
    The People of the State of New York, Respondent, v. Clarence Epps, Appellant.
    Supreme Court, Appellate Term, First Department,
    September 16, 1971.
    
      Milton Adler and Lewis B. Oliver, Jr., for appellant. Frank 8. Hogan, District Attorney (Bennett L. Gershman and Burton N. Lipshie of counsel), for respondent.
   Per Curiam.

The Judge presiding at the preliminary examination, in the exercise of discretion, refused the request of defense counsel for a continuance to compel the arresting officer to produce his memo book in aid of the cross-examination then being conducted. Since this was not a hearing on a motion to suppress (as in People v. Malinsky, 15 N Y 2d 86, 90, cited in the dissent), but rather a preliminary examination of enough of the People’s evidence to satisfy the examining Judge of the existence of probable cause to believe a crime had been committed and defendant was implicated in its commission, it cannot be said there was such an abuse of discretion as to constitute reversible error. The examining Judge expertly evaluating the weight of evidence already before him, in terms of probable cause, no doubt shrewdly recognized counsel’s request as, essentially, a time-wasting tactic serving no useful purpose at that stage, yet seriously impairing the despatch of the heavy volume of criminal cases incessantly inundating the 'Criminal Court of the City of New York. He rightly observed that the preliminary examination was not a pretrial discovery proceeding. Coleman v. Alabama (399 U. S. 1) and Blue v. United States (342 F. 2d 894) relied upon in the dissent, are not authorities to the contrary. These cases establish the principle that the preliminary examination of the People’s case is a critical stage of the proceedings against the defendant, so far as the right to counsel is concerned. They do not equate the preliminary examination to a trial in all other respects; nor undertake to curtail the examining Judge’s discretion in regulating the cross-examination of witnesses in the preliminary examination of the People’s evidence of probable cause.

Defense counsel on the trial examined the arresting officer’s personal, written record of the arrest and ignored his offer to get the official arrest record “in two minutes.” Defense counsel presumably knew she had a right to demand a continuance until the arresting officer produced his memo book and afforded her an opportunity to examine the entries relating to the case on trial; and that the failure of the court to accede to such a demand on the trial would be reversible error, under the authority of People v. Persico (24 N Y 2d 758), as noted in the dissent. But, significantly enough, defense counsel, though she sharply cross-examined the arresting officer on his failure to observe the police regulations requiring him to bring his memo book with him, and though she vigorously assailed his veracity over the head of this omission in her summation' to the jury, seems carefully to have refrained from demanding a continuance until he produced the book; nor did she move to strike his testimony either for incomplete opportunity to cross-examine, or his failure to obey the instructions of the Judge at the preliminary examination who had directed him to have his memo book with him on the trial. iConsidering the obvious skill of defense counsel, and her opportunity to surmise that the contents of the memo book might not prove in the least bit helpful, as well as the use she made of its absence as a weapon of attack against the arresting officer’s credibility in summation, her eschewal of any motion or objection preeipitative of a ruling on the absence of the memo book must be regarded as nothing more or less than a ‘ ‘ calculated strategic omission.” The defendant should not be rewarded with reversal of his conviction because his counsel’s choice of trial tactic proved ineffective.

Any forgetfulness and carelessness of arresting officers and Assistant District Attorneys in the observance of police regulations on the production of memo books at trial is not to be condoned in the slightest. The cure, however, lies with defense counsel in foregoing strategic maneuvers and insisting on production of memo books at the embarrassing cost to the People of compulsory continuances; or making departmental charges, or demanding that the District Attorney make departmental charges against the offending police officers. There is no authority or justification, however, for reversing the result of an otherwise errorless jury trial because the Trial Judge in the absence of a request by defense counsel did not suspend the trial sua sponte, until the arresting officer produced his memo book.

Reversal on appeal should not be re-sorted to simply as a device, of dubious effect at that, in arousing police officers and District Attorneys to stricter, more constant compliance with the rules relating to the production of police memo books on trial.

The judgment of conviction should be affirmed.

Jacob Markowitz, J.

(dissenting). At the preliminary hearing of July 6, 1970, the arresting officer testified that he made a written memorandum of the incident in his memo book; yet he did not produce the book in court. Counsel for defendant asked for a continuance of the hearing. This was denied, with the court’s admonition to the officer that he bring the memo book to the trial. The court ruled that the officer could not be cross-examined concerning the absent memo book. The officer was aware of the police regulation requiring him to bring the memo book when he was called to testify at the hearing.

Notwithstanding the admonition, the officer did not bring his memo book to the trial. He again conceded knowledge of the instructions from the Police Department that he bring his memo book to court when he testified.

What the officer had with him contained no details “ a-s to how or [under] what circumstances the arrest took place ’ ’.

In view of the officer’s failure to produce his memo book on the trial, the rulings at the preliminary hearing denying a continuance and aborting cross-examination concerning the memo book, constituted reversible error (People v. Jackson, App. Term, 2d Dept., N. Y. L. J., May 4, 1971, p. 20, col. 2; People v. Persico, 24 N Y 2d 758; People v. Matz, 23 N Y 2d 196; People v. Malinsky, 15 N Y 2d 86, 90; People v. Rosario, 9 N Y 2d 286, 289; People v. Anderson, 25 A D 2d 602; People v. Surita, 18 A D 2d 1064; People v. Baldwin, N. Y. L. J., Nov. 17, 1967, p. 17, col. 2).

A preliminary hearing is a critical stage of the proceedings (Coleman v. Alabama, 399 U. S. 1 [1970]). Its purpose is not solely to show whether there are reasonable grounds to believe that a crime was committed and that defendant committed it, as urged by the District Attorney. It also partakes of a pretrial discovery proceeding (Blue v. United States, 342 F. 2d 894).

Discussing .a defendant’s right to examine a witness’ prior statement, Fuld, J. (now Ch. J.) said in People v. Malinsky (15 N Y 2d 86, 90, supra): “ And, obviously, it matters not whether the witness is testifying upon a trial or at a hearing. In either event, ‘ a right sense of justice ’ entitled the defense to ascertain what the witness said about the subject under consideration on an earlier occasion.”

I am aware of defendant’s prior criminal record and that defendant has fully served his sentence. I suggest, nevertheless, that the conviction should not be permitted to stand. The officer’s failure to produce his memo book violated the directive to the contrary of the Chief Inspector of the Police Department of March 21, 1969, issued more than a year prior to the hearing in this case. Moreover, People v. Persico (24 N Y 2d 758, supra) was decided on March 5, 1969, also over a year before the hearing. The officer should not have come to the hearing without his memo book; and, if the officer did, the Assistant District Attorney should have adjourned the hearing.

Apparently arresting officers need to be re-alerted to the Police Department directive; and Assistant District Attorneys ■need to be reminded that they should not proceed with testimony until the police memo book is available for inspection by defendant’s counsel. Obedience to these rules will eliminate unnecessary adjournments prior to and during hearings and trials. Particularly is this so in view of the crowded calendar conditions in the Criminal Court and that cases are being tried before juries.

In the circumstances before us, orderly procedure, as well as the rights of the defendant, call for reversal of the erroneous rulings below. Since defendant has served his sentence, the complaint should be dismissed.

I therefore dissent, and vote to reverse the conviction and to dismiss the complaint.

Gold and Streit, JJ., concur in Per Curiam opinion; Markowitz, J., dissents in memorandum.

Judgment of conviction affirmed.  