Opinion
Docket No. CR-000389-23BX
02-15-2024
The People of the State of New York, v. Genesis Mercano, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: Jazmine Langley, Assistant District Attorney) For the Defendant: Giovanni Escobedo, Esq.
For the People: Darcel D. Clark, District Attorney, Bronx County
(by: Jazmine Langley, Assistant District Attorney)
For the Defendant: Giovanni Escobedo, Esq.
Hon. Yadhira González-Taylor, J.C.C.
By notice of omnibus motion dated October 19, 2023, defendant moved, inter alia, for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§170.30 (e), 30.20 and 30.30. Specifically, defendant asserts that the People's Certificate of Compliance ("CoC") should be deemed invalid pursuant to CPL § 245.50 (1) and (3) because they failed to comply with their disclosure obligations, and further argues that the case must be dismissed if the People are charged with the period of their non-compliance. The defense further seeks an order granting suppression of evidence and noticed statements pursuant to Mapp/Dunaway and Huntley, respectively, and for preclusion of evidence of prior criminal history and bad acts pursuant to Sandoval/Ventimiglia/Molineux. The People opposed the motion on December 5, 2023.
Upon review and consideration of the submissions, court file, and relevant legal authority, the Court finds that the People failed to exercise due diligence in the discharge of their discovery duties and, thus:
The People's CoC filed on April 4, 2023, is deemed INVALID and ILLUSORY; and
Dismissal pursuant to CPL §§ 170.30 (e), 30.20 and 30.30 is GRANTED.
RELEVANT PROCEDURAL HISTORY
Defendant Genesis Mercano was arrested on January 5, 2023 and charged with one count each of Penal Law ("PL") § 220.03 (criminal possession of a controlled substance in the seventh degree), Vehicle and Traffic Law ("VTL") § 511 (2) (a) (iv) (aggravated unlicensed operation of a motor vehicle in the third degree), § 511 (1) (a) (aggravated unlicensed operation of a motor vehicle in the third degree), misdemeanors, and § 509 (1) (unlicensed operation of a motor vehicle), a violation. Mr. Mercano was arraigned the following day and released on his own recognizance.
On April 4, 2023, the People filed their CoC and Statement of Readiness ("SoR"). On April 19, 2023, the People served a supplemental CoC ("SCoC"), accompanied by Giglio disclosures for the arresting officer, Ariel Gonzalez ("PO Gonzalez").
At a court appearance held on May 31, 2023 (the "May conference"), The Legal Aid Society was relieved as counsel and Attorney Escobedo was assigned as 18-b counsel. Additionally, Mr. Escobedo advised the prosecution that the arresting officer had been involved in an accident while driving defendant's vehicle from the arrest site. The Court directed the parties to confer regarding discovery matters, including the existence of information concerning the car accident ("MV-104AN") and the docket was adjourned for compliance.
At the next court appearance held on June 30, 2023 (the "June conference"), defense counsel advised the Court that the parties had not conferred and that he was still not in receipt of discovery, including any accident report. The ADA covering the part informed the Court that the assigned ADA had emailed discovery that day and, as such, the matter was adjourned to allow defense counsel time to review the disclosures and for the parties to confer. Court records document the parties' continued failure to confer and on September 21, 2023, the same date of the People's second SCoC filing, which disclosed an NYPD Motor Vehicle Collision Worksheet, defense counsel's request for a motion schedule was granted.
DISCUSSION
I. The Parties' Arguments
Initially, defense counsel argues that the prosecution was advised at the May conference that an MV-104AN should have been generated and disclosed, which request was reiterated at the June conference (affirmation of defendant's counsel at 4). Defendant further avers that an accident report involving Police Officer Dania Caceresolivo ("PO Caceresolivo") is presumed to be within the prosecution's custody and control and, thus, subject to disclosure pursuant to CPL § 245.20 (2) (affirmation of defendant's counsel at 7). Counsel posits that the MV-104AN is germane to this matter because the car accident may have instigated the charges against defendant (affirmation of defendant's counsel at 8). Counsel asserts that the prosecution was required to disclose an NYPD Motor Vehicle Collision Worksheet along with the MV-104AN but did not (affirmation of defendant's counsel at 9). Moreover, the defense extrapolates from the People's disclosure of an NYPD Activity Log, bearing a notation of "PRINTED ON 03/25/23 08:23," that the prosecution was on notice that an MV-104AN actually existed (affirmation of defendant's counsel at 8). Defendant also maintains that the People's disclosures were redacted and incomplete insofar as they failed to provide Giglio materials concerning non-testifying officers, including PO Caceresolivo (affirmation of defendant's counsel at 11-15).
Counsel seeks an order suppressing statement evidence or, alternatively, a Huntley hearing and an order suppressing evidence based upon lack of probable cause to make the arrest or, alternatively, a Mapp/Dunaway hearing (affirmation of defendant's counsel at 5). Defendant seeks suppression of any evidence of her prior criminal history or bad acts or, alternatively, a hearing pursuant to Sandoval/Molineux/Ventimiglia (affirmation of defendant's counsel at 19). Lastly, counsel seeks leave to file a memorandum of law and to submit subsequent motions (affirmation of defendant's counsel at 20).
Initially, the People argue their CoC filing was made in good faith after reasonable diligence (People's affirmation at 11). The People further maintain that defendant has failed to articulate any prejudice resulting from their belated disclosure (People's affirmation at 11). Moreover, the prosecution contends that an accident report is not relevant to the charged offense nor any potential defense and, thus, dismissal is unwarranted (People's affirmation at 11).
Next, the People aver that CPL § 245.20 (1) (k) does not require them to make Giglio disclosures for non-testifying witnesses and redactions to their Giglio disclosures, made by NYPD, were permissible (People's affirmation at 11). Further, the People assert that they had made inquiries to their liaison at the 44th precinct and to PO Gonzalez on March 24, March 27, and March 30, 2023, but they had not been provided with any information pertaining to an MV-104AN report or a motor vehicle collision worksheet (People's affirmation at 17). In fact, the prosecution claims that there was nothing on the Arrest Checklist that indicated an accident report had been prepared (People's affirmation at 17). The prosecution maintains that they were not apprised of the existence of an MV-104AN until August 16, 2023, when defense counsel told them that PO Gonzalez's partner had been involved in an accident involving defendant's car (People's affirmation at 17-18). Thereafter, the People aver that they acted promptly to contact the arresting officer, procure the vehicle collision worksheet, and supplement their CoC filings on August 21, 2023 (People's affirmation at 18). To date, the prosecution claims that no MV-104AN exists (People's affirmation at 18).
The People argue that their CoC filings were reasonable and demonstrative of their compliance with the continuing duty to disclose required by CPL § 245.60 (People's affirmation at 20).
Lastly, the prosecution opposes defendant's motion to suppress statements and physical evidence or, in the alternative, defendant's request for a Huntley and Mapp/Dunaway hearing as well as defendant's request for an order to preclude evidence of prior convictions and bad acts pursuant to Sandoval/Ventimiglia/Molineux and ask that the question of admissibility be referred to the trial court, and opposes defendant's reservation of rights (People's affirmation at 45-46).
II. Applicable Standard for CoC Challenge
To counter a motion to dismiss claiming that the People's CoC is illusory due to the prosecution's alleged failure to comply with CPL § 245.20, the People must demonstrate that they met their burden by detailing their efforts to obtain discoverable information (see People v Hernandez, 81 Misc.3d 1201 [A], 2023 NY Slip Op 51201[U], *6 [Crim Ct, Bronx County 2023] citing People v Adrovic, 69 Misc.3d 563, 572 [Crim Ct, Kings County 2020]; CPL § 245.50 [3]).If the record does not establish that the People have detailed their efforts to discharge their obligation such that a court cannot determine their due diligence, the CoC must be deemed invalid (see Hernandez, 2023 NY Slip Op 51201[U], *7 citing People v Perez, 75 Misc.3d 1205 [A], 2022 NY Slip Op 50387[U], *3 [Crim Ct, Bronx County 2022]; People v Georgiopoulous, 71 Misc.3d 1215[A], 2021 NY Slip Op 50380[U], *6 [Sup Ct, Queens County 2021]; People v Valdez, 80 Misc.3d 544, 547 [Crim Ct, Kings County 2023]).
While there is no one-size fits all response to determining discovery compliance, this Court has held that "by following-up, the very essence of what it means to exercise due diligence," the prosecution's CoC can be deemed valid although some discovery is missing and/or belatedly disclosed (see Hernandez, 2023 NY Slip Op 51201[U], *15 citing People v Franklin, 78 Misc.3d 1232 [A], 2023 NY Slip Op 50400[U], *6 [Crim Ct, Bronx County 2023]).
Recently, the Court of Appeals addressed the question of the People's due diligence in People v Bay, __ NE3d __, 2023 NY Slip Op 06407 [2023]. The Bay court found that the "key question in determining if a proper certificate of compliance has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery," a case-specific inquiry of the record at bar (see Bay, 2023 NY Slip Op 06407, *15-16 [emphasis added]; CPL §§ 245.20 [1], 245.50 [1]).
Further, the mere demonstration of good faith will not overcome a lack of prosecutorial due diligence (see Bay, 2023 NY Slip Op 06407, *16). Additionally, the Bay court held that while belated disclosure will not necessarily render a CoC invalid, a supplemental CoC cannot compensate for the failure to exercise due diligence before initial certification (see Bay, 2023 NY Slip Op 06407, *17; see also People v Andrews, 2023 NY Slip Op 50867[U], *3-4 [Crim Ct, Bronx County 2023]["(CPL § 245.50) unambiguously references the disclosure of additional information but will not shield the People from failing to disclose evidence already known to them at certification, nor, arguably, from investigating evidence which they had reason to believe existed"]).
Moreover, pursuant to CPL § 245.80, a court may impose a remedy or sanction where discoverable information is belatedly disclosed which is appropriate and proportionate to the prejudice suffered by the party entitled to the discovery (CPL § 245.80 [1] [emphasis added]).
However, as noted in the Bay decision, following Legislative reforms that bind CPL Article 245 disclosures to CPL § 30.30 speedy trial time requirements, a court's inquiry of whether the People have demonstrated trial readiness is predicated upon a finding that they have timely filed a proper CoC which certifies their compliance with CPL § 245.20 disclosures pursuant to CPL § 245.50 (3) and, thus, dismissal as a consequence of the People's unreadiness for trial within their allotted 30.30 clock is a matter of untimeliness and not an issue of the proportionate prejudice caused by the prosecution's belated or missing disclosures (see Bay, 2023 NY Slip Op 06407, *20).
III. The Court's Analysis
There is no standard of strict compliance that governs the prosecution's CPL § 245.20 disclosure obligations and the Bay decision emphasized several factors that courts should consider when adjudicating the reasonableness of the People's efforts to comply with their mandated disclosures, including "the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery" (see Bay, 2023 NY Slip Op 06407, *16 [emphasis added]).
It is axiomatic that where the court has ordered a party to disclose an item of discovery, that party is estopped from raising the issue of notice. Here, the People's SCoC, filed August 21, 2023, reads, in pertinent part, that "[o]n August 16, 2023, the assigned ADA was informed by defense counsel that the responding officers in this case were involved in a collision while transporting the defendant's vehicle and thus a motor vehicle collision worksheet was outstanding." In fact, court records, including transcripts of the May and June court conferences, demonstrate that the People had been advised of defendant's assertion that his vehicle had been involved in an accident while driven by the NYPD, and on May 31, 2023, the Court ordered the prosecution to disclose any records pertaining to the purported accident report.
The People endeavor to distinguish the facts from bar from those presented in People v Edwards, 77 Misc.3d 740, 746 [Crim Ct, Bronx County 2022], where the Court held that an outstanding NYPD vehicle collision report concerning an accident which occurred when the defendant rammed his vehicle into a police car should have been disclosed because the document was germane to the case (see Edwards at 746). Specifically, the prosecution argues that documentation pertaining to the instant accident, which occurred after defendant's arrest, are ancillary to the defense, and that the belated disclosure of the collision worksheet, supposedly expeditiously disclosed after counsel made its demand, resolves the issue.
As a threshold matter, it cannot be credibly argued that documentation concerning why a police officer drove defendant's car following his arrest and what happened during that transport, is of no import to the charged offense, or the defense. Additionally, the discoverability of the documentation was already decided insofar as the Court first mandated its disclosure at the May conference, and it strains credulity for the People to contend that they had no reason to believe that any vehicle collision paperwork was generated. Moreover, the People have not explained why the arresting officer did not disclose the vehicle collision worksheet in response to their multiple pre-CoC filing entreaties, yet expeditiously disclosed this paperwork in August 2023, within just two days after being contacted by the assigned ADA.
Considered through the lens of the Bay decision, the record at bar does not support the People's argument that they exercised reasonable or due diligence. Most egregiously, the People do not acknowledge the Court's discovery order, nor do they explain why a vehicle collision worksheet that was so readily accessible in August 2023, was not procured prior to their CoC filing, or at the very latest just after the May conference. While defense counsel has failed to cogently argue in favor of Giglio disclosures for non-testifying officers, in the Court's estimation, the People's non-compliance with a court order and the misstatements in the affirmation in opposition concerning when they were first apprised of defendant's demand for any NYPD vehicle accident reports argue against certification.
Accordingly, the People's CoC, filed on April 4, 2023, is deemed INVALID.
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, ninety 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 of App 2022]; see also CPL § 30.30 [4]). The burden then shifts to the People to identify excludable delays (see People v Luperon, 85 N.Y.2d 71, 77-78 [1995] ["(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"]).
The People's 30.30 calculation commenced on January 7, 2023, the day after defendant's arraignment. On April 11, 2023, the court was advised that the People had filed their CoC, SoR and discovery off-calendar on April 4, 2023 (January 7, 2023 to April 4, 2023 = 88 days chargeable). On April 19, 2023, the People served their first SCoC (April 4, 2023 = April 19, 2023 = 15 days chargeable because the CoC has been invalidated). On August 21, 2023, the People filed their second SCoC (April 19, 2023 to September 21, 2023 = 125 days chargeable because the CoC has been invalidated).
Accordingly, because 228 days in total are chargeable to the People, the prosecution was not timely pursuant to CPL §§ 170.30 (e), 30.20 (1) (b), and 30.30, and the docket must be dismissed as a consequence of the People's unreadiness for trial.
CONCLUSION
Based upon the foregoing, defendant's motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e) is GRANTED.
This constitutes the opinion, decision, and order of the Court.