Opinion
Docket No. CR-002769-23QN
12-14-2023
The People of the State of New York v. Shaniece Ballard, Defendant.
For the People, Melinda Katz, Queens District Attorney's Office (by Leanna Samson) For Ms. Ballard, Twyla Carter, The Legal Aid Society (by Jennifer Liles).
For the People, Melinda Katz, Queens District Attorney's Office (by Leanna Samson)
For Ms. Ballard, Twyla Carter, The Legal Aid Society (by Jennifer Liles).
JEFFREY GERSHUNY, J.
SUMMARY
The defendant's motion to dismiss for insufficient discovery disclosure is GRANTED.
INTRODUCTION
On January 28, 2023, the People filed an accusatory instrument charging the defendant with the top count of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [3]). The defendant was arraigned later that day. The People filed a certificate of compliance (COC) and statement of readiness on April 10, 2023.
The defendant moves to dismiss on the ground that the People's statement of readiness is illusory because they have failed to provide discovery required under CPL 245.20. In particular, the defendant challenges the People's discovery compliance based on withheld underlying police disciplinary records and bodyworn camera (BWC) audit trails. For the reasons discussed below, this Court holds that underlying police disciplinary records for testifying police witnesses and BWC audit trails (also known as "audit logs") are automatically discoverable pursuant to CPL 245.20 (1) (e), (k), (u) (i) (B). Therefore, the People's COC and statement of readiness is invalid without disclosing those records.
DECISION AND ORDER
Discovery
I. Underlying police disciplinary records are automatically discoverable (CPL 245.20 [1] [k] [iv]).
The defendant challenges the validity of the People's COC for missing underlying police disciplinary records as to testifying-witness Officer Walter Ebbitt. The People respond that their COC filed without Officer Ebbitt's underlying police disciplinary records, which were not in their actual possession, should remain valid because it was filed in good faith after exercising due diligence. The People also state that they relied on trial-level case law at the time they filed their COC to support their position that underlying police disciplinary records are not discoverable.
The People state that they requested Officer Ebbitt's disciplinary records on September 13, 2022, before the defendant's arrest, March 13, 2023, and March 26, 2023. They do not state who they made these requests to, or when the records came into their actual possession; only that they disclosed the missing records "as soon as practicable" on August 19, 2023 (People's August 25, 2023 Response, P9).
CPL 245.20 (1) (k) creates the automatic duty to disclose "all evidence and information" which tends to "(iv) impeach the credibility of a testifying prosecution witness." Despite differing trial-level opinions, the statutory language of CPL 245.20 (1) (k) is clear and unambiguous and has been the law since its enactment on January 2020. "All evidence and information" that tends to impeach does not call for a summary of that information, but instead makes discoverable the underlying information itself (see People v Hamizane, 80 Misc.3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] citing Matter of Jayson C, 200 A.D.3d 447, 449 [1st Dept 2021]; People v Rodriguez, 77 Misc.3d 23 [App Term, 1st Dept 2022]). The People were on notice with the passing of the statute on April 12, 2019 , that any information in their possession which tends to impeach is automatically discoverable for any testifying prosecution witness.
L 2019, ch 59, p LLL, § 2, eff. Jan. 1, 2020. Amended L 2020, ch 56, pt. HHH, § 2, eff. May 3, 2020.
See n 2.
The People's argument that they were not in possession of Officer Ebbitt's underlying police disciplinary records is not supported by law. The discovery statute clearly states "all items and information related to the prosecution of a charge in the possession of any New York State or local police or law enforcement agency shall be deemed in the possession of the prosecution" (CPL 245.20 [2]). The People have designated Officer Ebbitt as a testifying witness, directly responsible for the prosecution of the charges; his missing disciplinary records include NYPD Internal Affairs Bureau (IAB) reports for two allegations. These documents, which tend to impeach and are created by law enforcement, are in the People's possession per the statute (id.).
The People also argue that the IAB allegations against Officer Ebbitt do not pertain to the subject matter of the case, and are therefore not automatically discoverable. "Impeachment evidence is not limited to what is related to the subject matter of the charges against a defendant" (People v Hamizane, 80 Misc.3d at 11 [citations omitted]). The credibility of a testifying witness will always come within the bounds of the subject matter of a case, despite impeachment material reflecting facts extrinsic from the charges themselves (Harris v The City of New York, 2019 NY Slip Op 31450[U] [Sup Ct, NY County 2019] ["It is by now an immortal principle that the credibility of a witness is always in issue, and evidence which tends to impeach it, or to demonstrate the probability of the truth of his [or her] testimony, is relevant."] [internal quotations omitted]).
For these reasons, Officer Ebbitt's underlying police disciplinary records were automatically discoverable.
II. Police BWC audit trails are automatically discoverable.
The defendant also challenges the People's COC for missing audit trails for BWC videos taken during her arrest. The People argue that this material is not automatically discoverable because audit trails do not pertain to the subject matter of the case or fall within any subsections of the discovery statute. The Court was unable to determine the nature and content of audit trails based on the parties' motions and held an evidentiary hearing on October 18, 2023.
A. BWC evidentiary hearing
At this evidentiary hearing, the People called as a witness Allison Arenson, who is executive agency counsel and Director of the NYPD BWC Unit Legal Bureau. She has been in that role since 2017. Ms. Arenson's unit is responsible for assisting with all discovery requests for BWC information, including sharing evidence with district attorney's offices, federal prosecutors, civil law departments, and oversight agencies. The Court finds the People's witness to be credible, and extremely knowledgeable about NYPD BWC protocols and the audit trails created by police in all five boroughs of the city.
1) NYPD BWC Protocols
Ms. Arenson testified that all cameras used by the NYPD are bought from the same company: Axon. All videos are uploaded to evidence.com, a cloud-based software system used by Axon for the storage of NYPD audio and camera footage. NYPD manage their videos using evidence.com. Officers attend a one-day training course on BWCs, and the BWC protocols are memorialized in the NYPD Patrol Guide Procedure Number 212-123. Officers are instructed, per NYPD policy, to add arrest numbers and notate categories in their videos. If an appropriate category is not available from a drop down menu in the software, the officer is instructed to enter in the text themselves. Officers must categorize their videos within two scheduled tours following the recording. Any NYPD user may access uploaded BWC footage on evidence.com and add information. NYPD supervisors are instructed to review video footage and ensure all categories have been documented.
Available publicly here: https://www.nyc.gov/assets/nypd/downloads/pdf/public_information/212-123.pdf (last accessed Dec. 11. 2023).
When an officer docks their camera after filming, the videos are automatically uploaded to evidence.com. After the upload, officers log on to evidence.com and create a case file and gather any video associated with an arrest and add them to that case file. Officers can then share the case file they created.
2) NYPD BWC Audit Trails
Ms. Arenson testified that she is familiar with audit trails for BWC footage. Audit trails are documents that can be assembled from information within evidence.com; they are reports of data and notes created by NYPD for BWC footage and videos created by cameras in Intoxicated Driver's Unit rooms. All types of audit trails record information in an ongoing process. Whenever a user takes action with a video, whether to view the footage, share it, or add information, those actions are recorded in the audit trails. Audit trails are retrieved once a user requests a specific audit trail type from the software.
Ms. Arenson stated that there are several types of audit trails, including (1) evidence, (2) device, and (3) user. These three specific types of audit trails exist for all videos used on the Axon evidence.com system. Officers are able to run reports for evidence and device audit trails, but not user audit trails. Officers can share evidence audit trails by checking a box on evidence.com, and can share device audit trails by downloading the report and printing a hard copy or emailing it. If an officer does not click the audit trail option to share, the receiving entity, like a district attorney's office, will not have access to the audit trail.
Ms. Arenson also testified about a "case audit trail," although did not discuss this type of audit trail in any detail at the hearing (tr at 15, 12-14).
a) Evidence Audit Trails
Evidence audit trails collect information regarding specific video footage and include it's start time, upload time, and categories and information added to the video from any user. Evidence audit trails also record which users accessed and streamed the video. Officers can add categories from a box with a drop-down list, or add tags in a fillable format. Officers are trained to share evidence audit trails along with the video footage, but Ms. Arenson testified that compliance with this protocol is not high.
Ms. Arenson testified that "tags" are click buttons in evidence.com that use a drop down box to add information.
Units within police departments use categories such as "summons, investigative encounter, car stop, emotionally disturbed person, domestic incident, use of force" (tr at 17) and Ms. Arenson estimated there are about 50 different types of categories for officers to choose from "to kind of set forth what type of encounter they have" (id.). Ms. Arenson said that NYPD has been mandated by the Federal Monitor to include investigative encounter category levels into their BWC footage to assist them with analyzing police-stops. Specifically, for Level 2 encounters, officers are required to further categorize the race and gender of the defendant or suspect they stopped.
The Court notes that the Federal Monitor was mandated by the federal court in Floyd v City of New York, 959 F.Supp. 540 [SD NY 2013]).
The defense introduced into evidence Deputy Inspector Cappelmann's evidence audit trail. Ms. Arenson reviewed the document and identified categories input on that video. Under a category labeled "Investigative Encounter 1, 2, or 3," Deputy Inspector Cappelmann wrote "Level 3;" later in the audit trail, he added "car stop." Ms. Arenson testified that the officers themselves make their own determinations as to which categories to add.
b) Device Audit Trails
Device audit trails record information about the camera itself: when it's turned on, when it's turned off, when it's connected to a charger or dock, battery life of the device, and how many bytes of digital information are available to record on the device. The device audit trail also documents the added categories and sharing of video footage. Ms. Arenson testified about a specific case where a district attorney's office requested a device audit trail to introduce as evidence where a defendant claimed an officer intentionally deactivated his BWC during a car search. The device audit trail verified that the BWC video footage deactivated due to a dead battery in the camera, and not due to a manual shut off by the officer.
c) User Audit Trails
User audit trails record actions a specific user makes to video footage, such as adding categories, tags and information. Ms. Arenson testified that there is no unique information in the user audit trail that is not already captured in the device and evidence audit trail.
d) Comparing People's Metadata sheet to NYPD Evidence Trails
In preparation for the hearing, Ms. Arenson testified that she reviewed the BWC videos and associated documents related to the defendant's case. She reviewed the audit trails and a metadata sheet created by the Queens District Attorney's office. Ms. Arenson compared the evidence audit trail to the People's metadata sheet disclosed with their COC. Ms. Arenson said that the metadata sheets generated by the district attorney's office contain most of the information present in the evidence audit trail, but not all. Ms. Arenson clarified that the People's metadata sheet captures the categories and tags input by officers, but does not indicate when or which officer added that information. On the other hand, NYPD evidence audit trails include all actions taken with the video, and when and which officer was responsible for those actions.
People's metadata exhibit. The People's metadata sheet is a document generated by the Queens District Attorney's Office and Ms. Arenson was unable to discuss how it was made. Ms. Arenson did not define "metadata" but that term is typically used to refer to "data that provides information about other data" (Merriam-Webster.com Dictionary, metadata [https://www.merriam-webster.com/dictionary/metadata]).
Audit trail exhibit.
The People introduced into evidence Officer Hicks's evidence audit trail for the defendant's case, as well as the People's metadata sheet. Ms. Arenson reviewed the evidence audit trail and identified that two officers had input categories into the video: Officer Hicks and Sergeant Ottomanelli. Ms. Arenson then reviewed the People's metadata sheet and testified that it included Officer Hicks as the owner of the video, and two instances where Officer Hicks input categories, but no information corresponding to Sergeant Ottomanelli.
e) Comparing the Axon system to the Omniform system
Ms. Arenson testified that NYPD also uses another system to manage arrest report information called Omniform. This is a system officers use by inputting arrest details that are later used to generate an arrest report. Ms. Arenson testified that the methods used to input information in evidence.com (which generates an audit trail) and the methods used to input information in the Omniform system (which generates an arrest report) may not be different. In both Axon and Omniform systems, officers log on to online software to input data. Axon and Omniform both store the police data, and officer can affirmatively run reports based on the information they input.
B. Audit trails are automatically discoverable under CPL 245.
The People and the defendant argue opposing sides of several subsections in the discovery statute and whether or not they should apply to audit trails. Based on the facts elicited at the hearing, the clear language of the discovery statute, and for all the reasons set forth below, the Court holds that audit trails are automatically discoverable, and addresses each of the parties' arguments as follows:
1) Audit trails contain written statements by police (CPL 245.20 [1] [e]).
The People must disclose "all statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information" (CPL 245.20 [1] [e]) "that relate to the subject matter of the case" (CPL 245.20 [1]). The People argue that the audit trail categories written by police do not contain any substantive information related to the facts of a case and are intended for clerical purposes only. This argument is belied by the clear record made by the People's own witness, Ms. Arenson, at the evidentiary hearing.
NYPD's intended use for the BWC video categories, tags and notes does not control whether those notes relate to the subject matter of a case. The officer's writings are self-evident: an officer who records what type of arrest and level of investigation they performed is writing about the facts of the defendant's case. In the instant case, Officer Hicks actually made digital notes about the video of the defendant's arrest to include levels of police investigation. His notation was later changed by Sgt. Ottomanelli. Deputy Investigator Cappelmann notated on a separate BWC video the level of police investigation regarding the defendant's arrest. Those police writings are recorded in the evidence audit trails of the defendant's arrest videos and reflect police analysis of that arrest. The fact that NYPD uses those categories to sort their videos, or locate them later on, does not in any way diminish the evidentiary value of the original police work done to watch the video and write those notes. When an officer categorizes or takes notes on a defendant's arrest video, they are clearly writing about the subject matter of the case (see People v Champion, 81 Misc.3d 292,296 [Crim Ct, NY County, Oct. 11, 2023] "the notes, comments, and categorizations of police officers entered into the device and evidence logs are expressly discoverable under this paragraph [CPL 245.20 [1] [e]"). It would be no different had Officer Hicks taken a physical photo of the defendant's arrest, written a note on the back of it, and put it in his case file; that writing would be automatically discoverable, as is the audit trail note.
The discovery statute does not limit the type of writing that the People must disclose. A police officer recording the defendant's arrest has "evidence or information" that relates directly to the subject matter of a case, and the officer's notes on portions of the video are discoverable under CPL 245.20 (1) (e). To deem an officer's audit trail comments and categorizations as a lesser form of police writing would be arbitrary and counterintuitive when looking at the content of the writings described by the People's witness. Even if these notations are short, selected from a pre-determined list, or in digital format, the subject matter communicated is directly related to the case. Types of arrests and levels of police investigation are written evidence, no matter how abbreviated.
The short, abbreviated categories in audit trails are analogous to radio run recordings that contain short, abbreviated and numerically codified police actions, and radio runs are also automatically discoverable (see People v Carter, 80 Misc.3d 127 [A], 2023 NY Slip Op 50889[U] [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2023]).
2) Audit trails may tend to impeach testifying witnesses (CPL 245.20 [1] [k] [iv]).
The People must automatically disclose "all evidence and information... that tends to impeach the credibility of a testifying prosecution witness" (CPL 235.20 [1] [k] [iv]). Again, "impeachment evidence is not limited to what is related to the subject matter of the charges against a defendant" (People v Hamizane, 80 Misc.3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] [internal citations omitted]).
A proper subject for impeachment is one that "demonstrates an untruthful bent or significantly reveals a willingness or disposition on the part of the particular [witness] voluntarily to place the advancement of his [or her] individual self-interest ahead of principle or those interests of society" (People v Walker, 83 N.Y.2d 455 [1994] [internal citations omitted]). Whether a testifying police officer follows NYPD BWC protocol, or whether they ignore their training, is proper grounds for impeachment. When an officer testifies about recording an arrest or investigation, their testimony may be contradicted by the evidence in an audit trail. Ms. Arenson testified that NYPD uses audit trails to defend officers accused of failing to record evidence on their cameras. Just as NYPD uses audit trails to make a record of police conduct, a defendant has a right under the discovery statute to review audit trails for possible impeachment.
3) Audit trails are electronic information created and obtained on behalf of law enforcement (CPL 245.20 [1] [u] [i] [B]).
The People are required to automatically disclose "a copy of all electronically created or stored information... obtained by or on behalf of law enforcement from a source other than the defendant which relates to the subject matter of the case" (CPL 245.20 [1] [u] [i] [B]).
The People argue that audit trails are not "created or stored" by law enforcement and are therefore not discoverable. The People's argument is contrary to the hearing testimony. Ms. Arenson clearly testified that it is an NYPD officer, not a computer, creating the underlying information in an audit trail. As to where the information is stored, Axon is a third party contracted "on behalf of" the NYPD to store BWC information created by officers. Although the software automatically records the information in audit trails, the substance of that information is created, stored, and obtained by or on behalf of law enforcement.
See n 8. Audit trails are headed with the NYPD logo which further contradicts the People's argument that these reports are not "created" by NYPD.
Law enforcement agencies regularly contract with other companies to process and store electronic information. For example, NYPD works with Shot Spotter (another third-party contractor, like Axon) to store electronic information recorded after a gun is fired, which is discoverable (see People v Gutierrez, 78 Misc.3d 411 [Sup Ct, Bronx County 2023]); law enforcement relies on testing done by the Office of the Chief Medical Examiner (another third party), and audit trails for their software are discoverable (see People v Adams, 66 Misc.3d 918, 923-924 [Sup Ct, Queens County 2020]); third party laboratory records for simulator solution gas chromatography used in breathalyzer tests are also discoverable (see People v Quiroz, 77 Misc.3d 1213[A], 2022 NY Slip Op 51204[U] [Crim Ct, Queens County 2022]). Each of these types of electronically stored and technical pieces of evidence were assessed for their substance and found discoverable, despite law enforcement working with third parties to manage or store the information. Therefore, audit trails are also automatically discoverable under CPL 245.20 (1) (u) (i) (B) (see People v Torres, 78 Misc.3d 1206 [A], 2023 NY Slip Op 50169[U] [Crim Ct, Queens County 2023]).
4) There is a mandatory presumption of openness when interpreting discovery and the "subject matter of the case" (CPL 245.20 [7]).
In addition to subsections (e), (k), and (u) in CPL 245.20 (1), audit trails are discoverable evidence because they relate to the subject matter of the case. The legislature instructed courts and litigants alike to interpret "sections 245.10 and 245.25, and subdivision one of section 245.20" through a presumption of openness (CPL 245.20 [7]; see People v Porter, 71 Misc.3d 187 [Crim Ct, Bronx County 2020]; People v Georgiopoulos, 71 Misc.3d 1215 [A], 2021 NY Slip Op 50380[U] [Sup Ct, Queens County 2021]). Nevertheless, the People argue for a restrictive application of "subject matter of the case" under CPL 245.20 (1). This Court will not arbitrarily narrow the discovery statute to create an ex post-facto fix for the prosecution's nondisclosure of discoverable material.
The People repeatedly argue that the information in audit trails is used by the NYPD for clerical purposes and any notations they contain are concise and offer no evidentiary or practical value. To the contrary, Ms. Arenson stated that the police make notes on levels of investigation and types of arrests. Based on her testimony, the Court concludes that this information is highly relevant and describes direct police assessment of the subject matter of the case. It is a strained interpretation of fact to suggest an "evidence audit trail" stored on "evidence.com" has nothing to do with evidence in a defendant's case. Therefore, the trial level caselaw the People rely upon is not supported by the hearing record and audit trails are clearly not limited to 'system metadata' or chain of custody information (cf. People v Larkin, 72 Misc.3d 663 [Sup Ct, Kings County 2021]; People v Vargas, 78 Misc.3d 1235, 2023 NY Slip Op 50425[U] (A) [Crim Ct, Bronx County 2023]); People v Williams, 73 Misc.3d 1091 [Sup Ct, Kings County 2021]).
Furthermore, "the People's evidentiary opinions have absolutely no import in an Article 245 discovery analysis" (People v Payne, 79 Misc.3d 827, 831 [Crim Ct, Bronx County 2023]) and whether a prosecutor believes a piece of evidence is useful to a defendant is of no consequence (see People v Goggins, 76 Misc.3d 898, 901 [Crim Ct, Bronx County 2022] [under the statute, discovery "should not be filtered through the prosecution"]; People v Cooper, 71 Misc.3d 559, 566 [Erie County Ct 2021] [the law does not allow discoverable material to be selectively disclosed based on "the People's assessment of its credibility or usefulness"]).
The People concede that "there may be instances where, upon a showing of a particularized need, an audit trail could become discoverable. But the burden is on a defendant to make some showing about why the audit trail would be relevant" (People's November 20, 2023 Supplemental Memo, at 41). This argument is misplaced, unsupported by law, and attempts to revert discovery back to the system outlined in now-defunct CPL 240. "The current statutory framework of CPL 245.10 abolishes the prior mechanism for obtaining discovery through serving a demand upon the People and instead requires the People provide the discovery listed in CPL 245.20 automatically" (People ex rel Ferro v Brann, 197 A.D.3d 787 [2d Dept 2021], lv denied 38 N.Y.3d 909 [2022] [internal quotations omitted]).
A defendant is in no position to argue the relevance of something they do not know exists or do not have access to review. Since the audit trails are within the People's possession, it is their burden to automatically disclose them to the defendant (see National Communications Assn v AT&T Corp. 238 F.3d 124, 130 [2d Cir 2001] ["the burden is better placed on the party with easier access to relevant information"]; CPL 245.20 [2]). For these reasons, the Court finds that a defendant has no burden to make a showing that audit trails are relevant discovery in order to have them produced. The People alone have the duty to automatically disclose items related to the subject matter of the defendant's case, and the guess work to determine the scope of that qualification is eliminated by the presumption of openness (CPL 245.20 [7]).
C. The People's metadata sheet and BWC videos here are insufficient disclosure without the accompanying audit trails.
The People argue that the metadata sheet they disclosed to the defendant already contains much of the information in an audit trail, and therefore they have no obligation to disclose the audit trails themselves. This argument was contradicted at the evidentiary hearing. Ms. Arenson testified that the People's metadata sheets did not contain the names of the specific officers who made notations to the video or when those notations were made (see also People v Champion, 81 Misc.3d 292, 297 ["In comparing the audit logs with the disclosed metadata, for example, the court found several instances in which higher ranking officers or supervisors added entries. These officers' names are not included in the final metadata summaries. Thus, the summaries fall short of what is required by statute."]).
See n 8 and n 9. When put to a side-by-side comparison, it is clear that audit trails contain information missing from the People's metadata sheet.
At best, the People's metadata sheet is an incomplete summary of an audit trail, and summaries fall short of actual disclosure. The People make similar arguments with their summary letters of police disciplinary action, which are equally insufficient to satisfy disclosure of the records themselves (see People v Hamizane, 80 Misc.3d 7; Matter of Jayson C, 200 A.D.3d 447, 449 [1st Dept 2021]; People v Rodriguez, 77 Misc.3d 23).
The People also argue that the BWC video is sufficient disclosure because the video speaks for itself, and audit trails do not provide any additional unique information. As discussed above, the hearing testimony directly contradicts this argument. The BWC video is not a duplicate of the notations and information contained in an audit trail. For example, the narrative a police officer writes on an arrest report is not the duplicate of that officer's BWC footage, which may also capture the same events on video. A SPRINT report is not the duplicate of its corresponding 911 call or police radio run recording. The printout from an Intoxilyzer machine recording a defendant's breath test result is not the discovery equivalent of an officer reading that result aloud on an IDTU video. In each of these examples, the underlying existing record is discoverable, in addition to the video or audio recording accompanying that record. Similarly, the BWC video of the defendant's arrest is not a duplicate or equivalent of the information in the accompanying audit trails and both must be disclosed.
The court notes that "the People cannot decline to provide particular items because they believe they are duplicative" (People v Markovtsii, 81 Misc.3d 225 [2023], citing People v Cartagena, 76 Misc.3d 1214[A], 2022 NY Slip Op 50943[U] [Crim Ct, Bronx County 2022] [the prosecution cannot decline to disclose items of discovery because they claim it is duplicative of other items of discovery]; People v Ajunwa, 75 Misc.3d 1220[A], 2022 NY Slip Op 50626[U] [Crim Ct, Bronx County 2022] ("[i]t is not the People's decision to look at two entirely different police reports and decide that they believe one contains information 'duplicative' of the other and so will not be disclosed."].
III. The People's COC filed without underlying police disciplinary records and audit trails is invalid.
CPL Article 245 outlines duties of automatic discovery disclosure, and ties those duties to trial readiness (CPL 245.20; 245.50 [3]; 30.30 [5]). A proper COC requires the People to satisfy three elements:
(1) that they have exercised "due diligence;"
(2) made "reasonable inquiries" to ascertain the existence of discoverable material; and
(3) the prosecutor "has disclosed" all known material subject to discovery (CPL 245.50 [1]; People ex rel Ferro v Brann, 197 A.D.3d 787; People v Rodriguez, 77 Misc.3d 23 [App Term, 1st Dept 2022]; People v Gaskin, 214 A.D.3d 1353 [4th Dept 2023]).
The People have failed to meet all three elements of a valid COC.
First, with respect to "due diligence," the People argued that underlying disciplinary records and audit trails are not discoverable, therefore they did not have to make any diligent effort to obtain and disclose them. The only attempt at statutory disclosure was the People's summary of underlying disciplinary records, and the People's metadata sheet. These documents are both insufficient for the abovementioned reasons and the Court finds no evidence of due diligence to disclose the missing underlying records.
The People argue that an obligation to disclose each disciplinary record and each audit trail would be overly burdensome. To be sure, the discovery statute anticipates thorough discovery compliance. The law places all police evidence related to a prosecution in the People's possession, makes it the People's duty to ensure a free flow of information with law enforcement, and also creates a burden of ongoing disclosure for new information (CPL 245.20 [2]; 245.55; 245.60). Underlying police disciplinary records and audit trails are in the People's possession, as per statute. For audit trails specifically, the logistics for a "free flow of information" are already in place - police officer's only have to check a box for the audit trails to be shared.
It should be noted that when the court in Champion (81 Misc.3d 292), requested copies of both device audit logs and video audit logs from the People for in camera review, they were provided the following day. Further, the argument that it would be unduly burdensome, is an argument that should be made to the legislature, not the court applying the law (see People v Payne, 79 Misc.3d 827, 831 [Crim Ct, Bronx County 2023]).
Despite the extensive requirements of the discovery statute, it is not inflexible or beyond modification. In cases where extensive disciplinary records exist, or ongoing audit trails are generated, the People may apply to the court for additional time for material that is "exceptionally voluminous" (CPL 245.10 [1] [a] [iv] [B]) or "upon a showing of good cause" (CPL 245.70 [2]). The discovery statute is not overburdensome, but it does require proactive application for additional time to remain in compliance. There has been no such showing of due diligence to provide underlying police disciplinary records and audit trails in this case.
Secondly, the People do not address what "reasonable inquiries" they made to ascertain the existence of the missing discovery. The facts here show that the People knew or should have known about the underlying disciplinary records and the audit trails. The People provided a letter summary for Officer Ebbitt's disciplinary history, and therefore were aware that underlying records existed. The People provided a metadata sheet that summarized an incomplete version of the underlying audit trails.
The evidentiary hearing further described how well known audit trails are within the NYPD. They are generated by NYPD through Axon software and all officers with a camera have access to the evidence and device audit trails; police officers are trained to notate their videos and supervisors are trained to check those notations, all recorded in the audit trails; police officers are trained to disclose the audit trails; NYPD has set up a sharing system where the evidence audit trails are electronically sent by checking a single box; the existence of audit trails is memorialized in NYPD training materials; and NYPD produces audit trails upon subpoena request. All of these factors indicate that audit trails are not some type of exotic, unusual evidence but instead are known, routine NYPD reports that "reasonable inquiry" would have uncovered, if the People asked. There is no evidence that the People made reasonable inquiry for the underlying disciplinary records or audit trails in the defendant's case.
Finally, the People argue that during the litigation of the defendant's instant motion, the missing underlying police disciplinary records and audit trails have been disclosed. However, disclosure is required at the time of certification, not after (People ex rel Ferro v Brann, 197 A.D.3d 787; CPL 245.50 (1) does not describe a proper COC as "a placeholder that the People file while they continue to disclose discovery filed piecemeal, far beyond the speedy-trial deadline" (People v Vargas, 76 Misc.3d 646 [Crim Ct, Bronx County 2022]).
The People argue that their COC should not be considered invalid because they believed, in "good faith," that these withheld documents were not discoverable, and that belief was "reasonable under the circumstances" (CPL 245.50 [1]). For the reasons discussed above, underlying police disciplinary records for testifying officers and audit trails for BWC video are automatically discoverable, and this Court finds based on the content of the evidence and plain language of the discovery statute that it is unreasonable to conclude otherwise.
For these reasons, the People's COC filed without the underlying police disciplinary records and audit trails was invalid.
Speedy Trial
The defendant moves to dismiss pursuant to CPL 170.30 (1) (e) and CPL 30.30 (1) (b). She is accused with a top count unclassified misdemeanor, therefore the People have 90 days from the commencement of the criminal action to be ready for trial (CPL 30.30 [1] [b]; People v Cooper, 98 N.Y.2d 541, 543 [2002]; People v Cook, 30 Misc.3d 134 [A], 2011 NY Slip Op 50084[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). "[O]nce a defendant has shown the existence of an unexcused delay greater than [90 days], the burden of showing that time should be excluded falls upon the People" (People v Barden, 27 N.Y.3d 550 [2016], quoting People v Santos, 68 N.Y.2d 859, 861 [1986]; see People v Santana, 80 N.Y.2d 92, 105 [1992]).
Following the defendant's challenge, the People argue that, even if underlying police disciplinary records and audit trails are automatically discoverable, the defendant is not entitled to speedy trial dismissal because she cannot show any prejudice pursuant to CPL 245.80, and a dismissal is disproportionate to remedy the belated disclosures here. When a speedy trial challenge is based on insufficient discovery, the People must show special circumstances to nevertheless be deemed ready for trial (CPL 245.50 [3]); a defendant does not have a burden to show prejudice (CPL 245.80).
The People have "conflated the standard applicable to requests for sanctions under CPL 245.80 - which does involve a prejudice analysis - with the standard for evaluating the propriety of a certificate of compliance for purposes of determining whether the People's statement of readiness was valid" and "[o]n a CPL 30.30 motion, the question is not whether defendant was prejudiced by an improper certificate of compliance" (People v Gaskin, 214 A.D.3d 1353 [App Div 4th Dept 2023] [internal citations omitted]).
The People do not specifically move for a finding of special circumstances, and instead argue that they should not face any "adverse consequence" because their COC was filed "in good faith and reasonable under the circumstances" (CPL 245.50 [1]). The definition of a proper COC requires all listed elements, and the presence of "good faith" is not a substitute for due diligence, reasonable inquiry, and actual disclosure. Illustrating this point, in 2022 the legislature rejected any amendment that allowed the People to announce ready for trial without full discovery disclosure, as long as they showed "good faith" and "reasonable circumstances" (see Gov. Kathy Hochul, Public Safety Package [2022] ). There was a proposed amendment to CPL 245.50 (1) to include" and a certificate of compliance filed in good faith and reasonable under the circumstances shall not be an impediment to filing a statement of readiness pursuant to subdivision three of section 245.50" (id.). This language was rejected outright. "Good faith" was prohibited as a substitute for the foundational requirement of a valid COC in order to announce ready for trial. When a COC is found invalid, "absent an individualize finding of special circumstances" the People will not be ready for trial (CPL 245.50 [3]).
Available publicly here: https://www.scribd.com/document/565309809/Hochul-Public-Safety-Plan (last accessed Dec. 12, 2023).
There are no facts of special circumstances here to warrant the nondisclosure of police generated discoverable material. The discovery statue is not one of strict liability for every type of evidence, but "in this Court's view it should rarely, if ever, be the case that the People may file a valid COC without having first disclosed to the defense all known discoverable materials in the NYPD's possession" (People v Santos, 79 Misc.3d 1233 [A], 2023 NY Slip Op 50778[U] [Crim Ct, Bronx County 2023]). The statutory framework imports possession of law enforcement evidence to prosecutors' offices (CPL 245.20 [2]), creates a prosecutor's duty to maintain a free flow of information with law enforcement (CPL 245.55 [1]), and mandates all law enforcement files be openly accessible to prosecutors (CPL 245.55 [2]). The legislative intent is clear: as far as law enforcement evidence, very little stands in the way of open disclosure and given these laws, only an "individualized finding of special circumstances" can excuse withholding police evidence.
The underlying police disciplinary records and audit trails were routine records kept by NYPD associated with the subject matter of the defendant's case, in the People's possession and not disclosed. The arguments against automatic discoverability have failed based on the content of the missing evidence. Without any articulated special circumstance preventing full disclosure, the People were not ready for trial pursuant to CPL 245.50 (3).
The People have not sought any other remedy available to them under the statute to avoid invalidation and speedy trial dismissal. The discovery statute is not absolute and does not require the impossible (People v Barralaga, 73 Misc.3d 510 [Crim Ct, NY County 2021]). Discovery disclosure is designed to be a fluid and ongoing practice, one which involves preemptive court determinations on compliance and not contortion of the statute's plain language after an improper COC is filed.
Prior to certifying discovery compliance, the People did not disclose the missing underlying police disciplinary records and audit trails. Furthermore, the People did not request a modification of discovery deadlines for good cause (CPL 245.70 [2]), or ask for an extension to obtain material not in their actual possession (CPL 245.10 [1] [a] [iv] [B]). Accordingly, the speedy trial clock ran from the commencement of the action on January 28, 2023 (CPL 1.20 [17]; 100.05; People v Cooper, 98 N.Y.2d at 543; People v Abdullah, 133 A.D.3d 925 [3d Dept 2015], lv denied 27 N.Y.3d 990 [2016]) to the filing of the instant motion on July 24, 2023 (CPL 30.30 [4] [a]).
The Court finds a total of 164 days included in speedy trial calculations. This total exceeds the 90 days mandated by statute and the defendant's motion to dismiss is granted.
IT IS SO ORDERED. The clerk is directed to enter this order.