Opinion
Docket No. CR-016573-22QN
03-30-2023
The PEOPLE of the State of New York v. JAWAD, Defendant.
Amongst other relief, the defense moves for orders deeming invalid the People's certificate of discovery compliance and statement of readiness. A proper, good-faith certificate of automatic discovery compliance is a prerequisite to a valid statement of readiness. ( C.P.L. § 245.50[3] ). Criminal Procedure Law § 245.50[1] defines a proper certificate of compliance, and it requires the People to certify, in good faith, two things. First, that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. ( C.P.L. § 245.50[1] ). Second, that they "made available all known material and information subject to discovery." (Id. ; see also People ex rel. Ferro v. Brann , 197 AD3d 787, 787-88 [2d Dep't 2021] [holding that a certificate is not complete until the People "actually produce[ ]" automatic discovery to the defense]).
The statute defines automatic discovery to include, amongst other things, information that is favorable to the defense. ( C.P.L. § 245.20[1][k] ). Specifically, it mandates disclosure of "[a]ll evidence and information, including that which is known to police" that tends to:
(i) negate the defendant's guilt as to a charged offense;
(ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense;
(iii) support a potential defense to a charged offense;
(iv) impeach the credibility of a testifying prosecution witness;
(v) undermine evidence of the defendant's identity as a perpetrator of a charged offense;
(vi) provide a basis for a motion to suppress evidence; or
(vii) mitigate punishment.
( C.P.L. § 245.20[1][k] ). It also provides special instruction regarding these categories of material. It mandates that "[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form." (Id. ). It mandates that it "shall be disclosed ... irrespective of whether the prosecutor credits the information." (Id. ). And it mandates that the People "shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier" than the normal statutory "time period for disclosure." (Id. ).
At issue here is whether the People discharged these duties regarding police disciplinary records before certifying compliance. In their certificate, the People named eight police officers who were involved in this case. Each of these officers was sufficiently involved to have their body-worn camera activated and recording events in connection with the charged incident. (See Cert. of Compl. at 4-5). However, the People only intend to call two of these officers at trial.
The People state that they have only disclosed "LEOW letters" and only for the two officers whom they intend to call to testify. A "LEOW letter" is the Queens nomenclature for a letter, authored by the People, summarizing a police officer's disciplinary matters. The summary disclosed here contains a "date," "serial number," "IAB log" number, "ICMT case" number, a one-word case "status," and an allegation summary. (Pr. Resp. Ex. 2). The allegation summary is less than a sentence. (See id. ). It contains five words, and not a single verb. (See id. ).
The disclosure of a mere LEOW letter implies that the People reviewed the disciplinary files—and thereby "ascertain[ed] the existence" of discoverable material—but then failed to actually disclose them. (Cf. C.P.L. § 245.50[1] [requiring the People to certify that "the prosecutor has disclosed and made available all known" discoverable material]).
Under appellate law, that is plainly insufficient. ( Matter of Jayson C. , 200 AD3d 447, 448-49 [1st Dep't 2021] ; People v. Rodriguez , 77 Misc 3d 23, 24-25 [App. Term, 1st Dep't 2022] ; see also People v. Toussaint , 182 N.Y.S.3d 586, 591-94 [Crim. Ct., Queens County 2023] [reviewing the appellate law]; People v. Figueroa , 78 Misc 3d 1203[A], at *1-*4 [Crim. Ct., Queens County 2023] [same]).
Many trial courts—including this one—have previously explained in depth why the minimal disclosure of a summary letter is insufficient. (People v. Brown , ind. 73394-22 [Sup. Ct., Queens County 2023] [Wang, J.]; People v. Dowling , ind. 1123-2021 [Sup. Ct., Queens County 2022] [Gopee, J.]; Toussaint , 182 N.Y.S.3d 586 [Licitra, J.]; People v. Quintero , CR-010636-22QN [Crim. Ct., Queens County 2023] [Lentz, J.]; People v. Tamayo , CR-003869-22QN [Crim. Ct., Queens County 2022] [Johnson, J.]; People v. Best , 76 Misc 3d 1210[A] [Crim. Ct., Queens County 2022] [Gershuny, J.]; People v. Guzman , 77 Misc 3d 1223[A] [Crim. Ct., NY County 2023] [Maldonado-Cruz, J.]; People v. Cox , CR-013205-19BX [Crim. Ct., Bronx County 2022] [Chin, J.]; People v. Critten , 77 Misc 3d 1219[A] [Crim. Ct., NY County 2022] [Wang, J.]; People v. Goggins , 76 Misc 3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Darren , 75 Misc 3d 1208[A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People v. Edwards , 74 Misc 3d 433 [Crim. Ct., NY County 2021] [Weiner, J.]; People v. Sozoranga-Palacios , 73 Misc 3d 1214[A] [Crim. Ct., NY County 2021] [Stein, J.]; People v. McKinney , 71 Misc 3d 1221[A] [Crim. Ct., Kings County 2021] [Kitsis, J.]).
Nonetheless, the court will provide a quick synopsis here. If the People call an officer to testify, the officer's prior disciplinary material tends to "impeach" their "credibility." ( C.P.L. § 245.20[1][k][iv] ). That is because evidence of "a police witness’ prior bad act ... can be proper fodder" to impeach their credibility on cross-examination. ( People v. Smith , 27 NY3d 652, 661 [2016] ). Such evidence can show that the witness has an "untruthful bent" or a "willingness or disposition ... voluntarily to place the advancement of individual self-interest ahead of principle or the interests of society." ( People v. Walker , 83 NY2d 455 [1994] ).
"Courts have ruled time and again that case summaries prepared by the People are insufficient to satisfy the mandates imposed by C.P.L. § 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witness, should not be filtered through the prosecution." ( Goggins , 76 Misc 3d at 901 [also collecting cases]). "It is not for the People to decide, in the first instance, if a particular item from a disciplinary record might be admissible or might impeach a witness." ( People v. Pennant , 73 Misc 3d 753, 761 [Dist. Ct., Nassau Cty. 2021] ). "As the Court of Appeals has long recognized, the best judge of the impeachment value of evidence is the ‘single-minded counsel for the accused.’ " ( Edwards , 74 Misc 3d at 443 [quoting People v. Rosario , 9 NY2d 286, 290 [1961] ). "To permit the single-minded counsel for the accused to be permitted only to see filtered allegations of misconduct impinges on counsel's ability to represent the accused." (Id. ) It also violates the plain text of C.P.L. § 245.20[1][k][iv], which demands that the People disclose "all" impeachment information relating to their testifying officers—not to pick and choose which they think would have "impact" on the officer's credibility. "The clear scope of the statute removes that discretion from the People." ( Pennant , 73 Misc 3d at 761 ; see also C.P.L. § 245.20[1][k] [mandating disclosure "irrespective of whether the prosecutor credits the information"]).
For the other six officers involved in this case, whom the People do not intend to call to testify, the People take a more hardline position. They argue that they need not even author "LEOW letters" for these officers. In other words, they believe that they need not even review these officers’ disciplinary files at all, let alone disclose any favorable material that may exist within them. (Cf. 245.50[1] [requiring the People to exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of discoverable material]). This court has rejected this position before, ( People v. Cartagena , 76 Misc 3d 1214[A], at *5-*6 [Crim. Ct., Bronx County 2022] ; People v. Amir , 76 Misc 3d 1209[A], at *5-*6 [Crim. Ct., Bronx County 2022] ; People v. Figueroa , 76 Misc 3d 888, 894-96 [Crim. Ct., Bronx County 2022] ), and does so here again.
In support of their position, the People rely entirely upon a single trial-court case from the Bronx, People v. Edwards , 77 Misc 3d 740 [Crim. Ct., Bronx County 2022]. Its reasoning was as follows. The text of the discovery statute includes, as automatically discoverable material, evidence that would " ‘impeach the credibility of a testifying prosecution witness.’ " ( Id. at 744 [quoting C.P.L. § 245.20[1][k][iv] ). Therefore, the statute does not include disciplinary records for officers who are not testifying prosecution witnesses. (Id. ). And even if disciplinary records could be favorable for some other purpose—like negating a person's guilt or reducing culpability (see C.P.L. §§ 245.20[1][k][i], [ii] )—"there needs to be some limit on the People's obligation to search for such information." ( Edwards , 77 Misc 3d at 745 ). Citing a 2018 trial-court decision about constitutional due-process requirements, Edwards fashions its own such limit: that there must first be "some reason to believe such material exists." (Id. ). It notes that in its case, the defense "advances no specific argument" as to how the disciplinary records would be favorable. (Id. ). Therefore, it concludes, the People could not be held responsible for refusing to review those records. (See id. ). Having surveyed the current cases on this issue, Edwards provides the best articulation for the People's position. The court takes each of its errors in turn.
Edwards begins by erroneously reporting that the text of the discovery statute only requires the People to disclose disciplinary records if they would " ‘impeach the credibility of a testifying prosecution witness.’ " ( Id. at 744 [quoting C.P.L. § 245.20[1][k][iv] ). This is not so. The discovery statute does not explicitly address disciplinary records at all, let alone limit their disclosure to testifying prosecution witnesses. Instead, it lists seven categories of favorable information that the People must disclose. One such category is "[a]ll evidence and information" that tends to "impeach the credibility of a testifying prosecution witness." ( C.P.L. § 245.20[1][k][iv] ). But there are six others: "[a]ll evidence and information" that tends to "negate the defendant's guilt"; "reduce the degree of or mitigate the defendant's culpability"; "support a potential defense"; "undermine evidence of the defendant's identity as a perpetrator"; "provide a basis for a motion to suppress evidence"; or "mitigate punishment." ( C.P.L. §§ 245.20[1][k][i], [ii], [iii], [v], [vi], [vii] ).
An officer's prior disciplinary matters could tend to impeach the credibility of the officer's testimony. But they could also tend to be favorable to the defense for these other reasons. "The categories of favorable information are not all mutually exclusive." ( Cartagena , 76 Misc 3d 1214[A], at *5 [internal quotation marks omitted]). "One reason an officer's prior misconduct could be favorable is for impeaching the credibility of a testifying prosecution witness, but that does not mean that is the only reason such records could be favorable." (Id. ). Prior disciplinary matters could, for instance, negate the accused person's guilt or support a potential defense. ( C.P.L. §§ 245.20 [1][k][i], [iii] ).
There are myriad examples of how police misconduct records could be favorable. Here are a few. They could be "a worthwhile source of [defense] investigation" into how an officer interacts with complainants or witnesses in their cases. ( Amir , 76 Misc 3d 1209[A], at *5-*6 ; see also People v. Carswell , 67 Misc 3d 444, 448-49 [Crim. Ct., Bronx County 2020] [noting that the discovery statute was enacted in part to allow the defense to "properly investigate" cases]; Eric Gonzalez, Reckoning with Wrongful Convictions: Lessons Learned from An Examination of 25 Wrongful Convictions in Brooklyn , 35 Crim. Just. 4 [2021] ["In two cases, the [Conviction Review Unit] concluded that the police likely engaged in misconduct by coaching the witness."]).
Or the defense could call the officer themselves and use the records undermine the integrity of the investigation that "led to [the instant] arrest[ ]." (See United States v. Jackson , 345 F.3d 59, 73 [2d Cir. 2003] ; see also Longus v. United States , 52 A.3d 836, 849-54 [D.C. Ct. App. 2012] [defense properly sought to question officer involved in the instant investigation, but not called by the prosecution, about coaching witnesses in separate case]; Smith v. United States , 26 A.3d 248, 260-63 [D.C. Ct. App. 2011] [same]).
Or the defense could use the records to impeach hearsay declarants if testifying officers recount statements by other officers at a suppression hearing—a practice not uncommon in our courts. (See Figueroa , 76 Misc 3d at 895 ; see also Robert A. Barker & Vincent C. Alexander, New York Practice Series - Evidence in New York State and Federal Courts § 8:96 [2021] [collecting cases allowing impeachment of hearsay declarants]; Prince, Richardson on Evidence § 8-111 [noting the same]; accord F.R.E. 806 [permitting impeachment of hearsay declarants who do not testify]; Jackson , 345 F.3d at 71 ).
The Edwards court finds these possibilities too "hypothetical," so asserts that there "needs to be some limit on the People's obligation to search for such information." ( Edwards , 77 Misc 3d at 745 ). Citing a trial-court decision about constitutional law—decided two years before the discovery statute was written—the Edwards court fashions its own such limit. It holds that there must be "some reason to believe that such material exists." (Id. ). And it places the burden to provide that reason on the defense. If the defense "advances no specific argument" as to how the disciplinary records could be favorable, the People need not even look at them. (Id. ).
If one follows the Edwards court's rule, then there are different rules for different subcategories of C.P.L. § 245.20[1][k]. If disciplinary records could impeach the credibility of a testifying prosecution witness, ( C.P.L. § 245.20[1][k][iv] ), then the People bear the burden to review and disclose them. That is true regardless of whether the defense provides "some reason to believe that such material exists." (Indeed, sometimes the People review the disciplinary records of their testifying officer and then serve a LEOW letter stating that none exist.) But if disciplinary records could only negate a person's guilt, ( C.P.L. § 245.20[1][k][i] ), or support a potential defense, ( C.P.L. § 245.20[1][k][iii] ), then the defense must provide a "specific argument" as to why "such material exists" to trigger the People's duty to do anything—even to just look at them. ( Edwards , 77 Misc 3d at 745 ). Left unclear is how anyone, especially the party with the least access, would know whether such material exists without first reviewing the records.
But the discovery statute moots the need for such a labyrinth. It provides its own "limit on the People's obligation to search" for information: that the People exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of discoverable material. ( C.P.L. § 245.50[1] ). And it puts that burden on the People, not the defense. (See id. ). This clear statutory standard eradicates any need for judges to erroneously "sow [older constitutional limits] into the Legislature's discovery statute" regarding a prosecutor's duties. ( Figueroa , 78 Misc 3d 1203[A], at *3 ; see also People v. Darren , 75 Misc 3d 1208[A], at *4 n.1 [Crim. Ct., NY County 2022] [refusing to import constitutional due-process limits to the People's discovery obligations into the new discovery statute]). Applying the statute's own rule about the People's duties best effects the intent of the Legislature. (See Daimler-Chrysler Corp. v. Spitzer , 7 NY3d 653, 660 [2006] ["The statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning."]).
And it does not impose an infinite burden. Its standard of "due diligence" to "ascertain the existence" of favorable information would not normally send prosecutors as far afield as an officer's "divorce proceeding." (See Edwards , 77 Misc 3d at 745 [worrying that prosecutors would be "combing through the files of [an officer's] divorce proceeding"]). Anything beyond "due diligence" and "reasonable inquiries" is beyond the People's automatic responsibility.
But if due diligence to ascertain the existence of favorable information means anything, surely it means reviewing police disciplinary records. This is a criminal case in which police officers investigated an alleged crime. Unlike the far-flung records of possible divorce proceedings, police disciplinary files are official documents largely relating to officers’ alleged misconduct in investigating crimes. That makes them far more likely to contain information that is useful to the defense in a criminal case. And they are held by the police department and sometimes even by the People themselves. That makes them far easier for the People to practicably access. On the spectrum of what constitutes due diligence to ascertain the existence of favorable material, reviewing official police misconduct records is never the borderline case.
Indeed, the People maintain a "LEOW Unit," which they describe as being "devoted to complying with the District Attorney's obligation to disclose evidence of alleged misconduct by members of law enforcement agencies," and which "gathers information from various sources, such as the New York City Police Department's Internal Affairs Division and the Civilian Complaint Review Board." (Melinda Katz, District Attorney, Appeals and Special Litigation Division, https://queensda.org/appeals-special-litigation/#leow [last visited Mar. 28, 2023]).
In sum, this court respectfully disagrees with Edwards . Just because an officer is not a testifying prosecution witness does not mean the People may bury their head in the sand. The People must be judged under the usual statutory standard: whether they exercised "due diligence" and made "reasonable inquiries" to ascertain the existence of favorable information. When it comes to police misconduct records, there is no reason to override this rule simply because the People choose not to call the officer to testify.
Accordingly, the People's certificate of compliance was not proper. They did not, in good faith, certify that they had exercised "due diligence" or made "reasonable inquiries" to ascertain the existence of discoverable material. Instead, they categorically refused to make any inquiries into the existence of favorable information in six potential police disciplinary files. And they did not, in good faith, certify that they had "disclosed" all discoverable material. They disclosed nothing but simple summary letters and only for two other files. "Whenever there is any debate about turning over a piece of material," the statute mandates that the People presume it requires "disclosure." ( People v. Rugerio-Rivera , 77 Misc 3d 1230[A], at *2-*3 [Crim. Ct., Queens County 2023] [citing C.P.L. § 245.20[7] ]). It is not good faith compliance to unilaterally ignore that explicit statutory command. Because the certificate was not proper and the People have not shown any "special circumstances," their statement of readiness was illusory. ( C.P.L. § 245.50[3] ; see also People v. Guzman , 75 Misc 3d 132[A], at *3 [App. Term, 2d Dep't 2022] ).
Any remaining arguments that the documents were invalid are moot.
The foregoing constitutes the order and decision of the court.