Opinion
Docket No. CR-5105-21
07-01-2022
PEOPLE of the State of New York v. Salvatore VELARDI
Scott D. McNamara, Oneida County District Attorney (Nicholas T. Fletcher, Esq.), for the People Frederick W. Murad, Esq., Utica, for the defendant (Murad and Murad, P.C.)
Scott D. McNamara, Oneida County District Attorney (Nicholas T. Fletcher, Esq.), for the People
Frederick W. Murad, Esq., Utica, for the defendant (Murad and Murad, P.C.)
F. Christopher Giruzzi, J. Procedural History
On or about September 22, 2021 the defendant was charged with operating a motor vehicle while using a mobile telephone in violation of New York State Vehicle and Traffic Law Section 1225-c(2)(a). On January 17, 2022, the court received correspondence from the defendant's attorney stating no agreement had been reached with the Oneida County District Attorney's Office to resolve this matter. The defendant also requested a trial date. On February 24, 2022, the court then issued a notice directing the parties to appear on May 13, 2022 at 10:00 AM for a bench trial. On May 9, 2022 the defendant filed a notice of motion seeking dismissal of the simplified traffic information pursuant to CPL § 245.80(1)(a), citing an alleged violation of Criminal Procedure Law § 245.10(1)(a)(iii) had occurred. The parties appeared on the scheduled trial date and at that time the case was adjourned to allow the People an opportunity to file any responding papers in response to the defendant's request. The People filed an affirmation opposing dismissal on May 17, 2022, along with a certificate of compliance. The court conducted a discovery conference on the same date. Upon hearing further oral argument from the parties, the court reserved decision on the defendant's motion to allow for a written decision.
Arguments by the Parties
The defendant sets forth in his moving papers that following arraignment various mitigating factors were provided to the District Attorney's Office for consideration of a reduction of the initial charge. Despite such efforts the prosecution declined to extend any offer and as such, defense counsel requested a trial date. The defendant asserts that as of May 5, 2022, the People had not served any discovery materials upon him nor was a certificate of compliance filed with the court at said time. The defendant argues such non-compliance with the statutory requirement to provide discovery fifteen days prior to the commencement of trial must result in dismissal of the charge. The defendant also asserts the charge must be dismissed as there was a lack of notice of the right to file a motion for discovery upon arraignment.
The People oppose the motion to dismiss by arguing there has been no violation of the Criminal Procedure Law, as the legislature has eliminated any affirmative obligation upon the prosecution to provide discovery materials in traffic related matters. Specifically, the prosecution states CPL § 245.10(1)(a)(iii) was amended upon implementation of the 2022-2023 New York State Budget on April 9, 2022, and the provisions contained therein became effective on May 9, 2022. This change now obligates the defendant to request discovery on traffic cases and upon doing so, the People must respond accordingly. The People further advance their argument by stating the defendant did not request discovery despite having over one month to do so, upon the amendments to the law. The prosecution further states that despite the defendant having not made a formal request for discovery, the court should consider the motion filed herein as a request for same. As such, the People argue, discovery has been supplied, a certificate of compliance was filed with the responding papers and the motion to dismiss must be denied.
Standard of Law and Findings
On January 1, 2020 the provisions of CPL Article § 245 became effective in New York State, which require the People to disclose information referred to as "automatic discovery" without the necessity of discovery demands being filed by the defendant. The specifics of the automatic discovery provisions are made part of CPL § 245.20(1), which include twenty-one categories of items. The People must produce and provide to the defendant these items "as soon as practical", and no later than the times prescribed by § 245.10(1)(a)(ii). Upon enactment the statute, required disclosure must occur within a fifteen-day period. On May 3, 2020 the legislature extended the deadline, which allowed for discovery obligations to be fulfilled within thirty-five days, upon the defendant being arraigned on a misdemeanor charge. In addition, and most pertinent to the matter before the Court, the initial amendments made part of Criminal Procedure Law § 245.10(1)(a)(iii) stated the following:
"Notwithstanding the timelines contained in the opening paragraph of this paragraph, the prosecutor's discovery obligation under subdivision one of section 245.20 of this article shall be performed as soon as practicable, but not later than fifteen days before the trial of a simplified information charging a traffic infraction under the vehicle and traffic law , or by an information charging one or more petty offenses as defined by the municipal code of a village, town, city, or county, that do not carry a statutorily authorized sentence of imprisonment, and where the defendant stands charged before the court with no crime or offense, provided however that nothing in this subparagraph shall prevent a defendant from filing a motion for disclosure of such items and information under subdivision one of such section 245.20 of this article at an earlier date."
The court notes, that prior to the enactment of Article 245 of the Criminal Procedure Law, the provisions of CPL § 240.20(1) set forth the discovery process. Though this statute since repealed, obligated the People to disclose information "upon a demand to produce by a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending". In addition, the provisions of CPL § 240.20(1)(k) stated that a demand for discoverable material only applied to the prosecution of misdemeanor vehicle and traffic law violations as opposed to non-misdemeanor infractions. Also, prior to the enactment of discovery reforms courts had minimized the significance of the discovery process as it related to traffic files. This is evidenced by language contained in opinions issued by the courts. Specifically, the court in People v. Scott, 10 Misc. 3d 137(a), 2005 WL 3501245 [App.Term., 2nd Dept., 9th & 10th Jud. Dists 2005] held the "defendant was not entitled to discovery because she was prosecuted on a simplified traffic information charging her with a mere traffic infraction." It was not until the revisions codified in CPL § 245.10(1)(a) and CPL § 245.20(1)(s), wherein discovery now applies to traffic infractions and prior case law holding otherwise is no longer valid. ( People v. Navon , 73 Misc. 3d 136(a), 2021 N.Y. Slip. Op. 51070(u), 2021 WL 5292772 [App.Term., 2d Dept., 9th & 10th Jud. Dists. 2021] ; People v. Bernier , 63 Misc. 3d 344, 93 N.Y.S.3d 524 [Albany City Ct. 2018] ; People v. Russo , 149 A.D.2d 255, 545 N.Y.S.2d 211 [2nd Dept. 1989] ). Further, upon CPL § 245 being implemented portions of CPL § 30.30(1) and § 30.30(2) of the Criminal Procedure Law were also amended to provide that the term "offense" shall also include traffic law infractions. While speedy trial provisions still do not apply to traffic infractions, inclusion of such language allows for dismissal when readiness is not timely announced on accompanying charges related to a violation, misdemeanor or felony.
As the People's obligations are set forth above, the disclosure of discovery also needs to be solidified by the filing of a certificate which declares that all automatic discovery has been produced. Criminal Procedure Law § 245.50(1), states:
"When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article it shall serve upon the defendant and file with the court a certificate of compliance."
The defendant relies upon the provisions set forth above, in arguing for dismissal of the charge subject to this motion. However, since a simplified traffic ticket for unlawfully operating a cellular phone while driving was issued, there have been yet further revisions to the discovery laws which impact this case and must be considered in rendering a decision herein. The legislature incorporated these changes into the 2022-2023 New York State Budget and affect various aspects of the criminal procedure law, not just those related to discovery. Specifically, the legislature modified the motion practice challenging certificates of compliance and streamlined the discovery process itself. The People must now attach to any supplemental discovery disclosure an explanation, as to the reason why discovery was delayed. ( CPL § 245.50(1-a) ; CPL § 245.50(4)(b) ; CPL § 245.50(4)(c) ) In addition, the onus of requesting the production of any discoverable material on a traffic infraction has now shifted to the defendant. This shift eliminates the prosecution's affirmative obligation to automatically supply such information. Criminal Procedure Law § 245.10(1)(a)(iii) , states:
The 2022-2023 New York State Budget amended the Criminal Procedure Law, Penal Law and Family Court Act (collectively referred to as the "Budget Amendments"). The changes implemented impacted (1) bail (2) discovery (3) desk appearance tickets (4) thresholds for certain gun crimes (5) mental health commitments and (vi) jurisdiction over respondents in juvenile delinquency proceedings.
L. 2022, c.56 § 5, eff. May 9, 2022.
Notwithstanding the previous provisions of this
section, the prosecutor's obligations shall not apply to a simplified information charging a traffic infraction under the vehicle and traffic law , or to an information charging one or more petty offenses as defined by the municipal code of a village, town, city, or county, that do not carry a statutorily authorized sentence of imprisonment, and where the defendant stands charged before the court with no crime or offense, provided however that nothing in this subparagraph shall prevent a defendant from filing a motion for disclosure of such items and information under subdivision one of section 245.20 of this article. The court shall, at the first appearance, advise the defendant of their right to file a motion for discovery.
The defendant essentially argues that dismissal of the uniformed traffic ticket is warranted, based solely upon the People's failure to supply discovery within fifteen days of trial. While the argument could initially appear to have merit, it fails to recognize the impact of recent changes to the discovery laws. As such, the court must apply the budgetary amendments of 2022-2023, to the underlying fact pattern. As of May 9, 2022, the statute clearly relieved the prosecution of their affirmative obligation to provide discovery despite a request being made, and the burden now rests upon the defendant to make a demand for such material as set forth in CPL § 245.10(1)(a)(iii). However, the question regarding the People's obligation to comply with the fifteen day rule in this case lingers. The court scheduled trial prior to the effective date of the new law on this issue. In addition, should the court find a violation of the pertinent discovery statute, it must fashion an appropriate remedy.
It is paramount, that when a question is raised by either the People or the defendant, as to the meaning of a newly enacted statute, the court must determine the legislative intent of such law. The court further recognizes the long held notion that legislative intent, can best be ascertained through the plain language of the statute as "when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words’ used" ( People v. Lavrik, 72 Misc.3d 354, 146 N.Y.S.3d 762 [Crim.Ct., N.Y.County 2021] citing People v. Finnegan , 85 N.Y.2d 53, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995], Matter of Walsh v. New York State Comptroller, 34 N.Y.3d 520, 122 N.Y.S.3d 209, 144 N.E.3d 953 [2019], Colon v. Martin, 35 N.Y.3d 75, 125 N.Y.S.3d 346, 149 N.E.3d 39 [2020] ) In addition, the Court of Appeals found "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." ( People v. Golo, 26 N.Y.3d 358, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015] quoting Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] )
Upon application of these long standing principles to the facts herein, the parties stood before the court on May 13, 2022, at which time the People had no statutory obligation to provide discovery, absent a request for same. The law which was in effect on the scheduled trial date, specifically states: "the prosecutor's obligations shall not apply to a simplified information charging a traffic infraction....". ( CPL § 245.10(1)(a)(iii) ) In addition, the budget amendments of 2022-2023 did not provide any caveat or nuance which would lead this court to conclude that the fifteen day requirement would continue to apply to cases pending or filed before the new discovery requirements became effective. To find otherwise, would contravene the plain language of the statute which guide this court.
In addition, the Governor of the State of New York signed into law the new rules outlining the discovery process on April 9, 2022. This did not become effective until May 9, 2022. The defendant possessed a span of over thirty days notice to anticipate the implementation of the new discovery process. On the future date of the trial, the newly enacted statute would obviate the affirmative obligation of the People to provide discovery. The court agrees with the People's position that the defendant had ample time to file a motion to seek the production of discoverable material upon the statutory amendments effective date and the trial date. The filing of a motion by the defendant would have then compelled the People to provide materials involving the prosecution of this case under the new statutory scheme. The defendant's failure to recognize and adhere to the newly enacted discovery paradigm acted as a self-imposed road block to discoverable material prior to trial. The court further notes, the People properly treated the defendant's application to dismiss the simplified information as a ‘motion’ for discovery and filed a certificate of compliance simultaneously with the answering papers. As such, the motion to dismiss must be denied as the People were under no obligation to provide discovery fifteen days prior to commencement of the trial in this matter.
Despite the denial of the defendant's application, as set forth above, the court should address the additional provision of the newly enacted statute which requires the court to inform a defendant of certain rights. The defendant relies upon such ‘notice’ language to further advance his argument for dismissal. As set forth above, CPL § 245.10(1)(a)(iii) states "The court shall, at the first appearance, advise the defendant of their right to file a motion for discovery." The defendant argues this language in and of itself, "implies" that the amendments of the discovery law are only applicable to cases filed on or after May 9, 2022. The court disagrees. The inclusion of this verbiage shows a clear intent by the legislature to ensure a defendant has notice of their right to request and obtain discoverable material relative to the prosecution of the traffic infraction. While the defendant did not receive notice at the initial appearance or at arraignment, the defendant certainly cannot claim ignorance of such rights under the new law. The record and affirmation signed May 5, 2022 submitted by defense counsel provide indicia of awareness of the right to discovery. Therein, the defendant acknowledges the right to discovery by stating a certificate of compliance had not been filed in this matter and discovery information "should have been provided to the defendant" but has not. Furthermore, providing notice of the right to file a motion at the initial appearance would not only have been impracticable, it would have been impossible as arraignment occurred several months before the amendments were implemented or perhaps even contemplated. Thus, the court finds that the procedural history here satisfies the notice element of the amended statute pertaining to discovery in traffic related matters.
While not pertinent given the findings above, the court notes, the legislature also revised the sanction provisions as they relate to belated disclosure of discoverable information. The type of remedy or sanction imposed, upon prejudice being demonstrated, must now be "appropriate and proportionate" given the circumstances. In addition, the extreme remedy of dismissal must only be utilized and imposed after considering all other possible remedies available. CPL § 245.80(1) now states:
1. Need for remedy or sanction
(a) When material or information is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable
time to prepare and respond to the new material.
In addition, CPL 245.80(2) sets forth:
2. Available remedies or sanctions
For failure to comply with any discovery order imposed or issued pursuant to this article, the court may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges provided that, after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure , or make such other order as it deems just under the circumstances; except that any sanction against the defendant shall comport with the defendant's constitutional right to present a defense, and precluding a defense witness from testifying shall be permissible only upon a finding that the defendant's failure to comply with the discovery obligation or order was willful and motivated by a desire to obtain a tactical advantage.
The court certainly cannot make a finding of untimely disclosure in this matter as the defendant made a request on May 5, 2022 and disclosure followed on May 17, 2022. In the event the court made a finding of belated disclosure and that the defendant suffered prejudice, by no means would dismissal be appropriate and proportionate under the circumstances. The People's disclosure merely included the defendant's statement, police reports and notes along with the names of Trooper Taylor and Sgt. Heath, as persons known to have relevant information. The court cannot fathom that the defendant would need an extensive review of such material. In addition, only one witness exists; Trooper Taylor. Furthermore, the court also adjourned the hearing date to allow for a decision herein, which also affords the defendant additional time to prepare for trial. As such, upon applying the facts as set forth herein, the provisions of CPL § 245.80(1) inspire no necessary and appropriate sanctions.
It is noted that while the caption of the discovery disclosure references the incorrect defendant and docket the contents appear to be consistent with the simplified traffic information issued and contents.
Lastly, even arguendo , if the court applied the prior provisions of Criminal Procedure Law § 245.10(1)(a)(iii), as sought by the defendant, the application for dismissal would still fail. While prosecution under the prior statute would have obligated production of discovery fifteen days prior to the commencement of trial, the defendant's burden of demonstrating prejudice by the late or non-disclosure remains. The court could not, until that time, impose a sanction or remedy. Courts have consistently implemented a stringent standard prior to finding a defendant has suffered prejudice. For instance, in the recent ruling in People v. Waksal, 2022 N.Y. Slip Op. 50380(U), 2022 WL 1485267 [App.Term, 9th & 10th Jud. Dist. 2022] ) the court held that providing discovery documents consisting of the uniform traffic ticket, a supporting deposition, the trooper's notes and a photograph of the defendant's driver's license on the day of trial did not warrant dismissal of the charge. The court held that although discovery was untimely provided, the defendant did not demonstrate any prejudice nor that the defense would have adopted a different trial strategy if the prosecution had provided that material prior to the fifteen day requirement. Furthermore, the court in People v. Jateen , 74 Misc. 3d 134(A), 2022 WL 1161986 [App. Term, 9th & 10th Jud. Dist. 2022] held the "Defendant failed to make any showing that he was prejudiced by the People's alleged failure to provide discovery material at least 15 days prior to trial and never requested additional time to prepare or respond to the material provided on the date of the trial." Here, the defendant proffered no evidence that it sustained any prejudice due to the untimeliness of discoverable information. In addition, the court will schedule a trial date giving the defendant further opportunity to review materials disclosed by the prosecution.
In summary, the court must deny the defendant's motion to dismiss as the People had no obligation to provide discovery fifteen days prior to the trial date in this matter, and the defendant had sufficient notice as to their obligation to request such materials. Thus, based upon the findings herein the defendant's motion seeking dismissal is hereby denied.