Opinion
Docket No. CR-006337-23KN
08-25-2023
The PEOPLE of the State of New York v. Jesus DORADO, Defendant.
People: Kings County District Attorney's Office by Trevor Stime, Esq. Defendant: Brooklyn Defender Services by Jeremy Gross, Esq.
People: Kings County District Attorney's Office by Trevor Stime, Esq.
Defendant: Brooklyn Defender Services by Jeremy Gross, Esq.
Dale Fong-Frederick, J. The defendant, Jesus Dorado, is charged with Driving While Under the Influence of Alcohol or Drugs ( VTL §§ 1192[1] ; 1192[2]; 1192[3]), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree ( VTL § 511[1][a] ), Unlicensed Operator ( VTL § 509[1] ), and Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03).
The defendant moves to renew his argument to invalidate the People's certificate of compliance (COC) and statement of readiness (SOR) filed on April 6, 2023. On May 31, 2023, the court (1) ruled that despite the People's failure to turn over underlying police disciplinary records, the COC and SOR were valid, and (2) directed the People to disclose the underlying disciplinary records within thirty days or the police witnesses would be precluded from testifying. Subsequently, on July 13, 2023, the Appellate Term, Second Department ruled that the failure to turn over underlying disciplinary records renders the COC and SOR invalid ( People v. Hamizane , 80 Misc.3d 7, 194 N.Y.S.3d 666 [App. Term 2d Dept.] ). The defendant's motion to renew based upon a change in the law, which may be made at any time prior to conviction and the imposition of sentence, is granted ( CPL § 1.20[15] ; see People v. Moquin , 77 N.Y.2d 449, 568 N.Y.S.2d 710, 570 N.E.2d 1059 [1991] ; Merchants Mut. Ins. Co. v. Arzillo , 98 A.D.2d 495, 472 N.Y.S.2d 97 [2d Dept. 1984] ; see also Dinallo v. DAL Electric , 60 A.D.3d 620, 874 N.Y.S.2d 246 [2d Dept. 2009] ), and the accusatory instrument is dismissed upon reconsideration.
The defendant was arraigned on February 22, 2023, when the instant accusatory instrument was filed. It is alleged that on February 21, 2023, the defendant was observed sitting in the driver's seat of a motor vehicle parked at a fire hydrant with the engine running, and he exhibited red watery eyes, had an odor of alcohol on his breath, and was unsteady on his feet. The defendant is alleged to have had a .138% blood alcohol concentration measured by chemical analysis of his breath. The accusatory instrument further alleges that the defendant's privilege to drive had been suspended for failure to pay child support and that he possessed seven plastic bags of cocaine in the motor vehicle at the time of his arrest.
The defendant argues that the Hamizane holding is binding authority that the trial courts of the Second Department must follow in finding that the People's COC and SOR are invalid when the People fail to provide all underlying disciplinary records in their initial disclosure pursuant to CPL § 245.20. This court agrees.
The People's reliance on People v. Johnson , 218 A.D.3d 1347, 194 N.Y.S.3d 859 (4th Dept. 2023), is misguided. The Johnson holding is from the Fourth Department and is not binding on the criminal courts of the Second Department in light of the conflicting determination reached by the Hamizane court in the Appellate Term, Second Department ( People v. Graham , 177 Misc.2d 542, 677 N.Y.S.2d 667 [App. Term 2d Dept. 1998] ). The Appellate Term of the Second Department is not bound by the decision of the Appellate Division of the Fourth Department. Absent a determination by the Court of Appeals, the criminal courts of the Second Department are bound to follow the determinations of the Appellate Term, Second Department when in conflict with the decisions of the Appellate Division of another department ( id. ).
In People v. Rodriguez , 77 Misc.3d 23, 182 N.Y.S.3d 481 (App. Term 1st Dept. 2022), the Appellate Term, First Department held that the underlying disciplinary records were required to be turned over to the defendant as part of automatic discovery. In People v. Johnson , 218 A.D.3d 1347, 194 N.Y.S.3d 859 (4th Dept. 2023), the Appellate Division, Fourth Department held that underly disciplinary records are not part of automatic discovery. The People do not address why Johnson would be binding but not Rodriguez , which was issued a year earlier than Johnson (see People v. Turner , 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] [controlling appellate law binds trial courts and is entitled to the respect of other appellate courts]; Mountain View Coach Lines, Inc. v. Storms , 102 A.D.2d 663, 476 N.Y.S.2d 918 [2d Dept. 1984] [Second Department trial courts are bound by the appellate decisions of other departments courts unless a contrary decision is issued by the Second Department or Court of Appeals). Under the rationale of Graham , 177 Misc.2d 542, 677 N.Y.S.2d 667, supra , the Rodriguez holding was binding upon the criminal courts of the Second Department until at least the conflicting holding by the Johnson court, and now certainly since the holding of Hamizane , which substantively conflicts with Johnson .
The People's argument that the Hamizane court did not require the disclosure of all disciplinary records is unpersuasive. The Hamizane court expressly adopted the reasoning that the People have a statutory duty to disclose all evidence and information that tends to impeach the credibility of a testifying prosecution witness, even if it is unrelated to the subject matter. It is beyond cavil that in an adversarial criminal proceeding the People cannot determine what evidence their adversary, the defendant, can use or how the evidence can be used. All underlying disciplinary records should be disclosed to the defendant. He can then conduct his own investigation and determine if he can use the allegations in the disciplinary records to attempt to impeach the prosecution witness. In this case, the People failed to provide the underlying disciplinary records for testifying officers, and accordingly, the COC and SOR filed on April 6, 2023, are invalid ( Hamizane, supra ).
The charges in the instant accusatory instrument require the People to be ready within ninety days of arraignment ( CPL § 30.30[1][b] ). There is no dispute that the defendant was arraigned on February 22, 2023. Since the COC and SOR were deemed invalid, the People are charged nine-eight days from the arraignment February 22, 2023, through May 31, 2023, when the COC and SOR were initially challenged.
Additionally, the People have never satisfied their discovery obligations under the ruling of Hamizane , as there remains outstanding underlying disciplinary records and, as such, have never validly announced ready. Therefore, the period from May 31, 2023, through the filing of the instant motion on August 18, 2023, are includable, and the People are charged seventy-nine days for this period. The People are charged for a total of one hundred and seventy-seven days.
Accordingly, the accusatory instrument is dismissed.
Were this accusatory instrument not dismissed, the People would be precluded from calling certain police witnesses to testify. On May 31, 2023, the People were ordered to turn over all disciplinary records for testifying police officers, regardless of the outcome of the investigation, within thirty days of the court order or the witnesses would be precluded from testifying. By August 15, 2023, the People still had neither complied with the May 31, 2023 court order nor requested an extension of time to comply with the court order directing disclosure. The People would have been precluded from calling PO Alleyne, PO Guele, and any other officer whose underlying disciplinary records were not provided by June 30, 2023.