Opinion
Docket No. CR-010551-23BX
12-05-2023
The People of the State of New York, v. Zaimia Kingsberry, Crystal Shavers, Defendants.
For the People Darcel D. Clark, District Attorney, Bronx County (by: Jean Paul Stefan, Esq.). For the Defendant Zaimia Kingsberry The Bronx Defenders (by: William John, Esq.) For the Defendant Crystal Shavers 18-B Counsel (by: Marie Vitale, Esq.).
Unpublished Opinion
For the People Darcel D. Clark, District Attorney, Bronx County (by: Jean Paul Stefan, Esq.).
For the Defendant Zaimia Kingsberry The Bronx Defenders (by: William John, Esq.)
For the Defendant Crystal Shavers 18-B Counsel (by: Marie Vitale, Esq.).
Hon. Yadhira González-Taylor, J.C.C.
By motion filed September 19, 2023, defendant Zaimia Kingsberry ("defendant Kingsberry") moves alternatively for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("CPL") §§ 30.30 and 170.30 because the People failed to file a Certificate of Compliance ("CoC") within their statutorily prescribed time; for dismissal pursuant to CPL § 170.40 in the interest of justice; for the imposition of sanctions pursuant to CPL § 245.80 (2) for the failure to disclose evidence; for suppression of identification for which the People have served proper notice pursuant to CPL § 710.30 and Wade/Crews or for a hearing of fact and conclusions of law; and for such additional relief as the Court deems appropriate. On October 13, 2023, the prosecution opposed Kingsberry's motion in its entirety. On October 23, 2023, defense counsel filed a reply brief reiterating his arguments for disclosure of medical and disciplinary records.
Parenthetically, by motion dated September 8, 2023, the People moved for an order to consolidate the above-captioned dockets and Docket No. CR-009509-23BX relating to a separately apprehended defendant, Winifred Hayes ("Hayes"), pursuant to CPL § 200.20; and for such additional relief as the Court deems appropriate. On September 19, 2023, defendant Kingsberry opposed the People's motion to consolidate. On October 2, 2023, defendant Shavers ("Shavers") opposed the People's motion to consolidate.
On November 29, 2023, the People advised the Court that their motion to consolidate was withdrawn because defendants Shavers and Hayes had taken plea agreements. Accordingly, the People's motion to consolidate has been rendered moot and references herein to defendant refer to defendant Kingsberry.
Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People's CoCs and Statements of Readiness ("SoRs"), filed July 10, 2023 and August 28, 2023, respectively, were valid, and further:
DENIES defendant's motion for dismissal pursuant to CPL§§ 30.30 and 170.30; and
DENIES defendant's motion for dismissal pursuant to CPL § 170.40 in the interests of justice; and
DENIES defendant's motion for sanctions pursuant to CPL§ 245.80 (2); and
DENIES defendant's request for a hearing on the underlying facts and conclusions of law; and
DENIES defendant's application to file additional motions subject to the rights under CPL § 255.30 (3); and
DENIES defendant's motion for sanctions pursuant to CPL§ 245.80 (2); and
GRANTS defendant's motion for a Wade/Crews pre-trial hearing; and
DIRECTS the People to disclose the unredacted IAB Log 22-14790 for PO Lopez within 15 days of this order and to further comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures; and
DIRECTS defense counsel to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).
RELEVANT PROCEDURAL BACKGROUND
On May 3, 2023, defendant was arrested and charged with Penal Law ("PL") §§ 120.14 (1) (menacing in the second degree); PL 120.00 (1) (assault in the third degree), PL § 155.25 (1) (petit larceny), Class A misdemeanors, and PL 240.26 (1) (harassment in the second degree), a violation. Defendant was issued a Desk Appearance Ticket ("DAT") and directed to return to court on May 23, 2023. On May 23, 2023, defendant was arraigned, and the docket adjourned for compliance and conversion. On July 25, 2023, the People advised the court that they had filed and served a superseding information ("SSI") on June 3, 2023 and their CoC and SoR on July 10, 2023 and the docket was adjourned for compliance. On September 5, 2023, defense counsel advised that the following discovery remained outstanding: FDNY records, IAB records for Police Officer ("P.O.") Lopez, disciplinary records for non-testifying officers and medical records. Counsel further complained that PO Lopez's disciplinary records had been heavily redacted, and this Court set a motion schedule.
DISCUSSION
I. Applicable Legal Standards
CPL § 30.30 Challenge
In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL § 30.30 [1] [b]); see Luperon at 77-78). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; People v Stiles, 70 N.Y.2d 765, 767 [1987]).
Following legislative reforms to the CPL, after January 1, 2020, the People must now also satisfy their statutory obligations pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Kendzia, 64 N.Y.2d 331, 337 [1985]; People v Pierna, 74 Misc.3d 1072, 1087 [Crim Ct, Bronx County 2022]; People v Aquino, 72 Misc.3d 518, 520 [Crim Ct, Kings County 2021]). Consequently, courts examine the prosecution's efforts to ensure that it has served all known discoverable materials pursuant to CPL § 245.20 to determine the validity of a CoC (see People v Adrovic, 69 Misc.3d 563, 574-575 [Crim Ct, Kings County 2020]; People v Vargas, 76 Misc.3d 646, 652 [Crim Ct, Bronx County 2022]).
II. The Parties' Arguments
Defense counsel maintains that PO H., a non-testifying witness, played a "stronger leadership" role in the investigation of a dispute involving defendant and her cousin and grandmother, who were also arrested and charged (affirmation of defendant's counsel at 4). Counsel avers that PO H. entered the premises without a warrant, spoke to the occupants and arranged a suggestive identification procedure (Id. at 4-5). Defendant claims that the People were errant in not disclosing information pertaining to PO H.'s purported alcoholism (Id. at 5). It is further asserted that although PO Lopez was the arresting officer, she played a comparatively passive role in the investigation (Id. at 5). Counsel contends that the redactions of the IAB disclosure concerning PO Lopez are so extensive as to render the information difficult to discern (Id.).
The last name of the non-testifying officer is being withheld as a discretionary redaction pursuant to § 12.4 (f) of the Law Reporting Bureau Privacy Guidelines given the uncorroborated allegation of alcoholism against PO H.
Defendant asserts that the People belatedly disclosed the complaining witness's ("CW") medical records and that the prosecution should be charged with the period of their non-compliance (Id. at 5, 9). Defense counsel also claims that the People's supplemental CoC ("SCoC") failed to resolve outstanding discovery requests where PO Lopez's IAB worksheet was so heavily redacted, and the People failed to disclose disciplinary records for PO H. (memorandum in support of defendant's motion at 9). Defendant further asks this Court to reconsider its decision in People v Basora, which counsel contends incorrectly held that a complainant's name was not subject to disclosure pursuant to Public Officers Law § 89 (2-b) (memorandum in support of defendant's motion at 11). Counsel maintains that the People violated defendant's impeachment rights by failing to seek a protective order concerning an IAB record which relates to PO Lopez's purported failure to timely report her colleague's car crash (memorandum in support of defendant's motion at 12).
Counsel avers that in accordance with the Appellate Term's decision in People v Rahman, which counsel believes is binding upon this Court, where the People failed to enumerate what efforts were made to obtain the CW's medical records prior to their initial certification, the CoC must be found invalid irrespective of the subsequent disclosure of those records (memorandum in support of defendant's motion at 14). Defense counsel asserts that the People's failure to disclose PO H.'s disciplinary records in light of his involvement in the case impermissibly impedes defendant's inquiry into "how alcoholism may have contributed to the unit's poor choices" (memorandum in support of defendant's motion at 16).
Counsel asks for dismissal of the accusatory instrument in the interests of justice because defendant is twenty years old, hardworking and has no criminal record, and he posits that if the case were to continue defendant will be forced to pit herself against her cousin and grandmother (memorandum in support of defendant's motion at 17). Defendant seeks suppression of what counsel claims was an unduly suggested identification process or, alternatively, a Wade/Crews hearing, and defendant reserves the right to make supplemental motions (memorandum in support of defendant's motion at 19-20). Lastly, defense counsel argues that the CW obtained medical treatment at the direction of the NYPD (memorandum in support of defendant's motion at 4).
Initially, the People's opposition contends that the CW's medical records are not discoverable pursuant to CPL § 245.20 (1) (j) because FDNY is not a law enforcement agency (affirmation in support of People's opposition at ¶ B). The prosecution contends that it sent two subpoenas to obtain records from Saint Barnabas Hospital and Harlem Hospital and that records from the latter were disclosed with their CoC, but additional follow-up was required because Harlem Hospital did not send complete records (Id.). The People aver that prior to their CoC filing, they disclosed information regarding substantiated and unsubstantiated allegations from the central personnel index ("CPI") and they claim that other Giglio disclosures such as lawsuit information which was in the prosecution's actual possession was disclosed (affirmation in support of People's opposition at ¶ C).
The People cite to People v Johnson, for the proposition that defense counsel has failed to articulate how the purportedly outstanding Giglio disclosures relate to the subject matter of the docket at bar (Id.). The People further aver that PO Lopez's IAB file related to her partner's car crash, which was held to be unsubstantiated, and that the headers in the IAB log are clearly visible (Id.). Moreover, the prosecution maintains that the redactions were made in the interest of protecting the confidentiality of personnel and disciplinary records of testifying officers and civilians (Id.).
Next, the People argue that they exercised good faith and due diligence and that striking their CoC is too drastic where less severe remedies exist to rectify their purported non-compliance (affirmation in support of People's opposition at ¶ J). The prosecution maintains that it declared readiness within the statutorily allotted time and, at best, only 48 days are chargeable to the People (affirmation in support of People's opposition at ¶ K). The People oppose dismissal in the interests of justice because defendant is alleged to have acted in concert with others to cause the CW injury which resulted in substantial pain (affirmation in support of People's opposition at ¶ I).
The People maintain their readiness for trial pursuant to CPL § 245.50 (3) based upon their pronouncement of readiness and the court's prior approval of their CoC (affirmation in support of People's opposition at ¶ III). Lastly, the prosecution opposes defendant's request for an order suppressing identification evidence or, alternatively, for a Wade/Crews pre-trial hearing, as well as defendant's reservation of rights (affirmation in support of People's opposition at ¶ IV-V).
III. The Court's Analysis
CoC Challenge: Belated Disclosures
A. Redactions of PO Lopez's IAB Log 22-14790
As an initial matter, defense counsel's misapprehension of this Court's holding in Basora warrants exposition because the Court did not hold that "the name of a civilian who reports an officer for misconduct is not subject to FOIL disclosure" (see Basora at *4). Secondly, the Basora decision contemplated the relative prejudice to defendant resulting from redactions as required by CPL § 245.80 (1) (see Id. ["Here, the Court concedes that redactions, presumably intended to safeguard the identities of IAB complainants, are not expansive, and most of the details of the alleged incidents are apparent. But that is of no import where the People decided to preemptively redact information without leave from the court ] [emphasis added]; see also CPL § 245.80 [1]). Lastly, Basora makes no reference to the prosecution's "hard work," as argued by defense counsel but, rather, the Court determined that the People had been demonstrably responsive to defendant's entreaties for outstanding discovery- the very essence of due diligence. We reject the notion that reasonableness and good faith are only barometers for the People's compliance where the disclosure is outside of their custody and control and find that the facts at bar do not warrant the imposition of sanctions.
However, insofar as Basora held that the People could not preemptively redact discovery and should have sought leave from court through a protective order, the holding is availing to the facts at bar and the Court, in its discretion pursuant to CPL § 245.35 (4), directs the People to produce the unredacted IAB log 22-14790 for PO Lopez.
B. Giglio disclosure for PO H.
The issue of whether this Court finds that Giglio disclosures are required for non-testifying officers has been discussed with varying outcomes based upon the particular facts presented in People v Peralta, 79 Misc.3d 945, 955-56 [Crim Ct, Bronx County 2023] [Non-testifying officer's disciplinary records disclosed where defendant's arrest would not have occurred but for his involvement]; People v Vargas, 78Misc.3d 1235 [A], 2023 NY Slip Op 50425 [U], *5-*6 [Crim Ct, Bronx County 2023] [Disciplinary records concerning non-testifying arresting officer not inscrutable]; and People v Thomas, 80 Misc.3d 1227 [A], 2023 NY Slip Op 51115 [U], *4-*5 [Crim Ct, Bronx County 2023] [Cursory involvement in the defendant's arrest does not trigger Giglio disclosure].
Counsel posits that PO Lopez played a passive role in defendant's arrest and acquiesced to an improper identification procedure. It is further asserted that defendant has reason to believe that PO H. has a history of using alcohol on the job and the defense may ask the jury to ponder whether "alcoholism may have contributed to the unit's poor choices." However, an officer's purported alcoholism does not ipso facto trigger Giglio disclosure for a non-testifying witness where the facts at bar do not demonstrate that defendant would not have been arrested but for PO H.'s involvement.
Defendant's request for Giglio disclosure for PO H. is denied.
C. CW's Medical Records
Equally unavailing is defendant's argument that the People's CoC should be deemed defective because the CW's medical records were belatedly disclosed. In People v Hernandez, this Court addressed this issue (see Hernandez, 80 Misc.3d 1035, 1039 [Crim Ct, Bronx County 2023]["It is well-settled that the disclosure of a complaining witness's medical records after the initial CoC is filed does not serve as a basis to invalidate it where "the records were not in the People's possession or control when the initial CoC was filed"] [internal citations omitted]. While medical records are unambiguously enumerated as an item subject to automatic disclosure pursuant to CPL § 245.20 (1) (j), the People's duty to disclose those medical records is prescribed by CPL § 245.20 (2) and, as such, the prosecution is required to act diligently to ascertain their existence and cause them to be made available (see Hernandez at 1040 citing People v Erby, 68 Misc.3d 625, 633 [Sup Ct, Bronx County 2020].
Based upon the facts at bar, the Court credits the People's representation that two subpoenas and further follow-up was made to secure the CW's medical records. Moreover, it strains credulity to suggest that the NYPD directed the medical treatment rendered to the CW because the police allowed EMS to treat the CW (compare Hernandez at 1040, with People v Rahman, 79 Misc.3d 129 [A], 2023 NY Slip Op 50692 [U], *3 [App Term, 2d Dept 2023][Disclosure of medical records made by or at the request of a public servant engaged in law enforcement deemed discoverable]). The facts at bar are distinguishable from those presented to the Rahman Court.
IV. The CPL § 30.30 Calculation
In a motion to dismiss an accusatory instrument where the top charge is a misdemeanor pursuant to CPL § 30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]; see also People v Flores, 79 Misc.3d 1239 [A], 2023 NY Slip Op 50834 [U], *2 [Crim Ct, Bronx County 2023] citing People v Galino, 38 N.Y.3d 199, 205 [Ct App 2022]; see also CPL § 30.30 [4]). The burden then shifts to the People to identify excludable delays (see Luperon at 77-78 ["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]).
In the case at bar, the People's 30.30 calculation commenced on May 24, 2023, the day after defendant's arraignment. At the appearance on July 25, 2023, the People advised the court that they had filed their CoC and SoR off calendar on July 10, 2023 (May 24, 2023 to July 25, 2023 = 47 days chargeable), and the matter was adjourned for a discovery conference. On September 5, 2023, the People maintained their readiness and defendant requested a motion schedule to address disputed discovery items (July 25, 2023 to September 11, 2023 = 0 days chargeable).
The People miscalculated their chargeable time as 48 days. In fact, 47 days are chargeable to the People and, thus, the prosecution was timely pursuant to CPL § 30.30 (1) (b).
V. Defendant's Request for an Order Granting Other Relief
Defendant's request for an order dismissing the case in the interests of justice pursuant to CPL § 170.40 (1) is denied. The facts at bar, which include serious allegations that defendant acted in concert with others to cause serious physical harm, to menace with a metal baton and to steal from the CW. Given these allegations, the record does not persuade this Court that the prosecution of defendant would constitute or result in an injustice.
Defendant also seeks to reserve her right to file additional motions. The Court denies defendant's application to make further motions subject to the rights provided by CPL § 255.20 (3). Additionally, defense counsel is directed to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).
VI. Defendant's Request for an Order to Suppress Identification Evidence
Defendant moves for an order suppressing identification evidence or, alternatively, for a Wade/Crews pretrial hearing. Defendant's request for an order suppressing identification evidence is denied. However, the Court grants her request for a Wade/Crews pretrial hearing.
CONCLUSION
Based upon the foregoing, the People's CoC and SCoC, filed on July 10, 2023 and August 28, 2023, respectively, were valid, and further:
DENIES defendant's motion for dismissal pursuant to CPL§§ 30.30 and 170.30; and
DENIES defendant's motion for dismissal pursuant to CPL § 170.40 in the interest of justice; and
DENIES defendant's motion for sanctions pursuant to CPL§ 245.80 (2); and
DENIES defendant's request for a hearing on the underlying facts and conclusions of law ; and
DENIES defendant's request for an order pursuant to CPL § 710.30 suppressing identification evidence; and
GRANTS defendant's motion for a Wade/Crews pre-trial hearing; and
DIRECTS the People to disclose the unredacted IAB Log 22-14790 for PO Lopez within 15 days of this order, and to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures; and
DIRECTS defense counsel to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).