Opinion
No. CR-017883-22QN
03-09-2023
The People of the State of New York v. Torres, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Jared Brady) For Mr. Torres: The Legal Aid Society (by Shane Ferro)
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Jared Brady)
For Mr. Torres: The Legal Aid Society (by Shane Ferro)
Wanda L. Licitra, J.
The defense has filed a C.P.L. § 30.30 motion alleging that the People's statements of readiness were illusory. They allege several reasons that it was illusory. First, that the People stated ready upon a facially insufficient information. Second, that the People stated ready even though the court had not yet arraigned Mr. Torres on a replacing information. And third, that the People stated ready upon an improper certificate of discovery compliance. The court now issues an interim decision on these issues.
LEGAL ANALYSIS
Where, as here, an information's top count is a misdemeanor punishable by 364 days in jail, the People have 90 days from filing their complaint to validly state ready for trial. (C.P.L. § 30.30[1][b]). Validly stating "ready for trial" encompasses two distinct elements. "First, there must be a communication of readiness by the People." (People v. Kendzia, 64 N.Y.2d 331, 337 [1985]). This requires either a statement of readiness in "open court, transcribed by a stenographer, or recorded by the clerk" or "a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record." (Id.). Second, "the prosecutor must make [their] statement of readiness when the People are in fact ready to proceed." (Id.). "The relevant inquiry" there "is whether the People have done all that is required of them to bring the case to a point where it may be tried." (People v. England, 84 N.Y.2d 1, 4 [1994]).
On a C.P.L. § 30.30 motion, "a defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time period." (People v. Allard, 28 N.Y.3d 41, 45 [2016]). Thereafter, "the burden of proving that certain periods within that time should be excluded falls upon the People." (People v. Headley, 100 A.D.3d 775, 776 [2d Dep't 2012]). A court may summarily deny the defense's motion only if the People "conclusively demonstrate" with "unquestionable documentary proof" that they satisfied the requirements of readiness. (People v. Allard, 113 A.D.3d 624, 626 [2d Dep't 2014]). If the People fail to "conclusively refute[]" an "allegation of fact essential" to the motion, then the court must hold a hearing to find those facts. (Allard, 28 N.Y.3d at 45).
Here, the defense alleges that when the People submitted their statement of readiness, the People were not "in fact ready to proceed" because they had not "done all that [was] required of them to bring the case to a point where it may be tried." (See England, 84 N.Y.2d at 4). The court takes each proffered reason in turn.
I. Whether the People's readiness was illusory for failure to file a facially sufficient information
To validly state ready for trial, the People must first file a facially sufficient information. (People v. Colon, 59 N.Y.2d 921 [1983]; People v. Maslowski, 187 A.D.3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc.3d 140 [A] [App. Term, 2d Dep't 2021]). Moreover, under the 2020 reforms to the criminal procedure law, it is now also a pre-requisite to readiness "that an accusatory instrument is facially sufficient as to all charges." (People v. Matos, 180 N.Y.S.3d 890, 893 [Crim. Ct., Kings County 2023]; see also C.P.L. § 30.30[5-a]). This requirement "abrogate[s]" prior "decisional law" that allowed the People to treat each count on an information as a separate "information"-a doctrine called "partial conversion." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 30.30; see, e.g., Matos, 180 N.Y.S.3d at 893; People v. Jackson, 74 Misc.3d 1224 [A], at *5 [Crim. Ct., NY County 2022]; People v. Saavedra, 76 Misc.3d 626, 631 [Crim. Ct., Bronx County 2022]; People v. Herrera, 73 Misc.3d 334 [Crim. Ct., Bronx County 2021]; People v. Young, 72 Misc.3d 1203 [A], at *3 [Crim. Ct., NY County 2021]).
An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offense. (People v. Sanson, 59 Misc.3d 4, 6 [App. Term, 2d Dep't 2018]; see also C.P.L. §§ 100.40[1][c]; 100.15[3]; People v. Sumter, 151 A.D.3d 556, 558 [1st Dep't 2017] [rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient]). This standard is also called a "prima facie" case. (People v. Alejandro, 70 N.Y.2d 133, 138 [1987]). The prima facie standard is "necessary because of the 'unique function that an information serves'" under our criminal procedure law. (People v. Parsons, 69 Misc.3d 11, 14 [App. Term, 1st Dep't 2020] [quoting Alejandro, 70 N.Y.2d at 137]). Unlike an indictment, which requires support "by legally sufficient evidence before a Grand Jury," an information is an accusatory instrument for which the People "need not, at any time prior to trial, present actual evidence." (Alejandro, 70 N.Y.2d at 137-38 [internal citations omitted]). Of course, the law does not require that an information contain the most precise words that most clearly express the alleged narrative. So long as the factual allegations "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (Sanson, 59 Misc.3d at 6 [internal quotation marks omitted]).
Here, the defense alleges that the information is facially insufficient to establish count two, endangering the welfare of a child, (P.L. § 260.10[1]). A person commits that offense where they "knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or direct[] or authorize[] such child to engage in an occupation involving a substantial risk of danger to [their] health." (Id.). The information here alleges that:
Deponent states that he is informed by the complainant... that at the above mentioned date, time, and place of occurrence, she was walking with her granddaughter... who is seven (7) years old, when the defendant... stated to the complainant in sum and substance: I like you, and grabbed her buttocks.
Deponent states that he is further informed by the complainant that she observed the defendant's zipper to be pulled down.
Deponent states that he is further informed by the complainant that she did not consent to the above mentioned contact and that the above mentioned actions of the defendant caused her annoyance and alarm.
Information at 1-2. The defense argues that these allegations do not establish endangering because there are no allegations that "the child saw the act Mr. Torres is accused of, or heard the statement he is accused of making," or that Mr. Torres knew the child was present. (Def. Mot. at 8-9). In addition, the defense says, "there is nothing in this factual recitation that would make out an act that was 'likely to be harmful to a child.'" (Id.).
The court disagrees. A "a fair and not overly restrictive or technical reading" of the information establishes that Mr. Torres knew that the child in this case was present. The complainant alleges that "when" she was "walking with her granddaughter," Mr. Torres "grabbed her buttocks" without her consent. (See Information at 1-2). There is no legal requirement that the information explicitly plead that the child "saw" the act-or that an accused person knew a child was present-when the information plainly establishes it by the circumstances. (See People v. Villatoro, 44 Misc.3d 133 [A] [App. Term, 2d Dep't 2014]). Moreover, in this court's view, committing forcible touching in the presence of a woman's grandchild is "likely to be injurious to [the child's] physical, mental or moral welfare." (P.L. § 260.10[1]). The endangering statute is "broadly written and imposes criminal sanctions for the mere likelihood of harm." (People v. Sanderson, 68 A.D.3d 1716 [4th Dep't 2009] [internal quotation marks omitted]). The offense "does not require that the conduct by specifically directed at a child; rather, a defendant must simply be aware that the conduct may likely result in harm to a child." (People v. Johnson, 95 N.Y.2d 368, 371 [2000]; see also People v. Parr, 155 A.D.2d 945 [4th Dep't 1989]; but see People v. Hosue, 56 Misc.3d 51 [App. Term, 2d Dep't 2017] [vacating an endangering conviction arising from a "short,... single act" of domestic violence in the presence of a child as against the weight of the evidence]).
As a result, the court finds the information facially sufficient. The court acknowledges that the People, in their response papers, declare their intent to move to dismiss the endangering count. They state that the charge was added "in error." (Pr. Resp. at 6). However, because this charge-and the rest of the information-was facially sufficient, their plans have no effect on a C.P.L. § 30.30 analysis. Once the People file a facially sufficient information, C.P.L. § 100.50[1] authorizes them to file "another information" prior to the "entry of a plea of guilty... or commencement of a trial." (People v. Thomas, 4 N.Y.3d 143, 147 [2005]). "Significantly, the statute imposes no restrictions on the type of crimes that may be included in a new information." (Id.). The People are therefore free to move to dismiss the charge here without consequence to C.P.L. § 30.30.
II. Whether the People's readiness was illusory because the court had not yet arraigned the accused person on a replacing information
The defense next alleges that the People's off-calendar, written statement of readiness was illusory because the court had not yet arraigned Mr. Torres on a replacing information. Where the People commence a case with a misdemeanor complaint containing hearsay, they cannot state ready for trial until they replace that complaint with an information. (C.P.L. §§ 170.65[1]). An information, by definition, does not contain hearsay allegations. (C.P.L. § 100.40[1]). There are two ways the People may replace the complaint. (C.P.L. § 170.65[1]). First, they may file an information as a wholly new charging document. (Id.). Or second, they may instead supplement the original misdemeanor complaint with a supporting deposition from the complaint's hearsay declarant. (Id.). Under this second option, the original complaint and supporting deposition are together, by law, "deemed... to constitute a replacing information." (Id.). Whatever path the People choose, the accused person "must" then "be arraigned" upon the new accusatory instrument. (Id.; People v. Ress, 25 Misc.3d 82, 83 [App. Term, 2d Dep't 2009] [noting that the "duty to arraign defendants on... superseding accusatory instruments" is "mandatory, not discretionary"]).
Here, the People commenced this case with a misdemeanor complaint containing hearsay. Then, alongside their off-calendar statement of readiness, the People filed the appropriate supporting deposition, converting the original complaint into a replacing information. As a result, the law required that a court arraign Mr. Torres on this replacing information. (This court did not preside over that court date.)
However, contrary to the defense's contention, the arraignment of a person on a superseding or replacing information is not the People's responsibility. (People v. Rini, 34 Misc.3d 152[A] [App. Term, 2d Dep't 2012]). Therefore, it has little relevance to C.P.L. § 30.30. (See id.). Although colloquially called a "speedy trial" law, C.P.L. § 30.30 only concerns the People's readiness-whether they have declared readiness and "done all that is required of them to bring the case to a point where it may be tried." (See England, 84 N.Y.2d at 4). The "scheduling of defendant's arraignment 'is the responsibility of the court rather than the People.'" (Rini, 34 Misc.3d 152[A], at *2 [quoting People v. Rickard, 71 A.D.3d 1420, 1421 [4th Dep't 2010]; see also Ress, 25 Misc.3d at 83 [noting that the criminal procedure law "imposes upon the court a duty to arraign defendants on [a] superseding accusatory instrument[]"] [emphasis added]). To be sure, the People cannot file an off-calendar statement of readiness at a time that would make arraignment before the expiration of the C.P.L. § 30.30 period impossible. (See England, 84 N.Y.2d at 1 [holding that readiness was ineffective where the People waited until the last day of the statutory period to secure an indictment, making it impossible to arraign the accused in time]). But that is not the case here, where the People filed the off-calendar statement of readiness "well before the expiration of the 90-day statutory period." (Rini, 34 Misc.3d 152[A], at *2).
As such, the People's statement of readiness was not illusory simply because a court had not yet arraigned Mr. Torres on the replacing information.
III. Whether the People's readiness was illusory because the People filed an improper certificate of discovery compliance
The defense finally alleges that the People's statement of readiness was illusory because the People failed to first file a proper certificate of discovery compliance. The 2020 reforms to the criminal procedure law "abrogated case law which allowed the People to declare their readiness for trial even if they had not fulfilled their discovery obligations." (People v. Guzman, 75 Misc.3d 132[A], at *3 [App. Term, 2d Dep't 2022]). Now, a "proper," good-faith certificate of discovery compliance is necessary to stop the C.P.L. § 30.30 clock. (C.P.L. §§ 245.50[3], 30.30[5]).
The statute defines a "proper" certificate of compliance in "subdivision one" of C.P.L. § 245.50. (Id.). That section provides several "necessary conditions" to a proper certificate. (See generally People v. Vargas, 76 Misc.3d 646, 649 [Crim. Ct., Bronx County 2022]). One such necessary condition is that the certificate be filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for material that is lost, destroyed, or under a protective order. (C.P.L. § 245.50[1]). The statute defines that discovery as "all items and information that relate to the subject matter of the case" in the possession, custody, or control of the People or the police. (C.P.L. §§ 245.20[1], [2]). Another necessary condition of a proper certificate is that the People certify, in good faith, that "after exercising due diligence and making reasonable inquiries to ascertain the existence" of discoverable material, "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.; see also C.P.L. § 30.30[5]).
The result is one of common sense. The People cannot, in good faith, file a certificate in which they certify that they exercised "due diligence" and made "reasonable inquiries" to ascertain the existence of discoverable material if they did not, in fact, do so. (See Guzman, 75 Misc.3d 132[A], at *3). Similarly, the People cannot, in good faith, 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. 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]; see also People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021] [holding that a certificate of compliance is not complete until discoverable material is "actually produced" to the defense]). A certificate "must in good faith attest that [its] statements are actually true." (Vargas, 76 Misc.3d at 649 n.2; see also C.P.L. § 30.30[5] [requiring a "good faith" certificate of compliance as a prerequisite to readiness]; Certificate, Merriam-Webster Dictionary [2023] [defining a "certificate" as a "document containing a certified statement especially as to the truth of something"]). "Certifying" a false statement is not proper and is ineffective to support a valid statement of readiness.
The defense here alleges that the People's certificate was not proper for two reasons. First, they assert that the People failed to disclose names and contact information for civilian witnesses to the allegations. (Def. Mot. at 13). Second, they allege that the People failed to disclose audit trails for body-worn camera video files from this case. (Id.).
The first issue presents no problem. The defense alleges that two civilian witnesses "appear in the body cam" and "witnessed the incident"-allegations that the People do not dispute. (Id.). However, the People affirm that they spoke with the police, who told them they were "not able to get the information for the eyewitnesses." (Pr. Resp. at 9). The court can think of no other "due diligence" or "reasonable inquiries" that the People could engage in to determine the names and contact information of two unknown individuals on body-worn camera footage about which they have no further information. (See C.P.L. § 245.50[1] [requiring the People to exercise "due diligence" and make "reasonable inquiries" to ascertain the existence of discoverable information]; see also People v. Amir, 76 Misc.3d 1209 [A], at *3 n.2 [Crim. Ct., Bronx County 2022] [finding the People established they made diligent, good-faith efforts to acquire the names and contact information of witnesses but were unable because the witnesses refused]).
The second issue is more complicated. The defense alleges that there are Evidence.com Axon body-worn camera audit trails, in the People's actual or constructive possession, that the People never disclosed. (Def. Mot. at 13-17). Such audit trails fall plainly within the ambit of automatic discovery. The automatic discovery statute's list is not exhaustive, requiring production of "all" material that relates to the subject matter of the case in the People's actual or constructive possession. (C.P.L. §§ 245.20[1], [2]). But it also explicitly requires the People to provide "a copy of all electronically created or stored information... on behalf of law enforcement from... a source other than the defendant which relates to the subject matter of the case." (C.P.L. § 245.20[u][i][B]). The defense asserts-and the People do not dispute-that Axon audit trails contain metadata associated with the body-worn camera video files from this case. (Def. Mot. at 14-17). The audit trails "permanently log[] all activity related to each piece of footage." (Id. at 16). Without dispute from the People, the defense alleges that the audit trails include "modifications made to the video, any notes added or deleted, when the video was watched and by whom, when the camera was turned on and off, if the camera malfunctioned, if the battery died on the camera, and many other pieces of detailed information." (Id.; see also Def. Mot. Ex. D [providing an example of an audit log]; People v. Alvia, 76 Misc.3d 704, 707 n.3 [Crim. Ct., Bronx County 2022] [also providing an example of an audit log]).
The defense credibly alleges that the People are in actual or constructive possession of these audit logs. They affirm that "the NYPD uses the website Evidence.com to manage its body worn camera video... and has access to those audit trails." (Def. Mot. at 13). For support, they cite to publicly available information from the Civilian Complaint Review Board, which states that the NYPD uses "Axon Evidence (Evidence.com)." (Id. at 15-16). They also allege that audit trails "have previously been turned over in Queens County, and are regularly turned over in other counties such as the Bronx." (Id. at 13; see also Alvia, 76 Misc.3d at 707 [in which the People provided body-worn camera audit trails to the court]). In fact, they provide a redacted copy of an audit trail from another Queens case as an exhibit, showing that the "Queens District Attorney's Office" has an account that accesses these audit trails. (Def. Mot. Ex. D).
In response, however, the People affirm that "the People do not have a username or password" for Evidence.com. (Pr. Resp. at 10). As a result, they claim that the audit trails are "in the control of Axon and not in the possession, custody, or control of the Prosecution." (Id.; see also Pr. Resp. at 12 ["The People are of the position that this information produced by [Axon] is not under our actual or constructive possession."]).
In sum, there is a factual dispute here that prevents the court from deciding the motion on the papers. The defense claims that the People have access to-and, in fact, an account on-Evidence.com, while the People claim that they have no access to these documents, which they claim are held solely by a third party.
Accordingly, the court orders a C.P.L. § 30.30 hearing to determine the limited factual issue of whether the People have actual or constructive access to the body-worn camera audit logs on Evidence.com. The court's subpoena powers are available to the parties, if necessary.
All remaining issues are held in abeyance pending the results of the factfinding hearing.