Opinion
No. 2022-468 S CR
04-11-2024
The People of the State of New York, Respondent, v. Gerson Luna, Appellant.
Suffolk County Legal Aid Society (Genevieve M. Cahill of counsel), for appellant. Suffolk County District Attorney, (Christopher R. Turk and Marion Tang of counsel), for respondent.
Suffolk County Legal Aid Society (Genevieve M. Cahill of counsel), for appellant.
Suffolk County District Attorney, (Christopher R. Turk and Marion Tang of counsel), for respondent.
PRESENT:: JERRY GARGUILO, P.J., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeal from a judgment of the District Court of Suffolk County, First District (Eric Sachs, J.), rendered June 24, 2022. The judgment convicted defendant, after a nonjury trial, of aggravated driving while intoxicated per se and common-law driving while intoxicated, and imposed sentence. The appeal brings up for review an order of that court denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's motion is granted, the accusatory instrument is dismissed, and the fines, if paid, are remitted.
Insofar as is relevant to this appeal, on January 29, 2021, defendant was charged with aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]) and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).
On March 31, 2021, the People requested Internal Affairs Bureau (IAB) reports pertaining to a police officer from the Suffolk County Police Department (SCPD). On April 29, 2021, the People submitted a certificate of compliance (COC) and statement of readiness (SOR), which included a certification pursuant to CPL 30.30 (5-a). In the COC, the People stated that they "have disclosed and made available to the defendant(s)... all known material and information that is the subject to discovery under CPL []245.20 (1)... [and] all potential evidence and information, that tends to.... (iv) impeach the credibility of a testifying prosecution witness," and indicated that the officer was a potential witness. Thereafter, the People submitted numerous supplemental COCs and SORs. On June 14, 2021, the People received IAB reports from the SCPD, but did not provide them to the defense until March 16, 2022, due to an "administerial oversight." A combined Dunaway/Huntley/Mapp hearing was held, after which, by order issued February 1, 2022, the District Court (Eric Sachs, J.) denied the branches of defendant's motion seeking to suppress his statements and breath test result.
Prior to the start of the trial, defense counsel orally moved to dismiss the accusatory instrument on CPL 30.30 statutory speedy trial grounds, arguing that the April 2021 COC was improper, and the attendant SOR illusory, and, therefore, more than 400 days of delay were chargeable to the People. The People orally opposed the motion. The court (Erich Sachs, J.) denied the motion. Following a nonjury trial, defendant was convicted of both charges and sentence was imposed.
Although a motion to dismiss must be made in writing and upon reasonable notice to the People (see CPL 170.45; 210.45 [1]), this issue has been waived since the People did not object to the motion on these grounds in the District Court (see People v Mezon, 80 N.Y.2d 155, 159-160 [1992]; People v Singleton, 42 N.Y.2d 466, 470-471 [1970]).
As of January 2020, absent an individualized finding of special circumstances, the filing of a proper COC is a prerequisite to the People being ready for trial pursuant to CPL 30.30 (see CPL 30.30 [5]; 245.20, 245.50 [3]; People v Bay, - N.Y.3d -, 2023 NY Slip Op 06407 [2023]; People v Guzman, 75 Misc.3d 132 [A], 2022 NY Slip Op 50445[U], *5 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). In People v Bay, the Court of Appeals held that "the key question in determining if a proper COC has been filed is whether the prosecution has 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery'" (Bay, - N.Y.3d at -, 2023 NY Slip Op 06407, *2, quoting CPL 245.50 [1]; see also CPL 245.20 [2]). The Court noted that "the discovery provisions empower-and indeed, require-the trial court to facilitate compliance on the record with these new discovery obligations" (Bay, - N.Y.3d at -, 2023 NY Slip Op 06407, *2). If a defendant brings "a CPL 30.30 [speedy trial] motion to dismiss on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure.... If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and-so long as the time chargeable to the People exceeds the applicable CPL 30.30 period-the case dismissed" (id. at *2 [citations omitted]). Moreover, "a defendant need not demonstrate prejudice [pursuant to CPL 245.80] to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations.... [a]s... CPL 30.30 now requires dismissal if the People did not file a proper COC and the speedy trial period has run. That provision is not qualified by CPL 245.80" (id. at *2).
In the case at bar, the People first requested the IAB reports from the SCPD on March 31, 2021. The People then filed their initial COC and SOR on April 29, 2021. They received the requested IAB reports on June 14, 2021, but did not provide the defense with the reports until March 16, 2022, due to an "administerial oversight," which was about 400 days after defendant's arraignment. CPL 245.10 (1) sets forth the time periods by which the People shall perform their discovery obligations, and the People provided no explanation as to why they made no inquiries or requests to the SCPD until March 31, 2021 when defendant was charged on January 29, 2021. They also failed to explain how, as stated in their COC, they had "disclosed and made available to the defendant(s)... all known material and information that is the subject to discovery," as they did not receive the requested reports from the SCPD until June 2021.
In view of the foregoing, the People failed to show that they exercised due diligence prior to filing their initial COC in April 2021. Consequently, their SOR was illusory and defendant's CPL 30.30 statutory speedy trial motion should have been granted because more than 90 days of delay were chargeable to the People. We note that it is of no import that any belatedly provided material was ultimately not used at trial or found to contain nondiscoverable material since, in the first instance, the People were required to show due diligence and good faith in order to submit a proper COC (see CPL 245.20 [2]; 245.50 [1]).
We pass on no other issue.
Accordingly, the judgment of conviction is reversed, the order denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's motion is granted, and the accusatory instrument is dismissed.
GARGUILO, P.J., and WALSH, J., concur.
McCORMACK, J., dissents and votes to affirm the judgment of conviction in the following memorandum:
The majority holds that the Court of Appeals' decision in People v Bay (- N.Y.3d -, 2023 NY Slip Op 06407 [2023]) requires a court that is asked to review the validity of a certificate of compliance (COC) to invalidate such COC where, upon a threshold inquiry, the court determines that the People did not establish that they had exercised due diligence, and made reasonable inquiries, to ascertain the existence of discoverable material (see CPL 245.20) prior to filing their COC, even if it is ultimately found that a proper inquiry would not have yielded any discoverable material. I disagree, as I find that the facts in Bay are distinguishable. In Bay, the material involved was subject to automatic discovery. In contrast, here, the Internal Affairs Bureau (IAB) reports at issue, as explained below, clearly are not. Indeed, Bay noted that "whether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific... and will turn on the circumstances presented" (Bay, - N.Y.3d at -, 2023 NY Slip Op 06407,*2).
The People are required, within specified time periods (see CPL 245.10 [1]) to "make a diligent, good faith effort to ascertain the existence of material or information" that is subject to automatic discovery (CPL 245.20 [2]). CPL 245.20 (1) lists various materials which are subject to automatic discovery including, among other things, evidence that tends to "impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]). Here, the IAB reports concern the alleged failure of the police officer to follow rules and procedures of the Suffolk County Police Department, to wit, the officer's alleged failure to notify a supervisor about a civilian complaint against another officer, and the officer's alleged failure to sit next to a person being transported for psychiatric evaluation. As the People correctly argued in the District Court, neither of these IAB reports serve to "impeach the credibility of [the police officer,] a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]), a prerequisite for the reports to be subject to automatic discovery (see CPL 245.20 [1]), and the majority does not claim otherwise. Thus, the timing provisions of CPL 245.10 (1) and the due diligence and good faith provisions of CPL 245.20 (2) are inapplicable. In view of the foregoing, I find that the COC was not improper and, therefore, that the District Court properly denied defendant's statutory speedy trial motion, as the People's statement of readiness was not illusory. Since none of defendant's remaining appellate contentions have merit, I vote to affirm the judgment of conviction.
The IAB reports would also not be discoverable because they do not" 'relate to the subject matter of the case'" (People v Johnson, 218 A.D.3d 1347, 1350 [2023], quoting CPL 245.20 [1]; see People v McCarty, 221 A.D.3d 1360 [2023]).