Opinion
CR-005008-21NY
11-15-2021
The PEOPLE of the State of New York v. Bruce BRICKUS, Defendant.
For the People: Cyrus R. Vance, New York County District Attorney (Shane Smith, of counsel) For the Defendant: Avinash Samarth, Neighborhood Defender Service of Harlem
For the People: Cyrus R. Vance, New York County District Attorney (Shane Smith, of counsel)
For the Defendant: Avinash Samarth, Neighborhood Defender Service of Harlem
Robert Rosenthal, J.
Papers considered in review of this motion:
Defendant's Notice of Motion to Invalidate the Certificate of Compliance, dated October 8, 2021;
Defendant's Affirmation in Support of Motion to Invalidate the Certificate of Compliance;
Defendant's Memorandum of Law in Support of Motion to Invalidate Certificate of Compliance;
People's Affirmation in Response to Defendant's Motion, dated October 22, 2021;
Defendant's Reply in Support of the Motion to Invalidate the Certificate of Compliance, dated October 29, 2021.
Defendant is charged by information with violating Penal Law § 120.20, Reckless Endangerment in the Second Degree, Penal Law § 145.00(1), Criminal Mischief in the Fourth Degree; Penal Law § 150.01, Arson in the Fifth Degree; and Penal Law § 145.25, Reckless Endangerment of Property. Defendant moves for an order deeming invalid the People's Certificate of Compliance (COC) because the People failed to disclose contact information for the complaining witness as required by Criminal Procedure Law § 245.20 (1)(c). Defendant's motion is granted.
Facts
Defendant's DAT arraignment occurred on March 12, 2021. On June 9, 2021, the People filed a Supporting Deposition, certificate of compliance (COC), a certificate of readiness (COR), an automatic disclosure form (ADF), and an addendum to the ADF.
On the addendum to the ADF, the People disclosed the name of the complaining witness. In the space on the ADF in which the complaining witness’ contact information would appear, the People wrote only "WitCom." There was no other contact information provided.
In court on August 27, 2021, the People announced ready for trial. The court action sheet evidences that defense counsel raised several concerns concerning the COC — specifically, the missing WitCom contact information for the complaining witness, as well as a 911 call recording, and police witness disciplinary records.
In his motion, defendant notes that the People have reported that there are no misconduct files in this case and that the NYPD has stated that there was no 911 call. Thus, those items are not relevant to this decision.
The parties’ submissions on this motion document defense counsel's further efforts to obtain the complaining witness’ contact information, by email to the prosecutor on September 1, 2021 — to which the prosecutor responded that the "WitCom link should have since been provided; if not, it is forthcoming" — and on September 27, 2021. According to the prosecutor, "on September 28, 2021, the People corrected their error and added defendant to the WitCom account for the referenced case."
By Notice of Motion on October 8, 2021, defendant moved for an order deeming the People's COC invalid because when their COC was filed, the People had not provided the complaining witness’ contact information, as required by CPL 245.20 (1)(c). The People filed their Affirmation and Memorandum of Law in opposition on October 22, 2021.
The People concede their failure to disclose the complaining witness’ contact information until September 28, 2021, but in opposition to defendant's motion, they argue that because they filed their COC in good faith and because they eventually disclosed the missing contact information, their COC is valid. That argument is unavailing.
Discussion
Criminal Procedure Law § 245.20 (1) provides a non-exhaustive list of items that the People must automatically disclose to the defendant. Pursuant to CPL 245.20 (2), the People shall make a diligent, good faith effort to ascertain the existence of those items and cause them to be made available for discovery.
CPL 245.20 (1)(c) requires that the People disclose to defendant "[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto...."
Criminal Procedure Law § 245.50 (1) states, "when the prosecution has provided the discovery required by [ CPL 245.20 (1) ] ... it shall serve upon the defendant and file with the court a certificate of compliance." Further, "the certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery."
It is undisputed that the contact information at issue here must be disclosed pursuant to CPL 245.20 (1)(c), that the People were in possession of that contact information on June 9, 2021, when they served and filed their COC, and that the People had not disclosed that contact information to the defense when they filed their COC. Accordingly, the People did not file a valid COC on that day.
The People argue that their failure to file a valid COC should be excused for several reasons. First, the People state that the COC is valid "because it was filed in good faith after the exercise of due diligence." That argument is without merit. The People did not disclose the complaining witness’ contact information until more than six months after arraignment, more than three months after the filing of the People's purported COC and COR, and more than a month after defense counsel raised the matter of the missing information in open court. Such inaction belies any claim of diligence. That the People have not described efforts made to disclose the contact information, or any obstacles to doing so, further undermines any claim of a diligent, good faith effort to cause the contact information to be made available for discovery as required by CPL 245.20 (2).
The People state: "the fact that the People turned over the created WitCom account and corrected their error less than three days and one day, respectfully, after learning of defendant's request is significant." The People did not disclose the contact information until a month after defense counsel's August 27, 2021 in-court statement that the WitCom information had not been provided.
Second, the People state that their COC should not be deemed invalid despite their failure to disclose contact information, arguing that "most" courts have held that "belated disclosures, minor oversights in the production of material, or a good faith position that the materials in question were not discoverable, do not invalidate certificates of compliance that were filed in good faith after the exercise of due diligence." That claim fails for several reasons. There is no evidence here of a diligent effort to provide the complaining witness’ contact information prior to filing the COC. Further, in two of the five cases offered by the People in support of this argument, the court found that: 1) the People made diligent efforts to obtain missing information; 2) information thought to be missing had actually been disclosed; 3) there was uncertainty about whether disclosure was required; and 4) the missing information was of "negligible significance" ( People v Cano, 2020 WL 8968135, Slip Op. 20365 [Sup Ct, Queens Co., 2020 (Lopez, J)]; People v Alvarez, 2021 WL 1377827, Slip Op 502 92(0) [Sup Ct, Queens Co. 2021 (Lopez, J.)]). In two other cases, the court found that the People's COC was "by any measure" filed "in good faith" and "reasonable under the circumstances" ( People v Gonzalez, 68 Misc 3d 1213(A), Slip Op 50924 (0) [Sup Ct, Kings County 2020 (Hecht, J.)]; People v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020 (Hecht, J]). None of that is the case here, where there is no explanation for the People's failure to provide the contact information until more than six months after the COC was filed. In the final case offered by the People, the prosecutor was unaware of particular Intoxilyzer maintenance records until after the COC had been filed, and disclosed it upon learning of it, pursuant to CPL 245.50(1) ( People v Davis, 70 Misc 3d 467 [Crim Ct, Bronx Co. 2020] ). That is not the circumstance here, where the People were aware and in possession of, the complaining witness’ contact information from the outset. Thus, the cases on which the People rely are inapposite.
The court describes the holdings of those cases only for the purpose of showing that they do not support the People's claims in this case. Respectfully, the court does not adopt their holdings.
Third, the People argue that their COC should be deemed valid because it was filed "based on their understanding of what was needed to be provided as discovery," citing a "learning curve" concerning requirements of the recent discovery statute. Witness contact information is expressly listed in the statute ( CPL 245.20 [c] ), however. Moreover, the People do not dispute that they were aware of their obligation to disclose it. There is no learning curve that is relevant here.
Cases on which the People rely for that proposition are unpersuasive, as they concern police officers’ disciplinary files, about which there has been disagreement concerning disclosure (People v Lustig, 68 Misc 3d 234 [Sup Ct, Queens County 2020] ; People v Randolph , 69 Misc 3d 770 [Sup Ct, Suffolk County 2020] ) — though this court has ruled that such information and material must be disclosed (i.e., People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021] )
Fourth, the People argue that the complaining witness’ contact information should be considered as additional discovery, disclosed without adverse consequence, pursuant to CPL 245.50 (1), and that, if anything, a sanction commensurate with prejudice to the defendant might be appropriate. That is not the case. CPL 245.50 and CPL 245.60 concern disclosure of additional discovery learned of "subsequent[ ]" to the initial discovery — that is, after the People have made their initial diligent, good faith efforts to ascertain the existence of and then to disclose discoverable evidence. That is not the situation here where, from the outset, the People were in possession of the complaining witness’ contact information yet failed to disclose it.
Finally, the court is aware of decisions recognizing the People's failure to provide discoverable evidence and information, and yet permitting COCs to stand (see People v Porter, 71 Misc 3d 1187 [Crim Ct, Bronx County 2020]; People v Kelly , 71 Misc 3d 1202[A] [Crim Ct, NY County 2021] ). The newness of the statute may have prompted some courts deciding the earliest cases to afford the People a grace period to accommodate non-compliance. This court, however, finds no statutory authority for deeming a COC to be valid once it is determined that the People have not met their discovery obligations prior to the filing of the COC.
Conclusion
For these reasons, defendant's motion is granted. The People's COC filed on June 9, 2021 is invalid. Further, because the People cannot be deemed ready for trial until a proper COC is filed ( CPL 30.30 [5] [statement of trial readiness must be accompanied by a COC]), the COR also filed by the People on June 9, 2021 is invalid for want of a valid COC.
The foregoing constitutes the opinion, decision, and order of the court.