Opinion
Docket No. CR-032068-22KN
04-25-2023
The People Of The State Of New York v. Lorenzo Arroyo, Defendant.
Eric Gonzalez Kings County District Attorney by ADA Elizabeth Gomez Reid Murdoch, Esq. Brooklyn Defender Services Attorney for Defendant
Unpublished Opinion
Eric Gonzalez Kings County District Attorney by ADA Elizabeth Gomez
Reid Murdoch, Esq. Brooklyn Defender Services Attorney for Defendant
Deepa Ambekar, J.
On February 21, 2023, defendant filed his first motion to dismiss the charges claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30 because the People failed to file a facially sufficient accusatory instrument, rendering invalid their statement of readiness. On March 31, 2023, the People filed their opposition to defendant's first motion to dismiss the charges. On April 7, 2023, defendant filed his reply to the People's opposition to his first motion.
On March 24, 2023, defendant filed his second motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30 because the People failed to file a proper certificate of compliance, rendering invalid their statement of readiness. On April 14, 2023, the People filed their opposition to defendant's second motion to dismiss the charges.
The court has consolidated defendant's motions into the instant decision; therefore, this decision constitutes the court's decision and order for both motions.
Procedural History
On November 6, 2022, defendant was arraigned on an accusatory instrument charging him with four misdemeanors and one violation, specifically: forcible touching, Penal Law § 130.52 (1); sexual abuse in the second degree, Penal Law § 130.60 (2); endangering the welfare of a child, Penal Law § 260.10 (1); sexual abuse in the third degree, Penal Law § 130.55; and harassment in the second degree, Penal Law § 240.26 (1). The accusatory instrument alleges, in pertinent part, that:
"THE DEPONENT IS INFORMED BY [THE COMPLAINING WITNESS] THAT, AT THE ABOVE TIME AND PLACE, THE DEFENDANT DID TOUCH INFORMANT'S VAGINA WITH DEFENDANT'S HAND AND INFORMANT OBSERVED DEFENDANT MASTURBATING. DEPONENT IS FURTHER INFORMED BY INFORMANT THAT THE ABOVE-DESCRIBED ACTIONS CAUSED INFORMANT TO BECOME ALARMED AND ANNOYED AND THAT INFORMANT'S DATE OF BIRTH IS [XX]/[XX]/2009."
The case was adjourned to December 1, 2022, for filing of a supporting deposition, certificate of compliance (COC), and statement of readiness (SOR).
On December 1, 2022, defendant appeared with his attorney. No COC or SOR was filed that day. The case was adjourned to February 7, 2023, for filing of a supporting deposition, COC, and SOR.
On January 9, 2023, the People served and filed an off calendar supporting deposition of the complaining witness, inventory of discovery provided under CPL 245, and notice/disclosure form for initial discovery (NDF).
On January 23, 2023, the People served and filed an off calendar NDF, COC with SOR, and an updated inventory of discovery provided under CPL 245.
On February 7, 2023, defendant appeared with his attorney. The case was adjourned to April 25, 2023, for defendant's COC, any defense objections to the People's COC, and trial.
On February 21, 2023, defendant filed his first motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30 because the People failed to file a facially sufficient accusatory instrument.
On March 24, 2023, defendant filed his second motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30 because the People failed to file a proper certificate of compliance, rendering invalid their statement of readiness.
On March 31, 2023, the People filed their opposition to defendant's first motion to dismiss the charges.
On April 7, 2023, defendant filed his reply to the People's opposition to his first motion.
On April 13, 2023, the People served and filed an off-calendar supplemental COC with SOR. The supplemental COC states that the People were disclosing (1) updated DD5s for Officer Gaudio which they state did not exist at the time of the filing of the original COC and (2) the Kings County Arrest Cover Page, which was provided previously but, due to a technical issue, was not legible.
On April 14, 2023, the People filed their opposition to defendant's second motion to dismiss the charges.
Speedy Trial Motion
Defendant contends that under CPL 30.30, the People should be charged the 105 days between arraignment on the original accusatory instrument and the filing of the instant motion - because a defective accusatory instrument and the failure to file a proper COC renders their SOR illusory. As a result, defendant argues that the CPL 30.30 speedy trial clock was not stopped, and chargeable time continued to accrue.
The People oppose, and state that their accusatory instrument was facially sufficient and their COC was valid. As a result, the SOR filed on January 25, 2023, was valid; and they are not charged for any time after that day. Therefore, only 78 days of non-excludable time has elapsed.
For the reasons below, the court concludes that the People filed a valid SOR. Consequently, the People are charged a total of 78 days. Accordingly, defendant's motion to dismiss pursuant to CPL 30.30 is denied.
In a motion pursuant to the CPL 30.30 speedy-trial statute, defendant bears the burden of going forward with sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by the statute, and then the People have the burden of justifying that delay (People v Santos, 68 N.Y.2d 859 [1986]). It is the People's burden to ensure "in the first instance" that the record of the proceedings is sufficiently clear to enable the court considering the subsequent 30.30 motion to make an informed decision as to whether the People should be charged (People v Cortes, 80 N.Y.2d 201, 215-216 [1992]).
Where the highest charge against a defendant is a class A misdemeanor, as is here, the People are required to state their readiness for trial within 90 days of commencing the criminal action (CPL 30.30 [1] [b]; Penal Law § 70.15 [1]).
The People answer ready by announcing ready on the record, or by filing a statement of readiness and serving a copy on defense counsel within a reasonable time thereafter (see People v Anderson, 252 A.D.2d 399 [1998], lv denied 92 N.Y.2d 1027; see also People v Kendzia, 64 N.Y.2d 331 [1985]). Generally, if the People announce ready, they are under no obligation to repeat that declaration of readiness upon each appearance in court unless there has been a substantial break in the proceeding (People v Cortes, 80 N.Y.2d 201, 214 [1992]; see People v Reid, 214 A.D.2d 396 [1st Dept 1995]).
On January 1, 2020, legislation went into effect that imposed additional discovery requirements on the People before they could be deemed ready for trial. Among other things, the law set out a statutory time frame for the automatic disclosure of certain discovery (CPL 245.20). "By 'automatic' disclosure, the current statute... unlike the former... means that the defendant is not obliged to 'demand' discovery; rather, the People are obligated to provide the 'automatic' disclosure of the listed items regardless of a defense demand..." (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2020 Electronic Update, Penal Law § 245.10). Correspondingly, the law provided that the prosecution shall not be deemed ready for trial until it has filed a certificate of compliance, i.e., a certification of good faith compliance with the disclosure requirements (CPL 30.30 [5]). While the prosecution's broad discovery obligations require them to exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery, there are certain limitations.
Based on the review of the Court file, and the submissions of the parties, the Court finds as follows:
1. November 6, 2022 to December 1, 2022
On November 6, 2022, defendant was arraigned on the accusatory instrument and the case was adjourned to December 1, 2022, for the filing of a supporting deposition, COC, and SOR. Since the People did not file a COC and SOR during this period, they are charged 25 days (CPL 30.30 [5]). Indeed, the People concede that they are chargeable for all days until the filing of the COC with SOR. [25 days charged, 25 days total].
2. December 1, 2022 to February 7, 2023
a) Prior to filing of SOR
On December 1, 2023, defendant appeared with his attorney. No COC or SOR was filed that day. The case was adjourned to February 7, 2023, for filing of a supporting deposition, COC, and SOR. On January 23, 2023, the People served and filed an off-calendar COC and SOR.
Since the People did not file a COC with a SOR until January 23, 2023, it is indisputable that they are charged the 53 days between December 1, 2023, and the filing of the SOR. Indeed, the People again concede that they are chargeable for all days until the filing of the COC with SOR; they only dispute defendant's contention that they should be charged all time after January 9, 2023.
b) Filing of SOR
Defendant contends a facially insufficient accusatory instrument and the failure to file a valid COC renders the People's January 23, 2023 SOR illusory. As a result, the People did not validly announce readiness. The People maintain that their accusatory instrument was facially sufficient, and their COC was valid.
As such, the court must first determine whether the People filed a facially insufficient accusatory instrument. The court must next determine whether the People filed a valid COC. The People's failure to file a valid SOR on January 23, 2023, would result in them being charged for all time following that day since there have been no periods in the instant case where the People's alleged failure to file a valid SOR would be excused by a defense consent adjournment. As a result, the People will have exceeded the applicable speedy trial time.
(1) Facial Sufficiency
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the offenses charged (CPL 100.15 [3]; 100.40 [1] [b]; CPL 70.10). An information which fails to satisfy this requirement is jurisdictionally defective (CPL 170.30; 170.35; People v Alejandro, 70 N.Y.2d 133, 136-37 [1987]; People v Dumas, 68 N.Y.2d 729, 731 [1986]).
On a motion to dismiss for facial sufficiency, the court's review is limited to whether the People's allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt (People v Henderson, 92 N.Y.2d 677 [1999]; People v Jennings, 69 N.Y.2d 103 [1986]). The standard for pleading a prima facie case is less than the heavy burden of proof beyond a reasonable doubt required at trial (see, Henderson, 92 N.Y.2d at 680 [1999]) and the factual allegations should be given a fair and not overtly restrictive reading (see, People v Casey, 95 N.Y.2d 354, 360 [2000]). When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (see, People v. Gonzalez, 184 Misc.2d 262 [App Term, 1st Dept 2000], lv denied 95 N.Y.2d 835, [2000]). However, conclusory allegations are insufficient (see, Dumas, 68 N.Y.2d 729).
In his motion, defendant contends that the count alleging a violation Penal Law § 130.52 (1) is facially insufficient because: "The information fails to allege facts which, if true, would establish that... Mr. Arroyo engaged in "forcible" touching... such as squeezing, grabbing, or pinching, as required by section 130.52(1) of the Penal Law" (February 21, 2023 affirmation of defendant's counsel at ¶ 12 [internal citations omitted]). As authority for his contention, defendant cites a number of decisions, most compellingly the First Department case, People v Zaragoza, 195 A.D.3d 522 (1st Dept 2021), which held that an allegation of touching a victim's thighs and genitals by reaching under her skirt failed to allege any facts consistent with "the application of some level of pressure" to show "forcible" touching as required by the Court of Appeals in People v Guaman, 22 N.Y.3d 678, 679 (2014).
The People respond that the forcible touching is sufficiently alleged in the accusatory instrument. In support of their contention, the People primarily cite the Criminal Court of the City of New York, New York County case, People v Soto, 192 Misc.2d 161, 163 (Crim Ct, NY County 2002), which held that the allegations that defendant "placed his fingers on deponent's vagina and pushed his fingers upon deponent's vagina through deponent's clothing" sufficiently alleged that defendant "forcibly" touched the victim (People's March 31, 2023 memorandum of law at 7).
Defendant replies that the People's response asks the court to consider "numerous unsupported factual assertions that are nowhere to be found in the misdemeanor information" and highlights that Soto is distinguishable because it contains an allegation of "pushing" which is not present in the instant case (April 7, 2023 reply memorandum of law of defendant's counsel at 2-3).
A person commits forcible touching under Penal Law § 130.52 (1) "A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose... forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire."
Having reviewed the applicable caselaw, the court agrees with defendant that Zaragoza is on point; therefore, the court concludes that the allegation that defendant "did touch informant's vagina with [his] hand" fails to allege any facts consistent with the application of pressure necessary to establish "forcible" touching as required by Guaman.
Accordingly, the court finds that the charged of forcible touching is not facially sufficient and the court dismisses that count of the accusatory instrument.
(a) Applicability of CPL 30.30 (5-a)
CPL 30.30 (5-a) provides that:
Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.
Defendant, citing CPL 30.30 (5-a), contends that because not all counts on the accusatory instrument were facially sufficient, the prosecution's statement of readiness was illusory (February 21, 2023 memorandum of law of defendant's counsel at 6).
The People respond that, even if the court finds the count of forcible touching insufficient, it should not dismiss find the People's SOR invalid and dismiss the entire accusatory instrument (People's March 31, 2023 memorandum of law at 10). The People submit instead that the appropriate remedy would be dismissal of the one count only (id.). As authority for this contention, the People, cite two trial court decisions including People v Luzuriaga, Crim Ct, Kings County, March 3, 2022, Perlmutter, J., Docket No. CR-021910-21KN which dismissed two counts of an accusatory instrument but declined to dismiss the entire accusatory instrument as "[t]he [c]ourt [did] not believe that in drafting the Complaint or in certifying compliance with CPL § 30.30(5-a) that the People acted in bad faith or with a lack of due diligence" (id. [internal citation omitted]).
Defendant, citing the decision in the Criminal Court of the City of New York, Kings County case, People v Matos, 78 Misc.3d 322 (Crim Ct, Kings County 2023), replies that:
"Unlike the legislature's decision to include a reference to "good faith" in describing the prosecution's obligation to certify their compliance with discovery laws, C.P.L. Section 30.30(5), the requirement to validly state readiness pursuant to section 30.30(5-a) does not contain any good faith exception, nor would a plain reading of the statute nor its legislative history allow such an interpretation"(April 7, 2023 reply memorandum of law of defendant's counsel at 4).
While the court has previously ruled on whether a CPL 30.30 (5-a) certification is necessary to announce readiness when the People have filed an otherwise valid facially sufficient accusatory instrument, the question of whether an insufficient count of an accusatory instrument renders the People's SOR invalid in its entirety is one that has only recently been considered by the court. Regarding the necessity of a CPL 30.30 (5-a) certification, the court has held that a pro-forma CPL 30.30 (5-a) certification was not necessary when the People, in some form, affirmed that they have a sufficient accusatory instrument to proceed to trial. The court reasoned, in part, that the court, and not the prosecution, has long held the obligation to determine the sufficiency of the accusatory instrument. Regarding the issue of whether an insufficient single count in an accusatory instrument renders the People's SOR invalid in its entirety, the court notes that there is no appellate authority on the issue and inconsistent trial court decisions.
The court has carefully reviewed trial court authority and has determined that People v Carter, 76 Misc.3d 1206 (A) (Crim Ct, Kings County 2022) and its progeny are the most persuasive. In Carter, the Criminal Court, Kings County (Glick, J.) reviewed the sufficiency of a multiple count misdemeanor information and found one count insufficient but rejected defendant's argument that "the People could not certify that every count of the accusatory instrument was facially sufficient pursuant to CPL § 30.30 (5-a),... [and therefore] their SOR was invalid" (id.). In denying defendant's argument, the court held that, "when the People file the required certification, their SOR will be valid where the People certify pursuant to CPL § 30.30(5-a) in good faith and with due diligence, and where the facial insufficiency of a charge or charges was later determined by a court analyzing the allegations and the 'nuance[s] of law'" (id.). Having made such a determination analyzing the "nuances of law," the court did not find the does not find the People's SOR illusory (id.).
The criminal court case, People v Councel, 77 Misc.3d 1132 (Crim Ct, Kings Count 2022), which cited Carter, among others, also ruled that insufficient counts of an accusatory instrument do not render the People's SOR invalid as a whole. The Councel court, in making its ruling, first examined the reasoning behind the enactment of a CPL 30.30 (5-a):
"Criminal Procedure Law § 30.30(5-a) closely mirrors New York State Senate Bill S1738 which sought to amend section 30.30 of the Criminal Penal Law to ensure cases go to trial in a reasonable timeframe. In an effort to strengthen the requirements for trial readiness to ensure timely prosecutions, the legislature addressed, among other areas of speedy trial law, the practice of partial conversion. Prior to the enactment of CPL § 30.30(5-a), courts treated each count of an accusatory instrument as a separate and distinct accusatory instrument and permitted individual speedy trial treatment to discrete counts of an information. The result was a piecemeal approach where two or more counts on the same docket were subject to multiple speedy trial timelines. Acknowledging the delay and confusion caused by such a practice, the legislature now requires the People to certify that every count of the information is properly converted, meets all the requirements of Article 100 of the Criminal Procedure Law, and that all defective counts have been dismissed"(Councel, 77 Misc.3d at 1135).
Consistent with the purpose of the law and this court's ruling regarding the necessity of a CPL 30.30 (5-a) certification, the Councel court noted that, "the People do not have the final word on whether or not each count of their accusatory instrument meets the requirements for facial sufficiency. The most they can do is certify in good faith that it is their belief that each count of the accusatory instrument meets the requirements of CPL §§ 100.15 and 100.40" (id.) As such, "[w]hether an information or complaint is facially sufficient is a legal determination that is ultimately decided by the court... Otherwise, post-COC motion practice would serve no purpose in relevant cases where the People's CPL § 30.30 (5-a) certification was challenged due to facially insufficient counts (id. at 1135-36).
This court declines to follow other trial court decisions that categorically dismiss entire accusatory instruments when even a single count is later determined by the court's nuanced review to be insufficient (see e.g. Matos, 78 Misc.3d 322, 325 [Crim Ct, Kings County 2023] ["this Court holds that it is a pre-requisite to a valid statement of readiness that an accusatory instrument is facially sufficient as to all charges not dismissed by the People"]). Such decisions often highlight that "[t]he Legislature could have allowed for the survival of a partially converted accusatory instrument by simply changing the term 'all counts' to 'any count' or 'some counts' but instead chose to use a comprehensive term when mandating facial sufficiency as a pre-requisite to the People's readiness" (id. at 325). These courts further reason that while "good faith" is included in the language of CPL 30.30 (5) for the People's certification of discovery compliance (along with the defendant's ability to challenge the good faith assertion), the legislature included no such good faith clause for a statement of readiness in either CPL 30.30 (5) or in CPL 30.30 (5-a)" (id.) These courts hold, therefore, that CPL 30.30 (5-a) requires a strict reading of the law.
This court declines to follow those line of cases because they fundamentally misunderstand the purpose of section (5-a). As explained, supra, the intent of the new (5-a) section was to combat the previous practice of partial conversion. Partial conversion refers to prosecution's practice of announcing ready on certain counts of an accusatory instrument and not others. It is not when the court subsequently finds a count of an accusatory instrument to be invalid. The previous practice would frustrate the purpose of CPL 30.30 because the case could not actually go to trial because the People were not ready on all counts and would involve the computation of multiple CPL 30.30 timelines. Therefore, subsection (5-a) was specifically enacted under section CPL 30.30 to address this troublesome practice and had nothing to do with facial sufficiency analysis. Accordingly, the legislature would not have drafted any "good faith" language in section (5-a) to allow the prosecution to certify "some counts." Indeed, this purpose is further indicated by CPL 30.30 (5-a)'s inclusion as a subdivision of CPL 30.30 - and not CPL 100.40 - as it pertains the to the computation of speedy trial time and not the effects of the court's facial sufficiency analysis.
In the instant case, the People researched and cited numerous cases in support of the sufficiency of the charge. The drafting of the charge on the accusatory instrument was not blatantly insufficient such that the People could not, in good faith, state ready for trial on the accusatory instrument (cf. People v Thompson, Crim Ct, Kings County, April 17, 2023, Ambekar, J., Docket No. CR-032515-22KN [failure to correct blatant deficiency in accusatory instrument rendered People's SOR invalid]). In deciding this issue, the court reviewed numerous, often conflicting cases to determine the validity of the forcible touching charge. Only after this review, and a careful analysis of the allegations and the "nuance[s] of law," did the court conclude that the forcible touching charge must be dismissed. Since the court finds that the People filed the instant accusatory instrument in good faith, upon their interpretation of the law, and with due diligence, the People properly certified all counts charged in the accusatory instrument pursuant to their obligations under CPL 30.30 (5-a).
Accordingly, the court dismisses the count of forcible touching and the People's SOR is valid as to the remaining charges, subject to the court's review of the certificate of compliance, infra.
(2) Certificate of Compliance
Pursuant to CPL 245.50 (1), the prosecution is required to serve and file a certificate of compliance stating "that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided."
CPL 245.20 (1) makes subject to discovery items "that relate to the subject matter of the case" and "include[e] but [are] not limited to" numerous enumerated categories of documents and information.
CPL 245.20 (1) (e) requires the prosecution to disclose "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports."
CPL 245.20 (1) (k) requires the prosecution to disclose evidence and information that may be of exculpatory value, or which could undermine the credibility of the People's witnesses or evidence.
Defendant has alleged that the People's COC is invalid due to their failure to provide three categories of discovery prior to the filing of their January 23, 2023 COC, specifically: (1) Giglio disclosure for non-testifying officers and underlying police misconduct records for testifying officers, (2) numerous items from the New York City Police Department (NYPD), and (3) records or attempts to get relevant records maintained by outside agencies/facilities.
The People respond that: (1) they need not provide Giglio disclosure for non-testifying officers and they provided all existing underlying documentation in initial discovery, (2) they have confirmed that most of the requested items do not exist; as such, they cannot be turned over - items that do exist were turned over following the exercise of due diligence, and (3) the People are not required to disclose outside records or demonstrate that they made efforts to obtain them.
(a) Giglio disclosure for non-testifying officers and underlying police misconduct records for all officers
Defendant requests Giglio disclosures for officers not indicated to be testifying and underlying police misconduct records for all officers (March 24, 2023 affirmation of defendant's counsel at ¶ 9). In this regard defendant first contends that he is entitled to Giglio disclosures for any officer involved in the case: "Any material that may negate the defendant's guilt... mitigate the defendant's culpability... support a potential defense... undermine evidence of the defendant's identity as a perpetrator... [or] provide a basis for a motion to suppress, is discoverable under CPL 254.50" (memorandum of law of defendant's counsel at 3 [internal citation and quotation omitted]). Defendant next contends that the summary disclosure provided by the People for the officer indicated to be testifying is insufficient; defendant states that he is entitled to the underlying records related the allegations of police misconduct for that officer and all other officers (id. at 3-7). Defendant cites a number of trial court decisions to support this contention (id.).
The People oppose, contending that "The People have [satisfied their obligation when they] provided the defense with the disclosure letter and CCRB information in their possession for each of the law enforcement personnel identified in the NDF as a potential witness" (People's April 14, 2023 memorandum of law at 5 [emphasis added]). Regarding underlying records for the officer indicated to be testifying, the People state that they have double-checked with their office's Giglio unit, who confirmed "there are no underlying records for Officer Costa because as of now there are no disclosures in the letter'" (id. at 6).
Initially, the court concludes that defendant's contention that the People must categorically provide police/misconduct records for all officers related to a case is without merit. While CPL 245.20 (1) (k) requires disclosure of certain categories of exculpatory or mitigation material related to the case as a whole, CPL 245.20 (1) (k) (iv) only requires disclosure of evidence and information that tends to "impeach the credibility of a testifying prosecution witness" ([emphasis added]). As such, without a specific showing that the records for a non-testifying officer are exculpatory or mitigating, the People need not disclose impeachment materials for non-testifying officers; defendant's mere speculation that all disciplinary/misconduct records of non-testifying officers constitute exculpatory or mitigation material under CPL 245.20 (1) (k) is insufficient to require disclosure of the records of all police officers involved in a case.
Given that the People state there are no underlying records for the officer, the court finds the People have satisfied their obligations with respect to this category. To the extent that People learn otherwise, or they seek to have other officers testify, they are ordered to provide disciplinary records of the substantiated allegations for testifying witnesses to the defense in their entirety within 30 days of receipt of this decision. The People must comply with their continuing discovery obligation to provide updated misconduct records prior to trial. To the extent the People are unable to provide the actual records within 30 days, they must provide a detailed record of the diligent efforts made to ascertain the material and how much additional time is necessary to obtain the material.
As a result, the court finds the People have satisfied their obligations with respect to this category.
(b) NYPD Documents
Defendant seeks numerous items from the NYPD, specifically: "activity log report for Officer Gaudio, DD5s for all other officers, any/all spirals/handwritten notes taken by officers, forensic interview recording and notes, NYPD voucher sexual offense evidence collection kit, medical referral to Child Advocacy Center, ACS/NYPD case summary, legible version of Kings County Arrest Cover Sheet, unredacted Arrest Packet, and ECAB discovery worksheet"(March 24, 2023 affirmation of defendant's counsel at ¶ 9).). Defendant states that these items are clearly discoverable (March 24, 2023 memorandum of law of defendant's counsel at 14).
The People respond that: Officer Gaudio did not have an activity log; no additional DD5s existed at the time of the filing of the People's COC, and DD5s created after the filing of the COC have subsequently been disclosed; no forensic interview notes, CAC referral, ACS summary, or ECAB discovery worksheet exist; due to a technical error, an illegible version of the Kings County Arrest cover sheet was sent but a legible version was sent later; and the redactions in the arrest packet relate to the NYPD's Domain Awareness System ("DAS") report which does not relate to the subject matter of the case (People's April 14, 2023 memorandum of law at 18-32).
Therefore, based upon the People's affirmation and in the absence of any contravening factual allegations, it appears that the items the People stated do not exist cannot be disclosed. To the extent that the court discovers that such requested items exist and were not disclosed, the court will impose appropriate sanctions or revisit the validity of the COC.
Regarding the Kings County Arrest cover sheet, since a legible copy was not turned over until after the People filed the COC, the court must determine whether this omission voids the validity of the COC. The court finds that it does not. The People exercised due diligence in obtaining the cover sheet among numerous other items of discovery. Moreover, once the People were advised as to their failure to turn over a legible copy, they duly complied and provided the videos to defendant. The statute demands diligence, not perfection.
Finally, with regard to the redactions in the arrest packet relating to the NYPD's Domain Awareness System (DAS) the court notes that DAS "is a central platform used by [the NYPD] to collect data" about criminal defendants (or, in some cases, witnesses) which searches, among other police department sources, crime reports, license plate readers, and 'a network of cameras'" (People v Lustig, 68 Misc.3d 234, 239 [Sup Ct, Queens County 2020]). From this description, the court concludes that while such records could possibly relate to the subject matter of a case, it is not apparent that they do. Therefore, given the authority cited by the People the lack of any contravening evidence by defendant to show such report is related to the subject matter, the court finds that DAS reports need not be disclosed.
As a result, the Court finds the People have satisfied their obligations with respect to this category.
(c) Records or attempts to get relevant records maintained by outside agencies/facilities
Defendant seeks numerous items from the NYPD, specifically: "NYC Health and Hospitals Sexual Assault Assessment Form, medical records for the complaining witness, therapy records for the complaining witness, medical record sexual assault form and ACS case notes" (March 24, 2023 affirmation of defendant's counsel at ¶ 9).). Defendant states that these items "may not be in the possession of the prosecution/NYPD as a general rule, but which the prosecution was obligated [under CPL 245.20 (2)] to obtain via due diligence and/or make reasonable inquiries to ascertain whether the materials exist (March 24, 2023 memorandum of law of defendant's counsel at 14).
The People respond that they are not required to turn over ACS records in initial discovery because they "were not in the People's actual possession at the time the People filed their COC" and "ACS is not a law enforcement agency and ACS workers are not law enforcement personnel, so their records are not deemed to be 'in the possession, custody or control of the prosecution or persons under the prosecution's direction or control' and the People must submit a subpoena to obtain them" (People's memorandum of law at 33). The People respond further: "The People have requested and are in receipt of the complainant's ACS records. They People have served and filed a protective order for the ACS records, dated April 13, 2023, and if a decision on [that motion] is granted, the People will provide the ACS records to the defense with a Supplemental COC" (id. at 34). Finally, the People state that they "are not in possession nor do the People have any information as to the existence of... [the] NYC Health and Hospitals Sexual Assault Assessment form for the complainant; medical records for the complainant; therapy records for the complainant; medical record sexual assault form" (id.).
The court first finds that the disclosure requirement of CPL 245.20 (1) is limited to "all items and information... in the possession, custody or control of the prosecution" (CPL 245.20 [1]). Additionally, while CPL 245.20 (2) provides that, "... [a]ll items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution," neither NYC Health and Hospitals nor the ACS constitute a law enforcement or other agency under the prosecution's control (see People v Batista, 277 A.D.2d 141, 142 [1st Dept 2000] [employee of the Administration for Children's Services not "public servant" for purposes of CPL 710.30 [1] [a] notice).
Accordingly, while any existent records maintained by NYC Health and Hospitals or the ACS are likely to contain information that is relevant or material to the case, the People are not "required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL 245.20 [2]).
Indeed, if the People state, pursuant to an "actual readiness" inquiry, state that they are ready to proceed to trial without such records, they are under no obligation to obtain them. The court notes that no actual readiness appears to have been done in the instant case to determine if the People were willing to proceed without such records.
The fact that the People did obtain ACS records by subpoena after filing their COC does not render the preceding filing invalid. Rather, the receipt of any such records triggers the People's "continuing duty to disclose" pursuant to CPL 245.60, and the People are required to provide the records to the defense. Since the People state that they will provide them to the defense following the court's determination of the motion for a protective order, the People have satisfied their corresponding obligation.
As a result, the Court finds the People have satisfied their obligations with respect to this category.
Accordingly, the People's COC filed January 9, 2023, is valid; therefore, the People validly announced readiness and are not charged from January 23, 2023, until February 7, 2023. [53 days charged, 78 days total].
3. February 7, 2023 to April 25, 2023
On February 7, 2023, defendant appeared with his attorney. The case was adjourned to April 25, 2023, for defendant's COC, any defense objections to the People's COC, and trial.
The People are not charged (see People v McKenna, 76 N.Y.2d 59, 64 [1990] [postreadiness delay is chargeable to the People only if "it is the People's dereliction that [prevents] the defendant's trial from going forward"]). [0 days charged, 78 days total].
Therefore, the People are charged a total of 78 days. Accordingly, defendant's motion to dismiss pursuant to CPL 30.30 is denied. To the extent that they have not done so already, the People are ordered to provide disciplinary records of the substantiated allegations for testifying witnesses to the defense in their entirety within 30 days of receipt of this decision. The People must comply with their continuing discovery obligation to provide updated misconduct records prior to trial. To the extent the People are unable to provide the actual records within 30 days, they must provide to the court a detailed record of the diligent efforts made to ascertain the material and how much additional time is necessary to obtain the material.
The foregoing constitutes the decision and order of the court.