Opinion
No. CR-016516-21BX
07-22-2022
The People of the State of New York v. Payne, Defendant.
For the People: Darcel Clark, District Attorney of Bronx County (by ADA John Longo) For Mr. Payne: The Bronx Defenders (by William John)
Unpublished Opinion
For the People: Darcel Clark, District Attorney of Bronx County (by ADA John Longo)
For Mr. Payne: The Bronx Defenders (by William John)
Wanda L. Licitra, J.C.C.
The defense's C.P.L. § 30.30 motion to dismiss alleges two reasons why the People's certificate of discovery compliance ("COC") was not proper. First, they allege that the People failed to produce civil lawsuit documents about police witnesses from the possession of the New York City Law Department ("Law Department"). Second, they allege that the People withheld discoverable information by redacting it from records they disclosed. The defense reasons that because the COC was not proper, the People never validly stated ready for trial within 90 days of arraignments.
The People respond that their COC was proper. First, they argue that civil lawsuit documents with the Law Department are not in their possession, and so they only had to make a diligent, good-faith effort to make them available. Nonetheless, they affirm that they "disclosed any and all materials the Law Department had possession of." Second, they argue that their redactions were proper because they believe the material they redacted does not relate to this case.
For the following reasons, the defense's motion is DENIED. Nonetheless, the People are ORDERED to disclose to the defense unredacted copies of the documents at issue in this motion.
LEGAL ANALYSIS
I. The discovery statute requires that the People disclose automatic discovery and file a proper certificate of discovery compliance.
The Court has explained the discovery statute's plain-text requirements in prior cases. (See, e.g., People v. Vargas, 2022 NY Slip Op. 50651[U] [Crim. Ct., Bronx County 2022]). Absent special circumstances, the People may not stop the speedy-trial clock unless they have filed a proper COC. (C.P.L. §§ 245.50[3], 245.50[1]). A proper COC has several requirements. First, it must be filed "[w]hen the prosecution has provided the discovery required" by C.P.L. § 245.20[1], except for discovery that is lost, destroyed, or under a protective order. (C.P.L. § 245.50[1]). Second, it must certify that the People have "exercis[ed] due diligence and [made] reasonable inquiries to ascertain the existence of material and information subject to discovery." (Id.). And third, it must certify that "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.).
The discovery statute's plain text accords with the Appellate Division's decision in People ex rel. Ferro v. Brann, which is binding on this Court. (197 A.D.3d 787, 788 [2d Dep't 2021); see People v. Shakur, 215 A.D.2d 184, 185 [1st Dep't 1995]). In Ferro, the Appellate Division held that a COC "could not be deemed" proper for speedy-trial purposes until "all" of the material "identified in the certificate as subject to discovery" was "actually produced to the defendant, pursuant to C.P.L. §§ 245.50[1] and [3]." (197 A.D.3d at 788).
Contrary to the People's oft-made argument, the "adverse-consequence" bar does not affect this analysis. (E.g., People v. Vargas, 2022 NY Slip Op. 50651[U], at *2; People v. Darren 75 Misc.3d 1208 [A], at *6 [Crim. Ct., NY County 2022] [same]; People v. Aquino, 72 Misc.3d 518, 526-27 [Crim. Ct., Kings County 2021] [same]; People v. Quinlan, 71 Misc.3d 266, 272 [Crim. Ct., Bronx County 2021] [same]; see also Ferro, 197 A.D.3d at 788 [decided without mentioning the "good faith" or "reasonable under the circumstances" prongs of the adverse-consequence bar]).
Contrary to another of the People's oft-made arguments, "prejudice" is also irrelevant to this analysis. That is only a consideration for C.P.L. § 245.80 sanctions, which are not the subject of this decision. (People v. Spaulding, 75 Misc.3d 1219 [A], at *7 [Crim. Ct., Bronx County 2022]; see also People v. Martinez, 75 Misc.3d 1212 [A], at *6 [Crim. Ct., NY County 2022] [same]; Aquino, 72 Misc.3d at 527-28 [same]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020] [same]; Ferro, 197 A.D.3d at 788 [decided without analyzing "prejudice"]).
II. The People properly produced all civil lawsuit documents from the Law Department relating to their police witness' misconduct.
Where the Law Department represents the People's police witnesses in civil lawsuits over the witness' misconduct, the People must automatically disclose the underlying lawsuit documents held by it. Criminal Procedure Law § 245.20[1][k] requires that the People automatically disclose "[a]ll evidence and information, including that which is known to police" that "tends to... impeach the credibility of a testifying prosecution witness." A civil lawsuit that names an individual officer and alleges they committed bad acts is impeachment material. (E.g., People v. Smith, 27 N.Y.3d 652, 661 [2016]).
Contrary to the People's position, it is of no moment that civil lawsuit documents are in the actual possession of the Law Department and not the prosecutor's office. The People's statutory automatic discovery obligation for impeachment material extends beyond their actual possession to information that is "known to police." (C.P.L. § 245.20[1][k]).
Where the Law Department represents an individual officer in a civil lawsuit, the documents from that lawsuit with the Law Department are "known to police." "The well-established general rule of agency, that notice to or knowledge possessed by an agent is imputable to the principal, is applicable to the relation of attorney and client." (Russell J. Davis et al., New York Jurisprudence § 136 [2d ed. 2022] [collecting cases]). "Knowledge of facts relating to the subject matter of the employment, acquired while the attorney is engaged in the discharge of his or her duties under the employment, is imputable to the client." (Id. [collecting cases]). Where the Law Department represents an officer in a civil lawsuit, it receives service of lawsuit documents on behalf of the officer. (See C.P.L.R. § 2103[b] ["[P]apers to be served upon a party in a pending action shall be served upon the party's attorney."]). Therefore, where the Law Department represents the People's police witnesses in a civil lawsuit, the documents held by the Law Department are "known to police," and the People's automatic discovery obligation extends to those documents.
To be sure, some lower courts have held otherwise. (People v. Cano, 71 Misc.3d 728, 738-39 [Sup. Ct. Queens County 2020]; People v. Lustig, 68 Misc.3d 234, 241-44 [Sup. Ct. Queens County 2020]). However, those courts do not draw a line between an officer and their lawyers. Rather, those courts adopt the constructive-knowledge rule from the Court of Appeals' 2014 decision in People v. Garrett, 23 N.Y.3d 878 [2014]. There, analyzing constitutional due-process requirements, the High Court drew a line in the People's constructive knowledge between an officer's misconduct in the instant case and the officer's misconduct in other cases. It concluded that an officer's "knowledge of his own prior illegal conduct in an unrelated case will not be imputed to the prosecution for Brady purposes." (Id. at 887).
This Court, amongst others, has disagreed with cases that incorporate the Garrett rule into Article 245. See, e.g., Darren, 75 Misc.3d 1208[A], at *4 n.1 [refusing to apply the Garrett limit to Article 245]; Martinez, 75 Misc.3d 1212[A], at *5 n.3 [same]; People v. Soto, 72 Misc.3d 1153, 1160 n.4 [Crim. Ct., NY County 2021] [same]; People v. Rosario, 70 Misc.3d 753, 766-69 [County Ct., Albany County 2020] [same]). Garrett is about constitutional due process, not the new statutory requirements. (See generally 23 N.Y.3d 878 [2014]). And the Constitution provides a floor, not a ceiling. Under C.P.L. § 245.20[1][k][iv], the People now have a statutory duty to disclose all evidence and information-including that which is "known to police"-that tends to impeach the credibility of a testifying prosecution witness. Thus, Garrett 's constitutional analysis is not applicable here, and this Court declines to override the statute's plain text with it.
Here, the People affirm-under penalty of perjury (Pr. Surreply at 1)-that they communicated with the Law Department and "disclosed any and all materials the Law Department had possession of." (Id. at 11). The defense has not provided any substantive indication that this is false. Therefore, the People properly discharged their duties.
III. The People improperly withheld discoverable material without first seeking a protective order.
The People here unilaterally redacted and withheld materials from records in their discovery production. In this case, the People allege that Mr. Payne drove while intoxicated and crashed into a parked car. In emails with the defense attorney, the People describe the person who owned the parked car as an "eye witness." (See Def. Mot. Ex. D). However, the People redacted what they describe as "the individual, who's [sic] car was rear-ended by defendant's vehicle, vehicle policy number, date of birth,... and license customer identification number" from records they produced to the defense. (Pr. Resp. at 12). The People have not shown the Court what lies underneath these redactions.
The People's only argument in support of these redactions is that, in their view, the information has "no bearing, relevance, and do[es] not relate to the subject matter of the case." (Pr. Surreply at 10; see also Pr. Resp. at 12). In explaining what they mean by that, the People argue that, in their view, the defense can still "investigate" any possible defense and that the withheld information would not tend to "absolve[]" Mr. Payne of guilt. (Pr. Resp. at 12). In furtherance of this argument, the People note that they identified the eyewitness about whom this information purportedly relates by disclosing his phone number. (Id.).
The People misapprehend their discovery duties. They appear to conflate whether something "relate[s]" to the case with whether they believe it to be relevant, material, or useful for the defense's investigation. (See, e.g., Pr. Surreply at 9 ["Defendant has not and cannot show the relevance of the owner of that vehicle's policy number, date of birth,... and license customer identification number."]). But the redacted information, which is in the People's possession, plainly relates to the subject matter of the case-it includes driver and vehicle information of the "eye witness" whose car the People claim Mr. Payne crashed into in this case. (See Def. Mot. Ex. D). This material is contained within records that are in the People's file for this case. The People's opinion that material would not be useful for the defense's investigation or relevant to proving guilt at trial is not the same as whether the material relates to the case. (See People v. Francis, 2022 NY Slip Op. 50655[U], at *4-*5 [Crim. Ct., Bronx County 2022]). The People have no authority to make such judgments about information in their file for this case and then unilaterally withhold it.
The People's reliance on "good faith" and "due diligence" here is also misplaced. "That the People may have applied good faith and due diligence in making their own determination that... records do not - or should not - fall within the statute is of no moment." (Soto, 72 Misc.3d at 1162). "That is not the People's determination to make." (Id. [not the People's determination to choose to withhold police witness' disciplinary records]; see also Francis, 2022 NY Slip Op. 50655[U], at *4-*5 [not the People's determination to deem NYPD photographs in case as not "relevant to the charges"]; People v. Ajunwa, 75 Misc.3d 1220[A], at *4 [Crim. Ct., Bronx County 2022] [not the People's determination to withhold a police report as "duplicative"]). If the People have material that relates to the case, their obligation is simply to disclose it, unless they can cite specific limited statutory exceptions or claim that it is work product.
The Court strains to imagine a situation where material contained within records in the People's case file would somehow not "relate" to the case. If the People believe-as they appear to imply here-that information is of such little probative value that disclosure is outweighed by some other factor, Article 245 requires that the People seek a protective order before withholding it (absent specific limited statutory exceptions). (See C.P.L. § 245.70). In this case, they never made any such an application.
Here, because the People did not actually produce all known automatic discovery from their possession, their certificate of discovery compliance was not proper. They filed their COC even though they had not provided the discovery required by C.P.L. § 245.20[1]. (See C.P.L. § 245.50[1]). They also filed their COC even though they did not certify in good faith that they had "disclosed and made available all known material" subject to discovery. (See C.P.L. § 245.50[1]). Instead, the People did precisely what they "may not do": they "file[d] a certificate of compliance in which they claim[ed] to have exercised due diligence and turned over all known material and information, while at the same time not actually [having] turn[ed] over all known material and information." (Quinlan, 71 Misc.3d at 271; see also Adrovic, 69 Misc.3d at 574 [noting the same]).
CONCLUSION
Because the People's COC was not proper, it did not stop the speedy-trial clock. Therefore, the clock ran from arraignments on October 31, 2021, until the defense requested this motion schedule on January 24, 2022. (See C.P.L. § 30.30[4][a]; People v. South, 29 Misc.3d 92, 95 [Sup. Ct., App. Term, 2d Dep't 2010]). That is 85 days, which does not exceed the People's 90-day speedy-trial deadline. (C.P.L. § 30.30[1][b]). Therefore, the defense's motion to dismiss must be DENIED.
However, the People are ORDERED to disclose to the defense unredacted copies of the documents at issue in this motion.
This constitutes the Decision and Order of the Court.