Opinion
No. CR-002766-22BX
09-28-2022
The People of the State of New York v. Cartagena (II), Defendant.
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Kaitlin Grossbauer) For Mr. Cartagena: The Bronx Defenders (by Oded Oren)
Unpublished Opinion
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Kaitlin Grossbauer)
For Mr. Cartagena: The Bronx Defenders (by Oded Oren)
Wanda L. Licitra, J.
By a C.P.L. § 30.30 motion, the defense alleges that the People's readiness was illusory because the People failed to disclose NYPD documents before certifying discovery compliance. The alleged missing materials include the memobooks of four police officers, various DD5s, a Domain Awareness System "import" report, screenshots of alleged texts and photos, "wanted" paperwork, and police misconduct records.
The People concede that they did not turn over the four NYPD memobooks. For two memobooks, they provide no justification; for the other two, they provide their unilateral determination that the memobooks are "not discoverable." The People also concede that they did not turn over police misconduct records. They deem those categorically undiscoverable because they will not call the officers to testify. Moreover, the People argue that none of these nondisclosures "prejudiced" the defense. The People assert that they disclosed the remaining materials at issue.
As explained below, the Court concludes that the People did not properly certify discovery compliance before stating ready for trial. Therefore, the People's statement of readiness was illusory, and the defense's motion must be granted.
I. The reach of automatic discovery under Article 245
Article 245 of the Criminal Procedure Law requires that the People "actually produce[]" automatic discovery to the defense. (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021]; C.P.L. §§ 245.20[1], 245.20[2]). Automatic discovery includes "all" items and information in the People's possession that "relate to the subject matter of the case." (C.P.L. § 245.20[1]). The People's "possession" includes discoverable material that is in the possession of the police, (C.P.L. § 245.20[2]), and favorable information that is "known to police," (C.P.L. § 245.20[1][k]; cf. People v. Garrett, 23 N.Y.3d 878, 887-88 [2014] [excluding impeachment information "known only to police" from the People's constructive knowledge for constitutional due-process purposes]).
The statute imposes legal duties on both the People and the police to "ensure" that they properly comply with automatic discovery. (See, e.g., People v. Edwards, 75 Misc.3d 433, 441-42 [Crim. Ct., NY County 2021] [Weiner, J.]). First, the statute requires that the prosecutor "shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office." (C.P.L. § 245.55[1]). Second, the statute mandates that, "upon request by the prosecution," the police "shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article." (C.P.L. § 245.55[2]).
Under Article 245, the People's "obligations to provide discovery" are "so broad" as to "virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). Indeed, the "opening language" of the statute "itself points towards an 'open file' discovery policy." (Id.). It requires the People to disclose "all" items and information in their possession that "relate to the subject matter of the case," "including but not limited to" an enumerated list of items. (Id.).
Therefore, "[i]f something is in the prosecutor's file (or that of the police investigating agency)... it should invariably 'relate to the subject matter of the case' and will need to be disclosed," unless it is attorney work-product or subject to a protective order. (People v. Lustig, 68 Misc.3d 234, 239-40 [Sup. Ct., Queens County 2020]); see also C.P.L. § 245.20[7] [establishing a statutory presumption favoring disclosure]; People v. Payne, 75 Misc.3d 1224 [A], at *3 [Crim. Ct., Bronx County 2022] ["The Court strains to imagine a situation where material contained within records in the People's case file would somehow not 'relate' to the case."]).
Generally, the People do not have the unilateral authority to deem documents in their file, or in the police file, to be "non-discoverable." However, if the People believe that some NYPD materials are not discoverable, the statute provides a "process" for them to "follow." (People v. Best, 2022 NY Slip Op. 50859[U], at *7 [Crim. Ct., Queens County 2022]; see C.P.L. §§ 245.10[1][a]; 245.70). "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Best, 2022 NY Slip Op. 50859[U], at *7). "[I]t is not for the People alone to make this determination." (People v. Demonia, 74 Misc.3d 752, 759 [County Ct., Ulster County 2022] [same]). The discovery statute grants only specific and limited exceptions to this rule. (See, e.g., C.P.L. § 245.20[1][c] [allowing the People to withhold physical addresses and the identities of 911 callers and confidential informants "without need for a motion"]; C.P.L. § 245.20[1][d] [same for materials relating to undercover personnel]).
After the People have exercised "due diligence" and made "reasonable inquiries to ascertain the existence of material" subject to discovery-and after they have "actually turn[ed] over all known material and information"-they must certify it. (People v. Quinlan, 71 Misc.3d 266, 271 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020] [same]; C.P.L. § 245.50[1]). They must do so by filing a "proper" certificate of compliance ("COC"). (C.P.L. §§ 245.50[3], [1]).
The statute defines a "proper" certificate as one filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. (C.P.L. § 245.50[1] [emphasis added]). Indeed, that is precisely what the statute directs the People to do in their certificate of compliance. They must certify that they have complied -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." (Id. [emphases added]). Alongside this plain text, courts hold that a COC "[can]not be deemed complete" until discovery is "actually produced" to the defense. (Ferro, 197 A.D.3d at 787-88; Quinlan, 71 Misc.3d at 271 [requiring that the People file a COC only after they "actually turn[ed] over all known material and information"]; Adrovic, 69 Misc.3d at 574 [same]).
A "proper" COC is a prerequisite to a valid statement of readiness. (C.P.L. §§ 245.50[3]; 245.50[1]). As a result, "a prosecutor who fails to engage in 'open file' discovery (except for 'work product' and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10).
Nonetheless, the discovery statute is not impracticable. Should the People face any burdens in producing discovery, the statute provides them numerous opportunities to petition a court for relief. For instance, the People may ask a court to modify the discovery periods for "good cause." (C.P.L. § 245.70[2]). Or they may ask a court for permission to state ready on an improper COC because of "special circumstances." (C.P.L. § 245.50[3]). Or they may ask for a protective order to withhold some materials entirely. (C.P.L. § 245.70).
II. The People's disclosures here
The People concede that some of the items at issue were not disclosed, though they unilaterally declare most to be "non-discoverable." The People contest other items and assert they have been disclosed.
The Court takes each in turn, but it first notes that the People's repeated argument about a lack of "prejudice" to the defense is misplaced. This is a motion about the People's trial readiness under C.P.L. § 30.30. "Prejudice," which is a consideration for C.P.L. § 245.80 sanctions, is "not a factor" in a C.P.L. § 30.30 analysis. (Adrovic, 69 Misc.3d at 574; see also People v. Darren, 75 Misc.3d 1208 [A], at *5 [Crim. Ct., NY County 2022] [same]; People v. Diaz, 75 Misc.3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022] [same]; People v. Pierna, 74 Misc.3d 1072, 1089-90 [Crim. Ct., Bronx County 2022] [same]; Quinlan, 71 Misc.3d at 272 [same]).
"[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Adrovic, 69 Misc.3d at 574). "Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."])
A. Police memobooks
The People concede that they did not disclose memobooks for Officers Bonilla and Martinez-Guzman, arguing only that it did not "prejudice" the defense. (Pr. Resp. at 9). They argue that there can be no prejudice because they had disclosed "Body Worn Camera" for these two officers. (Id.). Therefore, they reason, this nondisclosure does not invalidate their COC. (Id.). This is the only argument the People make regarding these memobooks. (See id.).
However, as noted above, the People's only argument here conflates their trial-readiness obligations under C.P.L. § 30.30 with the discovery-sanction statute, C.P.L. § 245.80. The People offer no justification for failing to disclose these memobooks. And the People never sought any of the statute's numerous opportunities for court permission to file a COC without disclosing these memobooks. (See C.P.L. §§ 245.10, 245.50[3], 245.70). Therefore, the People's COC was invalid-it certified compliance with discovery even though the People had not produced basic discovery to the defense.
There were further memobooks that the People also did not disclose, which they now unilaterally deem to be not discoverable. The People did not disclose the memobook of Sergeant Pichardo. They note that Sergeant Pichardo is a "Field Intelligence Officer" who conducted a "Debrief Interview" with Mr. Cartagena. (Pr. Resp. at 9). This "debrief" happened while Mr. Cartagena was under arrest in this case. (Def. Reply at 4). And the NYPD's own system lists it as a "companion case" to the arrest in this case. (Id.; Def. Reply Ex. 7). Nonetheless, the People argue that because Sergeant Pichardo conducted a "Debrief Interview," that "much of [the interview] is generated for internal use" and was therefore "unrelated to the subject matter of the case at hand." (Pr. Resp. at 9 [internal quotation marks omitted]).
The Court rejects the People's argument. The People have unilaterally declared that Sergeant Pichardo's memobook does not relate to the case even though they apparently never even examined it. (See id.). The People may not simply speculate that because a "Field Intelligence Officer" conducts a "Debrief Interview" after a person's arrest that the ensuing interaction was necessarily unrelated to the case. This questioning occurred while Mr. Cartagena was under arrest for this case and the NYPD denoted the resulting reports as a "companion case." (See Def. Reply at 4; Def. Reply Ex. 7). Under these circumstances, the People should have, at the very least, examined the memobook. If they believed that nothing in the documents was discoverable, and they wanted to withhold it, then they should have sought permission from a court first. (See C.P.L. § 245.10[1][a] ["Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article."] [emphasis added]). Here, again, the People's failures mean they had "certified" their discovery "compliance" without actually complying with discovery.
Indeed, although C.P.L. § 710.30 statement notice was not served in this case, in other cases, custodial interrogation by a field intelligence officer about "unrelated" matters could still be relevant to suppressing a later on-topic interrogation. (See People v. Chapple, 38 N.Y.2d 112 [1975]).
But the People's failure to disclose memobooks does not end there, either. The People also concede that they did not disclose the memobook for Officer Contrata. The People argue that Officer Contrata is a "DVO"-or a "domestic-violence officer"-who "was not a responding officer on scene at the time of the incident." (Pr. Resp. at 10). "Any actions he undertook in connection to his DVO duties occurred after the incident." (Id.). And, in the People's view, when police act "after the incident and arrest times," that action "do[es] not relate to the subject matter of a case." (Id.). Nonetheless, the People also admit that they are "still working to ascertain what Police Officer Contrata's role in this case was." (Id.).
At the very least, the People should have "ascertain[ed] what" Officer Contrata's "role in this case was" before filing a certificate that stated," 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." (Pr. Cert. of Compliance [emphases added]). A "certificate" is a "document containing a certified statement especially as to the truth of something." (Certificate, Merriam-Webster Dictionary [2022]). Here, by their own admission, the People had not, in truth, ascertained the existence of material subject to discovery before filing their certificate. Therefore, the purported certification otherwise was not proper.
But even if they had ascertained the existence of this information, the People apparently would still have failed to properly discharge their discovery duties. That is because their understanding of their discovery obligations regarding "domestic violence officers" violates the statute. The Court rejects the People's argument that follow-up visits by domestic-violence officers in a domestic-violence case are unrelated to the case simply because those officers take actions "after the incident and arrest times." (Pr. Resp. at 10). The People's claimed exception to the statute-that policework is undiscoverable simply if it occurs "after the incident and arrest times"-has no basis in statute or logic. Officers commonly follow up with witnesses after an incident and after an arrest. Those later efforts are "no less discoverable than any earlier investigative work." People v. Amir, 2022 NY Slip Op. 50856[U], at *4 [Crim. Ct., Bronx County 2022]). Put simply, "[i]f domestic-violence officers visit a domestic-violence complainant after an alleged domestic-violence incident, that is clearly related to the domestic-violence case." (Id.).
Indeed, as part of these follow-up visits, domestic-violence officers sometimes refer complainants to victim-assistance organizations. (People v. Amir, 2022 NY Slip Op. 50856[U], at *4 [Crim. Ct., Bronx County 2022]; see also Giglio v. United States, 405 U.S. 150 [1972] [information favorable to the defense includes benefits offered to witnesses by the state]; C.P.L. § 245.20[1][k] [requiring disclosure of information favorable to the defense]).
The Court finally rejects the People's blanket argument that none of the memobooks in this case were automatically discoverable simply because the People "do not intend to call any of the aforementioned officers as a witness." (Pr. Resp. at 11). Nothing in the discovery statute exempts an officer's paperwork from discovery simply because the People choose not to call them to testify. To the contrary, C.P.L. § 245.20[1][e] explicitly requires that the People disclose "[a]ll" written statements by officers "who have evidence or information relevant to any offense charged or to any potential defense thereto." There is no exception for "non-testifying" officers. (See C.P.L. § 245.20[1][e]). The People's failures to ascertain and disclose these memobooks means they had not complied with discovery before claiming to certify compliance.
B. Police misconduct records
This Court has repeatedly rejected the notion that police misconduct records are categorically undiscoverable simply because the People do not call an officer to testify. (Amir, 2022 NY Slip Op. 50856[U], at *5-*6; People v. Figueroa, 2022 NY Slip Op. 22278, at *4-*5 [Crim. Ct., Bronx County 2022]). The People are required to disclose "all" favorable information. (C.P.L. § 245.20[1][k]). The statute "abandons" any requirement that only "materially" favorable information should be disclosed. (NY State Assembly, Memorandum in Support of Legislation, A4360A).
In their response, the People assert they do not intend to call these officers to testify. The defense argues that the People do, in fact, intend to call these officers to testify, citing their assertion of that in their Automatic Disclosure Form. Either way, the Court would reach the same conclusion.
" One reason an officer's prior misconduct could be favorable is for impeaching the credibility of a testifying prosecution witness[,] [b]ut that does not mean that is the only reason such records could be favorable." (Amir, 2022 NY Slip Op. 50856[U], at *6 [internal quotation marks omitted]). "The categories of favorable information are not all mutually exclusive." (Id.). "A contrary conclusion would permit the government to avoid disclosure of exculpatory or impeachment material simply by not calling the relevant witness to testify." (United States v. Jackson, 345 F.3d 59, 70-73 [2d Cir. 2003]).
Prior misconduct by officers involved in a case could, for instance, negate the accused person's guilt or support a potential defense. (C.P.L. §§ 245.20[1][k][i], [iii]). It could be "a worthwhile source of [defense] investigation" into the police's interactions with a complainant or witnesses in the case. (Amir, 2022 NY Slip Op. 50856[U], at *5-*6; People v. Carswell, 67 Misc.3d 444, 448-49 [Crim. Ct., Bronx County 2020] [noting that the discovery statute was enacted in part to allow the defense to "properly investigate" cases]; see also Eric Gonzalez, Reckoning with Wrongful Convictions: Lessons Learned from An Examination of 25 Wrongful Convictions in Brooklyn, 35 Crim. Just. 4 [2021] ["In two cases, the [Conviction Review Unit] concluded that the police likely engaged in misconduct by coaching the witness."]).
The defense may also seek to use such prior misconduct to undermine the integrity of the investigation that "led to [the instant] arrest[]," regardless of whether the People call the officer to testify. (Jackson, 345 F.3d at 73; see also Longus v. United States, 52 A.3d 836, 849-54 [D.C. Ct. App. 2012] [defense properly sought to question officer involved in the instant investigation, but not called by the prosecution, about coaching witnesses in separate case]; Smith v. United States, 26 A.3d 248, 260-63 [D.C. Ct. App. 2011] [same]).
The People argue that a "number of courts" have "specifically examined this issue" and "reached the same conclusion" as them, but they fail to cite any. (Pr. Resp. at 7). Instead, they cite: (1) People v. Garrett, 23 N.Y.3d 878 [2014], which is not a case that turned on whether information was favorable; and (2) lower court cases from 2020 that held police disciplinary records were never automatically discoverable, a claim that now runs contrary to the bulk of published case law, (see Best, 2022 NY Slip Op. 50859[U], at *4-*6 [collecting cases requiring disclosure of all underlying police misconduct records]; Matter of Jayson C., 200 A.D.3d 447, 449 [1st Dep't 2021] [holding that the plain text of C.P.L. § 245.20[1][k] requires disclosure of all underlying information relating to misconduct by police witnesses]; People v. Polanco-Chavarria, 74 Misc.3d 1210 [A], at *4 [County Ct., Rockland County 2021] [analyzing Jayson C. ]).
Here, the People fail to state that they even "examined" the "personnel and disciplinary" files of the officers involved in this case before deeming them all as necessarily unrelated. (See People v. Altug, 70 Misc.3d 1218 [A], at *3 [Crim. Ct., NY County 2021] [Weiner, J.]). Indeed, their position-that such information is always undiscoverable if the People do not call the officer to testify-suggests they did not do so. As such, they failed to discharge their discovery duties before filing their purported certificate of discovery compliance. (See id.).
C. Remaining discovery disputes
The parties dispute whether various other items were disclosed. These include some DD5s, a Domain Awareness System "import" report, screenshots of alleged texts and photos, and "wanted" paperwork. However, since the Court has already concluded that the People's certificate of compliance was not proper, these disputes are moot.
III. The lack of "good faith" or "diligent" compliance
The Court rejects the People's position that they established "good faith" or "diligent" compliance with the discovery statute before filing their COC. As an initial matter, this Court does not believe that an assertion of "good faith" or "due diligence" renders a COC proper if the People fail to produce automatic discovery in their actual or constructive possession. (See, e.g., People v. Vargas, 171 N.Y.S.3d 877, 879-82 [Crim. Ct., Bronx County 2022]; Ferro, 197 A.D.3d at 787-88).
Setting that aside, however, the People failed to establish any reason whatsoever for failing to disclose the memobooks for Officers Bonilla and Martinez-Guzman. As noted above, the People's only argument-that there was no "prejudice" to the defense from their nondisclosure-is irrelevant to this motion.
Regarding the remaining nondisclosures, the statute does not allow the People to make a "good faith" determination that those items do not fall under the discovery statute. That "the People might have applied good faith and due diligence in making their own determination" that certain records "do not - or should not - fall within the statute is of no moment." (People v. Soto, 72 Misc.3d 1153, 1162 [Crim. Ct., NY County 2022]). "That is not the People's determination to make." (Id.). Article 245 "relieves the People of having to define what is or is not discoverable" in a police file. (Id.). Particularly relevant here, the statute requires the People to disclose all "statements, written or recorded" by police "who have evidence or information" relevant to the offenses charged. (C.P.L. § 245.20[1][e]). That includes all memobooks for all officers involved in the case.
If the People nonetheless believe that some NYPD materials are not discoverable, the statute provides a "process" for them to "follow." (Best, 2022 NY Slip Op. 50859[U], at *7). "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Best, 2022 NY Slip Op. 50859[U], at *7). "[I]t is not for the People alone to make this determination." (Demonia, 74 Misc.3d at 759). The discovery statute grants only specific and limited exceptions to this rule. (See, e.g., C.P.L. § 245.20[1][c] [allowing the People to withhold physical addresses and the identities of 911 callers and confidential informants "without need for a motion"]; C.P.L. § 245.20[1][d] [same for materials relating to undercover personnel]).
The statute also provides a process if the People require more time to comply with discovery. If, for instance, the People face significant trouble ascertaining memobooks from the police, they must move a court to modify the discovery periods by establishing "good cause." (C.P.L. § 245.70[2]). If they believe, as they argue here, that obtaining police misconduct records is overly burdensome, they must do the same. (See id.).
Here, however, the People did not follow any of these processes. The People never sought a "determination and ruling of the court" as to whether any of these materials were, in fact, "non-discoverable." (C.P.L. § 245.10[1][a]; see also Best, 2022 NY Slip Op. 50859[U], at *7 [same]; Payne, 75 Misc.3d 1224[A], at *4 [same]; Demonia, 74 Misc.3d at 759 [same]). Instead, they made unilateral determinations on their own, without permission from any court. The People similarly never sought to modify the discovery periods for good cause. (See, e.g., People v. Spaulding, 75 Misc.3d 1219 [A], at *3 [Crim. Ct., Bronx County 2022]; see also C.P.L. § 245.70[2]). "Where the People do not seek any of these numerous opportunities for relief, they cannot be said to have exercised due diligence before filing their COC." (Spaulding, 75 Misc.3d 1219[A], at *3 ["]).
Moreover, it appears that the People never even reviewed much of the information at issue here before declaring that it was not discoverable. The People have not stated that they reviewed the memobooks of Sergeant Pichardo or Officer Contrata, or if they did the same for any of the officers' disciplinary files. That failure does not constitute exercising "due diligence" and making "reasonable inquiries" to "ascertain the existence" of discoverable information before filing a COC. (C.P.L. § 245.50[1]).
As a result, the People cannot be said to have complied with the statute in good faith or with diligence. Instead of following the process in Article 245, the People here did what they "may not do"-they "file[d] a certificate of compliance in which they claim[ed] to have exercised due diligence and turned over all known material and information while at the same time not actually turning over all known material and information." (Quinlan, 71 Misc.3d at 271; Adrovic, 69 Misc.3d at 574 [same]).
IV. The 30.30 calculation
The only way that the People may state ready for trial on an improper COC is if the court finds special circumstances. (C.P.L. § 245.50[3]). There are no such special circumstances here. The People's unilateral justifications for failure to disclose memobooks and office failure to secure NYPD paperwork do not constitute special circumstances. (See People v. Guzman, 75 Misc.3d 132 [A], at *3-*4 [Sup. Ct., App. Term, 2d Dep't 2022]; Soto, 72 Misc.3d at 1162).
The C.P.L. § 30.30 clock commenced at arraignments on February 19, 2022. As explained above, the People's statements of readiness were not preceded by a proper certificate of discovery compliance. (See C.P.L. § 245.50[3]). Therefore, they were illusory. Time continued to accrue until the defense filed this motion on June 27, 2022. (C.P.L. § 30.30[4][a]). That is 128 days, more than the maximum time allotted by law. (See C.P.L. § 30.30[1][b]).Therefore, the defense's motion to dismiss must be GRANTED.
The foregoing constitutes the decision and order of the Court.