Opinion
Docket No. CR-006167-23QN
09-28-2023
The People of the State of New York, v. Luna, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Stephanie Chazen) For Mr. Luna: The Legal Aid Society (by Estefania Taranto)
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Stephanie Chazen)
For Mr. Luna: The Legal Aid Society (by Estefania Taranto)
Wanda L. Licitra, J.
Two days before the speedy-trial period expired, the People filed a purported certificate of automatic discovery compliance claiming that they "ha[ve] disclosed and made available all existing known material and information subject to discovery." In truth, however, they had not yet disclosed some discoverable material-and they knew it. In fact, the People simultaneously filed a "notice of non-disclosure" in which they acknowledged that, despite their certificate stating otherwise, they had yet to disclose "all photos taken in connection with this case." In other words, despite knowing this material existed but had not been disclosed, the People certified that "all existing known material" had been disclosed.
The People cannot, in good faith, certify a statement that they know is false. "It should go without saying: the People cannot file a certificate in which they certify they have 'turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Toussaint, 78 Misc.3d 504, 508 [Crim. Ct., Queens County 2023] [quoting People v. Quinlan, 71 Misc.3d 266, 271 [Crim. Ct., Bronx County 2021]]; see also People v. Hughes, 79 Misc.3d 1235 [A], at *2 [Crim. Ct., Richmond County 2023] [same]; People v. Rafoel, 77 Misc.3d 1231 [A], at *1-*3 [Crim. Ct., Queens County 2023] [noting the same]; People v. Haymon, 71 Misc.3d 1203 [A], at *2 [County Ct., Albany County 2021] [same]; People v. Pennant, 73 Misc.3d 753, 767 [Dist. Ct., Nassau County 2021]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020] [same]; People v. Aguayza, 77 Misc.3d 482, 489 [Sup. Ct., Queens County 2022] ["[T]he People can't file a Certificate of Compliance claiming they have disclosed all known discovery if they have not actually done so."]).
That was not the only problem here, though. The People's certificate also claimed that they had exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable information. In truth, however, the People had decided that if they did not intend to call a police witness as their own, then they would not even review that officer's misconduct history, no matter how involved the officer was in the case. The People's absolute, artificial rule is not consonant with their obligation to ascertain favorable information diligently and reasonably. (See, e.g., Matter of E.S., 79 Misc.3d 681, 686 [Fam. Ct., NY County 2023]; People v. Jackson, 79 Misc.3d 832, 840 [Crim. Ct., NY County 2023]; People v. Jawad, 78 Misc.3d 1217 [A], at *2-*5 [Crim. Ct., Queens County 2023]).
As a result, the defense filed a C.P.L. § 30.30 motion to dismiss alleging the People's readiness was illusory. That is because a proper, good-faith certificate of automatic discovery compliance is a "prerequisite to the People being ready for trial." (People v. Hamizane, 194 N.Y.S.3d 666, 668 [App. Term, 2d Dep't 2023] [citing C.P.L. §§ 30.30[5], 245.20[1], 245.50[3]]). In response to the motion, the People requested and were granted an extension to file their opposition on August 20, 2023. They did not meet this deadline and did not request another extension until August 30, 2023, causing ten additional days of unreasonable delay. (People v. Hock, 40 Misc.3d 141[A] [App. Term, 2d Dep't 2013]).
In total, the People have exhausted their readiness time. Accordingly, the motion must be granted. The case is dismissed.
LEGAL ANALYSIS
I. Legal standard
"[A]bsent an individualized finding of special circumstances," a proper, good-faith certificate of automatic discovery compliance is a "prerequisite to the People being ready for trial." (People v. Hamizane, 194 N.Y.S.3d 666, 668 [App. Term, 2d Dep't 2023] [citing C.P.L. §§ 30.30[5], 245.20[1], 245.50[3]]). "Consequently," a statement of readiness "is invalid if it is accompanied or preceded by" a certificate of compliance "that is later determined to be improper, where no special circumstances exist." (Id.).
Criminal Procedure Law § 245.50[1] defines a proper, good-faith certificate of compliance, and it requires the People to certify two things. First, that the People have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (C.P.L. § 245.50[1]). And second, that they "made available all known material and information subject to discovery." (C.P.L. § 245.50[1]).
The appellate courts have properly relied on this plain text when analyzing whether the People filed a certificate of compliance in good faith. Thus, where the People did not, in fact, exercise due diligence or make reasonable inquiries to ascertain the existence of discoverable material, their certificate stating otherwise was not made in "good faith." (E.g., Hamizane, 194 N.Y.S.3d at 669 [certificate not in "good faith" because "none of the People's submissions... showed that the People had attempted to obtain any police disciplinary records, or attempted to find out whether any such records existed"]). Moreover, until the People "actually produce[]" automatic discovery to the defense, a certificate of compliance is not complete. (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021]). In other words, the People cannot be said to have filed a good-faith certificate where they claimed they "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Quinlan, 71 Misc.3d 266, 271 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020] [same]). As Judge Raja Rajeswari recently summarized:
Indeed, that is precisely what the statute directs the People to do in their certificate of compliance: they must certify 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."(People v. Hughes, 79 Misc.3d 1235 [A], at *2 [Crim. Ct., Richmond County 2023]). It is "[a]longside this plain text" that "courts hold that a certificate of compliance 'cannot be deemed complete' until discovery is 'actually produced' to the defense." (Id. [quoting Ferro, 197 A.D.3d at 787-88]).
Where the defense alleges that the People improperly certified compliance, "the People must establish that they have met their burden." (See Hamizane, 194 N.Y.S.3d at 669 [none of the "People's submissions" established the certificate was proper]).
II. The People's certificate
Under these standards, the People's certificate here was not proper or filed in good faith. Nine days before their speedy-trial limit expired, the People emailed the arresting officer because they knew "all photos taken in connection with this case" were missing. (See Pr. Resp. Ex. 1 at 10). (The People do not explain why this was only done nine days before the speedy-trial deadline, and not weeks beforehand when discovery was due.) Then, one day before the speedy-trial deadline, knowing that they had not yet received these photos, the People filed a certificate of compliance and stated ready for trial. In other words, despite knowing this material existed but had not been disclosed, the People certified that "all existing known material" had been disclosed.
"Obviously, this is not how certificates are supposed to work." (People v. Rafoel, 77 Misc.3d 1231 [A], at *3 [Crim. Ct., Queens County 2023]). A certificate "must in good faith attest that [its] statements are actually true." (People v. Vargas, 76 Misc.3d 646, 649 n.2 [Crim. Ct., Bronx County 2022] [citing" Certificate," Merriam-Webster Dictionary [2022] [defining a "certificate" as a "document containing a certified statement especially as to the truth of something"]]). The People cannot in good faith certify a statement that they know is false. (See C.P.L. § 30.30[5] [requiring a good-faith certificate of compliance for a valid statement of readiness]).
Indeed, alongside their certificate of compliance, the People simultaneously filed a document that they entitled a "notice of non-disclosure." (See Pr. Resp. Ex. 1 at 10). This notice read:
Certain materials are not currently in the prosecution's possession and are unlikely to be obtained in any reasonable period of time. The People nevertheless wish to proceed to trial without the information and will accept any sanction for non-disclosure that the court rules is warranted under C.P.L. § 245.80. The People, however, reserve the right to argue that no sanction is warranted under the analysis mandated by section 245.80 or to argue for a particular lesser sanction, should one be appropriate. Specifically, the material in question is: On June 7, 12, and 14, 2023, CLA Chazen requested all photos taken in connection with this case.
The statute only authorizes notices of non-disclosure in limited circumstances. (See C.P.L. § 245.10[1][a] [requiring a notice when information has not been disclosed "pending" a protective order]; C.P.L. § 245.20[1][c] [requiring a notice where information relating to 911 callers, confidential informants, or other special witnesses has not been disclosed]; C.P.L. § 245.20[1][d] [requiring a notice where information relating to an undercover officer has not been disclosed]; C.P.L. § 245.20[1][f] [requiring a notice where some information relating to expert witnesses has not been disclosed]). No such circumstance exists here.
The statute does not allow the People to generally file a "notice of non-disclosure" whenever there are any discoverable materials that they have not yet disclosed. Such a notice is the opposite of a certificate of compliance. That the prosecutor has not disclosed discoverable material contradicts the statutorily required certification that "the prosecutor has disclosed... all known material." (C.P.L. § 245.50[1]). Thus, such a notice is simply an admission that the accompanying "certificate" of compliance is false.
This conclusion is uncontroversial. "A certificate of compliance must genuinely certify compliance." (People v. Vargas, 76 Misc.3d 646, 647 [Crim. Ct., Bronx County 2022]). "It cannot be a certificate of compliance in name only." (Id.). "Nor can it be a simple placeholder that the People file while they continue to disclose discovery files piecemeal." (Id.; see also People v. Pennant, 73 Misc.3d 753, 766 [Dist. Ct., Nassau County 2021] [noting the discovery statute "cannot be read to mean that the People may mete out discovery in a piecemeal fashion and file repetitive" certificates]).
Nor does the statute allow the People to selectively jettison part of their automatic discovery obligations simply because they "wish to proceed to trial" without first obtaining some material. To the contrary, C.P.L. § 245.50[3] mandates that, "absent an individualized finding of special circumstances..., the prosecution shall not be deemed ready for trial... until it has filed a proper certificate pursuant to subdivision one of this section." And "subdivision one" requires that such a proper certificate state that "the prosecutor has disclosed and made available all known material and information subject to discovery," except for discovery lost, destroyed, or under a protective order. (C.P.L. § 245.50[1] [emphasis added]). It is only" [w]hen the prosecution has provided the discovery required by [C.P.L. § 245.20[1]]" that "it shall serve... a certificate of compliance." (Id.).
Additionally, the court rejects the People's eleventh-hour request to treat their "notice of non-disclosure" as a motion to extend the discovery period. The notice was "not accompanied by any notice of motion, did not contain any return date, and the court did not set a motion schedule." (People v. Thomas, 59 Misc.3d 64, 66 [App. Term, 1st Dep't 2018]). Therefore, "no motion was actually made." (Id.). In any event, the People fail to establish good cause for such an extension. (See C.P.L. § 245.70[2]). The People had already violated the discovery deadline, (see C.P.L. § 245.10[1][a]), and so any such extension would be moot. If the People had faced genuine obstacles to complying with automatic discovery, they should have made such a request within that period. But the People claim no such obstacles here. In fact, the People's need for an extension here was apparently only because they failed to contact the police about "all photos taken in connection with this case" until merely nine days before the speedy-trial deadline. There is no indication that the photos were difficult to obtain-in fact, the police produced these photos within ten days of the People's request. (See Pr. Resp. Ex. 3). The People's dilatory work does not itself constitute good cause.
In sum, the People's certification that they had turned over all known discoverable material was not made in good faith. The People cannot "file a certificate in which they certify they have 'turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Toussaint, 78 Misc.3d 504, 508 [Crim. Ct., Queens County 2023] [quoting Quinlan, 71 Misc.3d at 271]; see also Hughes, 79 Misc.3d 1235[A], at *2 [same]; Rafoel, 77 Misc.3d 1231[A], at *1-*3 [noting the same]; People v. Haymon, 71 Misc.3d 1203 [A], at *2 [County Ct., Albany County 2021] [same]; Pennant, 73 Misc.3d at 767; Adrovic, 69 Misc.3d at 574 [same]; People v. Aguayza, 77 Misc.3d 482, 489 [Sup. Ct., Queens County 2022] ["[T]he People can't file a Certificate of Compliance claiming they have disclosed all known discovery if they have not actually done so."]).
In addition, the People's certification that they had exercised "due diligence" and made "reasonable inquiries" to ascertain the existence of discoverable information was not made in good faith, either.
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.).
The People advance a brightline rule: that whenever a police officer will not be a prosecution witness, the People may completely ignore that officer's NYPD disciplinary matters. That rule exists nowhere in the discovery statute. To the contrary, the People must exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of discoverable material in their actual or constructive possession. (C.P.L. §§ 245.50[1]; 245.20[2]).
As a result, this court has rejected the People's brightline rule before. (People v. Jawad, 78 Misc.3d 1217 [A], at *2-*5 [Crim. Ct., Queens County 2023]; 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]). Other courts have done the same. (E.g., Matter of E.S., 79 Misc.3d 681, 686 [Fam. Ct., NY County 2023]; People v. Jackson, 79 Misc.3d 832, 840 [Crim. Ct., NY County 2023]). And this court does so here again.
The People's argument is as follows. The text of the discovery statute includes, as automatically discoverable material, evidence that would "impeach the credibility of a testifying prosecution witness." (Pr. Resp. at 5-6). Therefore, they reason, the statute does not include reviewing disciplinary records for officers who are not testifying prosecution witnesses. (Id.).
The problem with this argument is that it focuses on one category of favorable information to the exclusion of all the others listed. The People have a duty, in the first instance, to diligently ascertain the existence of seven categories of favorable information. (C.P.L. § 245.20[1][k][i]-[vii]). 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]).
The People's brightline rule necessarily assumes that an officer's disciplinary record cannot relate to a case unless that officer is a testifying prosecution witness. But while an officer's disciplinary matters could tend to impeach the credibility of their in-court testimony, the records could also easily 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]). After all, this is a criminal case in which police officers investigated an alleged crime. And police disciplinary files are official documents largely relating to officers' alleged misconduct in investigating crimes.
There are myriad examples of how police misconduct records could be so favorable. They could be "a worthwhile source of [defense] investigation" into how an officer interacts with complainants, witnesses, or accused persons 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).
It is almost impossible to foresee all the many ways that documents relating to an officer's misconduct in investigating crimes could be useful to defending against a criminal case. But one need not divine those answers before the People's automatic discovery duty is triggered. The People's automatic burden-again, in the first instance-is to exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of the various types of favorable information listed in C.P.L. § 245.20[1][k]. As a result, the People may not categorically ignore an officer's disciplinary records simply because they are not calling that officer as their own witness. Such a categorical rule would be at war with the People's statutory burden.
Accordingly, the People's certificate was not proper for this reason, as well. Where the People fail to exercise due diligence and do not make reasonable inquiries to ascertain the existence of discoverable material, a certificate of compliance claiming otherwise is "not filed in good faith." (People v. LaClair, 79 Misc.3d 8, 11 [App. Term, 2d Dep't 2023]; see also People v. Rahman, 79 Misc.3d 129 [A], at *3 [App. Term, 2d Dep't 2023] [where the People failed to exercise due diligence and make reasonable inquiries to ascertain the existence of FDNY/EMS records, their certificate "was not filed in good faith"]; Guzman, 75 Misc.3d 132[A], at *3 ["[W]e find that the [certificate] was not filed in good faith, as the People failed to exercise due diligence and did not make reasonable inquiries to obtain the [dashcam] video."]). Here, the People so failed. They categorically refused to make any inquiries into the existence of favorable information in potential police disciplinary files for several officers substantively involved in the case. "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 and seal an entire category of documents from review. As this court has noted previously:
The discovery statute requires the People to engage in information sharing, not information suppression. And they are to build mechanisms to support the free flow of information, not construct arbitrary walls that block access. The People's approach here "appear[s] more bent on constricting the discovery statute, rather than acceding to the command of the Legislature that '[t]here shall be a presumption in favor of disclosure when interpreting... subdivision one of section 245.20.'" (People v. Payne, 2023 NY Slip Op. 23101, at *2 [Crim. Ct., Bronx County 2023] [quoting C.P.L. § 245.20[7]]). The People's responsibility-in entirety-is only to "diligently ascertain the existence of material" that relates to the case and then "disclose" it. (People v. Williams, 72 Misc.3d 1214 [(A]), at *5 [Crim. Ct., NY County 2021]). It is not to withhold material and then dispute the evidentiary materiality of it.(People v. Torres, 79 Misc.3d 1204 [A], at *9 [Crim. Ct., Queens County 2023]).
For all these reasons, the People's certificate was not proper or in good faith. Because the People have not shown any "special circumstances," their statement of readiness was illusory. (C.P.L. § 245.50[3]; see also Hamizane, 194 N.Y.S.3d at 668).
III. The C.P.L. § 30.30 calculation
The People commenced this case on March 18, 2023, and they had ninety days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The People's statement of readiness on the 89th day after arraignments was illusory, as it was not preceded or accompanied by a good faith certificate of discovery compliance.
It is now the People's burden to prove that any time "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 A.D.3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 A.D.2d 1122, 1122 [4th Dep't 1993]). Here, the People do not claim even a single C.P.L. § 30.30[4] exclusion. (See generally Pr. Resp.).
However, it is plain from the papers that the defense filed a motion on July 20, 2023, tolling the C.P.L. § 30.30 clock for motion practice under C.P.L. § 30.30[4][a]. (See Def. Mot. at 22). That said, C.P.L. § 30.30[4][a] only excludes a "reasonable period" of delay resulting from pre-trial motions.
It is a well-established rule of appellate law that any unexcused time "between [a] court-imposed deadline to respond... and the date on which the People actually file[] a response" is not a reasonable period of delay. (E.g., Ferro, 197 A.D.3d at 788; see also People v. Delosanto, 307 A.D.2d 298, 299 [2d Dep't 2003] ["[T]he Supreme Court should have charged the People with a 13-day period [between] a court imposed deadline to respond to one of the defendant's pretrial motions [to] the date that the People actually filed a response."]; People v. Gonzalez, 266 A.D.2d 562, 563 [2d Dep't 1999] [holding that a period between which "the People were originally scheduled to respond" and "the date upon which they actually did respond" should be "charged to the People" because "it constitutes a period of unreasonable delay"]; People v. Commack, 194 A.D.2d 619, 620 [2d Dep't 1993] ["[T]he last 10 days... should be charged to the People because the People did not respond to the motion until 10 days after the court-ordered deadline."]).
Our Appellate Term's decision in People v. Hock is instructive. (40 Misc.3d 141[A] [App. Term, 2d Dep't 2013]). There, the People had requested and were granted "an extension of time to submit their opposition papers." (Id. at *2). However, the People failed to meet that extended deadline. Nonetheless, the lower court refused to count that delay as an unreasonable one under C.P.L. § 30.30[4][a]. The Appellate Term reversed, holding that the lower court "should have charged the People" with the time. (Id.). In doing so, it emphasized a clear rule of law: any unexcused time "beyond the [People's] deadline which had been set by the court for motion practice" constitutes "a period of unreasonable delay." (Id.).
Here, the People requested and were granted an extension to respond to the motion by August 20, 2023. However, the People did not meet that deadline and did not request another extension until August 30, 2023. That the People had proposed a disposition by email to defense counsel while she was on vacation does not allow the People to unilaterally disregard a court deadline. Therefore, the People are responsible for ten additional days of unreasonable delay in responding to the motion.
In total, the C.P.L. § 30.30 calculation runs from March 18, 2023, to July 20, 2023, and then from August 20, 2023, to August 30, 2023. That is 134 days, more than the ninety days the People are allowed. The case must therefore be dismissed. (See C.P.L. § 30.30[1][b]).
Any remaining issues and motions are moot.
The foregoing constitutes the order and decision of the court.