Opinion
CR-014748-20BX
07-28-2021
The PEOPLE of the State of New York v. Robert FERRER, Defendant.
Assistant District Attorney Prodromos Tsenesidis, Bronx County District Attorney's Office (TsenesidisP@bronxda.nyc.gov) Brittany Ashton, Esq., The Bronx Defenders, for Defendant (brittanya@bronxdefenders.org)
Assistant District Attorney Prodromos Tsenesidis, Bronx County District Attorney's Office (TsenesidisP@bronxda.nyc.gov)
Brittany Ashton, Esq., The Bronx Defenders, for Defendant (brittanya@bronxdefenders.org)
Tara A. Collins, J.
The Court is called upon to determine the meaning of the People's obligation to "make a diligent, good faith effort" to discover impeachment materials against testifying police officers ( CPL § 245.20 [1] [k] [iv] ). In this case, the assistant district attorney assigned to the case ("assigned ADA") relied on the information that was provided to him by the Discovery Compliance Unit ("DCU") within his office. At the hearing held on June 16, 2021, the People demonstrated that the DCU was set up to act as the principal liaison between the Bronx County District Attorney's Office ("DA's Office") and various law enforcement agencies and the Civilian Complaint Review Board ("CCRB") to obtain and maintain officers’ disciplinary records on behalf of the DA's Office.
For the reasons stated below, the assigned ADA and the DA's Office established due diligence, good faith, and reasonableness of their actions under the circumstances. The Court rejects defense counsel's argument that the People have an affirmative obligation to produce the "underlying materials" from disciplinary proceedings in this case. Further, the People's "continuing duty to disclose" does not entail obtaining the testifying officers’ personnel records on a weekly basis as the defense suggests. The defendant's motion to dismiss based on invalid certificate of compliance ("COC") is DENIED . The Court finds eighty-six (86) days of chargeable time, and the defense's motion to dismiss based on speedy trial is also DENIED . The defendant's remaining motions are discussed at the end of the decision.
PROCEDURAL HISTORY
On July 20, 2020, Defendant Robert Ferrer was arrested for Driving While Intoxicated ( VTL § 1192 [3] ) and Driving While Ability Impaired ( VTL § 1192 [1] ). The complaint alleges that Police Officer Enzo Morello responded to the scene of a vehicle accident and observed the defendant to be laying on the ground next to the driver's side door of a 2003 Honda Accord. The Accord was on a public sidewalk. Its engine was running, and the headlights were on. The complaint further alleges that the vehicle had collided with a metal bar. The front part of the hood was dented inward and the windshield was cracked. According to the complaint, there were no passengers in the vehicle. The complaint alleges that the defendant admitted to being the vehicle's owner and driving for approximately 5 minutes before the accident. Officer Morello observed the defendant to have watery eyes, slurred speech and a strong odor of alcoholic beverage emanating from his breath. The defendant also appeared to be confused. Officer Enzo observed one red plastic cup in the vehicle's cupholder. It contained liquid that had the odor of an alcoholic beverage, according to the complaint. The defendant was transported to the precinct for chemical testing. He refused to submit to the test.
The defendant was given a Desk Appearance Ticket. He appeared in the Bronx County Criminal Court on November 23, 2020 and he was arraigned. The arraignment judge deemed the accusatory instrument to be an information and the case was adjourned for discovery and the People to file their initial COC. On the defendant's next court date, January 8, 2021, the People did not file a COC and the case was adjourned to March 22, 2021 for the same purpose.
The People filed and served a COC and a Statement of Readiness ("SOR") off-calendar on February 18, 2021. At this point, the People disclosed that New York City Police Department's Internal Affairs Bureau ("IAB") had substantiated two allegations against Officer Morello related to failing to safeguard his department-issued helmet. It is undisputed that the People furnished to defense counsel information about "the date of the investigation, the control number, the serial number, the IAB log number, the ICMT case number, where it was referred to, the allegations, whether they're substantiated, the overall disposition, the close date and the action taken" as well as an "IAB log summary" (tr at 7-8 [June 16, 2021]). A supplemental COC and a new SOR were filed on the following day, February 19, for other discoverable items that are not relevant to this motion. The validity of these COCs were challenged by the defense counsel on the record on March 22. The case was adjourned to April 14, 2021 for a COC hearing. The defense counsel filed her reciprocal COC on April 9, 2021.
On April 14, the assigned ADA stated that pursuant to a new office policy, he made additional disclosures about several unsubstantiated IAB and CCRB claims against Officer Brandon Roman. The assigned ADA provided "general information about these cases," which consisted of "the allegation, the IAB log number, the ICMS number, who it was referred to, the disposition, the allegations, the closing date" but did not include "any information regarding ... underlying facts" (tr at 18-19 [June 16, 2021]). The assigned ADA represented that these were not Brady /Giglio or impeachment materials required to be disclosed under CPL article 245.20, but that the disclosure was being made in "an abundance of caution" (tr at 4 [June 16, 2021]). He further claimed that he was not in actual possession of any of the underlying materials from CCRB and IAB. Based on these representations, the Court ruled, over defense counsel's objection, that the disclosure about the existence of these unsubstantiated claims was sufficient, and the People did not need to produce the underlying documents. The Court accepted the People's COCs and adjourned the case to June 16, 2021 for defense motions.
The defendant filed the instant motion on May 14, 2021, and the People filed their response on June 3, 2021. Prior to filing their response, the assigned ADA again made additional disclosures about Officer Roman on June 2, and filed and served a new COC and SOR. He stated that the officer's updated Central Personnel Index ("CPI") "revealed several new allegations which the People were not aware of when the People initially certified our compliance" (People's Supplemental COC, June 2, 2021). The new disclosure involved two substantiated findings against Officer Roman for marijuana found in his police vehicle. According to the assigned ADA, the DCU first learned about these complaints on February 11, 2021. Although this predated the People's COC on February 18, it was after the assigned ADA had received a response from the DCU on February 9, stating that there were no negative complaints against the officer. As such, the assigned ADA states that he was not aware about them when he filed his initial COC (People's Response, 9 n 2).
On June 11, 2021, the People made an additional disclosure of a pending CCRB investigation concerning seven different allegations. The People also filed and served another COC and SOR dated June 11. In total, the People's disclosures consist of the following incidents: (1) Two substantiated IAB findings against Officer Morello for "Missing Department Equipment — Other" and "Fail to Safeguard Dept Equipment — Other"; (2) Two substantiated findings against Officer Roman for "found property — in department vehicle — marijuana" and "fail to properly search — vehicle — department vehicle"; (3) Five unsubstantiated IAB findings against Officer Roman for "disputed summons — parking — copy of summons not issued," "other dept rule/procedures violations feels unsafe around s/o," "fail to take police action — on other incident," "force — physical force," "Fail to respond in a timely manner — to 911 job"; (4) One "truncated" CCRB complaint against Officer Roman for "Discourtesy" in which the complainant is uncooperative; and (5) one pending CCRB investigation against Officer Roman with seven charges.
The Court held a hearing virtually on June 16, 2021. At this hearing, the assigned ADA and an ADA from the DCU were present. The defendant and his counsel were present as well. Based on all of the written submissions by the parties, oral arguments at the hearing, information contained in the court file and electronic communications, the Court makes the following conclusions of law.
LEGAL ANALYSIS
I. Defendant's Motion to Deem the Prosecution's COCs as Invalid is Denied
a. The People Acted Diligently, in Good Faith, and Reasonably Under the Circumstances
Defense counsel moves for a ruling deeming the People's February COCs as invalid. She notes that as of February 11, the People were in actual possession of impeachment materials against Officer Roman — substantiated and unsubstantiated IAB complaints — regardless of whether the assigned ADA was aware of it. Defense counsel argues that the People's failure to disclose such information renders the February 18th COC invalid and the SOR illusory. The People oppose.
The People have an obligation to provide automatic discovery without a specific demand from the defense. This includes "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" ( CPL § 245.20 ). There is a "presumption in favor of disclosure" ( CPL § 245.20 [7] ). As relevant to the case at hand, the People must disclose "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: ... (iv) impeach the credibility of a testifying prosecution witness" ( CPL § 245.20 [1] [k] [iv] ). The discovery statute further provides that the People have a duty to make a "diligent, good faith effort to ascertain the existence of material or information," and they are deemed to be in possession of "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency" ( CPL § 245.20 [2] ). The obligation, however, is not limitless. For instance, there is no requirement for the prosecutor to find witnesses not known to the police or obtain by subpoena duces tecum any material or information not in their possession that the defendant may also obtain (id. ).
CPL § 245.55 (2) further mandates that, "upon request by the prosecution, each New York state and local law enforcement agency" must 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."
After discharging their initial discovery obligation, the People are required to certify their compliance by filing and serving a COC ( CPL § 245.50 [1] ). The People cannot answer ready for trial, absent an individualized finding of special circumstances, without the "proper" filing of a COC ( CPL § 245.50 [3] ). By tying the prosecutor's trial readiness to the certification of discovery compliance, the revised discovery statute brings the timeframe to make the determination about what constitutes admissible impeachment material required to be disclosed to the front end of a criminal case rather than immediately prior to the commencement of a trial. The consequence is that the court and, sometimes, even the parties themselves do not have a fulsome picture of how the disputed material fits into the case. Hence, the guiding principles when evaluating the validity of a COC must be good faith, due diligence, and reasonableness under the circumstances (see e.g. People v. Perez , 2021 NY Slip Op 21165, at *3 [Sup Ct, Queens County 2021] ["good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated"]; People v. Bruni , 2021 NY Slip Op 21076, at *3 [County Ct, Albany 2021] [when analyzing the validity of the People's COC, "[t]he importance of good faith efforts made by the prosecutor is emphasized, not the prosecutor's success in actually obtaining and disclosing discovery material"]; see also CPL § 245.50 [1] ["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"]). This requires the Court to consider, among other factors, (1) the nature of missing/delayed discovery, (2) prosecution's efforts to obtain it, (3) whether the information was in the People's possession; and if it was, the reasons for the non- or late-disclosure, and (4) the defense's ability to independently obtain the records, and weigh them against any prejudice to the defense.
Beginning with the first factor, it is questionable whether the materials in dispute are discoverable under CPL § 245.20 (1) (k) (iv). It is elementary that "[i]mpeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful" ( People v. Walker , 83 NY2d 455, 475-476 [1994] ). Impeachment information includes:
(i) benefits, promises, or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment resulting from mental or physical illness or substance abuse.
( People v. Samuel , 71 Misc 3d 1203 [A], at *4 [Sup Ct, Queens County 2021], citing New York State Unified Court System's Administrative Order of Disclosure; see also William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 ) [Note: online version]. Law enforcement witnesses must be treated in the same manner as any civilian witness ( People v. Smith , 27 NY3d 652, 659 [2016] ).
In this case, the IAB and CCRB complaints against Officer Roman are not related to this incident. The two substantiated IAB complaints are related to the marijuana found in the police vehicle after the officer failed to perform a proper search. The five unsubstantiated complaints vary from not issuing a parking ticket or failing to respond to a 911 job in a timely manner, to using physical force. These incidents, with the possible exception of unwarranted and unnecessary use of physical force, are infractions of the police department's rules and regulations and can hardly be characterized as a prior conviction or uncharged bad act that affects the witness’ credibility. They also do not show the witness’ motive to lie or bias against the defendant. The same goes for the truncated CCRB investigation for "discourtesy," for which the complainant no longer wishes to cooperate.
Further, even the unsubstantiated "use of force" allegation is not relevant to the case at hand. Here, police arrived at the scene of a vehicle accident and arrested the defendant for driving while intoxicated based on their observations at the scene. Defense counsel does not posit that Officer Roman threatened, coerced, or assaulted the defendant at any point during his interaction with him. Rather than bearing on the officer's credibility, these substantiated and unsubstantiated allegations, if introduced at trial, "would confuse the main issue and mislead the jury ... or create substantial danger of undue prejudice to one of the parties" (Smith, supra , at 660 [internal citation omitted]; see also People v. Fernandez , 249 AD2d 2, 5 [1st Dept 1998] ["where the impeachment information has no bearing on defendant's guilt or innocence, such as where the prosecution witness's misconduct is completely unrelated to the trial at which he is testifying and the witness's testimony is not crucial to the prosecution's case, its nondisclosure does not constitute a Brady violation"]). Therefore, the first prong weighs in favor of finding that the COC was properly filed in accordance with CPL article 245.50.
Even assuming, arguendo , that the disputed information was required to be disclosed when the People filed their initial COC, the Court finds that the People made good faith and diligent efforts to obtain it, and provided reasonable explanations for their late disclosure. At the hearing held on June 16, the People gave a detailed description of their discovery compliance process. In anticipation of the discovery reform that was set to become effective in 2020, the DCU was established to obtain and maintain law enforcement officers’ disciplinary records on behalf of the entire DA's Office. The DCU's database, which is also known as the Giglio database, is made up of approximately 25,000 folders labelled for each individual law enforcement officer. It is arranged by last name, first name and the officer's tax ID number. Each folder contains information that the DA's Office receives from various law enforcement agencies, CCRB, and New York City Corporation Counsel. Only the members of the DCU, which is made up of four assistant district attorneys and four trial preparation assistants, may access the database. The People explained that the number of people who can access the database was limited due to the sensitive and private nature of the information. It also helps to maintain the integrity of the information and ensure an easier flow of information from the law enforcement agencies to the DA's Office.
The process to obtain an officer's disciplinary records starts with an individual prosecutor making a formal inquiry to the DCU. The DCU, in turn, sends an e-mail to the law enforcement agency. The initial response from the New York City Police Department ("NYPD"), which employs Officer Roman, is typically in the form of a Central Personnel Index ("CPI"). The CPI contains the subject officer's personal and disciplinary information. For each disciplinary complaint, the CPI also gives a brief summary of the allegations and the final outcome. The DCU keeps information in its own records and then sends the CPI to the prosecutor who requested the information. The individual prosecutor is then responsible for combing through the CPI to ascertain whether they wish or need to request "underlying documents" from the NYPD.
Any updated information delivered to the DCU without request or based on requests from other ADAs goes into the folder.
The "underlying documents," as the term is used by the DA's Office, is a misnomer as it does not consist of original documents that were created as part of a particular disciplinary proceeding. Instead, it consists of IAB logs and specifications, which are, again, more detailed summaries about the allegations and the charges against the subject officer. Notably, although some complaints may be associated with an IAB number on the CPI, an "overwhelming majority" of these allegations are investigated at the precinct level, and not actually by IAB (tr at 36 [June 16, 2021]). This means that an IAB log may not exist. Moreover, if an incident was not investigated by IAB, relevant paperwork, if it exists, may be scattered at different precincts throughout New York City and even at a warehouse in New Jersey. To complicate matters further, a lot of these documents were not digitized prior to 2018. The DCU tries to keep the database as current as possible by requesting a new CPI for every officer in their system once every three months. NYPD will sometimes give an automatic update to the DCU using a computer program, but whose information gets updated is random and haphazard.
The decentralized ways in which some of these cases are adjudicated also means that the type of "underlying documents" that exist will necessarily vary from case to case.
The CCRB maintains a public database of NYPD misconduct allegations (CCRB, NYPD Member of Service Histories , https://www1.nyc.gov/site/ccrb/policy/MOS-records.page [last accessed June 30, 2021]). However, the People claim that the information is not always up-to-date or accurate, and they tend to be superficial, which necessitates the People to obtain more materials and information by contacting the CCRB directly. When the requests are made, CCRB's response can sometimes take months, according to the People. Also, although the CCRB sends an automatic update to the DA's Office once every few months, the information is often incomplete. According to the People, in March 2020, the DA's Office received CCRB reports for all active and retired NYPD officers in the Bronx. The next update came five months later in October 2020. It was followed by another update in February 2021. However, the February update was only for the NYPD officers who either had a new allegation or a resolved complaint since October 2020, and not a rerun of all of the officers on the CCRB's database. In May 2021, the DA's Office received another update. Again, this update was only for some of the officers, leaving the DA's Office without a wholesome picture of all the past and present allegations. Additionally, any automatic update from the CCRB is a summary and does not include "underlying documents."
In this case, the assigned ADA made an initial inquiry about Officer Roman to the DCU on February 2. The DCU responded to this inquiry on February 9 saying that there were no negative disciplinary proceedings against the officer. Unbeknownst to the assigned ADA, however, another prosecutor made a subsequent inquiry about Officer Roman. The DCU obtained an updated CPI on February 11, which showed the substantiated complaints in dispute.
With regards to the unsubstantiated complaints against Office Roman, it is unclear to the Court whether the assigned ADA or the DCU were in actual possession at the time of the filing of the initial COC on February 18. For purposes of this decision, though, it is sufficient to highlight that following the repeal of Civil Rights Law § 50-a in 2020, various law enforcement agencies, including the NYPD, brought a lawsuit to continue to keep the officers’ personnel records confidential. A temporary restraining order was issued as a result, which prevented public disclosure of unsubstantiated complaints (Priscilla DeGregory and Vincent Barone, Judge temporarily blocks release of some police, civil servant disciplinary records , NY Post, July 15, 2020). This restraining order was later adopted by a federal court ( Uniformed Fire Officers Assn. v. de Blasio , 973 F3d 41 [2d Cir 2020] ) and was in place until February 16, 2021 ( Uniformed Fire Officers Assn. v. de Blasio , 846 Fed Appx. 25 [2d Cir 2021] ).
It is undisputed that the CPI update and the expiration of the temporary restraining order preceded the February 18th COC by a few days. However, there is no reason to suspect that the assigned ADA and the DCU acted in bad faith or without due diligence. Here, the assigned ADA provided summary information concerning the officers’ disciplinary proceedings as soon as he learned about them, and then supplemented that with "underlying materials" as those materials came into their possession. As far as the Court can tell, none of the information has been lost or destroyed by the late disclosure and there is no concrete prejudice to the defense. Similarly, the DCU continued to obtain information and materials from the CCRB and the IAB despite the fact that their information was only a few days old.
The People must be allowed to pursue their discovery obligations as they see fit, and the Court is unpersuaded by the defense's argument that the People's decision not to ask their testifying witnesses if they had been a subject of disciplinary complaint makes their process less reasonable. The People explained that they chose not to adopt the questionnaire model, which is a practice that has been adopted by prosecutor's offices in other jurisdictions, because it is fraught with incomplete and inaccurate information (see e.g. Bruni, supra , at 914 [officers declining to answer questions about any existing impeachment materials]; People v. Rosario , 70 Misc 3d 753, 760 [County Ct, Albany County 2020] ["the responses to the questionnaires vary considerably, some prospective witnesses refuse to answer questions or invoke union protections, while others contain unintelligible or partial responses or candidly state that they do not know the answer to the question asked"]). The Court views the DA's Office's policy as not only reasonable, but commendable as well, especially in light of the decisions that hold that the People's obligation to investigate the disciplinary claim ends when the officer answers that he has no disciplinary complaints, regardless of its accuracy (In Matter of the Application of Certain Police Officers to Quash a So-Ordered Subpoena Duces Tecum, et al., 67 Misc 3d 458, 469-470 [County Ct, Westchester County 2020] ). By taking a more arduous route to obtain more complete and accurate information, the People are meeting their "affirmative obligation to ferret out and ascertain whether any material responsive to the dictates of [automatic discovery] exists" (People v. Castellanos , 2021 NY Slip Op 21126, at *4 [Sup Ct, Bronx County 2021]).
It must be emphasized that the new discovery framework is not meant to be a game of "gotcha" with the prosecution. The Legislature understood that the prosecution could not necessarily supply all discovery materials within the first set of timeframes for a variety of reasons — for example, discovery has not been created, discovery is not yet known to the prosecution, materials are so voluminous that it is not possible to turn it over in the prescribed time period or their relevance is not known. This is why there are additional benchmarks in the statute and supplemental COCs are permitted (see e.g. CPL §§ 245.10 [1] [b], 245.60 ). The Legislature also specified that "[n]o adverse consequences ... shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances" ( CPL § 245.50 [1] ). Thus, the court's inquiry in determining the validity of the COC is not whether discoverable items are missing, but whether the People have acted diligently, reasonably and in good faith (Perez, supra , at *3 [a certificate of compliance filed in good faith and reasonable under the circumstances fulfills the prerequisite for the People to assert a valid statement of readiness as required by CPL § 245.50 (3) ]). If they have, the question is no longer focused on whether the COC is valid, but whether what remedies or sanctions are appropriate under CPL § 245.80 to cure the prejudice to the defense caused by the late or missing discovery (see e.g. People v. Moore , 2021 NY Slip Op 21187, *3 [Sup Ct, Kings County 2021] [omission of DD5s was "an unintentional oversight" and "it does not demonstrate that the People acted in bad faith so as to warrant invalidating their certificate of compliance"]). If the Court were to adopt the defense's argument and overlook this statutory framework, it would result in a significant number of misdemeanor cases being dismissed against a 90-day speedy trial clock for technical or minor discovery violations ( People v. Banch , 80 NY2d 610, 616 [1992] ["[d]ismissal of the charges is an extreme sanction" which should not be invoked where less severe measures can rectify the harm done]). That could not have been the Legislature's intent.
Finally, as noted above, Civil Rights Law § 50-a has been repealed (2020 NY Senate-Assembly Bill S8496, A10611). Defense counsel is in possession of all of the necessary information to seek a subpoena or make Freedom of Information Law requests for the misconduct complaints at issue. Independent of any obligation the People may have, the defense counsel cannot sit idly by or she runs the risk of never having the information for hearings and trial to the potential detriment of her client. The People had provided more than sufficient information for defense counsel to obtain materials that she may deem relevant and necessary. Thus, having weighed the nature of missing/delayed discovery, prosecution's efforts to obtain it, the reason for the late disclosure of the information at issue and the defense's ability to independently obtain the records, against zero prejudice suffered by the defendant, the Court denies the defendant's motion to invalidate the February 18th COC.
The Court also rejects the defense's argument to deem the People's subsequent COCs filed in April and June as invalid based on their failure to review the officer's disciplinary records on a weekly basis. Once again, good faith and reasonableness under the circumstances must be the hallmarks in evaluating a COC's validity. The assigned ADA's caseload ranges from 60 to 100 cases at any given time (tr at 48 [June 16, 2021]). The case was not scheduled for a hearing or trial. There was nothing in the initial report that the assigned ADA received from the DCU that would have alerted him to obtain more information and documents. Under such circumstances, it would be unreasonably onerous to require him to continuously check with the DCU to see if there are any updates to the officer's personnel file. For the DCU, which already updates about a thousand profiles per week, it would be a herculean task to request and receive instant or weekly updates from various law enforcement agencies and alert individual prosecutors handling the matters involving that particular officer. Given the sensitive nature of the documents, which includes not only personal information, but also information and materials concerning pending, unsubstantiated, exonerated, or unfounded claims, it would be unreasonable to require or expect the DA's Office to share the information widely or instantly. Accordingly, this branch of the defendant's motion seeking to deem the People COCs and SORs from April and June is also denied.
b. The People Do Not Have an Obligation to Provide Underlying Materials
As a separate ground to deem the People's COCs as invalid, the defendant argues that the People are obligated to provide the underlying records from the substantiated and unsubstantiated misconduct allegations (see People v. Castellanos , 2021 NY Slip Op 21126 [Sup Ct, Bronx County 2021] ). Initially, defense counsel acknowledges that she has received the date of the investigation, the control number, the serial number, the IAB log number, the ICMT case number, the nature of allegations, the overall disposition, the close date and the IAB log summary. The defense argues, though, that what she has received is insufficient. She claims that CPL § 245.20 (2) imputes possession of all of the underlying NYPD materials to the People, and that their COC is invalid because they failed to turn over everything they "possessed." Although she does not specify the types of documents she seeks, they would presumably include, for example, any written materials that were created during the investigation into an allegation, the transcript of any disciplinary trial or hearing, any exhibits introduced at such trial or hearing, any factual findings and the final written opinion or memorandum supporting the disposition ( Public Officers Law § 86 [6] ).
In the absence of clear appellate authority, the issue of whether the "underlying materials" from the disciplinary proceedings must be disclosed in order for the People to fully discharge their automatic discovery obligations under CPL article 245.20 has bewildered many trial courts. For example, this Court held previously in People v. Davis that the People were not required to produce underlying materials from a partially substantiated complaint for "incomplete/inaccurate property clerk invoice" and other unrelated unsubstantiated complaints ( 70 Misc 3d 467, 476 [Crim Ct, Bronx County 2020] ). After examining the nature of allegations, their outcome and whether they had any bearing on the witness’ credibility, the Court ruled that they did not tend to impeach the witness’ credibility. Accordingly, the Court held that the People had more than fully discharged their obligations by providing information about them to the defendant so that he may obtain what he deemed to be relevant and necessary materials himself (id. ; see also People v. Perez , 2021 NY Slip Op 21165 [Sup Ct, Queens County 2021] ; People v. Akhlaq , 71 Misc 3d 823 [Sup Ct, Kings County 2021] ; People v. Cano , 71 Misc 3d 728, 737-738 [Sup Ct, Queens County 2020] ; People v. Knight , 69 Misc 3d 546 [Sup Ct, Kings County 2020] ; People v. Gonzalez , 68 Misc 3d 1213 [A], at *2 [Sup Ct, Kings County 2020]; People v. Altug , 70 Misc 3d 1218[A], at *2-3 [Crim Ct, NY County 2021] ; People v. Martini , 71 Misc 3d 1211[A] [County Ct, Erie County 2021] ).
On the other end of the spectrum, several courts have held that underlying materials from police misconduct investigations must be furnished to the defense (see e.g. Castellanos , supra ; People v. Perez , 71 Misc 3d 1214[A], at *5 [Crim Ct, Bronx County 2021] ; People v. Cooper , 71 Misc 3d 559 [County Ct, Erie County 2021] ; People v. Quinlan , 71 Misc 3d 266 [Crim Ct, Bronx County 2021] ; People v. Porter , 71 Misc 3d 187, 191 [Crim Ct, Bronx County 2020] ). Generally speaking, these decisions emphasize how the discovery statute deems "all items and information" within the law enforcement's custody to be within the prosecution's possession ( CPL § 245.20 [2] ). They rationalize that when considering this expansive and inclusive language, it is reasonable and natural to conclude that the "underlying materials" from the internal police investigations must also be discoverable, especially when coupled with the statutory presumption in favor of disclosure ( CPL § 245.20 [7] ). The defendant in this case urges the Court to adopt this holding.
The Court rejects the defendant's argument based on the reasoning in Perez . The Perez court found that "the People are not required to obtain and disclose all personnel records in the possession of the New York City Police Department, including IAB records" (id. at *5). It highlighted the wording of CPL § 245.20 (2), which provides that "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency" are deemed to be in the prosecutor's possession (id. [emphasis added]). The Perez Court held that the limiting language found in CPL § 245.20 (2) "circumscribes the People's discovery obligations" and that "[b]ecause they do not relate to the prosecution of the charge, police personnel records are not deemed, by the statute, to be in the People's control." (Perez, supra , at *5). The decision further provided, "[t]he Legislature quite easily could have created a provision that deemed all law enforcement materials and documents to be in the People's possession. Their decision not to do so evinces an intent that the People should not be imputed with the possession of certain materials" (id. [emphasis original]; see also In Matter of the Application of Certain Police Officers to Quash a So-Ordered Subpoena Duces Tecum, et al., supra , 469-470 [County Ct, Westchester County 2020] [reading CPL § 245.20 expansively to include all personnel records in the police department leads to "an unreasonable and excessive obligation" on the People]; People v. Gonzalez , 68 Misc 3d 1213 [A], at *2 [Sup Ct, Kings County 2020]).
In the Court's view, the holding in Perez is consistent with the Court of Appeals’ precedent that a prosecutor's " ‘duty to learn’ of favorable evidence known to those ‘acting on the government's behalf’ has generally been held to include information that directly relates to the prosecution or investigation of the defendant's case" ( People v. Garrett, 23 NY3d 878, 888 [2014] ). Moreover, it also reflects the reality that nobody — even the IAB or the CCRB themselves — knows for certain what materials exist, or if they do, their nature and content, given the decentralized manner in which many of the misconduct complaints are handled. In sum, the Court does not see — and defense counsel did not specify — the relevance or materiality of the IAB complaints to the issues at hand, especially given that they did not arise from this case. They also lack any bearing on the officer's credibility, bias or motive to lie.
Despite this, the assigned ADA in the instant case has repeatedly asked the DCU to provide more information and materials for the misconduct complaints at issue. The People have provided the defense with everything they possessed concerning the disciplinary proceedings in which misconduct allegations have been substantiated. They have also given defense counsel sufficient information regarding the unsubstantiated claims. Under these circumstances, the People have adequately fulfilled their discovery obligations.
The Court emphasizes that this decision does not abdicate the People from performing their statutory and constitutional obligations. Because each case presents a unique factual scenario, it would be difficult to draw a bright line rule about the underlying materials that applies to all cases. For instance, an officer's failure to safeguard a department-issued helmet may not have any impact on his credibility to a factfinder in a DWI case where the officer arrived at the scene of a vehicle accident following a 911 call. However, it may be relevant to the officer's credibility and job competence in a drug possession case where the chain of custody is at issue. In the latter situation, the prosecutor's duty to disclose may be expanded to include underlying materials even though both scenarios involve the same police misconduct. Thus, in order to appropriately discharge their continuing statutory and constitutional duty to make "diligent, good faith effort to ascertain the existence" of and obtain materials that tend to impeach their witnesses’ credibility ( CPL § 245.20 [2] ), the People would be well-advised to obtain and review the underlying documents in whatever form they are, lest there exist potential impeachment materials.
II. Defendant's Motion to Dismiss Pursuant to CPL § 30.30 is Denied
The People have a duty to bring a case to trial within the authorized speedy trial time. Their failure to do so results in dismissal of the charges against the defendant. Under CPL § 30.30, the People satisfy their obligation once they declare their readiness for trial ( People v. Giordano , 56 NY2d 524 [1982] ). The People are "ready" for trial when they serve "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" ( People v. Chavis , 91 NY2d 500, 505 [1998] ). The People must "in fact be ready to proceed at the time they declare readiness" (id. ). The People's declaration of readiness is "presumed truthful and accurate" and "a defendant who challenges such a statement must demonstrate that it is illusory" ( People v. Brown , 28 NY3d 392, 405 [2016] ).
In a motion to dismiss pursuant to CPL § 30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (See People v. Luperon , 85 NY2d 71, 77-78 [1995] ). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" ( id. at 78 ). If the defendant disagrees, she "must identify any legal or factual impediments to the use of these exclusions" (id. ).
In this case, the defendant is charged with a class A misdemeanor and the applicable speedy trial time is ninety days ( CPL § 30.30 [1] [b] ). The crux of the defense counsel's argument rests on the fact that the People's late or non-disclosure of discovery invalidates their COCs and SORs. Since the defense counsel's argument is rejected by the Court for the reasons stated above, the only chargeable period is from the defendant's arraignment on November 23, 2020 to the filing of the People's SOR off-calendar on February 18, 2021. The People concede that eighty-six (86) days are chargeable.
The period of delay from March 22 to April 14 is excludable as the case was adjourned for a COC hearing based on the defense's objection. Since April 14, 2021, the case has been adjourned for motions. This period is excludable ( CPL § 30.30 [4] [a] ; People v. Davis , 80 AD3d 494 [1st Dept 2011] ; People v. Douglas , 209 AD2d 161, 162 [1st Dept 1994] ).
Based on the foregoing reasons, the Courts finds that a total of eighty-six (86) days of includable time has lapsed. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30 (1) (b) is denied.
III. Remaining Motions
The defendant's request to preclude evidence of non-noticed statements and non-noticed police-arranged identification procedures for which proper notice pursuant to CPL § 710.30(1) has not been served is granted.
The defendant's motion to suppress the statement evidence is granted to the extent that a Huntley /Dunaway hearing is ordered.
The defendant's motion to suppress evidence of his refusal to submit to a chemical test is granted to the extent that a refusal hearing is ordered. His motion for a VTL § 1194 (2) (a) hearing is denied as he does not allege any facts to demonstrate that the refusal occurred outside of the deemed consent period.
The defendant's motion to suppress physical evidence is denied because the People do not intend to introduce any physical evidence in their direct case. His motion for an Ingle hearing is denied for failure to demonstrate that he was operating his motor vehicle at the time of a police stop.
The defendant's request to preclude evidence of prior convictions and bad acts by the defendant is reserved for the trial court. In addition, pursuant to CPL § 240.43, the People are directed to disclose to the defendant any specific instances of prior uncharged criminal, vicious, or immoral conduct that they are aware of and intend to use at the defendant's trial to impeach the defendant's credibility should he testify.
Defendant's request to reserve the right to submit additional pre-trial motions is denied subject to CPL § 255.20 (3).
This constitutes the decision of this Court.