exists but is not within the prosecutors possession, custody or control." A subpoena

duces tecum served on a non-party cannot be used to circumvent these limitations. A Defendant

cannot "accomplish indirectly through the subpoena mechanism what he cannot accomplish

directly through the discovery provisions of the CPL." People v. Norman, 76 Misc.2d 644, 350

N.Y.S.2d 52 (Sup. Ct. NY County, 1973).

20. Indeed, it is firmly established in the law of discovery, going back as far as 1927,

that "documents are not subject to inspection for the mere reason that they will be useful in

supplying a clew [sic] whereby evidence can be gathered. Documents to be subject to inspection

must be evidence themselves." People ex rel. Lemon v. Supreme Court, 245 N.Y.24, 29, 156

N.E. 84 (1927). Mere conjecture, speculation or surmise of the existence of information does

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not provide a legal basis for a disclosure of records. People v. Frasier, 75 Misc.2d 756, 757, 348

N.Y.S.2d 529 (County Ct., Nassau County, NY 1973).

21. Moreover, a defendant in a criminal case cannot use the procedural mechanism of

a subpoena to expand the discovery available pursuant to CPL Article 240.20 without a factual

predicate establishing that such evidence exists. See, People v. Gissendanner, 48 N.Y.2d 543,

423 N.Y.S.2d 893 (1979) (The Court of Appeals refused to issue a non-party subpoena at the

request of the defendant on the grounds that no factual basis nor any showing of necessity other

than general discovery had been demonstrated to warrant such an order); see also, People v.

Bagley, 279 A.D.2d 426, 720 N.Y.S.2d 454 (App. Div. 1st Dept., 2001) (The First Department

granted the New York City Police Department’s motion to quash due to defendant’s failure to

put forth a factual predicate to support the contention that the documents sought in the subpoena

will bear relevant and exculpatory evidence); Norman, supra (The Court held that records from

the New York City Police Department are not discoverable by compulsory process in the

absence of a prima facie showing that such information does exist).

22. The First Department has held that refusal to enforce a so-ordered subpoena duces

tecum would not deprive a defendant of his constitutional rights in the absence of a showing of

reasonable likelihood that the information sought would bear relevant and exculpatory evidence.

See, People v. Ricketts, 38 A.D.3d 291, 291-292, 831 N.Y.S.2d 395 (App. Div. 1st Dept., 2007)

(finding that the defendant was not deprived of his constitutional rights to a fair trial, compulsory

process, confront witnesses and present a defense when the court refused to enforce a so-ordered

subpoena duces tecum seeking various financial and tax documents from the complaining

witness in an embezzlement case). The Court reasoned that the defendant did not establish a

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"factual predicate which would make it reasonably likely that documentary information will bear

relevant and exculpatory information." Id. at 292.

23. In the instant case, Defendants have not presented any basis, in the form of

information from any extraneous source or otherwise, to suggest that it is reasonably likely that

the "evidence" sought by the Non-Party Subpoena will bear relevant and exculpatory

information. Therefore, the Non-Party Subpoena must be quashed in its entirety for lack of the

requisite factual predicate. As the Court found in Ricketts, Defendants will not be deprived of

their constitutional rights without the Non-Party Subpoena’s enforcement.

24. Without a factual predicate, Trinity can only interpret and surmise from the

ambiguous language of the Non-Party Subpoena what "evidence" Defendants are seeking and on

what basis Defendants are relying for the production of that "evidence." Specifically, it is

unknown from the face of the Non-Party Subpoena what Defendants expect to receive in

compliance with the Non-Party Subpoena. Instead of directing Trinity to a specific document,

Defendants seek "evidence" in support of whatever proposition Defendants are looking to prove

or disprove. Defendants have not demonstrated any showing of necessity other than "general

discovery" to warrant enforcement of the subpoena. See, Gissendanner, supra, 48 ny2d at 547.

25. Furthermore, Trinity can only assume from language of the Non-Party Subpoena

that the "evidence" sought by Defendants thereunder is intended to refute the factual allegations

contained in the accusatory instruments as corroborated by Ms. Amy Jedlicka by her signed

Supporting Depositions, as suggested in the first two demands set forth in the subpoena, stating,

respectively, "as stated in a statement signed by you..." and "consistent with the statement."

26. In connection with the captioned criminal cases, Ms. Jedlicka signed Supporting

Depositions swearing that on December 17, 2011, she was the custodian of the Duarte Location

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and that Defendants did not have permission or authority to enter or remain therein. Trinity

therefore assumes that Defendants are hoping to find, by means of their Non-Party Subpoena,

evidence that tends to prove that the Duarte Location was open to the public and, as such,

Defendants had the permission and authority to be there, and/or that Ms. Jedlicka is not in fact

the custodian of the Duarte Location and, as such, she did not have the authority to grant or deny

Defendants access therein.

27. Should this "evidence" exist, it would qualify as exculpatory material pursuant to

the Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83 (1963), and would be required

to be disclosed by the prosecution (and not by Trinity). See CPL § 240.20(1)(h). Once again, a

subpoena duces tecum served on a non-party cannot be used to circumvent these discovery

mandates.

28. Moreover, the deed associated with the Duarte Location is publicly filed with the

Office of the City Register of the New York City Department of Finance. This document

indicates the "true legal owner" of the Duarte Location. To obtain this publicly-available

document, Defendants need not issue a subpoena seeking information from Trinity. Rather,

Defendants would merely have to visit the website of the Office of the City Register (available at

www.nyc.gov) and access the Automated City Register Information System ("ACRIS").

29. Notwithstanding, Defendants have not presented any basis, in the form of

information from any extraneous source or otherwise, to suggest that the information in the

accusatory instrument as sworn to by Ms. Jedlicka is false or that there is any reason to question

Ms. Jedlicka’ s credibility. This mere speculation and surmise of the existence of information

that would form the basis for impeaching the credibility of Ms. Jedlicka on cross examination is

insufficient to survive a motion to quash. The Non-Party Subpoena therefore should be quashed

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as it fails to set forth a factual predicate which would make it reasonably likely that documentary

information will bear relevant and exculpatory information. Under these circumstances, the

Defendants’ constitutional rights will not be violated if the Court does not enforce the Non-Party

Subpoena.

THE NON-PARTY SUBPOENA WITH RESPECT TO THE REMAINING DEFENDANTS IS

FATALLY OVERBROAD AND VAGUE, SEEKS IRRELEVANT INFORMATION,

AND IS TANTAMOUNT TO A FISHING EXPEDITION

30. Moreover, the Non-Party Subpoena is fatally overbroad and vague, seeks

irrelevant information and is tantamount to a fishing expedition. Under New York law, a party is

not entitled to discovery that is not "material and necessary" to its case. See CPLR § 3 101(a).

A non-party subpoena that does not specify the documents sought, but generally seeks "any and

all documents," fails to establish that the information sought is material and necessary and, as

such, is overbroad, lacking in the required specificity, and patently improper. It has been held

that neither the courts nor the non-party should bear the burden of pruning the requests to "cull

the good from the bad" when the requests are so palpably overbroad. Grotollio v. Soft Drink

Leasing Corp., 97 A.D.2d 383, 468 N.Y.S.2d 4 (1st Dep’t 1983). Indeed, this is a task that is

placed firmly within the purview of the defendant.

31. Here, all the Non-Party Supoena’s demands are prefaced with the words

"evidence of any" or "any." It should be obvious that demands for "any agreement" prior to

December 17, 2011, the date of the incidents in question, and "evidence of any decision"

concerning the Duarte Location being open to the public as to an unspecified time period (apart

from amounting to a fishing expedition), are likely to include irrelevant materials that do not

relate in any way to the issue(s) in the pending criminal cases. The only issue presented in the

criminal cases pending against Edward Alexandro, John Carhart and William Kooperkamp is

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whether on December 17, 2011, Defendants had permission or authority to enter and remain

inside the Duarte Location. Evidence tending to prove the Duarte Location was open and/or

closed to the public before December 17, 2011 is completely irrelevant. Therefore, the Non-

Party Subpoena is improper.

32. Neither the Court nor Trinity should be charged with the extraordinary task of

parsing through possibly thousands of pages to determine what is and is not responsive to the

Non-Party Subpoena. This burden is only vested in parties to an action when embarking on a

document production in response to an adversary’s discovery demand. As attested to by Ms.

Amy Jedlicka in her affirmation, to perform a comprehensive review of all of Trinity’s files to

determine relevance would be cumbersome and time consuming.

33. Defendants seek to use the Non-Party Subpoena as a method to ascertain whether

evidence exists - a transparent attempt by Defendants to engage in a fishing expedition at the

expense of a non-party. This is a patent abuse of the purpose of a non-party subpoena, let alone

of the court’s resources, and underscores the proposition that the Non-Party Subpoena must be

quashed. The Court should not be effectively required by Defendants to parse through the Non-

Party Subpoena’s demands, but should quash them in their entirety, or, in the alternative, issue a

protective order.

NO "SPECIAL CIRCUMSTANCES" ARE PRESENT HERE AND THE NON-PARTY SUBPOENA IS PREMATURE

34. Disclosure from a non-party is available only upon a showing of "special

circumstances" (i.e. that the information sought is material and necessary and cannot be obtained

from other sources). Where the information requested in a non-party subpoena is in fact

necessary and material, but is nevertheless available from other sources, courts routinely quash

such subpoenas. See Reich v. Reich, 36 A.D.3d 506, 507, 830 N.Y.S.2d 29 (1st Dep’t 2007)

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(motion to quash non-party subpoena granted because the issuer did not show "that the

information sought from [the non-party] is not available from other sources"); Tannenbaum v.

City of New York, 30 A.D.3d 357, 358-359, 819 N.Y.S.2d 4 (1st Dep’t 2006) (First Department

affirmed trial court’s decision to deny request to obtain discovery from a non-party because

"plaintiff failed to show special circumstances or that the information sought was relevant and

could not be obtained from other sources"); De Stafano v. MT Health Clubs, Inc., 220 A.D.2d

331, 331, 632 N.Y.S.2d 569 (1st Dep’t 1995) (documents "already received or made available to

defendants were sufficient to enable them to prepare for trial).

35. This requirement of a showing of "special circumstances" was applied in the

context of a criminal case in People v. Radtke, 153 Misc.2d 554, 581 N.Y.S2d 712 (Sup. Ct.

Crim. Term, 1992). In Radtke, the New York State Supreme Court found that the lack of the

required statement setting forth the "circumstances or reasons [the] disclosure is sought or

required" rendered the subpoena defective. Id. at 557. The Non-Party Subpoena in the instant

case does not set forth "special circumstances" or "circumstances or reasons the disclosure is

sought or required," and, like the subpoena in Radtke, is therefore defective.

36. Furthermore, the Non-Party Subpoena is premature. A demand to divulge the

type of information sought by the Non-Party Subpoena is only honored when a witness’

credibility is at issue, i.e., after the witness has taken the witness stand and testified. Norman,

supra, 76 Misc. at 652. It goes without saying that a witness’ credibility can only be evaluated

by a court once an individual is actually called as a witness. Only after a trial has commenced

and the witness has been called to testify can a court determine, based on the nature of the

witness’ cross examination, whether or not the information sought should be discoverable. Id.

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37. In the instant case, it is currently unknown whether Ms. Jedlicka is in fact going

to be testifying at trial. Ms. Jedlicka has not as of yet received any subpoena ad testificandum

from either the Prosecution or Defendants requiring her appearance to testify at trial. Not only

has Ms. Jedlicka yet to be called as a witness at trial, to date, Ms. Jedlicka’s involvement in the

criminal cases has strictly been signing the Supporting Depositions to the Accusatory

Instruments filed against Defendants in their criminal cases. Moreover, when the Non-Party

Subpoena was served on Trinity, the criminal cases had not even been adjourned for trial. The

Non-Party Subpoena is therefore clearly premature.

CONCLUSION

Based on the foregoing, Trinity has established that a protective order striking and/or

quashing the Non-Party Subpoena is warranted. In the alternative, an order vacating, modifying

or limiting same should be granted.

WHEREFORE, Trinity respectfully requests the Court grant its motion in its entirety,

together with such other and further relief that the Court may deem just, proper and equitable.

Dated: New York, New York Respectfully submitted, May 3L, 2012

ROSENBERG & ESTIS, P.C. A ttorneys for Trjnity

JasonkR. Davidson 733 Third Avenue New York, New York 10017 (212) 867-6000

JASON R. DAVIDSON EMILY MACHIZ PRAGER

Of Counsel

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EXHIBIT A

CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK

Page 1 of THE PEOPLE OF THE STATE OF NEW YORK

-against-

I. Charles Meyers (M 20) ECAB # 1295017

MISDEMEANOR ADA LANGSTON 212-335-9206

Defendant.

Police Officer Steven Valentine, shield 13585 of the Patrol Boro Manhattan South - Task Force, states as follows:

On December 17, 2011, at about 18:40 hours in front of 50 Times Square in the County and State of New York, the Defendant committed the offenses of:

1. PL155.25 Petit Larceny-DNA-Eligible MISD (1 count)

- 2. PL165.40 Criminal Possession of Stolen Property in the Fifth Degree (1 count)

- the defendant stole property; and the defendant knowingly possessed stolen property with - intent to benefit a person other than an owner of the property and to impede recovery by

an owner thereof.

The offenses were committed under the following circumstances:

Deponent is informed by Detective Trevor Bosco, shield number 091 of the New York Police Department, that while informant was at the above-listed location, informant began to assist another police officer in the arrest of a separate individual.

.1 Deponent is further informed by informant that while assiting said officer in the above-described arrest, informant placed a camera belonging to the New York Police

- Department onto the ground in order to better assist with said arrest.

Deponent is further informed by informant that after placing said camera on the ground, informant observed the defendant run toward informant, pick up said camera, and run away from deponent while in possession of said camera.


Page 2 of 2 THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR

-against- ADA LANGSTON 212-335-9206

1. Charles Meyers (M 20) ECAB # 1295017

Defendant.

Deponent is further informed by informant that informant is a custodian of said - camera and that the defendant did not have permission or authority to take, remove, or

possess said camera.

Deponent is further informed by informant that informant chased after and apprehended the defendant, and recovered said camera from the defendant’s possession.

False statements made herein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law.

916 OOO Oc? [eponent Date and Time

ACT 5 Version 4.3.5 Created on 02108112 10:24 AM

EXHIBIT B


Page lofl THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR

-against- ADA LANOSTON 212-335-9206

1. Daniel Ball (M 28) ECAB # 1294985

Defendant.

Police Officer Jeffrey Galvin, shield 09421 of the Patrol Boro Manhattan South Task Force, states as follows:

On December 17, 2011, at about 15:40 hours inside of 76 Varick Street in the County and State of New York, the Defendant committed the offenses of:

1. PL 140.1 0(a) Criminal Trespass in the Third Degree 0 count)

2. PL140.05 Trespass (1 count)

the defendant knowingly entered and remained unlawfully in a building and upon real property which was fenced and otherwise enclosed in a manner designed to exclude intruders; and the defendant knowingly entered and remained unlawfully in and upon premises.


Deponent states that while on patrol at the above location deponent observed the defendant inside a fenced boarded, locked, and enclosed area and that said location is beyond a posted sign which read, Private Property."

Deponent is informed by Amy Jedlicka, of an address known to the District Attorney’s Office, that informant is a custodian of the above-listed location and that the defendant did not have permission or authority to enter or remain at the above-listed location.


/1 /1 1/

pon� Date and Time

ACT 5 Vesion43.5 Creeted on 02/01/1211:35 AM

EXHIBIT C


Page lofI THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR


I. Edward Alexandro (M 42) ECAB # 1295001

Defendant.

Police Officer Miguel Cruz, shield 14629 of the Patrol Boro Manhattan South Task Force, states as follows:


1. PLI40.10(a) Criminal Trespass in the Third Degree (1 count)




Deponent states that while on patrol at the above location deponent observed the defendant inside a fenced boarded, locked, and enclosed area and that said location is beyond a posted sign which read, "Private Property, No Trespassing.



Dnent / Date and Time

ACT 5 Version 43.5 Crated on 0210112 15:43 AM

EXHIBIT D


Page 1 of I THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR


L John Carhart (M 28) ECAB 1294996

Defendant.

Police Officer James Louie, shield 13986 of the Patrol Born Manhattan South Task Force, states as follows:

On December 17, 2011, at about 15:40 hours at 76 Varick Street in the County and State of New York, the Defendant committed the offenses of:

1. PLI40.10(a) Criminal Trespass in the Third Degree (1 count)

2 PLI40.05 Trespass (1 count)



Deponent states that while on patrol at the above location deponent observed the defendant inside a fenced boarded, locked, and enclosed area and that said location is beyond a posted sign which read, "Private Property, No Trespassing."



/ Date and Time

ACTS Vn,on43.S Cieatc,i on 02102112 10:22 AM

EXHIBIT E


Page 1 of! THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR


1. William Kooperkamp (M ECAB 4

55) 1294969

Defendant.

Police Officer James Louie, shield 13986 of the Patrol Born Manhattan South Task Force, states as follows:

On December 17,2011, at about 15:40 hours at 76 Varick Street in the County and State of New York, the Defendant committed the offenses of:

1. PLI40.10(a) Criminal Trespass in the Third Degree (I count)

2. PLI40.05 Trespass (1 count)

the defendant knowingly entered and remained unlawfully in a building and upon real property which was fenced and otherwise enclosed in a manner designed to exclude

-

intruders; and the defendant knowingly entered and remained unlawfully in and upon premises.


Deponent states that while on patrol at the above location deponent observed the defendant inside a fenced boarded, locked, and enclosed area and that said location is beyond a posted sign which read, ’Private Property, No Trespassing.’



/ Di’ e and Time epo 01

ACTS Vasion 433 Cxeacd on 021021I2 0:26 AM

EXHIBIT F


Page 1 of THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR


1. Robert Smart (M 28) ECAB # 1295072

Defendant.

Police Officer Ron Vincent, shield 30754 of the Patrol Boro Manhattan South Task Force, states as follows:

On December 17, 2011, at about 18:10 hours on the corner of 7th Avenue and West 29th Street in the County and State of New York, the Defendant committed the offenses of:

1. PL205.30

Resisting Arrest (1 count)

2. PL240.20(5) Disorderly Conduct (1 count)

the defendant intentionally attempted to prevent a police officer and peace officer from effecting an authorized arrest of himself and another person; and the defendant, with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, obstructed vehicular and pedestrian traffic.


Deponent is informed by Captain Thomas Traynor of the New York Police Department that informant observed the defendant walking in the middle of the roadway at the above-listed location with approximately three-hundred (300) other individuals, and that the defendant and said individuals did not have a permit to conduct such a demonstration.

Deponent is further informed by informant that the defendant, in conjunction with said other individuals, completely obstructed vehicular traffic at the above-listed location.

Deponent is further informed by informant that informant personally instructed the defendant to relocate to the sidewalk, and that the defendant refused to do so.

i\

L./


Page 2 of 2 THE PEOPLE OF THE STATE OF NEW YORK

-against-

I. Robert Smart (M 28) ECAB # 1295072

MISDEMEANOR ADA LANGSTON 212-335-9206

Defendant.

Deponent is further informed by informant that upon placing the defendant under arrest for the above-described offense, the defendant attempted to relocate to the sidewalk, and refused to place defendant’s arms behind defendant’s back.

Deponent is further informed by informant that during the arrest of the defendant by informant, the defendant and informant fell to the ground, at which point the defendant continued to flail defendant’s arms and refuse to place defendant’s hands behind defendant’s back in an attempt to prevent informant from placing the defendant under arrest.

False statements made herein are punishable as a class A misdemeanor pursuant to section

MIN

0.45 of the enal law.

Deponent Dte and Time

ACTS Version 4.3.5 Created on 02102/12 10:15 AM

EXHIBIT G


______________ Page 1 of I THE PEOPLE OF THE STATE OF NEW YORK MISDEMEANOR


I. Thomas Sefton (M 66) ECAB # 1294957

Defendant.

Police Officer Mark Ligarzewski, shield 17768 of the Patrol Boro Manhattan South Task Force, states as follows:


1. PL140.10(a) Criminal Trespass in the Third Degree (1 count)




Deponent states that while on patrol at the above location deponent observed the defendant inside a fenced boarded, locked, and enclosed area with approximately thirty (30) to thirty-five (35) other individuals.

Deponent is informed by Amy Jedlicka, of an address known to the District Attorney’s Office, that said location is beyond a posted sign which read, ’Private Property, No Trespassing."

Deponent is further informed by informant that informant is a custodian of the above-listed location and that the defendant did not have permission or authority to enter or remain at the above-listed location. -


___ ?// //.r Deponent tate and Time

ACT 5 Version 43.5 Created on 02108/12 108 AM

EXHIBIT H


THE PEOPLE OF THE STATE OF NEW YORK

SUBPOENA DUCES TECUM

-against- Indictment Nos. [SEE

BELOW]

[SEE BELOW]

PART JTJRY7 Defendants.

CHARLES MEYERS 2012NY013767 DANIEL BALL 2012NY010378 EDWARD ALEXANDRO 2012NY010379 JOHN CARHART 2012NY010390

ROBERT SMART 2012NY010394

THOMAS SEFTON 2012NY013768 WILLIAM E. KOOPERKAMP 2012NY010393

TO.: AMY JEDLICKA, Trinity Real Fst 75 Yarick Stre.e.. TL-2_ New York, New York- 1001 3), 212-602-9668,

WE COMMAND YOU, that all business and excuses being laid aside, you are hereby directed to deliver to the Office of the Court Clerk for Part Jury 7 of the Criminal Court of the State of New York, 100 Centre Street, New York, NY 10013, on or before April 20, 2012, at 9:00 AM any and all files, records, memoranda, or in any form, including computer files, or handwritten documents or logs, as described below:

1. Evidence of the fact that on or before December 17, 2011 you were a custodian of the following location: "inside of 76 Varick Street in the County and State of New York, a building and real property which was fenced and otherwise enclosed in a manner designed to exclude intruders, a fenced boarded, locked, and enclosed area," (hereafter the "Duarte Location") as stated in a statement signed by you and filed as a Supporting Deposition to an accusatory instrument in the above-titled Criminal Court (hereafter the "Statement").

1 Evidence of the fact that on or before 15:40 hours (3:40 PM o’clock) December 17, 2011 you informed Police Officer Mark Ligarzewski, shield 17768 of the Patrol Boro Manhattan South Task Force that you were a custodian of the Duarte Location and that any one or more of the above-captioned defendants did not have permission or authority to enter or remain at the Duarte Location, consistent with the Statement.

3. Any agreement executed prior to December 17, 2011, by and between the true legal owner of the Duarte Location and any other person or entity, providing that the Duarte Location or any part thereof would be open to the public.

4 Evidence that on any date in the year 2011 and prior to December 17, 2011 the Duarte Location or any part thereof was open to the public.

5. Evidence that during the year 2011 and prior to December 17, 201 [, the Duarte Location ceased to be open to the public.

6. Evidence of any decision to alter or terminate the status of the Duarte Location or any part thereof as open to the public.

7. Evidence of any publication during the year 2011 and prior to December 17, 2011, of the fact that the Duarte Location or any part thereof was no longer open to the public.

Please have your records custodian certify all records provided pursuant to CPLR 2307 and 4518 to avoid the need to have a custodian personally testify in the this matter. Copies may be provided if they are certified as complete and accurate copies of the original document.

Failure to comply with this subpoena is punishable as a contempt of court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed one hundred fifty dollars and all damages sustained by reason of your 1jiThfe to comply. Service of this subpoena by facsimile shall be deemed proper and sufficient srvic

50

DATED: Hon.

Paul L Mills, Esq. Attorney for the Defendants Park West Finance Branch Post Office P020141 New York, NY 10025 (646) 637-3693

EXHIBIT I

� �i_- i -a. r- -.1�I . I �J - - �i� r.N.!

ATTORNEYS AT LAW

733 Third Avenue New York, New York 10017 212.867.6000 Fax 212.551.8484 www.rosenbergestis.com

Jason A. Davidson 212.551.8455 jdavidson@rosenbergestis. corn

April 16, 2012

BY ELECTRONIC MAIL

Paul L. Mills, Esq. Park West Finance Branch Post Office P020141 New York, New York 10025

Re: Subpoena Duces Tecurn

Dear Mr. Mills:

As you know, this law firm represents Church-Wardens and Vestrymen of Trinity Church in the City of New York ("Trinity"). Amy Jedlicka is General Counsel for Trinity.

We received your Subpoena Duces Tecum directed to Ms. Jedlicka ("Non-Party Subpoena") in connection with the criminal cases captioned individually and respectively as The People of the State of New York v. 1) Charles Meyers (docket number 2012NY013767), 2) Daniel Ball (docket number 2012NY 10378, 3) Edward Alexandro (docket number 2012NY010379, 4) John Carhart (docket number 201 2NYO 1390), 5) Robert Smart (docket number 201 2NYO 10394), 6) Thomas Sefton (docket number 201 2NYO 13768), and 7) William E. Kooperkamp (docket number 2012NY010393) (collectively "Criminal Cases"). The Non-Party Subpoena refers exclusively to evidence relating to "a building and real property which is fenced and otherwise enclosed in a manner designed to exclude intruders," located at 76 Varick Street ("Duarte Location").

Pursuant to C.P.L.R. § § 2304 and 3122(a) and/or other applicable law, Trinity hereby objects to, and requests that you withdraw, the Non-Party Subpoena in its entirety. Please consider this correspondence a good faith effort to avoid unnecessary motion practice and waste scarce judicial resources.

As a threshold matter, two of the seven defendants captioned on the Non-Party Subpoena, specifically Charles Meyers and Robert Smart, were not arrested for crimes relating to the Duarte Location. Mr. Meyers is charged with Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree for an incident alleged to have occurred in front of 50 Times Square. Mr. Smart is charged with Resisting Arrest and Disorderly Conduct for an incident which alleged to have occurred on the corner of 7th Avenue and West 29th Street. Ms. Jedlicka is not a witness to and did

RE\8 1664\0001\473412v I

ROS EN BERG&ESTIS,P.c. ATTORNEYS AT LAW

Paul L. Mills, Esq. April 16, 2012 Page 2

not sign Supporting Depositions to the accusatory instruments filed in either of these criminal cases. Clearly, the evidence you seek to be produced is completely irrelevant and immaterial to these two particular actions.

In addition, the Non-Party Subpoena is clearly intended to effect a general and broad examination of evidence tending to prove or disprove Ms. Jedlicka’s signed Supporting Deposition to the accusatory instrument filed in connection with the five remaining Criminal Cases. The subpoena does not reference with any specificity particular documents sought to be produced.

In your telephone conversation on April 10, 2010 with my colleague, Emily Prager, you indicated that you believed Ms. Jedlicka’s "testimony could be problematic" and that you are expecting to receive documents that will either support or contradict her testimony. It appears clear that you intend to engage in a fishing expedition for unspecified documents in the hope of unearthing some unspecified information that would enable you to impeach Ms. Jedlicka’s credibility as a witness in the Criminal Cases before she has testified at trial. See, People v. Gissendanner, 48 NYS2d 543 (1979), see also, In the Matter of Terry D, 81 NY2d 1042 (1993).

Moreover, the Non-Party Subpoena is overbroad, vague and seeks documents that are irrelevant and immaterial. Specifically, item number three of the subpoena requests, "Any agreement executed prior to December 17, 2011, by and between the true legal owner of the Duarte Location and any other person or entity, providing that the Duarte Location or any part thereof would be open to the public," and item number six of the subpoena requests, "Evidence of any decision to alter or terminate the status of the Duarte Location or any part thereof as open to the public." It should be obvious that requests for "any agreement" prior to December 17, 2011, the date of the incidents in question, and "evidence of any decision" concerning the subject real property being open to the public as to an unspecified time period are, apart from amounting to a fishing expedition, likely to include materials that do not relate in any way to the issue(s) in the Criminal Cases and, thus, are irrelevant.

Lastly, the Non-Party Subpoena is oppressive and burdensome insofar as it seeks to compel Trinity to cull through files to potentially produce thousands of pages of documents, all or many of which may be unnecessary or will be produced by the People of the State of New York, a party to the action, as discovery pursuant to C.P.L. Article 240.20.

The foregoing is not intended to be a complete list of Trinity’s objections to the Non-Party Subpoena, and Trinity shall not be deemed to have waived any objection not specifically raised herein.

RE\81664\000l\473412v1

ROSEN BERGESTIS,F.C. ATTORNEYS AT LAW

Paul L. Mills, Esq, April 16, 2012 Page 3

In the event you do not withdraw the Non-Party Subpoena on or before the close of business on April 18, 2012, my client has directed this firm to file a motion seeking to quash the subpoena.

Trinity reserves all of its rights and remedies.

Please be guided accordingly.

RE\8 1664\0001\473412v1

EXHIBIT J

Prager, Emily M.

From: Paul Mills [plm36columbia.edu ] Sent: Tuesday, April 17, 2012 7:17 PM To: Prager, Emily M. Subject: Re: Subpoena Duces Tecum

Dear Ms. Prager:

Can you show me authority respecting a subpoena duces tecum for evidence supporting testimony by a non-government witness who has already provided statement evidence, and who is reasonably expected to testify at trial? That seems to be the issue at hand. Gissendanner concerns police personnel records. Terry D is a discovery demand for witness information, not evidence, framed as a subpoena duces tecum. If these are your strongest authorities, I cannot possibly withdraw this subpoena duces tecum.

I agree that a "fishing expedition" cannot be the basis for a subpoena. On the other hand, I think that a witness who has already agreed to testify is hard put to claim that they need not turn over the very documents on which they intend to base their trial testimony, particularly in a criminal matter. I don’t know of any authority inconsistent with that position.

I will agree to withdraw the subpoena as to any defendant against whom Ms. Jedlicka has not provided a written statement.

May I suggest that we discuss narrowing the subpoena so that my clients’ legitimate rights are vindicated, without unfair burden to your client? I will stipulate to a later return date for the subpoena, conditioned on the Court’s adjournment of the respective trials to a later date. This would obviate the necessity of a quash motion at this time, hopefully altogether. I think I would need some assurance from you, though, that you are interested in such a discussion, to relay to the Court.

Again, thank you for your professional courtesy in our telephone conversation and in this most recent letter.

Best,

Paul L. Mills Please reply to: [email protected]

This electronic message transmission contains information which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify us immediately. 

On Mon, 4/16/12, Prager, Emily M. <epraJ(er(irosenberJzestis.com > wrote:

From: Prager, Emily M. <eprager(rosenbergestis.com > Subject: Subpoena Duces Tecum To: "plm36co1umbia.edu" <plm36(Zicolumbia.edu> Cc: "Davidson, Jason" <j davidson(ärosenbergestis.com > Date: Monday, April 16, 2012, 6:32 PM

Dear Paul,

As per our conversation on April 10, 2010, please see attached letter.

Sincerely,

Emily

Emily Machiz Prager

ROSENBERG&ESTIS, P.C.

733 Third Avenue I New York I New York 10017

212.551.1222 (Direct) 1212.551.8484 (Facsimile)

epragerrosenbergestis.com I www.rosenberpestis.com

CONFIDENTIALITY NOTICE: The information contained in this e-mail and any attachments may be legally privileged and confidential. If you are not an intended recipient, you are hereby notified that any dissemination, distribution or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please notify the sender and permanently delete the e-mail and any attachments immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all or any part of the contents to any other person. Thank you.

Please consider the environment before printing this email or its attachments

**********************************************************************

This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please delete it and notify us immediately.

2

EXHIBIT K

Prager, Emily M.

From: Paul Mills [[email protected] ] Sent: Thursday, April 19, 2012 11:25 PM To: Prager, Emily M. Subject: RE: Subpoena Duces Tecum

Dear Ms. Prager:

Kindly allow this email to confirm the substance of my telephone discussion today at 3 PM with you and Jason Davidson concerning our ongoing negotiations with regard to a subpoena duces tecum served by me on your client, Ms. Amy Jedlicka, on behalf of various criminal defendants whom I represent.

We three agreed that I will inform the Jury 7 judge in the case, Judge Sciarrino, at my appearance in court tomorrow in those cases that these cases require a continuance of 30 days to allow us to either succeed or fail in resolving our dispute. After two weeks, you will either have provided evidence to the extent that I agree the defendants’ subpoena requirements are satisfied, or you will file a noticed motion to quash on a 2-week briefing schedule - 1 week to serve and file the motion; 1 week for opposition. Judge Sciarrino requires replies 5 days after the opposition is served.

You also indicated you might speak with the ADA handling these cases and get his or her cooperation in the necessary adjournment.

I hope I have accurately memorialized our discussion. Please reply with any corrections at your earliest convenience.

Please forward a copy to Mr. Davidson - I don’t seem to have his email address. Thank you. It was a pleasure speaking with the two of you.

Best,



On Wed, 4/18/12, Prager, Emily M. <eprager(ªjrosenbergestis.com > wrote:

From: Prager, Emily M. <epragerrosenbergestis.com > Subject: RE: Subpoena Duces Tecum To: "[email protected] " <[email protected] > Cc: "Davidson, Jason" <jdavidsonrosenbergestis.com > Date: Wednesday, April 18, 2012, 9:27 AM

Dear Paul,

Are you available today to speak?

Emily

Emily Machiz Prager


212.551.1222 (Direct)

From: Paul Mills [mailto:[email protected]] Sent: Tuesday, April 17, 2012 7:17 PM To: Prager, Emily M. Subject: Re: Subpoena Duces Tecum

Dear Ms. Prager:






Best,

Paul L. Mills

Please reply to: [email protected]

This electronic message transmission contains information which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify us immediately. 

On Mon, 4/16/12, Prager, Emily M. <[email protected] > wrote:

From: Prager, Emily M. <epragerrosenbergestis.com > Subject: Subpoena Duces Tecum To: ’plm36columbia.edu’" <plm36columbia.edu> Cc: "Davidson, Jason" <jdavidsonrosenbergestis.com > Date: Monday, April 16, 2012, 6:32 PM

Dear Paul,


Sincerely,

Emily

Emily Machiz Prager




[email protected] I www.rosenbergestis.com


This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please delete it and notify us immediately. *********** ** ******** ** * * **** ** * * * ****** ********************* ****

4

FYHIRIT L

Prager, Emily M.

From: Paul Mills [[email protected] ] Sent: Friday, May 04, 2012 4:33 PM To: Prager, Emily M. Cc: Davidson, Jason Subject: RE: Subpoena Duces Tecum - offer to narrow

Emily,

Can you offer materials that will satisfy 2, 5, ., and 7 on the subpoena? If I can be satisfied as to those items I will withdraw the demand for items 1, 3 and 4. But I have to be satisfied -- I’m not offering to drop any demands because you believe you have satisfied 2, 5, 6, and 7. We have to have agreement. It can’t be unilateral.

As to 2, 5, 6, and 7: will you give me those materials?

Or is there some alternative proposal for narrowing the subpoena that you might care to offer?

Enjoy the weekend.

Best,

Paul

Paul L. Mills Please reply to: plm36columbia.edu

This electronic message transmission contains information which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify us immediately. 

On Thu, 5/3/12, Prager, Emily M. <[email protected] > wrote:

From: Prager, Emily M. <epragerrosenbergestis.com > Subject: RE: Subpoena Duces Tecum To: "[email protected] " <plm36columbia.edu > Cc: "Davidson, Jason" <jdavidsonrosenbergestis.com > Date: Thursday, May 3, 2012, 3:40 PM

Paul,

I am writing as a follow up to my recent voice-mail message and our conversation a couple of weeks ago regarding whether you will be narrowing the Non-Party Subpoena as you suggested in you April 1 7 th e-mail. I haven’t heard from you since our conversation on April 1g1h� Let me know when you are available to discuss, otherwise we will have no choice but to file a Motion to Quash.

Again, our attempts to discuss our objections to the Non-Party Subpoena are made in good faith to avoid unnecessary motion practice and waste scarce judicial resources.

Emily

Emily Machiz Prager


212.551.1222 (Direct)

From: Paul Mills [mailto: plm36'columbia.edu ] Sent: Thursday, April 19, 2012 11:25 PM To: Prager, Emily M. Subject: RE: Subpoena Duces Tecum

Dear Ms. Prager:


We three agreed that I will inform the Jury 7 judge in the case, Judge Sciarrino, at my appearance in court tomorrow in those cases that these cases require a continuance of 30 days to allow us to either succeed or fail in resolving our dispute. After two weeks, you will either have provided evidence to the extent that I agree the defendants’ subpoena requirements are satisfied, or you will file a noticed motion to quash on a 2-week briefing schedule - 1 week to serve and file the motion; 1 week for opposition. Judge Sciarrino requires replies 5 days after the opposition is served.




Best,


This electronic message transmission contains information which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify us immediately. 

On Wed, 4/18/12, Prager, Emily M. <epra’e,iirosenber.’estis.com> wrote:

From: Prager, Emily M. <eprager(rosenbergestis.com > Subject: RE: Subpoena Duces Tecum To: ’"[email protected]"t <p1m36co1umbia.edu > Cc: "Davidson, Jason" <jdavidsonrosenbergestis.com > Date: Wednesday, April 18, 2012, 9:27 AM

Dear Paul,


Emily

Emily Machiz Prager

ROSENBERS&ESTIS, P.C.

212.551.1222 (Direct)


Dear Ms. Prager:


I agree that a "fishing expedition" cannot be the basis for a subpoena. On the other hand, I think that a witness

who has already agreed to testify is hard put to claim that they need not turn over the very documents on which they intend to base their trial testimony, particularly in a criminal matter. I don’t know of any authority inconsistent with that position.




Best,



On Mon, 4/16/12, Prager, Emily M. <eprae,iosenbergestis.com > wrote:

From: Prager, Emily M. <eprager(rosenbergestis.com > Subject: Subpoena Duces Tecum To: "[email protected] " <plm36(2icolumbia.edu> Cc: "Davidson, Jason" Date: Monday, April 16, 2012, 6:32 PM

Dear Paul,


Sincerely,

Emily

Emily Machiz Prager

ROSENBERS&ESTIS, P.C.



epraper(rosenbergestis.com I www.rosenberpestis.com



This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please delete it and notify us immediately. ********** ** * * * *

**********************************************************************

This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please delete it and notify us immediately. **********************************************************************

********************************************************************** This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please delete it and notify us immediately. **********************************************************************

5

EXHIBIT M

Prager, Emily M.

From: Paul Mills [[email protected] ] Sent: Monday, May 14, 2012 3:45 PM To: Prager, Emily M. Subject: RE: Subpoena Duces Tecum - offer to narrow

So your offer is to produce ... absolutely nothing? This is your good faith effort at negotiation?

Paul L. Mills Please reply to: plm36columbia.edu


On Mon, 5/14/12, Prager, Emily M. <epragerrosenbergestis.com > wrote:

From: Prager, Emily M. < epragerrosenbergestis.com> Subject: RE: Subpoena Duces Tecum - offer to narrow

To: "plm3 [email protected] ’ <plm36columbia.edu> Cc: "Davidson, Jason" <j d avidsonrosenbergestis.com> Date: Monday, May 14, 2012, 2:47 PM

Paul,

I am writing in response to your e-mail dated May 4, 2012 (see below). We appreciate your willingness to narrow the scope of the subpoena. However, simply removing paragraphs 1, 3, and 4 from the subpoena does not fully accomplish that result. The remaining requests, specifically paragraphs 2, 5, 6 and 7, demand production of a broad range of documents. Each of these remaining requests seeks "evidence" in support of whatever proposition the criminal defendants are setting out to prove or disprove. As we previously stated, a subpoena duces tecum is an inappropriate tool to use as a search for "evidence" and to circumvent the discovery requirements imposed by CPL Article 240.20.

The fact still remains that the Non-Party Subpoena is apparently being utilized to effect a general and broad examination of evidence with the purpose of seeking documents that may impeach Ms. Jedlicka’s testimony prior to her even receiving a subpoena to do so, from the prosecution or your office. As you have previously admitted to Ms. Prager, you were seeking documents because you anticipate Ms. Jedlicka’s testimony to be "problematic." Any such documents that tend to refute her statement and somehow exculpate your clients are required to be disclosed by the prosecution pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and CPL § 240.20(1)(h).

In addition, a request for "evidence of any decision" concerning the subject real property being open to the public, for an unspecified time period (as provided in paragraph 6), is tantamount to a fishing expedition. A response to this request would inevitably include materials that do not relate in any way to the issue(s) in the Criminal Cases, and thus, are irrelevant.

Without any factual predicate or prima facie showing from you, in the form of information from any extraneous source or otherwise, to support the contention that the subpoena will bear such exculpatory evidence, it is difficult to decipher what exactly you are searching for. Trinity will have no choice but to seek to quash the subpoena if you cannot provide a basis for your belief that such impeachable material exists. Please respond accordingly by the end of this week, Friday, May 18, 2012.

Once again, our attempts to discuss our objections to the Non-Party Subpoena are made in good faith to avoid unnecessary motion practice and waste scarce judicial resources.

The foregoing is not intended to be a complete list of Trinity’s objections to the Non-Party Subpoena, and Trinity shall not be deemed to have waived any objection not specifically raised herein.

Trinity reserves all of its rights and remedies.

Please be guided accordingly.

Very truly yours,

Emily

Emily Machiz Prager


212,551.1222 (Direct)

From: Paul Mills [mailto:[email protected]] Sent: Friday, May 04, 2012 4:33 PM To: Prager, Emily M. Cc: Davidson, Jason Subject: RE: Subpoena Duces Tecum - offer to narrow

Emily,

Can you offer materials that will satisfy 2, 5, 6, and 7 on the subpoena? If I can be satisfied as to those items I will withdraw the demand for items 1, 3 and 4. But I have to be satisfied -- I’m not offering to drop any demands because you believe you have satisfied 2, 5, 6, and 7. We have to have agreement. It can’t be unilateral.

As to 2, 5, 6, and 7: will you give me those materials?

Or is there some alternative proposal for narrowing the subpoena that you might care to offer?

Enjoy the weekend.

Best,

Paul


This electronic message transmission contains information which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify us immediately. 

On Thu, 5/3/12, Prager, Emily M. <[email protected] > wrote:

From: Prager, Emily M. <epragerrosenbergestis.com > Subject: RE: Subpoena Duces Tecum To: "[email protected] " <p1m36co1umbia.edu> Cc: "Davidson, Jason" <j davidsonrosenbergestis.com > Date: Thursday, May 3, 2012, 3:40 PM

Paul,

I am writing as a follow up to my recent voice-mail message and our conversation a couple of weeks ago regarding whether you will be narrowing the Non-Party Subpoena as you suggested in you April 1 7 1h e-mail. I haven’t heard from you since our conversation on April 1 9th Let me know when you are available to discuss, otherwise we will have no choice but to file a Motion to Quash.

Again, our attempts to discuss our objections to the Non-Party Subpoena are made in good faith to avoid unnecessary motion practice and waste scarce judicial resources.

Emily

Emily Machiz Prager


212551.1222 (Direct)

From: Paul Mills [mailto:[email protected]] Sent: Thursday, April 19, 2012 11:25 PM To: Prager, Emily M. Subject: RE: Subpoena Duces Tecum

Dear Ms. Prager:


We three agreed that I will inform the Jury 7 judge in the case, Judge Sciarrino, at my appearance in court tomorrow in those cases that these cases require a continuance of 30 days to allow us to either succeed or fail in resolving our dispute. After two weeks, you will either have provided evidence to the extent that I agree the defendants subpoena requirements are satisfied, or you will file a noticed motion to quash on a 2-week briefing schedule - 1 week to serve and file the motion; 1 week for opposition. Judge Sciarrino requires replies 5 days after the opposition is served.




Best,

Paul L. Mills Please reply to: p1m36co1umbia.edu


On Wed, 4/18/12, Prager, Emily M. <eprageKäjrosenbergestis.com > wrote:

From: Prager, Emily M. < epragerrosenbergestis.com> Subject: RE: Subpoena Duces Tecum To: ’"[email protected]" <[email protected] > Cc: "Davidson, Jason" <jd avidson rosenbergestis.com > Date: Wednesday, April 18, 2012, 9:27 AM

Dear Paul,


Emily

Emily Machiz Prager


212.551.1222 (Direct)


Dear Ms. Prager:




May I suggest that we discuss narrowing the subpoena so that my clients’ legitimate rights are vindicated, without unfair burden to your client? I will stipulate to a later return date for the subpoena, conditioned on the

Court’s adjournment of the respective trials to a later date. This would obviate the necessity of a quash motion at this time, hopefully altogether. I think I would need some assurance from you, though, that you are interested in such a discussion, to relay to the Court.


Best,



On Mon, 4/16/12, Prager, Emily M. <[email protected] > wrote:

From: Prager, Emily M. <epragerrosenbergestis.com > Subject: Subpoena Duces Tecum To: "plm36co1umbia.edu" <plm36columbia.edu > Cc: "Davidson, Jason" <j davidsonrosenbergestis.com > Date: Monday, April 16, 2012, 6:32 PM

Dear Paul,


Sincerely,

Emily

Emily Machiz Prager




epragerrosenbergestis.com I www.rosenbergestis.com



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OWS D17 Trinity's Notice of Motion to Quash

Documents

Transcript of OWS D17 Trinity's Notice of Motion to Quash