Summary
In Kheir, the court denied the defendant's motion to strike the People's COC as illusory upon a finding that the People clearly articulated their efforts to comply with their automatic discovery obligations and recounted the steps they took to obtain certain material or ascertain the existence thereof, including an amended statement of the complainant, booking photo, booking report and rap sheet.
Summary of this case from People v. CarmonaOpinion
Docket No. 20100156
02-02-2022
The PEOPLE of the State of New York v. Ahmed KHEIR, Defendant.
The People were represented by ADA Courtney Johnson, Esq. on behalf of Miriam Rocah, Westchester County District Attorney. Defendant was represented by Michael Borrelli, Esq.
The People were represented by ADA Courtney Johnson, Esq. on behalf of Miriam Rocah, Westchester County District Attorney.
Defendant was represented by Michael Borrelli, Esq.
Bonnie L. Orden, J. Defendant moves to dismiss the misdemeanor information pursuant to NY Criminal Procedure Law (CPL) § 170.30 (1) (e), alleging that his right to a speedy trial was violated (see CPL § 30.30 [1] [b] ). Defendant claims, in pertinent part, that the People's December 11, 2020, certificate of compliance (COC) was not proper, and the People's statement of readiness was therefore illusory because evidence subject to mandatory discovery, to wit, a tape-recording of a conversation between the investigating detective and the complainant, was belatedly disclosed on October 27, 2021 (see CPL § 245.20 [1] [e] ). Defendant argues that the People did not exercise due diligence before filing the December 11, 2020, COC. The People oppose, averring that the COC was proper and filed in good faith, after exercising due diligence and making reasonable inquiries to ascertain the existence of all known materials required to be turned over (see CPL § 245.50 [1] ). The Court must determine whether the December 11, 2020, COC is proper, and if it is, whether a remedy is appropriate pursuant to CPL § 245.80. If the original COC was invalid, dismissal of the accusatory instrument is warranted ( CPL 30.30 [1] [b] ).
Background
Defendant is charged with the "A" misdemeanor of forcible touching (Penal Law (PL) § 130.52 [1] ) and the "B" misdemeanor of sexual abuse in the third degree (PL § 130.55). Defendant was arraigned on October 6, 2020, at which time he entered a plea of not guilty and the matter was adjourned at the People's request to October 16, 2020. On October 16, 2020, defendant was virtually present before this Court and the People requested an adjournment to October 30, 2020, with defendant requesting a further adjournment to November 6, 2020, due to defense counsel's unavailability. On November 6, 2020, defendant was virtually present before this Court and was arraigned on a superseding misdemeanor information. The People requested an adjournment to November 20, 2020, with defendant requesting a further adjournment to December 11, 2020, due to defense counsel's unavailability. On December 11, 2020, defendant was virtually present before this Court and the People filed a certificate of compliance and statement of trial readiness. After making the requisite inquiry and affording the defense an opportunity to be heard, the Court deemed the People ready for trial without any defense objections (see CPL § 30.30 [5] ). Defendant requested an adjournment to January 29, 2021, for investigation.
On January 29, 2021, defendant requested a jury trial. All parties were aware that no jury trials were yet taking place in any Town or Village Court in the 9th Judicial District due to the COVID-19 pandemic. As such, the case was adjourned to April 23, 2021, as the court awaited approval by the 9th Judicial District Administrative Judge to recommence jury trials. Thereafter, the case was adjourned multiple times for jury trial approval. Finally, on September 10, 2021, upon receipt of approval for this court to proceed with jury trials, the matter was adjourned with the defendant's express consent to November 15, 2021, for trial.
Defendant and the People agree that on October 27, 2021, the People provided defense counsel with additional discovery material, specifically a tape-recorded phone call between Detective Albano and the complaining witness. Defense counsel states that a portion of this recorded call is corrupted; the People are silent on this fact. At defendant's request, the case was advanced to November 3, 2021, at which time defense counsel requested a motion schedule related to the instant motion to dismiss. On November 12, 2021, the People filed a supplemental COC. On November 17, 2021, defendant filed the instant motion, with the People filing an affirmation in opposition and memorandum of law on December 15, 2021, and defendant filing an affirmation in reply on December 29, 2021.
Legal Analysis
When a defendant is charged with a misdemeanor punishable by more than three months imprisonment, as defendant is in this case, the People have 90 days from the commencement of the criminal action to declare their readiness for trial ( CPL § 30.30 [1] [b] ; PL § 70.15 [1]). "A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court" ( CPL § 1.20 [17] ). If the People fail to declare readiness within 90 days, then upon motion of defendant the matter must be dismissed, unless the People demonstrate that certain time periods are excludable from the speedy trial calculation (see People v. Berkowitz , 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ; see also People v. Brown , 28 N.Y.3d 392, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ). Adjournments at the defendant's request are excludable, as are periods of delay granted by the court with the consent of the defendant or his/her counsel, and adjournments relating to pretrial motions ( CPL §§ 30.30 [4] [a], [b] ).
To be ready for trial, the People must file a "certification of good faith compliance" consistent with the discovery requirements of CPL § 245.20, the People must state its readiness on the record, and the Court must conduct an "inquiry on the record as to [its] actual readiness" ( CPL § 30.30 [5] ). The COC must 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] ). Notably, "the prosecution shall not be deemed ready for trial ... until it has filed a proper [COC]" ( CPL § 245.50 [3] ). If the prosecutor subsequently provides defendant with additional discovery material, the prosecutor must file a supplemental COC ( CPL § 245.50 [1] ).
Here, 66 days passed from arraignment to the People filing the original COC and declaring readiness on December 11, 2020. Of those 66 days, 39 days are chargeable to the People, as defendant expressly requested adjournments totaling 27 days due to counsel's unavailability on the dates requested by the People, which reasons defense counsel placed on the record (see People v. Brown, 73 Misc. 3d 131[A], 2021 N.Y. Slip Op. 50965[U], 2021 WL 4768546 [App. Term 2021] ; People ex rel. Labrew v. Vance , 192 A.D.3d 645, 141 N.Y.S.3d 308 [1st Dept. 2021] ["[R]egardless of whether the People declared their readiness, the adjournments ... were excludable based on defense counsel's consent...."]). Post-readiness delays are treated differently in some respects. Post-readiness delays due to "calendar congestion and lack of court facilities" are excluded from the CPL § 30.30 calculation ( People ex rel. Franklin v. Warden, Brooklyn House of Detention for Men , 31 N.Y.2d 498, 501, 341 N.Y.S.2d 604, 294 N.E.2d 199 [1973] ). After the People announced readiness on December 11, 2020, defendant requested an adjournment to January 29, 2021, for investigation. This period is excluded regardless of the People's readiness as an adjournment on consent ( Matter of People ex rel. Labrew v. Vance , 192 A.D.3d at 645, 141 N.Y.S.3d 308 ). On January 29, 2021, defendant requested a jury trial. At that time, all Town and Village Courts in the 9th Judicial District required individual approval by the Administrative Judge before holding a jury trial. To receive approval, the Court had to demonstrate that it had the facilities necessary to ensure the safety of all participants and the jurors considering the ongoing COVID-19 pandemic. On September 10, 2021, the Administrative Judge approved jury trials in the Greenburgh Town Court, and the parties were notified. A November 15, 2021 trial date was set with the consent of the parties.
While no minutes were produced by either party, before any adjourned date is set by this court, if the defendant requests a date beyond that which the People are requesting, the People routinely inquire on the record whether defendant is waiving CPL § 30.30 time and the discovery timeline for the additional adjournment period before the People acquiesce to the extended date selected by defense counsel (People v. Liotta , 79 N.Y.2d 841, 843, 580 N.Y.S.2d 184, 588 N.E.2d 82 [1992] ["[C]onsent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay."]).
Defendant argues that he never would have asked for this adjournment had he known the COC, in his view, was illusory.
On October 5, 2021, a conference was held off-calendar to ensure that all pre-trial matters were concluded, so that there would be no delay once jurors were summoned to the court on November 15, 2021, per the Administrative Judge's direction. In addition, off-calendar, the Court completed a mandated review of the facilities with the Commissioner of Jurors who needed to verify that the courtroom was trial ready before jurors were summoned.
Since the adjournments from January 29, 2021 to November 3, 2021, (when defendant requested a motion schedule and stopped the speedy trial clock) were attributable to lack of court facilities to hold a trial, they must be excluded from the CPL § 30.30 calculation if the People were in a post-readiness posture. Therefore, defendant's motion to dismiss hinges on the validity of the December 11, 2020, COC. If the COC was not proper, then the People were in a pre-readiness posture, and the entire adjournment period of 278 days from January 29, 2021 to November 3, 2021, is chargeable. When added to the chargeable delays before December 11, 2020, that would bring the total days charged to the People to 307 days — well beyond the 90 days permitted by statute and dismissal must be granted.
"[N]umerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence" ( People v. Rodriguez , 73 Misc. 3d 411, 152 N.Y.S.3d 879 [2021], citing People v. Bruni , 71 Misc. 3d 913, 144 N.Y.S.3d 544 [Albany County Ct. 2021] ; People v. Erby , 68 Misc. 3d 625, 633, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020] ; People v. Gonzalez , 68 Misc. 3d 1213[A], 2020 N.Y. Slip Op. 50924[U], 2020 WL 4873901 [Sup. Ct., Kings County 2020] ; People v. Knight , 69 Misc. 3d 546, 552, 130 N.Y.S.3d 919 [Sup. Ct., Kings County 2020] ; People v. Lustig , 68 Misc. 3d 234, 247, 123 N.Y.S.3d 469 [Sup. Ct., Queens County 2020] ; People v. Randolph , 69 Misc. 3d 770, 770, 132 N.Y.S.3d 726 [Sup. Ct., Suffolk County 2020] ; People v. Davis , 70 Misc. 3d 467, 474-480, 134 N.Y.S.3d 620 [Crim. Ct., Bronx County 2020] ). Moreover, the discovery statute "should not be construed as an inescapable trap for the diligent prosecutor" ( Erby , 68 Misc 3d at 633, 128 N.Y.S.3d 418 ). Rather, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" ( Rodriguez , 73 Misc. 3d at 417, 152 N.Y.S.3d 879 [Sup. Ct., Queens County 2021] ).
In its affirmation, the People clearly articulate its "efforts to comply with CPL 245.20 (1) with respect to the statutory subsections or specific items of discovery at issue" ( Rodriguez at 417, 152 N.Y.S.3d 879 ). The People also established its good faith compliance "by recounting the steps [it] took to obtain certain materials or ascertain the existence thereof, [and] explaining the reasons why particular items are outstanding, lost or destroyed ..." ( Rodriguez at 417, 152 N.Y.S.3d 879 ; see also People v. Ryklin , 72 Misc. 3d 1208 [A], 2021 N.Y. Slip Op. 50678 [U], *2, 2021 WL 3085880 [Sup. Ct., Kings County 2021] ["[T]he failure to provide a 911 call, or two 911 calls, does not per se invalidate a certificate of compliance ..."]).
Here, the People detail the efforts of the Westchester County District Attorney's Office, and ADA Courtney Johnson, to secure discoverable material before filing the COC. In her uncontroverted affirmation, ADA Johnson avers that since the inception of the case she had an open dialogue with Detective Albano, the detective assigned to the case. ADA Johnson further affirms that because of this ongoing communication, she learned on December 4, 2020, (before the People filed the COC), about a supplemental, amended statement made by the complainant. ADA Johnson immediately requested that this document be provided to the People to disclose to defendant. Then, in further review of the file, ADA Johnson discovered that there were yet additional missing items, including a booking photograph, booking report, and fingerprint rap sheet, which the prosecutor immediately requested from Greenburgh Police Department, (GPD), so that these documents could be provided to defendant. The communications between ADA Johnson, Detective Albano, and GPD members were confirmed by emails attached as unnumbered exhibits to the People's affirmation. The People also attached receipts confirming the electronic transfer of these documents to defense counsel, and an email from Jack Algaba from GPD to the People stating, "it appears you [the People] have everything related to [the] case" (affirmation in opposition of ADA Courtney Johnson, unnumbered exhibit).
When Detective Albano informed the People on October 14, 2021, that her initial contact with the complainant took place over the phone, for the first time she revealed that the call "may " have been recorded. The People immediately made inquiries of GPD to see if such recording existed (Johnson at 7). The recording was located by GPD and provided to the People the very next day, according to an email sent from Mike Marino of GPD to both ADA Johnson and Detective Albano (Johnson, unnumbered exhibit) who were both previously unaware of its existence. A copy of the audio was provided to defense counsel on October 27, 2021, and on November 12, 2021, the People filed a supplemental COC with the Court and defense counsel.
The prosecutor in this case has demonstrated that she acted with due diligence, in good faith, and reasonably under the circumstances, when she took multiple steps prior to filing the COC to ensure that the People were in possession of all known discoverable material, including having an on-going dialogue with the investigating detective. In fact, because of these communications, as well as her independent review of the file, when additional discoverable material became known, ADA Johnson immediately procured the materials and expeditiously furnished them to defense counsel. Based on the submissions, the fact that ADA Johnson and the District Attorney's Office were unaware of the possibility that the recorded call existed before October 14, 2021, remains unchallenged.
Defense counsel claims, in reply, that the People are "deemed" to be in possession of all items in the possession of the police department ( CPL § 245.20 [2] ), and that the court's inquiry should cease there, since the police department's knowledge of the recording must be imputed to the People. Asserting that this issue is dispositive of the People's actual readiness on December 11, 2020, the court declines to follow this reasoning.
The court's primary consideration in determining a question of statutory interpretation, "is to ascertain and give effect to the intention of the Legislature" (McKinney's Con Laws of NY, Book 1, Statutes § 92). While the "statutory text is the clearest indicator of legislative intent" and courts "should construe unambiguous language to give effect to its plain meaning" ( Matter of DaimlerChrysler Corp. v. Spitzer , 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] ; see also Roberts v. Tishman Speyer Props., L.P. 13 N.Y.3d 270, 286, 890 N.Y.S.2d 388, 918 N.E.2d 900 [2009] ), courts must interpret new laws as part of a symmetrical and coherent regulatory scheme ..." ( People v. Weston, 66 Misc.3d 785, 119 N.Y.S.3d 841, 2020 N.Y. Slip Op. 20046, *2 [Crim. Ct., Bronx County 2020] [Hartofilis, J.] citing Yatauro v. Mangano , 17 N.Y.3d 420, 931 N.Y.S.2d 36, 955 N.E.2d 343 [2011] ), and different parts of the same act, though contained in different sections, are to be construed together as if they were all in the same section (see McKinney's Cons Law of NY, Book 1, Statutes § 130).
As such, when reviewing the new discovery laws in its totality, Criminal Procedure Law § 245.50 acknowledges the possibility that not all discoverable material will be turned over to the defense prior to filing a COC. The statute permits the filing of a COC even when discoverable material is "lost or destroyed" or subject to a protective order ( CPL § 245.50 [1] ). "While recognizing that some discovery may not be provided to the defense, CPL § 245.50 (1) makes no allowance for COC non-filing. Even where some discovery items are not provided to the defense, the People's COC filing obligation remains. "The People must still ‘exercis[e] due diligence and mak[e] reasonable inquiries’ and then provide the defense with all ‘known material and information’ " " ( People v. Surgick , 73 Misc. 3d 1212[A], 2021 N.Y. Slip Op. 51007[U], *1, 2021 WL 4999918 [Albany City Ct. 2021] quoting CPL § 245.50 [1] ). Pursuant to this reasoning, the Surgick court reasoned that a COC was not invalidated for the belated disclosure of discoverable material not previously known to the prosecution ([ id. ] ["[I]t appears that the People fully complied with [its] continuing duty to investigate and disclose. Because the People demonstrated that [its] ‘additional radio transmissions’ were disclosed in good faith and reasonable under the circumstances, ‘no adverse consequences shall result’ ( CPL § 245.50[1] ) and Defendant's objections are rejected."]).
While CPL § 245.20 deems all material in the possession of a law enforcement agency to be in the possession of the People, CPL § 245.50 (1) is equally clear that a prosecutor files a valid COC if she discloses and makes available "all known material and information subject to discovery" (emphasis added). The drafters of the discovery statute thought it appropriate to distinguish between "possession" and "knowledge." Therefore, this Court will do the same. Since the People, after exercising due diligence by making reasonable inquiries and acting in good faith, were unaware of the recorded call, the People provided all known material to defense counsel on December 11, 2020.
To read CPL § 245.50 any other way would also fly in the face of CPL § 245.80 (3), which provides specific remedies for the prosecution failing to disclose the recorded statement of a testifying witness. In relevant part, the statute provides that the prosecutor's failure to disclose such a statement before trial "shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction, in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial ..." ( CPL § 245.80 [3] ). If the legislature determined that discovery of a new statement, even after trial, does not constitute grounds for a new trial, then it would be illogical to interpret CPL § 245.50 to effectively mandate dismissal of an entire case if the same evidence was discovered before trial. Since here, even after exercising due diligence, the People had no actual knowledge of the recording when they filed the COC, the recording's existence has no bearing on the COC's validity.
Defendant's proffered interpretation of the statute would also run counter to the People's continuing statutory duty to disclose under CPL § 245.60. Pursuant to this section, the People are under a continuing obligation to disclose any "additional material or information which it would have been under a duty to disclose ... had it known of [the material] at the time of a previous discovery obligation" ( CPL § 245.60 ) (emphasis added). This section of the discovery statute would be entirely superfluous if COCs were invalidated for any belated disclosure because the invalidation of a COC would most likely result in the dismissal of the case on CPL § 30.30 grounds. If courts were to invalidate every COC for belated disclosure of materials revealed in good faith, such rulings would disincentivize the People to disclose previously unknown discoverable information when the People learn of it. Defendant's interpretation of CPL § 240.20 is therefore at complete odds with the rest of the statute, which must be read with a presumption of openness ( CPL § 245.20 [7] ). In this court's view, Article 245 of the CPL and the legislative intent and spirit behind its enactment demands a review of the entire statute, which encourages the "free exchange of information between the defense and prosecution" (2019 NY AB 1431 [NS] New York Committee Report).
That is not to suggest there will be no consequences for the People's inadvertent failure to timely disclose the recording. The legislature contemplated this very scenario when enacting the discovery statute in 2019. Criminal Procedure Law § 245.55 (3) (a) provides that the police must notify the People of the existence of any known police recordings "in writing upon the filing of an accusatory instrument." If the People fail to disclose such a recording "due to a failure to comply with this obligation by police officers ... the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.80 of this article" ( CPL § 245.55 [3] [b] ). Since the instant situation is directly addressed, the Court is bound to follow the statute. The Court must therefore evaluate an appropriate remedy or sanction pursuant to CPL § 245.80.
While defendant writes that he is not requesting sanctions until the Court rules on his motion to dismiss, defendant implicitly requests sanctions by arguing prejudice in his motion. Prejudice is not pertinent to a motion to dismiss on CPL § 30.30 grounds, but it is pertinent with respect to sanctions, given a discovery violation, under CPL § 245.80. Notably, all pretrial motions should be brought within one set of papers ( CPL § 255.20 [2] ). The Court may impose remedies and sanctions on the People for belated disclosure even when a COC was filed in good faith (see Rodriguez , 73 Misc. 3d at 410, 152 N.Y.S.3d 879; see also CPL §§ 245.20 [5], 245.80 ). Therefore, the Court will hear oral arguments from defendant and the People with respect to possible sanctions pursuant to CPL § 245.80.
Prior to issuing a ruling on remedies or sanctions, the Court must listen to the tape to determine the extent of prejudice to the defendant, given the fact that part of the tape in question was corrupted. In the interest of judicial economy, the Court orders the parties to submit a copy of the recording at issue for in camera review one week before the hearing.
Upon consideration of the foregoing, the court hereby,
DECIDES that defendant's motion to dismiss pursuant to CPL § 170.30 (1) (e) is DENIED ; and,
ORDERS that oral arguments be heard with respect to possible remedies or sanctions pursuant to CPL § 245.80 ; and,
ORDERS the parties to submit a copy of the recording at issue to the Court one week before the hearing for in camera review.
This constitutes the DECISION and ORDER of the Court.