Opinion
No. CR-008266-23BX
11-20-2023
The People of the State of New York, v. Sheena Casey, Defendant.
Akeem Williams, Assistant District Attorney, Bronx County, for the People Vincent Graci, The Legal Aid Society, for Defendant
Unpublished Opinion
Akeem Williams, Assistant District Attorney, Bronx County, for the People
Vincent Graci, The Legal Aid Society, for Defendant
E. Deronn Bowen, J.
Summary
1. Defendant's motion to deem invalid the People's certificate of compliance (CoC) dated July 24, 2023, and supplemental CoCs (SCoCs) dated July 25 and August 23, 2023, is GRANTED.
2. The court DEEMS VALID the People's SCoC dated August 25, 2023.
3. Judicial resolution of the remainder of defendant's omnibus motion is PLACED IN ABEYANCE, and supplemental briefing is ORDERED in accordance with this decision and order.
Defendant, Sheena Casey, stands charged in an information with assault in the third degree (Penal Law § 120.00 [1]), criminal mischief in the fourth degree (Penal Law § 145.00 [1]), menacing (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [1]). Defendant was arraigned on April 26, 2023. The People served and filed a certificate of compliance (CoC) and statement of readiness (SoR) for the first time on July 24, 2023. The next day, July 25, 2023, the People served upon defendant more discoverable material, as well as a supplemental CoC (SCoC) and accompanying SoR, which, too, were filed with the court.
On July 26, 2023, the parties appeared before the court and the matter was adjourned for discovery conferencing. Later that same day, defendant informed the People that purportedly discoverable material had yet to be turned over, "specifically," defendant recounts in an omnibus motion dated October 2, 2023, "records of [emergency medical services [EMS] ] treatment at the scene" of the complainant and "medical records of the podiatrist who treated [the complainant] for injuries alleged to have occurred on the scene as well as podiatrist records for a prior injury the [complainant] suffered on the same foot."
The People explain in papers dated October 23, 2023, responsive to defendant's omnibus motion that, upon being contacted by defendant on July 26, 2023, the People reached out to the complainant that same day and multiple times thereafter. The complainant responded on August 15, 2023, by "forward[ing], via email, medical records to the People," which were soon thereafter forwarded to defendant. On August 23, 2023, the People served and filed a necessary SCoC, as well as an SoR.
The August 23, 2023, SCoC was silent, however, regarding the fact that the complainant had also on August 15, 2023, provided the People with a signed HIPAA release. With it, the People subpoenaed the complainant's EMS records. "On August 25, 2023, the People forwarded to defense counsel[] the FDNY EMS records received," along with a third and final SCoC / SoR pair.
Upon receipt of these medical records, defendant informed the court that the parties had "diligently confer[red] to attempt to reach an accommodation as to any dispute conserving discovery" and that there were no remaining discovery issues requiring a "ruling from the court" (CPL 245.35 [1]). A motion schedule was set, and defendant served and filed an omnibus motion on October 2, 2023. In one branch thereof defendant moves the court to deem invalid the CoC and all SCoCs filed by the People because, she contends, the medical information was "not timely disclosed... to the defense." The People counterargue that both the podiatric and EMS medical records are not discoverable as they are "outside the custody and control of the People."
The People's counterclaim is without merit. The medical records at issue here are "[a]utomatic discovery" (CPL 245.20), as they are
"reports, documents, records, data, calculations or writings, including... physical or mental examinations, or scientific tests..., relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing" (CPL 245.20 [1] [j]).
Upon the People's request, the complainant turned over the medical information and signed a HIPAA release permitting the People to obtain additional such discoverable medical records. Inexplicably, though, the People never requested these records from the cooperative complainant until after filing the initial CoC and the first SCoC.
"[W]hen a COC is challenged, it is incumbent upon the People to demonstrate that they operated in good faith, exercised due diligence and expeditiously provided any missing materials. They must sufficiently articulate their efforts to comply with the statute and explain how the error occurred and was detected, and when it was remedied" (People v Pondexter, 76 Misc.3d 349, 353 [Crim Ct, Bronx County 2022]).
Here, the People's July 24, 2023, CoC; their July 25 and August 23, 2023, SCoCs; and their responsive papers to defendant's omnibus motion are all silent concerning the reasons for their months-long dilatoriness in seeking to obtain the complainant's discoverable medical records.
The People's reliance on People v Montanez (decision & order, dkt no CR-015594-22BX [Crim Ct, Bronx County May 9, 2023] [Dan Quart, J.]) in support of excusing their discovery compliance delay is misplaced. The People place a great deal of weight on the holding in Montanez that, under the facts of that case, "the disclosure of the complaining witness' medical records after the initial [CoC] was filed does not serve as a basis to invalidate the [CoC], since the records were not in the People's possession or control when the initial [CoC] was filed" (id. at 3). However, the People overlook that, in Montanez, "[t]he People requested a HIPPA waiver from the complaining witness," which was received five days later, "filed [ ] subpoenas with the medical providers, and shared the same with defense counsel prior to the filing of the [initial CoC]" (id. at 4). Here, contrarily, the People did not commence an attempt to locate and make available the complainant's plainly discoverable medical records until after they filed the initial CoC and a subsequent SCoC.
The People's unexplained delay in making available to the defense the complainant's automatically discoverable medical records rebuts fatally the presumed validity of the mandatory catechism contained in the July 24, 2023, CoC - as well as the July 25 and August 23, 2023, SCoCs - that as of their respective filings, the People had "exercise[d] due diligence and [made] reasonable inquiries to ascertain the existence of material and information subject to discovery" and had "disclosed and made available all known material and information subject to discovery" (CPL 245.50[1] [emphasis added]; see People v LaClair, 79 Misc.3d 8, 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] ["Despite [the named police officer's] relevance to the case, the record is devoid of any evidence that the People spoke to him" until months after the defendant's arraignment]; People v Long Island Tree and Landscape Service, Inc., 79 Misc.3d 130[A], 2023 NY Slip Op 50695[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] ["While the People provided supplemental discovery, the People did not demonstrate, or even try to show, that they had previously exercised due diligence to obtain the supplemental material, or that such material did not exist or was not previously in the People's possession or control"]).
The People's argument that the FDNY EMS records are per se not discoverable because a subpoena duces tecum would be required to obtain them (see CPL 245.20 [2]) is called into question by People v Rahman (79 Misc.3d 129 [A], 2023 NY Slip Op 50692[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]), which held that," in the circumstances of this case, and in light of the instruction to interpret CPL 245.20 (1) in favor of disclosure, the FDNY/EMS records were discoverable under CPL 245.20 (1) (j)" (id., at *2 [emphasis added], citing CPL 245.20 [7]). That the Appellate Term, Second Department, recognizes "circumstances" in which FDNY/EMS records, like those at issue here, are automatically discoverable cautions against accepting the People's absolutist viewpoint respecting these records. Moreover, the People's claim that to obtain the complainant's EMS records in this matter would require a subpoena duces tecum is belied by the fact that the People obtained both a signed HIPAA release and podiatric records directly from the cooperative complainant without the need for a subpoena.
Accordingly, the branch of defendant's motion seeking to deem invalid the People's CoC dated July 24, 2023, and the SCoCs dated July 25 and August 23, 2025, is GRANTED. However, as defendant concedes that the People were compliant with their discovery obligations as of the filing of the last SCoC dated August 25, 2023, the court DEEMS VALID that SCoC. Therefore, all time from the day after defendant's arraignment (see General Construction Law § 20; People v Stiles, 70 N.Y.2d 765, 767 [1987]) until July 26, 2023, when the court ordered discovery conferencing, is chargeable against the People's statutory speedy trial "clock," as the SoRs filed during these time periods are illusory (see CPL 30.30 [5] ["Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter"]; CPL 245.50 [3] ["the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper [CoC]"]; People v Surgick, 73 Misc.3d 1212 [A], 2021 NY Slip Op 51007[U], *4 [Albany City Ct 2021] ["The obligation is inflexible. No trial ready statement is valid unless the People file a CoC that truthfully asserts that the People have exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery"] [internal quotation marks omitted]). This is a 90-day time period.
As previously mentioned, on July 26, 2023, two days after the People filed an invalid initial CoC, the court adjourned the matter for discovery conferencing. On September 7, 2023 - following the People's August 25, 2023, filing of a valid SCoC and SoR - defendant informed the court that no discovery conference was necessary. Presumptively, this time period is excluded from statutory speedy trial calculations as "a reasonable period of delay resulting from other proceedings concerning the defendant" (CPL 30.30 [4] [a]). However, at least in other contexts, statutorily excludable actions or adjournments "will generally stop the clock unless the court finds it was not made in good faith, or that it was frivolous" (People v McGee, 77 Misc.3d 1229[A], 2023 NY Slip Op 50380[U], *1 [Crim Court, Kings County 2023]). The court will not address what may be an matter of first impression without first hearing from the parties.
Accordingly, the court ORDERS supplemental briefing on the following question:
In light of the court's finding of invalidity of the initial CoC and two SCoCs dated, respectively, July 24, July 25 and August 23, 2023, what portion(s), if any, of the July 26 - September 7, 2023, time period are chargeable against the People's statutory speedy trial "clock?"
A briefing schedule will be set in consultation with the parties. Final judicial resolution of the statutory speedy trial dismissal branch, and all remaining branches, of defendant's omnibus motion is PLACED IN ABEYANCE pending completion of supplemental briefing.