Opinion
Docket No. CR-03478-23
04-05-2024
The People of the State of New York, v. Robert Harris, Defendant.
Westchester County District Attorney Mount Vernon branch Anthony Strazza, Esq. Attorney for Defendant
Unpublished Opinion
Westchester County District Attorney Mount Vernon branch
Anthony Strazza, Esq. Attorney for Defendant
HON. NICHELLE A. JOHNSON, CITY JUDGE
Defendant is charged by misdemeanor information with Criminal Possession of a Forged Instrument in the Third Degree (PL § 170.20).
By Decision and Order, dated January 16, 2024, the Court held defendant's motion to strike the People's Certificate of Compliance ("COC) and Statement of Readiness ("SOR") and dismissal of the accusatory instrument on speedy trial grounds in abeyance pending an in-camera review of the search warrant, warrant application, and supporting documentation relating to defendant's cell phone and vehicle.
Defendant was arraigned on August 21, 2023. The People filed their COC and SOR on November 17, 2023.
On this motion to strike the certificate of compliance, the defense argued that the People failed to provide all documents relating the search and seizure of the defendant's cell phone and motor vehicle, including, but not limited to, all search warrants, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant and a transcript of all testimony or other oral communications offered in support of the warrant application. The defendant argued that there were numerous discussions on and off the record regarding the People obtaining two separate search warrants, one for defendant's cell phone and one for defendant's vehicle. Defendant further argued that the People relied on the existence of these search warrants throughout the pendency of this case to explain why they were not returning defendant's cell phone and vehicle despite defense counsel's numerous requests. Accordingly, defense argued that the COC is invalid and the SOR is illusory as the People failed to comply with their discovery obligations under CPL § 245.10 and 245.20 (1)(n).
Defendant further contends that all the time since the filing of the COC should be charged to the People, and as such, the instant matter should be dismissed pursuant to CPL § 30.30 because the People have failed to be ready within the statutory time limit.
In opposition, the People asserted that they exercised due diligence and filed a COC in good faith. The People stated that they did not turn over any search warrant and related material because they do not pertain to the subject matter of this case. The People maintained that the search warrants pertained to a wholly separate investigation. Accordingly, the People argued that they were not required to disclose this search warrant when they filed their Certificate of Compliance.
By decision of the Court dated January 16, 2024, the Prosecution was ordered to turn over the search warrants and materials for an in-camera review. It should be noted the People filed only one (1) Affidavit in Support of a Search Warrant and Search Warrant Order with the Court on February 26, 2024, for the in camera review - not two 2 as discussed (allegedly the prosecution in defense of not giving the defendant his cell phone and car back, indicated that there was a cell phone search warrant and a vehicle search warrant). Specifically, the court never received a search warrant or any affidavits regarding the search of the Defendant's cell phone nor his vehicle "per se" but did receive a search warrant for the search and seizure of the "INFOTAINMENT SYSTEM FROM A WHITE DODGE DURANGO BEARING PENNSLYVANIA REGISTRATION LXH9803, LOCATED AT CITY LINE LOCATED AT 859 SOUTH 3RD AVENUE IN THE CITY OF MUNT VERNON, COUNTY OF WESTCHESTER STATE OF NEW YORK AND EQUIPMENT WITHIN THE VEHICLE". In this regard, the court in reviewing the materials noted that the search warrant materials did not pertain to the defendant's cell phone or vehicle "per se". However, within the search warrant order there is the ability to "enter and search the target vehicle for the above described property", and it was further ordered that "any cellular telephones and/or computers must be searched/forensically analyzed within a reasonable amount of time from the date of issuance". In this regard, the court notes this presents a somewhat imbroglio regarding whether there was a search of a cell phone, a vehicle or only an infotainment system. In any event, same does not make a difference to the analysis herein about whether the warrant materials are related to the subject matter of the case or whether the COC and SOR was illusory, or whether the prosecution has acted in good faith or has done their due diligence.
While there is no clear consensus on how to define what material "is related to the subject matter of the case" (CPL § 245.20 [1]), upon review of the warrant documents, the court finds that the documents it received - Affidavit of Search Warrant and Search Warrant Order are related to the subject matter of the instant case. Indeed, the court is of the opinion that the People could not in good faith argue that they are not related to the subject matter of the crime at bar. The search warrant affidavit references with particularity the facts of the present case, specifically how the officers found the alleged fraudulent stickers on the license plate on defendant's vehicle. Paragraph 45 of the search warrant affidavit signed by Detective Monge, provides that on
"August 20, 2023, at approximately 11:22am, your affiant and another Mount Vernon Police Officer were patrolling the area of Macquesten Parkway and Mount Vernon Avenue when they observed a white Dodge Durango, bearing Pennsylvania registration LKJ2004 at the traffic light. "At that time, Your Affiant observed the Pennsylvania Registration Tag on the Durango to be made up of stickers which were physically attached to the license plate itself, such that they were not a part of the actual, physical plate and therefore, appeared fraudulent."
Other paragraphs in this search warrant affidavit, paragraphs 46-51, also discuss the pertinent facts related to the subject matter of the crime and the ultimate arrest of the defendant for the charge herein. Accordingly, the court finds that the prosecution could not reasonably find or in good faith believe that the search warrant was unrelated to the present case. Therefore, the prosecution should have provided the search warrant affidavit and order in its automatic discovery to defendant. The affidavit for the search warrant was authored by Detective Monge, who is also the detective who arrested that defendant for the crime herein, and who is also listed as a potential witness on the COC at issue in this case. Additionally, the paragraph in question specifically discusses the circumstances and facts of the present crime the defendant is charged with - Criminal Possession of a Forged Instrument in the Third Degree, as well as the defendant's arrest.
In People v Thompson, 79 Misc.3d 1220 (A) [Crim Ct. Kings Co 2023], the People did not provide the search warrant and related material in their automatic discovery. They contended that the search warrant material pertained to a TPO and charges that were all dismissed, and therefore, the search warrant material did not relate to the subject matter of the current case. The court found that the TPO's were related and that the search warrant was material to the case. The court denied defendant's motion to invalidate the COC and SOR and dismiss the case upon a finding that the People did not provide the search warrant and related search warrant material on a good faith belief that it was not material and relevant.
In this case contrary to the Thompson case, this court finds that the prosecution did not have a good faith belief that the information was not material or relevant. This case can be distinguished from Thompson as failure to turn over these documents was not a minor oversight nor was or could there be a good faith position that the documents in question were not material or relevant so not discoverable. Again, in the case at bar the warrant materials specifically reference the defendant's car with stickers on the plate, the same allegations of the criminal charge herein. Additionally, the detective discussing same, Jorge Monge, is the detective noted on the COC in this case to be a possible witness. Additionally, another officer mentioned in the search warrant affidavit - Alphonse Piliero - is also on the witness list provided in the COC. Furthermore, the affidavit and search warrant order, while for a different criminal investigation, pertain to a crime that allegedly happened in or about the same time or close in time to the defendant's current charge herein, specifically involves the same officers, the same car, the same person and the same allegations of driving a car with a forged license plate.
In People v Rodriguez, 73 Misc.3d 411 [Sup Ct. Queens Co. 2021], the People failed to turn over a search warrant in automatic discovery, arguing they had a good faith belief that the search warrant did not pertain to the present case but to an unrelated homicide occurring near this attempted murder in time and proximity. The court found that since the People disclosed the search warrant material well after omnibus motion practice and even after they initially announce ready for trial, the appropriate sanction was to exclude all fruits of the search warrant from use as evidence at trial. This case can be distinguished from the case at bar as the people never turned over the search warrant materials. This court believes the search warrant materials here definitely pertained to the underlying crime at issue in that the matter being investigated and the crime the defendant is charged with were close in time, involved the same car, the same detective, and the same recognition of a "forged" license plate where the true license was covered with other numbers. In this regard, this court opines that striking of the COC and SOR as illusory is the appropriate remedy given these facts.
In People v Bay, 2023 NY LEXIS 1997 [2023], the Court of Appeals stated in pertinent part "Should a defendant bring a CPL § 30.30 motion to dismiss on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure (see People v Santos, 68 N.Y.2d 859, 861, 501 N.E.2d 19, 508 N.Y.S.2d 411 [1986], citing People v Berkowitz, 50 N.Y.2d 333, 349, 406 N.E.2d 783, 428 N.Y.S.2d 927 [1980]). If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and-so long as the time chargeable to the People exceeds the applicable CPL 30.30 period-the case dismissed."
Accordingly, in this matter, the Court finds that the COC and SOR must be deemed illusory. The court posits that the prosecution did not do its due diligence and that they have failed to establish its readiness within the statutory period. They had an obligation to turn over the search warrant affidavit and the search warrant order as these documents were material and relevant to the instant charged crime and relates to the subject matter of the case herein. The Court notes the following:
1) the search warrant affidavit and the search warrant order are dated September 7, 2023, which is before the COC was filed on November 17, 2023. Clearly, the prosecution had the search warrant materials in advance of their filing the COC. Therefore, they knew of and had possession of the materials but chose not to disclose them; and
2) the prosecution never turned over the search warrant materials, not even as a supplement to their COC of November 17, 2023; and
3) the detective who prepared the affidavit in support of the search warrant - Detective Jorge Monge - is also the officer listed as a potential witness to the crime charged herein; and
4) the search warrant was for a system within the Defendant's white Durango that is also the subject of the crime charged herein; and
5) the alleged crime the search warrant was being secured for was for an incident which allegedly happened on August 16, 2023, involving the Defendant's white Dodge Durango. The defendant was arrested and charged with the crime herein on August 20, 2023. Point being the crime herein is close in time with the incident of August 16, 2023 - so they are definitely related; and
6) the search warrant affidavit in paragraph 44 discusses how on August 20, 2023, the Westchester County Police Department RTC mentioned the Defendant's white Durango with Pennsylvania Registration LXH9803 was registered to Robert Lee Harris and was observed in Mount Vernon clearly discussing the defendant's car and this was the day the defendant was arrested and charged with the crime herein; and
7) the search warrant affidavit in paragraph 45 specifically references the crime at issue herein when it discusses that the Defendant's white dodge Durango bearing Pennsylvania Registration LKJ2004 was observed in the area of Macquesten Parkway and that he (Det. Monge) observed the Pennsylvania Registration Tag to be made up of stickers which were physically attached to the license plate itself and that they appeared fraudulent. This is the exact crime and the exact date when the Defendant was charged with the crime herein. This is material to and relevant to the instant case therefore should have been turned over; and
8) the search warrant in paragraphs 46-51 goes on to discuss all relevant facts associated with the stop and arrest of the defendant and significantly facts about how the license plate LKJ2004 was not registered and that when the stickers were removed the registration tag was a New York registration LXH9803. Clearly, all of these facts are material and relevant to the instant charge because they establish the charge herein; and
9) the unreasonable inaction on the part of the prosecution of turning over this information which was clearly related to the subject matter of the case herein and given there is no good faith basis upon which the prosecution could have opined that the information herein is not material or relevant to the crime charged herein. Perhaps the prosecution did not want the defendant to know that he was being investigated for another crime but that does not give them the right to abrogate their duty to comply with discovery as codified in section CPL §245.
SPEEDY TRIAL
Pursuant to CPL § 30.30(1)(b), the People in this case are required to be ready for trial within ninety (90) days of the commencement of the criminal action. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument (CPL §100.50; People v Lomax, 50 N.Y.2d 351[1980]; see also People v Stirrup, 91 N.Y.2d 434 [1998]). The actual date of filing is not includable in the calculation (People v Stiles, 70 N.Y.2d 765 [1987]. The burden is on the People to prove their entitlement to statutory speedy trial exclusions for pre-readiness delays (People v Luperon, 85 N.Y.2d 765 [1995]. CPL § 30.30(4)(c)(ii) provides that in computing the time within which the People must be ready for trial, the period of delay resulting from the failure of the defendant to appear when required after having been previously released on bail or his own recognizance, and provided that the defendant is not in custody on another matter, is excluded. Moreover, where adjournments are allowed at the defendant's request or with the defendant's consent, those periods of delay are expressly waived in calculating the People's trial readiness (People v Kopciowski, 68 N.Y.2d 615 [1986]).
CPL 30.30 (4) exclusions are still available in the pre-readiness context (People v LaClair, 188 NYS 3d 850 (citing People v Barden, 27 N.Y.3d 550, 553 [2016]; People v Cortes, 80 N.Y.2d 201[1992]; Matter of People ex rel. LaBrew v Vance, 192 A.D.3d 645, 645, [2021]; People v Cox, 161 A.D.3d 1100, 1101 [2018]). When a defendant or defense counsel requests or consents to an adjournment, that adjournment is excludable for speedy trial purposes (see CPL 30.30 [4] [b]).
In the case at bar, the People filed the original accusatory instrument, that being the misdemeanor information, with the Court on August 21, 2023, and as such, that is the date of the commencement of the action (CPL § 100.05; See People v Smietana, 98 N.Y.2d 336 (2002); People v Hauben, 12 Misc.3d 1172 A [Dist. Ct. Nassau 2006]; People v Griffen, 141 Misc.2d 627 [Crim Ct Queens Cty 1988]. The People maintain that as of November 17, 2023, 87 days are chargeable to the People.
The Court has reviewed the court file for adjournments in this matter:
August 21, 2023 - September 7, 2023 (17 days)
Defendant was arraigned on the accusatory and the matter was adjourned to September 7, 2023 for all purposes at the People's request. This period of 17 days is chargeable to the People.
September 7, 2023 - September 27, 2023 (20 days)
Defendant appeared. The matter was adjourned to September 27, 2023 for discovery at the People's request. This period of 20 days is chargeable to the People
September 27, 2023 - October 19, 2023 (22 days)
Defendant appeared. The matter was adjourned to October 19, 2023 for discovery at the People's request. This period of 22 days is chargeable to the People
October 19, 2023 - November 6, 2023 (13 days)
Defendant appeared. The matter was adjourned to November 6, 2023 for discovery. The People are charged with the adjournment through November 1, 2023. This period of 13 days is chargeable to the People.
November 6, 2023 - November 30, 2023 (24 days)
Defendant appeared. The matter was adjourned to November 30, 2023 for discovery. The People filed the Certificate of Compliance and Statement of Readiness off calendar on November 17, 2023. In failing to file a proper certificate of readiness, the People failed to stop the clock. Accordingly, this entire period of 24 days is chargeable to the People.
On November 30, 2023, the defendant filed the instant motion. Thereby stopping the speedy trial clock until the court rendered a decision.
A period of ninety-six (96) days is chargeable to the People.
The motion to dismiss on speedy trial grounds is granted.