Opinion
Indictment No. 72543-2023
03-06-2024
People of the State of New York v. Jaida Horton, Defendant.
For the defendant: The Legal Aid Society By: Titus Mathai, Esq. For the People: Kings County District Attorney's Office By: Gianna Del Grippo, Esq., Assistant District Attorney
Unpublished Opinion
For the defendant: The Legal Aid Society By: Titus Mathai, Esq.
For the People: Kings County District Attorney's Office By: Gianna Del Grippo, Esq., Assistant District Attorney
Hon. Joanne D. Quiñones, J.S.C.
The defendant is charged in the instant indictment with Robbery in the Second Degree and other related charges in connection with an incident alleged to have occurred on April 16, 2023. By motion filed on December 5, 2023, the defendant moves to challenge the People's certificate of compliance (COC) pursuant to Criminal Procedure Law (CPL) section 245.50(1). The People served and filed opposition on January 9, 2024. The defendant served and filed reply papers on January 23, 2024.
NY St Cts Elec Filing (NYSCEF) Electronic Document Delivery System (EDDS) Doc ID YFTDVQ.
NYSCEF EDDS Doc ID A7VI9Z. Pursuant to the briefing schedule set forth on the record on December 12, 2023, the People's response was due on December 29, 2023.
NYSCEF EDDS Doc ID NTJYRL.
The People served a COC and statement of readiness (SOR) on September 17, 2023. The defendant now challenges the COC on the ground that the People failed to provide the following discoverable materials as of December 5, 2023: (a) EMS report; (b) grand jury synopsis sheet; (c) documentation relating to count 11, including grand jury testimony and/or exhibits; (d) photos of the complainant's injuries; (e) Criminal Court complaints for co-defendants; (f) DD5s and attachments; (g) all paperwork for Police Officers Juan Otero and Diana Selitto; and (h) Giglio material. Defense counsel submits that he notified the People via email of the missing discovery on October 29, 2023. Although the defense references exhibits, none are attached to the original moving papers.
In opposition, the People assert that they filed the COC in good faith after exercising due diligence. The People contend that they have "turned over substantial discovery with their [COC]" and the "fact that the People failed to obtain and disclose a few items of discoverable material should not vitiate the People's due diligent, good faith efforts" (People's Memo of Law at 16-17). They submit that the complexity of this case - a three defendant case - should be considered in assessing their due diligence. Moreover, upon notification of missing items from defense counsel, the People contend that they "expeditiously requested the materials on October 30, 2023" (id. at 16).
In reply, the defense highlights that the People's lack of diligent, good faith efforts to provide discoverable material is evident based upon a review of "the belated, incomplete, and/or nondisclosure of the following items: memobook notes, EMS records, Giglio disclosures, and accusatory instruments filed against other defendants relating to the same subject matter" (Reply Aff ¶ 4). Moreover, the defense notes that on or about January 19, 2024, the People filed a supplemental COC which fails to detail the basis for the delayed disclosure.
DISCUSSION
CPL section 245.20(1) requires the People to disclose to the defendant "all items and information that relate to the subject matter of the case," that are within or under the People's "possession, custody, or control including but not limited to," the items listed in CPL section 245.20(1)(a)-(u). The People are required to "make a diligent, good faith effort to ascertain the existence of material or information discoverable" (CPL § 245.20[2]). "[A]ll 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 shall be deemed to be in the possession of the prosecution" (CPL § 245.20[2]). CPL section 245.55 directs the People to maintain a "flow of information" with law enforcement personnel to ensure that the People obtain "all material and information pertinent to the defendant and the offense or offenses charged."
Once the People have complied with the mandates of CPL section 245.20, the People are required to serve and file a COC (CPL § 245.50). The COC shall identify the items provided, and 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" (CPL § 245.50[1]).
The filing of a "proper" certificate of compliance is a prerequisite to the People being deemed ready for trial (CPL § 245.50[3]; see People v Berkowitz, 68 Misc.3d 1222 [A] [Crim Ct, Kings County 2020]; People v Lobato, 66 Misc.3d 1230 [A], *4 [Crim Ct, Kings County 2020]). Thus, a statement of readiness (SOR) "must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of" CPL section 245.20 (CPL § 30.30[5]).
Where the defense is aware of a potential defect or deficiency related to a COC, counsel must "notify or alert the opposing party as soon as practicable" of the defect (CPL § 245.50[4][b]). The statute further requires that a motion challenging a COC be made "as soon as practicable" (CPL § 245.50[4][c]).
The People have a continuing duty to disclose and must file a supplemental COC when additional material is provided after a COC is filed (see CPL §§ 245.50[1], 245.60; People v Bay, - N.E.3d -, 2023 NY Slip Op 06407, 4 [2023]). A supplemental COC must "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" (CPL § 245.50[1-a]; see Bay, 2023 NY Slip Op 06407, *5).
Although belated disclosures alone do not necessarily invalidate a COC, the COC must be made in good faith, and after the exercise of due diligence to obtain discovery materials in the first instance (CPL § 245.50[1]; see Bay, 2023 NY Slip Op 06407, 6; People v Gonzalez, 68 Misc.3d 1213 [A] [Sup Ct, Kings County 2020]; People v Erby, 68 Misc.3d 625 [Sup Ct, Bronx County 2020]; People v Lanfair, 78 Misc.3d 371, 373 [Crim Ct, Albany County 2023]). CPL article 245 "does not require or anticipate a 'perfect prosecutor'" (Bay, 2023 NY Slip Op 06407, *6). However, "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" (id. at *7 [emphasis added]). Due diligence is determined by, among other relevant factors,
the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery(id. at *6). "[P]ost-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed" (id. [emphasis added]).
Under this framework, the court now addresses the items the defendant purports are missing or belatedly disclosed.
FDNY EMS Report
In this case, the People turned over an aided report from Officer Armstrong which states, "AIDED FEMALE COMPLAINED ABOUT SWELLING TO RIGHT SIDE OF FACE & MINOR LACERATION TO HER LEFT ELBOW. EMS KIM SHIELD No. 7825 BUS 38C ACR 3416. AIDED RMA" (Reply Exhibit A; see Defense Aff ¶ 8). Based upon Officer Armstrong's aided report, the defense alleges that the prosecution never disclosed a report from the New York City Fire Department's Bureau of Emergency Medical Services (EMS).
The People concede that EMS records were not provided to defense counsel. They submit that the "civilian witness did refuse medical treatment, so the People are still waiting on confirmation that such records even exist" (see People's Memo of Law at 17; People's Aff ¶ 6). The People further argue that EMTs are not law enforcement personnel, thus, the People are required to issue a subpoena for any relevant material. As a result, pursuant to CPL section 245.20(2), the People maintain that they are not required to obtain the records which the defendant himself may obtain by subpoena. In any event, the People contend that they demonstrated due diligence in obtaining EMS records by issuing a subpoena. However, despite these purported diligent efforts, the People assert that the EMS records were not in the People's actual possession at the time they filed their COC. The People submit that they will turn over EMS records, if any, "promptly upon receipt" (People's Aff ¶ 6).
In support of their respective positions, both the People and the defendant cite to the Appellate Term, Second Department's decision in People v Rahman (79 Misc.3d 129 [A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], lv denied 40 N.Y.3d 1040 [2023]). In Rahman, the Appellate Term, Second Department affirmed the lower court's decision which deemed the People's COC invalid. The court found that, where the record was clear that the People did not make any attempts to obtain the FDNY/EMS records until 47 days after they had filed their COC, the People failed to "exercis[e] due diligence and mak[e] reasonable inquiries to ascertain the existence of" the FDNY/EMS records and, thus, their COC was not filed in good faith (Rahman, 79 Misc.3d 129[A], *2-3). A significant fact in the Rahman case was that the complainant went to the local precinct and NYPD called for EMS to treat the complainant for injuries rendering the EMS records discoverable as "records... made by or at the request or direction of a public servant engaged in law enforcement activity" (id. at *1-2; see CPL § 245.20[1][j]).
The People, relying upon Rahman, argue that CPL section 245.20(1)(j) only requires disclosure where records are made by or at the direction of persons engaged in law enforcement activity (People's Memo of Law at 18-19). However, despite the People's position, the plain language of the statute is much broader than they contend. CPL section 245.20(1)(j) states, in relevant part, that the prosecution must disclose
all reports, documents, records, data... 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...(emphasis added).
In other words, disclosure is mandated if the records (1) were made at the request or direction of a person engaged in law enforcement activity, (2) were made by a prosecution witness, or (3) are intended to be used at trial or a pre-trial hearing (see People v Sylvestre, 200 N.Y.S.3d 891, 899 [Crim Ct, Kings County 2023] [statute holds that EMS reports are automatically discoverable in any of three circumstances]). In light of the statutory presumption in favor of disclosure (CPL § 245.20[7]), the People bear the burden of establishing that none of the three circumstances apply and thus, the EMS records are not automatically discoverable (see Sylvestre, 200 N.Y.S.3d 899 ["As the People are in the better position than the Defendant to know if any of these circumstances apply, the People have the burden of proof here"]). As discussed below, the People have failed to set forth sufficient detail for this court to make a determination as to whether the EMS records at issue here fall outside the scope of CPL section 245.20(1)(j).
As an initial matter, EMS is not a "law enforcement agency" within the meaning of the CPL section 245.20(2) (see People v Carter, 76 Misc.3d 1206 [A], *5-6 [Crim Ct, Kings County 2022] ["absent certain limited circumstances... EMS personnel do not act in a law enforcement capacity, and... any medical records they maintain, are therefore, not under the control of the People"]). Nevertheless, where an item of discovery falls within the purview of CPL section 245.20(1) and said item is not within the actual possession of the prosecution, the People maintain a duty to "make a diligent, good faith effort to ascertain the existence of material or information discoverable" and "to cause such material or information to be made available for discovery where it exists" (CPL § 245.20[2]; see Rahman, 79 Misc.3d 129[A], *2 [People had obligation to make diligent, good faith effort to cause EMS records to be made available for discovery even if such records were not in People's actual possession]; People v Ajunwa, 75 Misc.3d 1220 [A], *3-4 [Crim Ct, Bronx County 2022] [the People must show diligent, good faith effort to cause ambulance call report to become available for discovery before filing COC]; cf. People v Garcia, 80 Misc.3d 1020, 1022 [Crim Ct, Kings County 2023] [People not required to disclose defendant's own EMS records which defendant may obtain himself]).
If, for example, "a public servant engaged in law enforcement activity" requested EMS, then the records fall within the ambit of the People's mandatory disclosure obligations (see CPL § 245.20[1][j]; Rahman, 79 Misc.3d 129[A], *2). The People assert, without any further detail, "law enforcement did not call 911 on behalf of the victim; rather, the civilian witness refused treatment" (People's Memo of Law at 19). It is unclear from the motion papers who called EMS to the scene for the complainant's benefit.
Analogously, the court in People v Carrasco, an assault case, found that where "officers were on scene immediately after a significant fight between some individuals, and while they were on scene the complainant was removed to the hospital[, i]t is reasonable to think that the police may have been involved in the complainant's medical attention" (81 Misc.3d 1226[A], *2 [Crim Ct, Queens County 2024]). The Carrasco court determined that in such circumstances, with respect to the complainant's medical records, the People "cannot categorically disclaim doing anything simply because potentially discoverable material is not within their possession, custody, or control" but instead have a "duty to determine the answer to that question before filing their certificate" (id.).
Here, the People's insistence that EMS was not called to the scene by law enforcement is not supported by any factual details or other corroborating documents. Without more, the court cannot accept the People's claim at face value considering that the arresting officer, Officer Armstrong, prepared an aided report which specifically notes that EMS was on the scene. There is insufficient information for this court to decipher whether EMS was summoned by a bystander or the complainant, or whether law enforcement radioed for EMS assistance upon their arrival on the scene. Thus, like in Carrasco, the People were required to ascertain the existence and relevancy of the EMS records.
Second, the records may be discoverable if they were made by a prosecution witness or if the prosecution intends to use these records at trial or at a pre-trial hearing (CPL § 245.20[1][j]). The instant indictment charges the defendant with Robbery in the Second Degree (count two), Assault in the Second Degree (count eight), and Assault in the Third Degree (count nine). Each of these offenses requires the prosecution to prove physical injury (see Penal Law [PL] §§ 160.10[2][a], 120.05[6], 120.00[1]). Thus, EMS records related to the complainant, insofar as they exist, may also be discoverable as documents "which the prosecution intends to introduce at trial or a pre-trial hearing" to prove physical injury or documents which were made by a prosecution witness (CPL § 245.20[1][j]).
Furthermore, the People failed to detail any efforts taken prior to filing their COC to ascertain the existence of the EMS records and to cause such materials to be in their possession (see People v Figueroa, 76 Misc.3d 888, 893 [Crim Ct, Bronx County 2022] ["Where FDNY records related to a case are reasonably likely to exist, the People must make a 'diligent, good faith effort' to ascertain their existence and 'cause' them to be made available for discovery before filing their COC"]). The People allege that due diligence was exercised and point to a subpoena that the prosecution served upon FDNY. However, by the People's own proof, a subpoena was submitted to FDNY on December 21, 2023, approximately three months after their COC was filed, approximately two months after defense counsel first notified the People of the discovery deficiency, and more than two weeks after being served with a copy of the instant motion challenging the COC (see People's Memo of Law at 20).
Insofar as the People rely upon the holding in Garcia (80 Misc.3d at 1022) for the proposition that the EMS records are not automatically discoverable, their reliance on that decision is misplaced. The Garcia court held that the People satisfied their disclosure obligations where the defendant was provided "with the FDNY/EMS incident number and the FDNY EBF-4 Report which identifies all the FDNY personnel who were involved" (80 Misc.3d at 1022). However, a significant distinction between the facts of Garcia and those presented here and in Rahman are that the EMS records sought in Garcia were the defendant's own medical records and not the complainant's. It is axiomatic that a defendant may obtain a copy of his own medical records, with or without a subpoena, and thus the People need not supply those (see People v Dalrymple, 81 Misc.3d 1239 [A], *6 [Sup Ct, Queens County 2024] [the defendant's own medical records are not required discovery material]; People v Askin, 68 Misc.3d 372, 382 [Nassau County Ct 2020] [the defendant's medical records can be obtained by the defense]). Moreover, in Garcia, it was clearly established that EMS was not summoned by law enforcement, but rather by a bystander who called 911 to report the incident.
Finally, the People's reliance on CPL section 245.20(2), which states that "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain," is misplaced if the records fall under CPL section 245.20(1)(j). In such case, the People are "required to make a diligent, good faith effort to ascertain the existence of the FDNY/EMS records and to cause the records to be made available for discovery even if the records were not in the People's possession, custody, or control" (Rahman, 79 Misc.3d 129[A], *2 [internal quotation marks omitted]).
Accordingly, the People fell short of their statutorily imposed obligation to act with due diligence with respect to EMS records. To the extent that these records exist and fall within the purview of CPL section 245.20(1)(j), the People shall disclose the same to defense counsel upon receipt and file a proper supplemental COC.
Grand Jury Synopsis Sheet
With respect to the grand jury synopsis sheet, the People concede that they first disclosed this information to defense counsel on January 9, 2024 (see People's Aff ¶ 7). Notwithstanding, they contend that it "does not contain any new information that the defense has not already been made privy to from the previous disclosure of the screening sheet, and notices" (id.). In reply, the defense notes that the prosecution provided no explanation for their belated disclosure especially considering that "this document was prepared long ago and within the control and possession of the prosecution" (see Reply Aff ¶ 6).
CPL section 245.20(1)(e) governs disclosure of statements made by a prosecution witness and is essentially a codification of the Rosario rule (see People v Rosario, 9 N.Y.2d 286 [1961] [the defendant has a right to obtain and inspect statements of prosecution witnesses]). The statute requires that the prosecution disclose to the defendant:
[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports. This provision also includes statements, written or recorded or summarized in any writing or recording, by persons to be called as witnesses at pre-trial hearings(CPL § 245.20[1][e]).
As it relates to grand jury synopsis sheets, courts have found that at times they contain merely factual details of the crimes while others set out statements from prosecution witnesses (compare People v Adger, 75 N.Y.2d 723, 726 [1989] [grand jury synopsis sheet contained statements from prosecution witness and should have been provided unless protected on some other ground], and People v Clark, 225 A.D.2d 559, 559 [2d Dept 1996] [grand jury synopsis sheet which contained factual details of the crime and statements attributable to two prosecution witnesses should have been produced], with People v Williams, 128 A.D.2d 912, 912 [2d Dept 1987] [grand jury synopsis sheet did not contain an abbreviated summary of an interview with any of the People's witnesses and thus, did not constitute Rosario material]). Here, the People do not allege that the information contained in the grand jury synopsis sheet is not relevant or argue against its disclosure. By stating that defense counsel was already made privy to the information through "notices" among other disclosures, the People in effect concede that the grand jury synopsis sheet falls within the ambit of CPL section 245.20(1)(e).
Insofar as the People contend that this document is cumulative of other discovery shared with the defendant, the court notes that there is no statutory provision authorizing the People to belatedly turn over discovery or withhold relevant, discoverable information merely because a similar statement or summary thereof was disclosed in another document (see generally People v Cartagena, 76 Misc.3d 1214 [A] [Crim Ct, Kings County 2022], quoting Ajunwa, 75 Misc.3d 1220[A], *4 [" 'It is not the People's decision to look at two entirely different [items] and decide that they believe one contains information 'duplicative' of the other and so need not be disclosed"]). Nor are the People permitted to determine compliance with their statutory disclosure obligations based upon what they deem material to the defense's case (see generally People v Best, 76 Misc.3d 1210 [A], *5 [Crim Ct, Queens County 2022] [CPL article 245 "was designed to remove the discretion of the parties in determining what and how much discovery to turn over or to provide a statutory mechanism by way of a protective order when a party wishes to withhold discovery"]; People v Payne, 75 Misc.3d 1224 [A] [Crim Ct, Bronx County 2022] ["The People have no authority to make judgments about" and unilaterally withhold information in their case file upon their own "opinion that material would not be useful for the defense's investigation or relevant to proving guilt at trial"]; People v Salters, 72 Misc.3d 1219 [A] [Nassau Dist Ct 2021] ["It is not for the People to decide, in the first instance, if a particular item... might be admissible or might impeach a witness. The clear scope of the statute removes that discretion from the People"]; People v Goggins, 76 Misc.3d 898, 903 [Crim Ct, Bronx County 2022] ["The People cannot validly certify compliance with their discovery obligations when they withhold information 'claimed to be nondiscoverable' without seeking a protective order"]).
The import of prior statements was aptly described by the Court of Appeals as follows,
A pretrial statement of a witness for the prosecution is valuable not just as a source of contradictions with which to confront him and discredit his trial testimony. Even statements seemingly in harmony with such testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness' bias, for instance, or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor. Shades of meaning, stress, additions or omissions may be found which will place the witness' answers upon direct examination in an entirely different light(Rosario, 9 N.Y.2d at 289; see also People v Jones, 70 N.Y.2d 547, 552 [1987] [not even "a judge's impartial determination as to what portions may be useful to the defense, [can] substitute for the single-minded devotion of counsel for the accused"]).
Here, the People have neither demonstrated any efforts to provide the grand jury synopsis sheet prior to their September 2023 COC, nor set forth any explanation for their three-and-a-half-month belated disclosure. For these reasons, the People have failed to exercise due diligence with respect to the grand jury synopsis sheet.
Documentation Relating to Count 11
Under count 11 of the instant indictment, the defendant is charged with Endangering the Welfare of a Child (PL § 260.01[1]). In defense counsel's October 29, 2023 email to the assigned ADA, counsel details this discovery deficiency as "DOCUMENTATION RELATING TO Count 11 (EWC for [Subject Child]) Including GJ testimony and/or exhibits" (see People's Aff ¶ 5; see also Defense Aff ¶ 8). The People contend that grand jury minutes and exhibits were provided to defense counsel on September 16, 2023, which includes the testimony supporting this charge and all related grand jury exhibits (id. ¶ 8). In reply, the defense contends that "[a]side from the grand jury testimony from a police officer regarding the name and age of this person, the prosecution has not disclosed any documentation that reflects their investigation into the charges regarding this minor" (Reply Aff ¶ 7).
As relevant here, a person endangers the welfare of a child when "she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old" (PL § 260.01[1]; see PL § 15.05[2] ["A person acts knowingly with respect to conduct or to a circumstance... when he is aware that his conduct is of such nature or that such circumstance exists"]; People v Hitchcock, 98 N.Y.2d 586, 591 [2002] [The People must establish that harm to the child "was likely to occur, and not merely possible"]; People v Johnson, 95 N.Y.2d 368, 371 [2000] [It is sufficient that a defendant is aware that the conduct may likely result in harm to a child, but actual harm to the child is not required]). The indictment charges the defendant with endangering the welfare of the subject child on April 16, 2023, the same date as all the other charged offenses. The Criminal Court complaint further alleges that on this date, the defendant and her co-defendants punched and kicked the complainant about the face and body, forcibly grabbed the complainant's phone, and displayed a firearm. It also alleges that a loaded firearm was recovered from underneath a baby stroller that was being wheeled by the defendant carrying the subject child. An excerpt of the grand jury testimony indicates that the subject child, approximately one and a half years old, was present in the stroller during the arrest (see People's Aff ¶ 8).
A copy of the COC indicates that the grand jury minutes and exhibits along with the Criminal Court complaint were provided to defense counsel prior to the filing of the COC, which set forth the basis for the Endangering the Welfare of a Child offense. The grand jury minutes were reviewed by another Justice of this court and found legally sufficient by order dated August 21, 2023. Although the defense claims that "the prosecution's response to this issue misses the point," the defense provided no other information as to what "documentation" is purportedly missing. As such, the People complied with their discovery obligation in this regard.
Photos of Complainant's Injuries
The defense contends that the People failed to provide photos of the complainant's injuries that are referenced in the People's Early Case Assessment Bureau (ECAB) sheet notes. The People contend that they have made diligent efforts to obtain photos of the complainant's injuries, to the extent that any exist, but that there are none in the People's actual possession. The People further assert that they have contacted the arresting officer, Police Officer Armstrong, and other NYPD personnel to comply with their discovery obligations. In reply, the defense argues that "[t]he prosecution's response demonstrates its lack of due diligence insofar as it does not address the seemingly conflicting information noted in the ECAB screening sheet - namely, that photos of injuries were taken" (Reply Aff ¶ 8).
As proof of their attempt to comply, the People attached correspondence between a paralegal at the Kings County District Attorney's Office (KCDA paralegal) and the assigned ADA. The assigned ADA first contacted the KCDA paralegal on October 30, 2023, asking her to follow-up on defense counsel's request for missing discovery. On October 31, 2023, the KCDA paralegal responded, in relevant part, "Arresting Officer Armstrong is out on leave and might be resigning - I left him a voicemail in hopes of getting photos so I will follow up on that" (see People's Aff ¶ 9). Then, on or about January 9, 2024, the KCDA paralegal stated, "I still have not been able to reach the [Arresting Officer] for the [complainant's] injury photos" (id.).
CPL section 245.20(1)(h) requires the prosecution to disclose "[a]ll photographs and drawings made or completed by 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 relate to the subject matter of the case." Here, the complaint room screening sheet prepared on or about April 17, 2023, by the Kings County District Attorney's Office's Early Case Assessment Bureau, describes the complainant's injuries as "pain, swelling, and a laceration about the face and body" and indicates "photo taken" (Reply Exhibit B, ECAB Sheet at 2). It is without question that photographs of the complainant's injuries relate to the subject matter of this case and are clearly discoverable. Further, based on the screening sheet, the People were aware of the existence of at least one photo of the complainant's injuries since April 17, 2023, one day prior to the defendant's arraignment, five months prior to the filing of their COC, and approximately eight months prior to the instant motion.
With respect to due diligence, the People offer no explanation as to why the photos were not disclosed to the defense prior to or at the time the COC was filed. Their claim of diligence on the basis that they "reach[ed] out to the Arresting Officer Armstrong and other members of the NYPD" and their assertion that no photos are in the People's possession are unavailing for a couple of reasons (People's Aff ¶ 9). First, the People are deemed to have constructive possession of any discoverable material in possession of the police (see CPL § 245.20[2] ["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 shall be deemed to be in the possession of the prosecution"]). Second, the People have not stated any attempt on their part to obtain photos of the complainant's injuries prior to filing their COC. The People's own file and discovery indicates that the Early Case Assessment Bureau knew of the photos prior to the filing of the Criminal Court complaint and prior to the defendant's arraignment (see Reply Exhibit B). Yet, the People made no attempt to ascertain the existence of any photos regarding the complainant's injuries until on or about October 30, 2023, after the defense notified the People of this deficiency. Contacting the arresting officer for the first time a month and a half after the COC was filed does not amount to due diligence, especially where, as here, the missing discovery was known to the prosecution prior to the filing of the Criminal Court complaint (see People v Pierna, 74 Misc.3d 1072, 1092-1093 [Crim Ct, Bronx County 2022] [People failed to exercise due diligence to obtain photographs of injuries sustained "in the absence of any explanation by the People as to whether any efforts were made"]; People v Ramirez, 73 Misc.3d 664, 666-668 [Crim Ct, NY County 2021] [People's failure to determine whether the photographs taken on the scene by police officers existed and, if so, to produce them to defendant prior to filing the COC, rendered the COC invalid]). Here, the People have failed to show the requisite good faith and due diligence in securing the photos of the complainant's injuries prior to filing their COC.
Criminal Court Complaints for Co-Defendants
The instant 11-count indictment charges three defendants under an acting in concert theory. The defendant contends that as of December 5, 2023, when this motion was filed, she had not received the Criminal Court complaints for the two co-defendants. The People respond that they are not required to disclose the co-defendants' Criminal Court complaints because such documents are public records and available in the court file for defense counsel's inspection. The People ultimately provided the co-defendants' Criminal Court complaints on January 9, 2024.
A review of the court file reflects that the defendant and her co-defendants were arraigned on separate Criminal Court complaints on April 18, 2023. Contrary to the People's assertion, the Criminal Court complaints of the co-defendants are discoverable as they contain statements made by law enforcement and the complainant as well as a statement purportedly made by a co-defendant (see CPL § 245.20[1][a],[e]). The People offer no explanation as to why the complaints were not provided to defense counsel prior to January 9, 2024. These documents were prepared by the prosecution and should have been disclosed prior to the filing of the COC.
Accordingly, the People failed to act with due diligence in this regard.
DD5s and Attachments
The defense further contends that the "video of fight" and "video from nearby train station," as well as DD5s (or other paperwork) indicating who retrieved the videos, when they were retrieved, and the circumstances of their retrieval, were not turned over in discovery (see Defense Aff ¶ 8). The People submit that all DD5s and attachments in their possession were provided to defense counsel on September 16, 2023. The People assert that they have contacted the arresting officer, who is purportedly on leave, for additional disclosures to the extent that any exist. They further submit that they re-shared video surveillance with defense counsel on January 9, 2024, and provided one additional video that same day.
There is no doubt that notes, reports, and other information of law enforcement, along with relevant video surveillance, is discoverable (see CPL § 245.20[1][e], [g], [u]). Here, the People have offered no information as to what efforts they exercised to obtain the videos prior to filing their COC. Especially concerning is the People's concession that on January 9, 2024, it provided defense counsel with an additional video that had not previously been disclosed. Armed with a duty to maintain a flow of information with police (see CPL § 245.55[1]), the People have not asserted any efforts to comply with this statutory mandate. Further, there are no "special circumstances" in this case that would allow the People to validly announce ready for trial despite noncompliance with their obligations to disclose the videos at issue and any law enforcement notes regarding the recovery of said footage (see CPL § 245.50[3]; see also Rahman, 79 Misc.3d 129[A], *2)
Accordingly, the People have not demonstrated due diligence with respect to disclosure of the videos.
Paperwork for Police Officers Juan Otero and Diana Selitto
In his October 29, 2023 email to the assigned ADA, defense counsel asserts that he is missing "all paperwork (BWC, metadata, memobook, and Giglio material) for PO Juan Otero and PO Diana Selitto" (People's Aff ¶ 5). With respect to Police Officer Juan Otero, the People contend that Officer Otero retired from the NYPD in 2007. The People provided the defense with Officer Selitto's memobook on January 9, 2024 (id. ¶ 13).
There is no doubt that the People have a duty to disclose relevant paperwork from NYPD personnel (see CPL § 245.20[1][e] [People must disclose all police reports, notes of police and other investigators, and law enforcement agency reports]). The People are also statutorily deemed to have constructive possession of relevant evidence created and collected by the NYPD (see CPL § 245.20[2]). Under this statutory framework, the court analyzes the People's due diligence.
The People have submitted email correspondence from January 9, 2024 with the NYPD which indicates that the NYPD notified the prosecution that a Lieutenant Juan Otero retired on November 30, 2007 (see People's Aff ¶ 13). Based on this information, the People state "[i]t appears that PO Otero has been retired since 2007, so the People have no reason to believe he has any documents relating to this case from 2023" (id.). However, this assertion is contradicted by the People's discovery materials. The People's Notice/Disclosure Form for Initial Disclosure (NDF) dated May 8, 2023, specifically lists an Officer Juan Otero of the 71st Precinct as law enforcement personnel "whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto... [and who] may be called as witnesses by the People" (Reply Exhibit C). While the NDF lists Otero's rank as officer, the email references a lieutenant, so it is unclear whether Lieutenant Otero is actually the Officer Otero referenced in the People's NDF. Nevertheless, on January 9, 2024, hours prior to the People filing their opposition, they served defense counsel with Giglio materials for an Officer Otero (see People's Aff ¶ 14; People's Supplemental COC). Thus, without more information as to why Officer Otero was listed in the People's NDF and why the People served Giglio material for Officer Otero, the court cannot accept the People's claim that Officer Otero has no knowledge of this case.
Inasmuch as the People assert in their NDF that Officer Otero is a potential prosecution witness with knowledge of the charged offenses, they were required to provide defense counsel with all paperwork and any other relevant documents or evidence prepared and collected by Officer Otero. The People concede that no documents were turned over, aside from Giglio material, related to Officer Otero. The opposition papers cite to no efforts by the People prior to the COC to obtain this information. The court also notes that Giglio material for Officer Otero was provided to defense counsel approximately four months after the COC was filed.
As it relates to Officer Selitto, the People belatedly turned over Officer Selitto's memobook on January 9, 2024, nearly four months after filing their COC. Notably, Officer Selitto is not listed in the People's NDF. The People have not indicated what diligent efforts and inquiries were undertaken to learn of Officer Selitto's involvement in this case and to produce any discoverable evidence to defense counsel prior to filing their COC (see CPL § 245.20[1][d], [e]).
To the extent that the People assert, in conclusory fashion, "Defense has not shown any prejudice for such disclosure as one does not exist for a memobook that provides no substantive subject matter about the case," the court rejects this argument for two reasons (People's Aff ¶ 13). First, the defendant has no obligation to demonstrate prejudice where they allege that the People failed to comply with their initial discovery obligations (see Bay, 2023 NY Slip Op 06407, *7). Second, the People's statutory obligations to disclose are not tied to the prosecutor's assessment of the strengths or weakness of evidence to a defendant's case, therefore, their representation that Officer Selitto's memobook provided "no substantive subject matter" is not determinative (see People v Marte, 2023 NY Slip Op 23404, *3 [Crim Ct, Queens County 2023] ["courts have rejected the People's attempts to unilaterally withhold known material under" claims that such documents are "irrelevant" or "not discoverable"]; People v Kennedy, 79 Misc.3d 973, 979 [Crim Ct, Kings County 2023] ["it is not for the People to determine what is relevant and discoverable"]; Goggins, 76 Misc.3d at 901 [discovery "should not be should not be filtered through the prosecution"]).
As discussed above, the People have not demonstrated due diligence to ascertain the existence of material and information subject to discovery related to Officers Otero and Selitto.
Giglio Material
The defense further contends that there is outstanding Giglio material and that it advised the People of such via email on October 29, 2023 (see Defense Aff ¶8; People's Aff ¶5). Specifically, defense counsel asserts that he did not receive any Civilian Complaint Review Board (CCRB) disclosures; that the KCDA disclosures submitted were in summary form without supporting materials or details, except one incident involving Officer Anton Baird; that he did not receive disclosures for Officers Arana, Armstrong, Guerrier, Hill, March, Mele, Morales, Oravec, Otero, Papaleo, Rutkowski, Vecchiarelli, Viera, Weiss, and Selitto; and that certain disclosures for Officers Baird, Boyle, Carlin, Hudson, Mancilla, Polanco, Smith, and Duran refer to additional files which were not included. The People assert that they provided initial and updated Giglio disclosures on September 17, 2023, October 22, 2023, and January 9, 2024.
In reply, the defense highlights that current CCRB summaries were only provided for four officers, namely Officers Baird, Duran, Hill, and Kalt. In contrast, the CCRB summaries for Officers Courtois, Guerrier, Hudson, Montesdeoca, Oravec, and Polanco were current through October 13, 2020 (Reply Exhibit D); the summaries for Officers Armstrong, Boyle, March, and Papaleo were current through 2021 (Reply Exhibit E); and the summaries for Officers Arana, Carlin, Mele, Michael, Morales, Rutkowski, Smith, and Vecchiarelli were current through 2022 (Reply Exhibit F). The defense also submits that the Giglio disclosures were improperly redacted (see Reply Exhibit G).
The People have a duty to 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... impeach the credibility of a testifying prosecution witness" (CPL § 245.20[1][k][iv]). In this case, the NDF lists 23 officers as potential prosecution witnesses, not including Officer Selitto. The People have provided proof that Giglio disclosures for 11 of the officers listed on the NDF were provided via OneDrive to defense counsel on September 17, 2023, the date the COC was filed. It also appears that updated and new disclosures were made subsequent to the filing of the COC.
The People, however, fail to address the defendant's contention that as of December 2023, the People had not provided any disclosures for 12 officers listed on their NDF plus Officer Selitto. Further, with respect to the additional disclosures made on October 22, 2023 and January 9, 2024, it is unclear whether these disclosures pertain to new and updated information or information that existed and should have been turned over prior to or simultaneously with the filing of the People's COC. Some compliance, while laudable, does not vitiate the People's obligation to make a full and complete disclosure.
Furthermore, the court has reviewed the CCRB summaries attached to the defendant's reply papers as Exhibits D through G. Of notable concern are the persistent redactions contained in numerous summaries. CPL section 245.20(6) permits redactions to social security numbers and tax numbers. Public Officers Law section 89(2-b) allows redactions to medical history, home addresses, telephone numbers, email addresses, social security numbers, and use of certain employee assistance services. Section 89(2-c) of the Public Officers Law permits redactions to technical infractions, which is defined as a minor rule violation solely related to administrative departmental rules that "(a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person's investigative, enforcement, training, supervision, or reporting responsibilities" (Public Officers Law § 86[9]).
Here, the redactions appear to exceed the bounds permitted by statute. For example, Officer Hudson's summary reveals tax ID number, but his age and all five charges against him are completely redacted (see Reply Exhibit G). Officer Carlin's summary in contrast redacts the tax ID number and tenure along with significant portions of the complaints (see id.). Officer Boyle's summary reveals tax ID number and tenure, but similarly redacts arbitrary portions of the complaint summaries. The redactions throughout these disclosures are inconsistent and follow no logical pattern. Furthermore, the People have failed to explain the basis for any of the redactions, nor have they sought a court order for any additional redactions (see CPL § 245.70[1]; Goggins, 76 Misc.3d at 903 [redactions beyond the CPL or Public Officers Law must be sought by court order]; People v Williams, 72 Misc.3d 1214 [A] [Crim Ct, NY County 2021] [redactions beyond SSN and tax identifying information must be sought by court order]).
With respect to the Giglio material in this case, the court notes that the documents were provided in piecemeal, impermissibly redacted, and no explanation was provided as to the prosecution's efforts to cause these documents to obtain and disclose the information prior to filing the COC.
CONCLUSION
In assessing the validity of the COC, the court has considered the relevant factors enumerated in Bay. Of the eight categories of deficiencies highlighted by defense counsel, the court finds that the People complied with their obligation in only one instance. Without more, the prosecution's argument that this is a complex case because it involves three defendants is not persuasive. The court notes that this indictment charges each defendant with the same offenses, the incident occurred on one date, involves the same officers, and the discoverable evidence at issue appears to apply to all three defendants. Notably, many of the missing documents were either known to the prosecution prior to filing the COC or were in possession of law enforcement, and thus deemed in the prosecutor's possession. Critically, the prosecution has failed to detail what steps, if any, were taken to ascertain relevant discovery prior to filing the COC and further failed to provide cogent reasons for their discovery lapses.
"In addition to exercising due diligence to ensure COCs are not later deemed improper, the People can request additional time for discovery upon a showing of good cause (see CPL 245.70 [2]) [or] seek 'an individualized finding of special circumstances' to be deemed ready despite the failure to file a 'proper certificate' (CPL 245.50 [3])" (Bay, 2023 NY Slip Op 06407, 3). Here, the People neither requested additional time with a showing of good cause, nor put forth any facts to support an individualized finding of special circumstances.
Accordingly, for the reasons set forth above, the defendant's motion to invalidate the COC is granted.
This constitutes the Decision and Order of the court.