Opinion
Docket No. CR-022852-22QN
06-21-2023
The People of the State of New York v. Eulices Cortes, Defendant
Jordan Coyne, Esq., Queens Defenders, Forest Hills, for Eulices Cortes. ADA Aaron Gallagher, Office of the Queens District Attorney, Kew Gardens, for People.
Unpublished Opinion
Jordan Coyne, Esq., Queens Defenders, Forest Hills, for Eulices Cortes.
ADA Aaron Gallagher, Office of the Queens District Attorney, Kew Gardens, for People.
Anthony M. Battisti, J.
Facts
Defendant is charged with Driving While Intoxicated, VTL 1192.3, and related offenses. The information, based primarily on the observations of the complainant, alleges that on September 4, 2023, defendant rear-ended the complainant's vehicle on the Brooklyn Queens Expressway. Defendant fled the scene and jumped over a highway safety barrier, injuring himself. The arresting officer, the deponent, described the defendant as having a flushed face and the odor of an alcoholic beverage on his breath, and, admitted having had too much to drink. Defendant was admitted to the hospital and was not arraigned until September 14, 2023.
The disclosure information, made exhibits to the parties' submissions, reveal that on September 4, 2022, PO Fink responded to the hospital and observed the hospital staff draw defendant's blood, took possession of those blood samples, and submitted them to the NYC Office of Chief Medical Examiner for analysis. Because defendant had been sedated, PO Fink was unable to have defendant perform any sobriety tests.
On December 12, 2022, the People filed their CoC/SoR less three items of information they were in the process of securing, with the following Notice of Non-Disclosure:
The People nevertheless wish to proceed to trial without the information and will accept any sanction for non-disclosure that the court rules is warranted at trial under CPL 245.80. The People, however, reserve the right to argue that no sanction is warranted under the analysis mandated by section 245.80 or to argue for a particular lesser sanction, should one be appropriate. Specifically, the material in question is: Activity Log and Body Worn Camera for Officer Fink, Tow Paperwork
At this time, the People are not in possession of the above-described items of discovery but are diligently working to obtain them so that they may be shared with defense counsel. The People have made requests to the Highway #3 Unit and notified Officer Fink to have his activity log and body work camera provided to the People, however, these items have not yet been received. The People are in the process of serving a subpoena on the tow company that responded to the accident so that we may provide records of the towing of any vehicles on scene to the defense. However, these items are not within the People's possession.
Additional exhibits reveal the assigned ADA continued their efforts to obtain this material and on February 17, 2023, delivered PO Fink's and body camera video and filed Supplemental CoC/SoR-1. On March 3, 2023, the assigned ADA obtained and delivered PO Fink's activity log and filed Supplemental CoC/SoR-2. On May 24, 2023, the assigned ADA discovered the E911 Sprint Report for the case had not been delivered and immediately shared it with defendant; and, filed Supplemental CoC/SoR-3. The "tow paperwork" reflecting the disposition of the defendant's and complainant's cars has yet to be obtained by either side.
Motion to Strike & Dismiss - Discovery Non-Compliance
Defendant moves to strike the CoC/SoR and, thereby, sequentially dismiss the information pursuant to CPL 30.30(4) - that the People's non-compliance with their CPL 245 obligations renders the CoC/SoR illusory and insufficient to stop the speedy trial clock and, because the applicable speedy trial period has expired the information must be dismissed. Defendant asserts dismissal is warranted based upon the non-delivery or belated delivery of the information discussed above. The People contend that they have met their CPL 245 obligations, having made "diligent good faith efforts" that were "reasonable under the circumstances"; and, having made "reasonable inquiries to ascertain the existence of material and information "related to the subject matter of the case" and/or "related to the prosecution of a charge"; and, having "endeavored to ensure the flow of information between law enforcement and the prosecution", their CoC/SoR should be accepted.
Discussion
Courts should avoid the drastic remedy of dismissal when appropriate remedies exist to rectify harm done by the loss of evidence and, by extension, the belated delivery of disclosure information under Article 245. See, People v. Haupt, 71 N.Y.2d 929, (1988), People v. Kelly, 62 N.Y.2d 516, (1984). And, where appropriate, the People have the option pursuant to CPL 245.70(2) to request a modification of any statutory time period allowing for additional time to comply with their Article 245 obligations.
On this record, the People's efforts to satisfy their disclosure obligations up to the filing of the original CoC/SoR on December 12, 2022, would have, in this Court's opinion, served as the basis for a request for an extension of time under CPL 245.70(2). Had that happened, defendant would not have been in possession of the disputed information any sooner than the date received. Defendant has not articulated any actual prejudice caused by the belated delivery of this information, nor have they proposed any sanction under CPL 245.80. Under CPL 245.35(3) the Court has the authority to fashion mechanisms to facilitate the goals of Article 245. While a technical defect, the procedure employed by the People - utilizing a Notice of Non-Disclosure in place of a formal motion for relief under CPL 245.70(2) - may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought. (Daramboukas v. Samlidis, 84 A.D.3d 719, (2nd Dept. 2011); Sheehan v Marshall, 9 A.D.3d 403, (2nd Dept. 2004); Kleeberg v City of New York, 305 A.D.2d 549, (2nd Dept. 2003); Volpe v Canfield, 237 A.D.2d 282, (2nd Dept. 1997)). The Court, therefore, treats the People's Notice of Non-Disclosure in their original CoC/SoR as the functional equivalent of an application under CPL 245.70(2) for an extension of time to satisfy their discovery obligation which the assigned ADA addressed in a diligent and prompt manner. The Court is hopeful that in the future collaborating counsel, mindful of this available option, will endeavor to settle discovery issues by stipulation without resorting to court intervention.
The Disputed Information
PO Fink's Body Camera Video and Activity Log
The exhibits reveal that for nearly four months Officer Fink failed to timely reply to the assigned ADA's repeated efforts to obtain this basic information. The assigned ADA, confronted with this situation elected to file the original CoC/SoR including the afore-mentioned Notice of Non-Disclosure, identifying the missing information, and consenting to the imposition of any sanction under CPL 245.80 the Court felt was necessary under the circumstances. Defendant did not address this proposed compromise in their submission, pursuing instead a complete dismissal of the case.
PO Fink's involvement in the case was limited to securing blood samples that had been taken from the defendant by hospital staff and submitting them for analysis to the NYC Office of the Chief Medical Examiner. PO Fink's activity log entries encompass his entire tour relevant to this case as well as activity in other unrelated matters during the same tour. The portion of the activity log relevant to this case is limited to three lines of information reflecting the time the Officer was assigned to the case and the time he arrived hospital to secure defendant's blood sample. The documents the Officer prepared in connections with his work in this case are not in dispute and were delivered with the original CoC/SoR dated December 12, 2022. Those items contain the duplicative equivalent of his activity log entries for the case. (People v. Rangehelle, 69 N.Y.2d 56 (1986), People v Consolazio, 40 N.Y.2d 446, (1976)). PO Fink's body camera video is apparently the only video recording of the Officer's interaction with the defendant at the hospital. According to defendant:
Officer Fink's BWC is unique in its entirety as it is the only BWC from the hospital. On it, you can see him filling out the IDTU paperwork and handling the blood draw equipment. It also suspiciously cuts off right before Officer Fink was supposed to affix the security seal to the sample vials and seal the evidence box. While there were other officers present, no other BWC from the hospital was provided.
The belated delivery of these items was not due to the inaction of the assigned ADA, but rather, the officer's lack of cooperation with the assigned ADA's diligent good faith efforts to provide the information sooner. CPL 245.20(2) deems this information in the possession of the People and, therefore, but the People cannot deliver what has not been provided in response to their diligent good faith efforts to obtain it. The statute requires the People to make those efforts and in this case that was done. The video is now in defendant's possession for use at trial, again, no sooner than had the People moved for an extension of time under CPL 245.70(2).
Towing Company Paperwork
Private towing companies under contract with the NYPD or the City of New York to remove motor vehicles from the public roadways are separate, non-law enforcement entities not within the People's control; and records kept by those entities are available to defendant by subpoena. CPL 245.20(2). Defendant asserts that they delayed issuing their own subpoena because the assigned ADA represented that they were in process of issuing one for this information and would share it when received; and, because the ADA had not actually sent the subpoena, they failed to exercise diligent good faith compliance within the meaning of CPL 245.20(2) generally, thereby rendering their CoC/SoR invalid and illusory. The prosecutor's voluntary agreement to obtain and share information outside their control should be encouraged and is the better practice. People v. Weiss, 2023 NY Slip Op 23148, [Queens Crim Ct. Battisti, J]. However, neither the People's mistaken belief that they were obligated to produce these items, nor their failure to promptly subpoena them has any impact the propriety of their CoC/SoR where, as here, the identity of the towing company was included in the MV-104 Accident Report shared with defendant with the filing of the CoC/SoR on December 12, 2022. Defendant could have taken their own immediate steps to secure these items if they felt those were crucial to their defense.
Belated E911 Sprint Report
On May 24, 2023, after this motion was fully submitted, the People discovered that the E911 Sprint Report for the case had not been shared with defendant. The People immediately shared the information and filed Supplemental CoC/SoR the same day. The Court instructed the parties via email to address the issue within this motion sequence. Defendant asserts the document is fundamental to their case since it provides the" official timeline of key actions, such as the 911 call, transport to Elmhurst, IDTU notification, and arrest time, all of which are relevant to the charges". Assuming for the sake of the discussion that is true, the Court again notes that defendant has been in possession of the actual 911 calls and radio transmissions since December 12, 2022, delivered with the original CoC/SoR. Based upon the efforts of the assigned ADA to obtain and deliver required information, it is clear to the Court that the omission of E911 Report was clearly an inadvertent oversight, not an effort to gain a tactical advantage in the case and was promptly cured.
Conclusion
CPL 30.30(5) requires the People certify compliance with Article 245 before the People may announce ready for trial. CPL 245.20(2) states, in pertinent part:
The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.
Regarding the People's CoC/SoR, CPL 245.50 continues:
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 shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article.
CPL Article 245 does not require the impossible before the People may certify their compliance under CPL 245.50 and announce ready for trial. (see e.g. People v Bruni, 71 Misc.3d 913 [Albany County Ct 2021]; People v Erby, 68 Misc.3d 625, 629 [Sup Ct, Bronx County 2020]; People v Gonzalez, 68 Misc.3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020]). But it does demand that the People use diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC. People v. Barralaga, 73 Misc.3d 510, NY County, 2021.
CPL 245.50(1-a) speaks directly to this situation:
1-a. Any supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance. The filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence pursuant to section 245.20 of this article, or if the additional discovery did not exist at the time of the filing of the original certificate of compliance.
Had the legislature intended dismissal of the information based upon the People's failure to deliver a single item of qualifying material, it would have made such strict liability intent plainly clear in the statute. If that were the case, there would be no need for the discretionary and remedial provisions found in CPL 245.30(3), CPL 245.35(4) and CPL 245.80. Interpreting Article 245 in strict liability fashion reduces several of its provisions to surplusage and deprives the Court of the discretion to utilize the remedial provisions of the statute. Under well-established principles of interpretation, effect and meaning should be given to the entire statute and "every part and word thereof'". People v. Giordano, 87 N.Y.2d 441 (1995) Sanders v Winship, 57 N.Y.2d 39, (1982).
In People v. Galindo, 38 N.Y.3d 199, (2022), the Court of Appeals has instructed:
"The primary consideration of courts in interpreting a statute is to 'ascertain and give effect to the intention of the Legislature'" (Riley v County of Broome, 95 N.Y.2d 455, 463 [2000], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 92[a]). Generally, "the plain meaning of the statutory text is the best evidence of legislative intent" (People v Cahill, 2 N.Y.3d 14, 117 [2003], citing Riley, 95 N.Y.2d at 463). Indeed, "[a]s a general rule, unambiguous language of a statute is alone determinative" (Riley, 95 N.Y.2d at 463, citing Matter of Washington Post Co. v New York State Ins. Dept., 61 N.Y.2d 557, 565 [1984]).
Galindo at 205.
Indeed, "[a] construction that would render a provision superfluous is to be avoided" (Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 587 [1998]. "We cannot impute to the lawmakers a futile and frivolous intent" (Matter of Rouss, 221 NY 81, 90 [1917]). Therefore, we "decline to read the amendment in such a way as to render some of its terms superfluous" and, as a consequence, hold it a legal nullity (Matter of OnBank & Trust Co., 90 N.Y.2d 725, 731 [1997]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 144 ["Statutes will not be construed as to render them ineffective"]
Galindo at 206.
The record reveals the assigned ADA made a diligent good faith, albeit unsuccessful effort, reasonable under the circumstances, to provide all material called for under CPL 245.20 when the December 12, 2022 CoC/SoR was filed. The ADA did not ignore, act irresponsibly or indifferently towards their disclosure obligations. The assigned ADA timely provided virtually all required material, conspicuously identified the missing items, and explained the efforts made to obtain them. The assigned ADA promptly responded to Defendant's inquiries, continued to take steps to obtain the information and, again, immediately delivered the information once in their possession. Defendant has not articulated a prejudice nor requested any available remedy under CPL 245.80 short of a request for an outright dismissal. Upon a showing of good cause, defendant may request leave from the trial court for additional time to prepare for trial, discretionary discovery pursuant to CPL 245.30(3), or any sanction under CPL 245.80 proportionate to the harm suffered by the belated delivery of this information and consistent with this opinion.
The Court finds that the original CoC/SoR dated, December 12, 2022, was filed in good faith. The Supplemental CoC/SoRs, filed on February 17, 2023, March 3, 2023, and May 24, 2023 along with the belated material, was a statutory requirement having no impact on the propriety of the original document nor the People's readiness. CPL 245.50(1), (1-a), CPL 245.60.
The People's CoC/SoR of December 12, 2022, is accepted.
Defendant's motion to strike the CoC/SoR is respectfully, denied.
Speedy Trial Time Calculation
The Court calculates that 90 days of chargeable time have accrued in the case. Defendant's motion to dismiss the instrument on speedy trial grounds is respectfully, denied.
Suppression of Evidence
The Court will overlook defendant's failure to make an application to suppress a timely noticed admission to the arresting officer within this motion sequence as required by CPL 255.20 and orders a Huntley hearing to be held prior to trial. People v. Huntley, 15 N.Y.2d 72, (1965).
Further Ordered
If not already filed, Defendant will file a Defense CoC, forthwith. CPL 245.10(2), CPL 245.20(4)(a). Defendant may request additional time to prepare for trial, discretionary discovery pursuant to CPL 245.30(3), or any sanction under CPL 245.80 proportionate to a demonstrated harm suffered by the belated delivery of this information consistent with this opinion.
Motions to reargue or reconsider will not be entertained without prior leave of Court at abattist@commat;nycourts.gov, and jchung@commat;nycourts.gov on three days' notice to counsel. Parties will submit a joint email framing the issues.
This constitutes the decision and order of the Court.