Opinion
Docket No. CR-005834-22QN
12-20-2023
The People of the State of New York v. Marte, Defendant.
For the People: Melinda Katz, District Attorney (by Jairo Z. Coronado) For Mr. Marte: The Legal Aid Society (by Sade Stephenson)
For the People: Melinda Katz, District Attorney (by Jairo Z. Coronado)
For Mr. Marte: The Legal Aid Society (by Sade Stephenson)
Wanda L. Licitra, J.C.C.
Pending before the court is a C.P.L. § 30.30 motion to dismiss alleging that the People's statements of readiness were illusory. The motion claims that the People failed to first file a proper certificate of automatic discovery compliance, a prerequisite to their readiness. Among other arguments, the motion asserts the People failed to discharge their duties regarding potential impeachment material for their designated police witnesses. For the reasons stated below, the court agrees. Because the People exhausted their C.P.L. § 30.30 time, the motion is granted.
LEGAL ANALYSIS
I. Legal Standard
Absent 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. (See generally C.P.L. §§ 30.30[5], 245.20[1], 245.50[3], 245.50[1]). Consequently, where no special circumstances exist, a statement of readiness is invalid if it is accompanied or preceded only by an improper certificate of compliance.
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 after doing so, the People have "made available all known material and information subject to discovery." (C.P.L. § 245.50[1]).
"These are two separate statements that the People must certify, in good faith, to each be true." (People v. Rafoel, 77 Misc.3d 1231 [A], at *2 [Crim. Ct., Queens County 2023]; see also People v. Ballard, 2023 NY Slip Op. 23392, at *9 [Crim. Ct., Queens County Dec. 14, 2023] [Gershuny, J.] [also separating out the statutory elements of a proper certificate]). "A certificate of compliance is not simply a certificate of 'reasonable and diligent efforts'" to ascertain the existence of discovery. (People v. Luke, 80 Misc.3d 1228 [A], at *3 [Crim. Ct., Queens County 2023]). Only the "first component" of the certificate deals with diligently and reasonably "ascertain[ing] the existence" of discoverable material. (People v. Williams, 73 Misc.3d 1209 [A], at *1 [Crim. Ct., NY County 2021]). After the People diligently and reasonably ascertain the existence of discovery, they must also properly certify "the second part"-disclosing it. (See id.).
Our department's appellate cases provide clear guidance on how to analyze a prosecutor's certificate, and it is helpful to sort the cases into two groups. The first group of cases analyze the first statement of a certificate of compliance-the one certifying efforts to "ascertain the existence" of discovery. These are situations in which a prosecutor certifies compliance without knowing whether other discoverable material exists. In these cases, our appellate courts consistently hold that where the People do not, in fact, exercise due diligence or make reasonable inquiries to ascertain the existence of discoverable material, their certificate stating otherwise is not made in "good faith." (People v. Hamizane, 80 Misc.3d 7, 11 [App. Term, 2d Dep't 2023] [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"]; People v. Rahman, 79 Misc.3d 129 [A], at *2 [App. Term, 2d Dep't 2023] [certificate "not filed in good faith" because the People, in fact, "failed to exercise due diligence and make reasonable inquiries to ascertain the existence of FDNY/EMS records"]; People v. LaClair, 79 Misc.3d 8, 11 [App. Term, 2d Dep't 2023] [certificate "not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to ascertain the identities of all law enforcement witnesses related to the case"]; People v. Guzman, 75 Misc.3d 132 [A], at *3 [App. Term, 2d Dep't 2022] [certificate "not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to obtain [a dashcam] video"]).
The second group of our department's appellate cases involve the second statement of the certificate of compliance-the one certifying that "the prosecutor has disclosed and made available all known" discoverable material. In these situations, the People properly ascertained the existence of some material, but nonetheless certified compliance without disclosing it. There, our department has concluded that a certificate cannot "be deemed complete" until that known material is "actually produced" to the defense. (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 788 [2d Dep't 2021]; People v. Carter, 80 Misc.3d 127 [A], at *2-*3 [App. Term, 2d Dep't 2023]). In other words, as some of our lower courts have put it, the People cannot be said to have certified that they "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Ashraf, 80 Misc.3d 1223 [A], at *3 [Crim. Ct., Richmond County 2023] [internal citations omitted]; People v. Pennant, 73 Misc.3d 753, 767 [Dist. Ct., Nassau County 2021] [same]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020 [same]; accord People v. Quinlan, 71 Misc.3d 266, 271 [Crim. Ct., Bronx County 2021] [same]).
Last week, the Court of Appeals decided People v. Bay, which concerned the first statement of a certificate of compliance. (2023 NY Slip Op. 06407 [Dec. 14, 2023]). Below, the People had certified compliance under the belief that no remaining discovery existed. As the prosecutor represented to the defense attorney after filing the certificate: "I just checked; the discovery, as it exists with this case, has been turned over." (Id. at *1). When challenged further on specific items, she represented that "those discovery items don't exist." (Id.). Later though, the People discovered that various missing materials did, in fact, exist. (Id. at *2). They subsequently disclosed them. (Id.).
Bay thus concerned a situation where the People did not know whether some discoverable material existed. The "key" question, therefore, was the propriety of the first statement of the certificate of compliance; that is, whether the People properly certified that they had "exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery." (Id. at *5 [internal quotation marks omitted] [emphasis added]). It is in this context of a certificate's first statement-ascertaining the existence of discovery-that Bay calls "reasonableness" the "touchstone." (Id.). Both "due diligence" and "reasonable inquiries" boil down to "reasonableness." (Id. at *5-*6). "Reasonable inquiries" is self-explanatory. Black Law's Dictionary defines "due diligence" and "[t]he diligence reasonably expected from" a person discharging a duty. (Id. at *5).
In analyzing the People's efforts to ascertain the existence of discovery, Bay arrived at the same conclusion as the Second Department's cases: that the People cannot certify a statement that is not true. (See id. at *5-*6). Whether the People properly certified that they exercised due diligence to ascertain the existence of discovery requires a court to analyze whether the People in fact made those efforts. (Id. at *7 [noting the People's burden to establish "that they did, in fact, exercise due diligence"]). That is because the discovery statute "require[s] that due diligence must be conducted prior to filing" the certificate that certifies those efforts. (Id. at *6). The People cannot certify they made sufficient efforts to ascertain the existence of discovery when they did not, in fact, do so.
However, Bay did not address the second group of cases referenced above, where the People know discovery exists but nonetheless certify compliance without disclosing it. That is not an uncommon situation. This court has faced numerous cases where the People knew that material existed and was still outstanding, but nonetheless certified compliance. (See, e.g., Luke, 80 Misc.3d 1228[A], at *2-*3 [prosecutor certified compliance despite knowing that body-worn camera footage existed but had not yet been disclosed]; People v. Luna, 80 Misc.3d 1217 [A], at *3 [Crim. Ct., Queens County 2023] [prosecutor certified compliance despite knowing that police photos existed but had not yet been disclosed]; Rafoel, 77 Misc.3d 1231[A], at *3 [prosecutor certified compliance despite knowing that "some" police items existed had not yet been disclosed]; People v. Toussaint, 78 Misc.3d 504, 508 [Crim. Ct., Queens County 2023] [prosecutor certified compliance despite knowing that police memo books existed but had not yet been disclosed]).
In these situations, the People's efforts to ascertain the existence of discovery were not at issue. Instead, the question was whether, knowing that material existed but had not been disclosed , the People nonetheless properly certified that the prosecutor "has disclosed... all known material." (C.P.L. § 245.50[1]). In such situations, the rule from Ferro and Carter must control. Where the People know that material exists, their certificate cannot "be deemed complete" until that known material is "actually produced" to the defense. (Ferro, 197 A.D.3d at 788; Carter, 80 Misc.3d 127[A], at *2-*3).
Bay also did not address cases where the People know that some material exists but nonetheless unilaterally choose to withhold it, deeming it "irrelevant," "immaterial," or "not discoverable." In these situations, as well-and again, different from Bay -the People's efforts to ascertain the existence of the material are not at issue. Rather, the People know that the material exists, but they have chosen not to disclose it. Therefore, the question is whether they could have nonetheless properly certified that the prosecutor "has disclosed... all known material." (C.P.L. § 245.50[1]).
Generally, courts have rejected the People's attempts to unilaterally withhold known material under these claims. (See, e.g., People v. Payne, 79 Misc.3d 827, 831 [Crim. Ct., Bronx County 2023] ["[T]he People's evidentiary opinions have absolutely no import in an Article 245 discovery analysis."]; People v. Kennedy, 79 Misc.3d 973, 979 [Crim. Ct., Kings County 2023] ["Further, it is not for the People to determine what is relevant and discoverable."]; People v. Trotman, 77 Misc.3d 1210 [A], at *1 [Crim. Ct., Queens County 2022] ["The People could not claim to have turned over 'all known material and information' while at the same time making unilateral policy or value judgments to withhold material."]; People v. Best, 76 Misc.3d 1210 [A], at *6 [Crim. Ct., Queens County 2022] ["[T]he disclosure of... records must be automatic, absolute and without redaction, adulteration, or censorship by the People."]; People v. Goggins, 76 Misc.3d 898, 901 [Crim. Ct., Bronx County 2022] ["[E]vidence and information... should not be filtered through the prosecution."]; People v. Cooper, 71 Misc.3d 559, 566 [County Ct., Erie County 2021] ["The law does not allow for this information to be filtered... by the People's assessment of its credibility or usefulness."]).
After all, the statute mandates that the People presume that material be disclosed, not withheld. (C.P.L. § 245.20[7]). And that mandate is explicit: the statute commands a "presumption in favor of disclosure when interpreting... subdivision one of section 245.20." (C.P.L. § 245.20[7]). Subdivision one of section 245.20, in turn, mandates that the People disclose "all" material related to the subject matter of the case that is in their possession. (C.P.L. § 245.20[1]). Thus, the People must disclose material "any time there is a 'colorable legal argument' that it... fall[s] within the statute." (People v. Torres, 79 Misc.3d 1204 [A], at *9 [Crim. Ct., Queens County 2023]). The People's entire responsibility is to "diligently ascertain the existence of material"-the concern of Bay -and then to "disclose it." (Williams, 72 Misc.3d 1214[A], at *5). It is not to ascertain its existence and then dispute the evidentiary materiality of it. The statute only allows the People to unilaterally withhold material in limited, specific circumstances. (See, e.g., C.P.L. § 245.20[1][c] [allowing the People to withhold physical addresses and the identities of 911 callers and confidential informants "without need for a motion"]; C.P.L. § 245.20[1][d] [same for materials relating to undercover personnel]).
The upshot is this: Bay addresses situations where the prosecutor fails to ascertain the existence of some discoverable material; it does not address situations where the prosecutor knows of some material but nonetheless files a certificate without disclosing it.
That said, Bay made clear that the so-called "adverse-consequence clause" does not apply to any C.P.L. § 30.30-related certificate-of-compliance analysis. (See Bay, 2023 NY Slip Op. 06407 *7 n.3). That clause reads that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate in good faith and reasonable under the circumstances." Bay thus resolved an earlier split between appellate courts that had differed in whether to apply that standard. (See generally People v. Nisanov, 78 Misc.3d 1224 [A], at *1 n.1 [Crim. Ct., Queens County 2023] [explaining the split]; compare Ferro, 197 A.D.3d 787-88 [not referencing the clause], with People v. Gaskin, 214 A.D.3d 1353, 1355 [4th Dep't 2023] [applying it]).
Bay reasons that the clause is inapplicable because C.P.L. § 245.50[1] spells out the requirements of a proper certificate "and C.P.L. § 245.50[3] states that the People shall not be deemed trial ready until they have filed a proper" certificate. (Id.). Thus, "[t]he reference to 'adverse consequence' does not alter the statutory standard for a proper COC" for readiness purposes. (Id.).
Because the "adverse-consequence clause" is irrelevant when analyzing the propriety of the first statement in a certificate of compliance, so too is it irrelevant when analyzing the second. As a result, when analyzing whether the People properly certified that "the prosecutor has disclosed... all known material," the question is not whether the disclosure was "reasonable under the circumstances." "Reasonableness," when dealing with known discovery that the People did not disclose, is irrelevant. Instead, the question is whether the known discovery was in fact "actually produced" to the defense, absent special circumstances. (Ferro, 197 A.D.3d at 788; Carter, 80 Misc.3d 127[A], at *2-*3).
Procedurally, most courts have held that upon receiving a C.P.L. § 30.30 motion challenging the People's certificate of compliance, the People must establish that their certificate was proper. (E.g., Hamizane, 80 Misc.3d at 11; People v. Hooks, 78 Misc.3d 398, 402 [Crim. Ct., Kings County 2023] ["The People have... not met their burden of showing how their actions were diligent."]; People v. Critten, 77 Misc.3d 1219 [A], at *3 [Crim. Ct., NY County 2022] [assessing "due diligence requires the People to demonstrate how due diligence was exercised"]; People v. McKinney, 71 Misc.3d 1221 [A], at *7 [Crim. Ct., Kings County 2021] [the People must produce a "factual basis" for the court to find "due diligence"]).
Bay confirms this principle. "Should a defendant bring a CPL 30.30 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." (Bay, 2023 NY Slip Op. 06407, at *7). "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.). As in any prereadiness analysis, the People bear the burden "to ensure that the record is sufficiently clear as to who is chargeable for a delay." (People v. Smith, 110 A.D.3d 1141, 1142 [3d Dep't 2013]).
II. Application
In this C.P.L. § 30.30 motion, the defense alleges that the People's certificates of discovery compliance were not proper. Relevant here, they allege that the People filed their initial certificate and stated ready despite failing to disclose impeachment information relating to their potential testifying witnesses.
Having done so previously in depth, the court will not review a full explanation of why the People must ascertain the existence of and disclose police misconduct matters regarding their testifying police witnesses. (See generally Nisanov, 78 Misc.3d 1224[A]; People v. Figueroa, 78 Misc.3d 1203 [A] [Crim. Ct., Queens County 2023]). In short, C.P.L. § 245.20[1][k][iv] requires the People to disclose "[a]ll evidence and information" which tends to "impeach the credibility of a testifying prosecution witness." It deems such material to "relate to the subject matter of the case." (C.P.L. § 245.20[1][k][iv]). Evidence of "a police witness's prior bad act... can be proper fodder" for impeaching that witness. (People v. Smith, 27 N.Y.3d 652, 661 [2016]). Under C.P.L. § 245.20[2], "all items and information related to the prosecution of a charge" in the possession of the police "shall be deemed to be in the possession of the prosecution." Police misconduct records are "'related to the prosecution of a charge' for the same reason that impeachment evidence relates to 'the subject matter of the case': it directly relates to whether the factfinder should believe the witness's testimony." (People v. Edwards, 74 Misc.3d 433, 441 [Crim. Ct., NY County 2021] [Weiner, J.]). "Consequently, with respect to every listed potential police witness, it [is] the People's obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records." (Hamizane, 80 Misc.3d at 10-11 [citing Matter of Jayson C., 200 A.D.3d 447, 449 [1st Dep't 2021]; People v. Rodriguez, 77 Misc.3d 23, 24 [App. Term, 1st Dep't 2022]]).
Here, the People fail to meet their burden of showing that their certificate of compliance was proper. As an initial matter, the People's response makes basic errors. Inexplicably titled as an "Affirmation in Opposition, Request for Remedies/Sanctions C.P.L. § 245.80," much of the People's response appears copy and pasted from other papers. It provides three entirely different procedural histories: one beginning March 11, 2022, (Pr. Resp. at 1-2); another beginning February 12, 2022, (Pr. Resp. at 3-4); and yet another beginning on August 3, 2022, (Pr. Resp. at 4-5). And it contains four different dates, claiming each to be the date that the People initially filed their certificate of compliance-April 4, 2022, April 6, 2022, April 27, 2022, and October 31, 2022. (Pr. Resp. at 1-5). As a result, the court begins by taking judicial notice to confirm the initial court dates and relevant filings that the defense alleges.
On March 11, 2022, the People commenced this case. On April 6, 2022, the People filed a certificate of compliance and a statement of readiness. On May 18, 2022, the People filed a supplemental certificate of compliance and another statement of readiness. On that supplemental certificate, the People explained they were disclosing OCME-related documents that were only created one week earlier.
On August 16, 2023, the People filed another supplemental certificate of compliance. This certificate noted that the People were disclosing "Updated MOS Russell Lerch LEOW," "Updated MOS Michael Valverde LEOW," and "Updated MOS Anthony Tobia LEOW." The People had designated all three officers as potentially testifying prosecution witnesses in their initial certificate.
Under C.P.L. § 245.50[1-a], this second supplemental certificate was clearly deficient. That provision requires the People to "detail" the "basis for the delayed disclosure so that the court may determine whether the disclosure impacts the propriety of the certificate of compliance." (C.P.L. § 245.50[1-a]). However, the second supplemental certificate here did not provide any explanation for why these materials were "updated"-whether the information was newly created or whether it was information the NYPD possessed all along.
The People do not provide this explanation in their response, either. Though they acknowledge that they "did supplement the LEOW information for the possible testifying officers on August 15, 2023," they do not provide any basis as to why. (See Pr. Resp. at 6-7). Instead, they focus their response entirely on "CCRB documents," disclaiming all responsibility for those documents because "[t]he CCRB is not under the People's control." (Id. at 6). They also note that in their "LEOW letter," they "include a link to the CCRB in case Defense Counsel would like to retrieve any information that CCRB had." (Id. at 6-7). The People are silent regarding any NYPD police misconduct records.
The People therefore fail to establish that their initial certificate was proper. They made a subsequent, belated disclosure over one year after its filing. They did not fulfill the statutory mandate to "detail" the "basis" for that "delayed disclosure" on their supplemental certificate so that the court could "determine whether" it "impacts the propriety of the [initial] certificate." (C.P.L. § 245.50[1-a]). And they again failed to do so in their written response to the instant motion. Thus, the People failed to show that "they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure." (Bay, 2023 NY Slip Op. 06407, at *7).
But even setting that aside, the record submitted by the parties raises further problems with the People's certificate. None of these problems are addressed by the People's response.
First, the "LEOW letter" for one officer states that he "was the subject of allegations that were found to be[] 'unsubstantiated' following an investigation." (Def. Mot. Ex. C at 2). It then refuses to give any information about that allegation, other than acknowledging it was an NYPD matter. (See id.). It does so because, according to its terms, the People believe that "only allegations that are either pending or have been substantiated" fall under the discovery statute. This is wrong, and the court has previously explained why in depth. (Nisanov, 78 Misc.3d 1224[A], at *2-*3). Other courts have, as well. (E.g., People v. Javier Rodriguez, CR-002613-20BX [Crim. Ct., Bronx County May 20, 2021], aff'd, 77 Misc.3d 23; People v. Eleazer, 78 Misc.3d 1222 [A] [Crim. Ct., NY County 2023]; Payne, 79 Misc.3d 827; People v. Rugerio-Rivera, 77 Misc.3d 1230 [A] [Crim. Ct., Queens County 2023]; Goggins, 76 Misc.3d 898; People v. Martinez, 75 Misc.3d 1212 [A] [Crim. Ct., NY County 2022]; Edwards, 74 Misc.3d 433; McKinney, 71 Misc.3d 1221[A]; People v. Cooper, 71 Misc.3d 559 [County Ct., Erie County 2021]). The People knew this material existed but nonetheless failed to disclose it. Thus, the People failed in their burden to establish the propriety of their certificate here, as well.
Second, the People unilaterally redacted, in virtually its entirety, one of their designated prosecution witnesses' CCRB officer histories. They provide no explanation for doing so. They claim that on the officer's corresponding "LEOW letter," there is a "link to the CCRB in case Defense Counsel would like to retrieve information." (Pr. Resp. at 6-7). On the relevant LEOW letter, there is no such link to the CCRB. (See Def. Mot. Ex. C at 2). Thus, the court can only conclude that the People were in actual possession of CCRB information regarding this officer that they withheld from the defense. The People knew of discoverable material in their actual possession and failed to disclose it, opting instead to redact it. As many courts have noted, the People are without authority to make such redactions without at least a pending court-approved protective order. (E.g., People v. Olah, 79 Misc.3d 1240 [A], at *2-*3 [Crim. Ct., Queens County 2023]; People v. Robinson, 193 N.Y.S.3d 883, 891 [Crim. Ct., Kings County 2023]; Best, 76 Misc.3d 1219[A]; Goggins, 76 Misc.3d at 903). Therefore, the People failed to meet their burden here, as well.
Finally, the court rejects the People's position that they need not do anything with respect to a testifying police witness' CCRB matters. The People's automatic discovery duties are laid out in C.P.L. § 245.20[1] and C.P.L. § 245.20[2]. The latter provision-which is entitled "[d]uties of the prosecution"-requires the People to make "a diligent, good faith effort to ascertain the existence" of discoverable material and "cause" it to be "made available for discovery" where it "exists but is not within the prosecutor's possession, custody or control." (C.P.L. § 245.20[2]). Thus, "[i]f the People know CCRB matters exist, they have a duty to make a 'diligent good faith effort' to 'ascertain the existence' of the underlying material and disclose it." (People v. Zurita, 80 Misc.3d 1211[A], at *2 n.3 [Crim. Ct., Queens County 2023] [quoting C.P.L. § 245.20[2]]; Robinson, 193 N.Y.S.3d at 891 [noting the same]). The CCRB is the city's premiere independent agency "empowered to receive, investigate, mediate, hear, make findings, and recommend action on complaints against New York City police officers." A "diligent, good faith effort" to ascertain the existence of impeachment information regarding an officer includes at least requesting information about their CCRB matters. (See also People v. Jawad, 78 Misc.3d 1217 [A], at *5 [Crim. Ct., Queens County 2023] ["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."]). Here, however, the People instead disclaim all responsibility regarding those matters. As a result, here, too, they failed to show that "they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC." (Bay, 2023 NY Slip Op. 06407, at *7).
About the CCRB, NYC Civilian Complaint Review Board, https://www.nyc.gov/site/ccrb/about/about.page.
The People commenced this case on March 11, 2022, and they had 90 days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). For the many reasons above, the People failed to establish that their certificate of compliance was proper. Therefore, their statement of readiness was illusory. The People must now prove that any of the time between March 11, 2022, and ninety days thereafter "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]). Having failed to make a proper record of any of the adjournments, the People fail to make such a showing. Therefore, the People have exhausted their readiness time and the case must be dismissed. (See C.P.L. § 30.30[1][b]).
Any remaining issues are moot.
The foregoing constitutes the order and decision of the court.