Opinion
Docket No. CR-020333-21QN
09-13-2022
The People of the State of New York v. James Best, Defendant.
Queens Defenders, Forest Hills (Michael Sheftman, of counsel), for defendant. Melinda Katz, District Attorney, Kew Gardens (Brianna M. White, of counsel) for plaintiff.
Unpublished Opinion
Queens Defenders, Forest Hills (Michael Sheftman, of counsel), for defendant.
Melinda Katz, District Attorney, Kew Gardens (Brianna M. White, of counsel) for plaintiff.
Jeffrey Gershuny, J.
Introduction
The defendant moves to invalidate the People's certificate of discovery compliance (CPL 245.50 [1]) and to dismiss on speedy trial grounds (CPL 170.30 [1] [e]; 30.30). At issue is whether the People have provided all evidence and information required pursuant to CPL 245.20 (1) (k).
The principles of automatic disclosure and openness in the discovery process are hampered by the unilateral, self-serving, and incomplete Queens District Attorney's Office practice of withholding and redacting police officer witness disciplinary records without leave of court or protective order. The Law Enforcement Officer Witness (LEOW) letters filed and served by the People are mere summaries without any substantive underlying documentation. To hold these LEOW letters as compliant with the prosecutorial discovery statute mandates would be to ignore the plain letter, spirit, and meaning of the statutory language "all evidence and information." By not requiring the People to turn over ALL underlying disciplinary documentation in their possession, the court would be giving no force and effect to the clear and unequivocal language used by the legislature and would thus be arbitrarily determining that "all evidence and information" as codified in CPL 245.20 (1) (k) is satisfied going forward with summaries. The court finds that "all evidence and information" cannot be satisfied by mere summary letters by the District Attorney - it must include all underlying documentation whether the police department disciplinary action was substantiated or unsubstantiated by the investigating agencies.
PROCEDURAL HISTORY
On July 8, 2022, this court held the decision in abeyance for the People to address the following factual issues:
(1) What date did the Queens District Attorney's Office ask for and obtain the "CCRB Officer History," "NYPD Central Personnel Index Round Robin Report," and summary of all civil lawsuits?
(2) When did the Queens District Attorney's Office provide defense counsel with the "CCRB Officer History," "NYPD Central Personnel Index Round Robin Report," and summary of all civil lawsuits?
(3) Is the "CCRB Officer History," "NYPD Central Personnel Index Round Robin Report," and summary of all civil lawsuits, all of the underlying documents? That is," [a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case" that is in the possession of the NYPD, or other law enforcement agencies, and the Queens District Attorney's Office.
The Responses
On July 20, 2022, the assigned Assistant District Attorney provided answers to these issues:
(1) As to what date the Queens District Attorney's Office asked for and obtained the "CCRB Officer History," "NYPD Central Personnel Index Round Robin Report," and summary of all civil lawsuits, the People responded:
"The CCRB was not affirmatively requested by QDA. Rather, the CCRB documents received by QDA have been provided to QDA without request on an approximately quarterly basis beginning in March of 2020. If nothing has changed in an officer's CCRB Allegation History then CCRB does not provide a new document for that officer. The document date on the top right of the CCRB document, October 13, 2020, denotes the approximate date the document was run/created by CCRB. The CCRB documents are typically received by QDA within a week of being run and then require uploading en masse. The NYPD Central Personnel Index file similarly contains a run date on the top right corner of the document and is typically received from NYPD by QDA the same date that it is run. In this case that date was January 4, 2022. The civil suits summary is typically requested by QDA the same date that the NYPD Central Personnel Index is requested."
(2) As to when the Queens District Attorney's Office provided defense counsel with the "CCRB Officer History," "NYPD Central Personnel Index Round Robin Report," and summary of all civil lawsuits, the People responded:
"The Queens District Attorney's Officer [sic], through Assistant District Attorney Brianna White, provided defense counsel with the CCRB Officer History, NYPD Central Personnel Index Round Robin Report, and the summary of all civil lawsuits on January 18, 2022. Online usage receipts show that these documents were opened and viewed on that same date."
(3) Finally, as to the question of whether the "CCRB Officer History," "NYPD Central Personnel Index Round Robin Report," and summary of all civil lawsuits, are all of the underlying documents (i.e. "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case" that is in the possession of the NYPD, or other law enforcement agencies, and the Queens District Attorney's Office), the People responded:
"The answer to this inquiry requires more information to determine what "all evidence and information["] means. As this Court is well aware there are differing interpretations and no appellate authority. The People hold that their definition is the most reasonable, because the opening clause of CPL 245.20 (1) states that what must be turned, must that which 'relate to the subjection [sic] matter of the case'. That the People rely on an interpretation most internally consistent with the statute, and one which is also consistent with both the Supreme Court of the United States in Kyles v Whitley, and the New York Court of Appeals in People v Garrett. Following that guiding interpretation, the People have turned over all materials or information tending to impeach the officer's credibility that arise from the investigation or prosecution of the case. Furthermore, the People are not aware of the existence of any other information that has yet to be provided to the defendant."
On July 26, 2022, defense counsel responded in part:
"The People have turned over one LEOW letter relating to this case. That was for Police Officer Robert O'Neil, who was the investigating and arresting officer in this case. His LEOW letter indicates that after an NYPD internal investigation, there was a substantiated finding as to allegations from an incident on January 6, 2019.... The People have failed to turn over the underlying documents for this internal investigation, and they have failed to detail and diligent good faith efforts they may have made to obtain these materials. Upon information and belief, on similar investigations within the NYPD pertaining to different law enforcement personnel, underlying reports regarding internal investigations are generated, and on some occasions, have been turned over by the People to the defense.
"The People have failed to detail any steps they may have taken to obtain these reports. These documents would clearly be within the control of the NYPD. If any steps were taken the People failed to detail them in their COC, their Response to defense counsel's Motion to Dismiss, or their Response to the Court's Interim Order."
On January 18, 2022, the People served and filed the certificate of compliance; this was 65 days after arraignment and 30 days after the CPL 245.10 (1) (a) (ii) deadline. In their certificate of compliance, the People provided a Law Enforcement Officer as a Witness (LEOW) Letter. The People define a "LEOW Letter" as" summaries of disciplinary matters in which police officers have been involved throughout their careers with the New York Police Department" [emphasis added]. In addition to the LEOW Letter, the People claimed that they "provided underlying documents in their possession" as it relates to Detective O'Neil, the only witness who will testify at trial. These documents included:
CPL 245.10 states that automatic discovery (CPL 245.20) is to be provided "as soon as practicable but not later than... thirty-five calendar days after the defendant's arraignment" (CPL 245.10 [1] [a] [ii]).
• "CCRB Officer History";
• "NYPD Central Personnel Index Round Robin Report"; and
• Summary of all civil lawsuits.
The People maintained that the disclosure of these materials, in conjunction with the LEOW letter, satisfied their obligations under CPL 245.20 (1) (k) (iv).
The court directed the People to produce the underlying documents that they provided to defense counsel. Since the new discovery article was enacted in 2020, a recurrent issue with many pleadings is their reference to electronic files and documents by title without providing the documents themselves. This leaves the court handicapped as to what the People actually provided to the defense.
In response, the People provided a document on Queens County District Attorney letterhead. This document, provided to the court on July 27, 2022, and later identified in a July 29, 2022 email as a "Central Personnel Index Report," states information was "obtained from the files of the Queens County District Attorney's Office as well as from data maintained by the New York City Police Department."
"DISCIPLINARY MATTER(S):
"After an NYPD internal investigation, PO O'Neil substantiated allegations of the following specification: While assigned to the 107th Precinct, on January 6, 2019, PO O'Neil did engage in conduct prejudicial to the good order, efficiency or discipline of the police department, to wit said Police Officer did fail to safeguard department equipment, and was responsible for missing department equipment.
"Please note that additional information regarding this officer's NYPD disciplinary history may be available at https://nypdonline.org/ link/2."
However, this document does not appear to be from the police department; it is clearly a summary produced by the Queens District Attorney's Office. The court also notes that the hyperlink provided by the People does not contain any underlying documents from the CCRB investigation of Officer O'Neill. An August 1, 2022 email correspondence with the court and defense counsel indicated that this is a summary - or, at best, not complete: "The disciplinary matter at issue is that Detective O'Neil failed to safeguard department equipment - specifically OC Spray. Defense has been provided with the date, the allegation, the case status, and the action taken."
Furthermore, the next page of the July 27, 2022 email attachment, entitled "Officer History," later identified in a July 29, 2022 email as a "CCRB disciplinary summary - which summarizes complaints from the Civilian Complaint Review Board," states: "Total Charges = 0""Total Cases = 0."
In an email dated July 29, 2022, the People explained:
"Regarding CCRB documents, QDA is typically in possession of a single PDF file for NYPD officers who act in an enforcement capacity, as opposed to officers who are assigned to conduct lab work or for example school safety agents. This PDF will always contain an 'Officer History' section. If there was an allegation, dated 2000 or later, which was either 'substantiated' or entered as 'other (potential) misconduct noted then the PDF file will include the 'Investigative Recommendation' report associated with the substantiated or other misconduct noted allegations. Please note, dispositions of Other Misconduct Noted designated that CCRB believed their [sic] was potential misconduct by the officer but that CCRB did not have jurisdictional oversight of the potential misconduct. Additionally, the 'Investigative Recommendation' report is just that, a recommendation. Therefore, the dispositions as listed in the 'Investigative Recommendation' are preliminary and may not match those in the Officer History.' If the dispositions differ, the 'Officer History' is the correct/final disposition as determined by CCRB."
There is a split of persuasive authority as to whether LEOW letters or other summaries are sufficient to satisfy the People's CPL 245.20 (1) (k) obligation.
As set forth below, this Court finds that LEOW letter summaries are legally insufficient to meet the clear statutory disclosure requirements of CPL 245.20 (1) (k), and the certificate of compliance filed by the People must be invalidated.
The Discovery Statute and Disclosure
CPL Article 240 was repealed effective January 1, 2020 and replaced by CPL Article 245 (see L 2019, ch 59, part KKK, § 1). For the first time, New York tied speedy trial and discovery together. The newly enacted CPL Article 245 requires that "automatic discovery" (CPL 245.20) be completed before the People can announce their readiness for trial (CPL 245.50 [3]; 30.30 [5]).
CPL 245.20 (1) provides a non-exhaustive list of the items the People must disclose (People v Soto, 72 Misc.3d 1153, 1155 [Crim Ct, NY County 2021]; People v Pennant, 73 Misc.3d 753 [Nassau Dist Ct 2021]).
CPL Article 245 clearly states that the police department's personnel files - like all items and information related to the prosecution of a criminal action - are "deemed to be in the possession of the prosecution" (CPL 245.20 [2]). This is particularly important in cases involving LEOW letters because the District Attorney is in possession of the evidence and information in question - that is, the underlying records and documentation - and simply elects not to disclose them.
Summaries are Not "All Evidence and Information"
A. Statutory Construction
Under the automatic discovery statute (CPL 245.20 [1]), the term "summary" is only mentioned twice: (1) under expert opinion evidence, the People are required to disclose "a written statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion" (CPL 245.20 [1] [f]) (emphasis added); and (2) the People are required to disclose "[a] summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward or inducement" (CPL 245.20 [1] [i]) (emphasis added).
CPL 245 (1) (k) does not mention the term "summary" but states clearly and unequivocally "[a]ll evidence and information." If the legislature intended police department disciplinary records to be turned over by the prosecution as summaries, this language would have been used; but such language was expressly left out. In other words, the legislature clearly intended "all evidence and information" to mean exactly what it says. "As 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 Roberts, 31 N.Y.3d 406, 418 [2018]; People v Golo, 26 N.Y.3d 358, 361 [2015]; Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583 [1998]; see also People v Ryan, 82 N.Y.2d 497, 502 [1993]).
CPL article 245 was enacted to expedite and simplify the discovery process. It is a statute of openness and undoubtedly disclosure. It was designed to remove the discretion of the parties in determining what and how much discovery to turn over or to provide a statutory mechanism by way of a protective order when a party wishes to withhold discovery. Through these reforms, discovery was deemed "automatic," meaning the parties are required to turn over the information without application (formerly a demand) or motion from the other party.
B. Impeachment Material and Presumption of Openness
As previously discussed, under CPL 245.20 (1) (k), the People are mandated to disclose" [a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to:... impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]) (emphasis added). This obligation is not just a codification of Brady. To the contrary, CPL 245.20 (1) (k) goes beyond what Brady required. For example, this provision jettisons the "materiality" requirement (Brady at 87) (see Pennant, 73 Misc.3d at 756; People v Sozoranga-Palacios, 73 Misc.3d 1214 [A], 2021 NY Slip Op 51036[U], *4 [Crim Ct, NY County 2021]). Furthermore, "impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case" (People v Williams, 72 Misc.3d 1214 [A], 2021 NY Slip Op 50743[U], *4 [Crim Ct, NY County 2021]).
See also People v Salters, 72 Misc.3d 1219 (A), 2021 NY Slip Op 50800(U) (Nassau Dist Ct 2021); People v McKinney, 71 Misc.3d 1221 (A), 2021 NY Slip Op 50456(U) (Crim Ct, Kings County 2021); People v Castellanos, 72 Misc.3d 371 (Sup Ct, Bronx County 2021).
The People cite to Kyles v Whitley (514 U.S. 419 [1995]) and People v Garrett (23 N.Y.3d 878 [2014]) for support. However, those cases, dealing with Brady violations, were decided prior to the enactment of CPL 245.20 (1) (k), and are of no help to the People (see People v Martinez, 75 Misc.3d 1212 [A], 2022 NY Slip Op 50476[U], n3 [Crim Ct, NY County 2022]; People v Darren, 75 Misc.3d 1208 [A], 2022 NY Slip Op 50415[U], n1 [Crim Ct, NY County 2022]; see also William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 245.10 [questioning the continued viability of Garrett in light of CPL 245.20 (2)]).
Brady v Maryland, 373 U.S. 83 (1963)
The only appellate court applying CPL 245.20 (1) (k) (iv) is Matter of Jayson C (200 A.D.3d 447, 449 [1st Dept 2021]). There, the First Department held that in juvenile delinquency proceedings, the use of "disclosure letters" pertaining to NYPD disciplinary records violated the equal protection clause and, applying CPL 245.20 (1) (k) (iv), that respondent was entitled "all impeachment evidence" - the same impeachment material as defendants in criminal cases (id.). In other words, Matter of Jayson C holds that the plain text meaning of CPL 245.20 (1) (k) (iv) requires the People to disclose all underlying information relating to the misconduct of their police witnesses; mere summaries are not sufficient (People v Spaulding, 75 Misc.3d 1219 [A], 2022 NY Slip Op 50544[U], *2 [Crim Ct, Bronx County 2022]; People v Polanco-Chavararria, 74 Misc.3d 120[A], 2021 NY Slip Op 51297[U] [Rockland County Ct 2021]; see also People v Alvia, __ Misc.3d __, 2022 NY Slip Op 22233, *3 [Crim Ct, Bronx County 2022]).
Published criminal court decisions have shown an inclination to require the disclosure of all underlying documents, not mere summaries written by the prosecution or summaries obtained through questioning of the implicated officer-witness (see People v Francis, 75 Misc.3d 1224 [A], 2022 NY Slip Op 50655[U], n2 [Crim Ct, Bronx County 2022]; People v Martinez, 2022 NY Slip Op 50655(U), n3; People v Spaulding, 2022 NY Slip Op 50544[U], *2; People v Florez, 74 Misc.3d 1222 (A), 2022 NY Slip Op 50202(U), *10 [Sup Ct, Nassau County 2022]; People v Polanco-Chavarria, 74 Misc.3d 1210 [A], 2021 NY Slip Op 51297[U], *3 [Rockland County Ct 2021]; Pennant, 73 Misc.3d at 760; Edwards, 74 Misc.3d 433; Salters, 2021 NY Slip Op 50800[U], *3-4; Portillo, 73 Misc.3d at 219; Castellanos, 72 Misc.3d at 375; McKinney, 2021 NY Slip Op 50456(U), *6; Herrera, 2021 NY Slip Op 50280(U); Cooper, 71 Misc.3d at 566).
Whether something is potential impeachment material is not for the People to determine, but rather for defense counsel:
"As the Court of Appeals has long recognized, the best judge of the impeachment value of evidence is the 'single-minded counsel for the accused' (People v Rosario, 9 N.Y.2d 286, 290, cert denied 368 U.S. 866 [1961].... To permit the single-minded counsel for the accused to be permitted only to see filtered allegations of misconduct impinges on counsel's ability to represent the accused. That is not what the Legislature intended" (People v Edwards, 74 Misc.3d 433, 443-444 [Crim Ct, NY County 2021]) (citations omitted).
In discovery there is a presumption of openness (CPL 245.20 [7]): "There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article" (see People v Porter, 71 Misc.3d 187 [Crim Ct, Bronx County 2020]; People v Georgiopoulos, 71 Misc.3d 1215 [A], 2021 NY Slip Op 50380[U] [Sup Ct, Queens County 2021]).
The People should have either disclosed the underlying information or sought a protective order through a motion on notice (CPL 245.70 [1]):
"[T]he prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance. Thus, a prosecutor who fails to engage in 'open file' discovery (except for 'work product' and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10; see also Sozoranga-Palacios, 2021 NY Slip Op 51036[U]; Williams, 2021 NY Slip Op 50743[U]; Soto, 72 Misc.3d at 1153).
It is well settled that "[t]he prudent prosecutor will resolve doubtful questions in favor of disclosure" (United States v Agurs, 427 U.S. 97, 108 [1976], quoting Kyles, 514 U.S. at 419; People v Portillo, 73 Misc.3d 216 [Sup Ct, Suffolk County 2021]). The Kyles Court went on to state:
"Such disclosure will serve to justify trust in the prosecutor as 'the representative... of a sovereignty... whose interest... in a criminal prosecution is not that it shall win a case, but that justice shall be done.' And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. The prudence of the careful prosecutor should not therefore be discouraged" (514 U.S. at 439-440) (internal citations omitted).
Providing mere summaries of police disciplinary records - that is, omitting the actual records themselves - cannot satisfy the requirements of CPL 245.20 (1) (k). The underlying records may consist of testimonial evidence, exhibits, reports by investigative agencies and other types of material necessary for defendant to properly prepare their cross-examination and impeachment of the People's witness. Whether substantiated or unsubstantiated, all disciplinary records must be turned over to the defense. The People are without authority to determine unilaterally, by themselves, what "tends to" or does not tend to go towards the impeachment of a witness. Such a determination - whether those records can be used for impeachment or further investigation at trial - is a matter for defense counsel to review and for the trial court to determine. But the disclosure of such records must be automatic, absolute and without redaction, adulteration, or censorship by the People, except as allowed in CPL 245.20 (6) . Anything short of full disclosure without a protective order would amount to a subjective determination by the parties as to what should be turned over. This is contrary to the automatic disclosure requirements and the purpose of the reformed discovery statute.
Under this subsection "[e]ither party may redact social security numbers and tax numbers from disclosures under this article."
Protective Orders
Where there is any dispute or uncertainty as to whether particular information or evidence must be disclosed, the People always have the option of seeking a ruling from the court (see CPL 245.35). "In short, the People's certificate of compliance is not valid simply because it reflects the prosecutor's sincere belief as to what material is discoverable" (Edwards, 2021 NY Slip Op 50944[U], *6, citing Soto, 72 Misc.3d at 1163).
If the People wish to redact or withhold any information that may be discoverable then they must follow the process in CPL article 245 - i.e. prior to filing the certificate of compliance seek a protective order pursuant to CPL 245.70, wherein the judge would rule as to whether the People may withhold the police personnel files until a certain time, or if the disclosure of those records would be ordered to satisfy the People's disclosure obligations under CPL 245.20 (1) (k). The People, as a matter of internal office policy, have been unilaterally redacting law enforcement information without leave of court and have been selectively withholding disciplinary records that they themselves deem non-discoverable or irrelevant to the question of impeachment. These are determinations that are not for the People to decide.
This is not to say that everything discoverable under CPL article 245 will be admissible at trial. "Rather, only after compliance with the disclosure statute can the Court and public be assured that both parties are properly prepared to present cogent, contextual arguments in limine regarding permissible areas of cross-examination, thus ensuring a fair trial" (Portillo, 73 Misc.3d at 247).
Certificate of Discovery Compliance
The issue is how much is enough for the People to satisfy their CPL 245.20 (1) (k) (iv) obligations. The assigned ADA stated in a July 29, 2022 email:
"I have turned over every document in my possession with respect to detective O'Neil. I have subsequently checked in the QDA system if there were any additional documents. I also contacted the director of the QDA LEOW unit for clarification regarding all of the court's questions about these documents. I believe it is quite clear - that I have exhibited a diligent good faith effort with respect to the extensive amount 245.20 (1) (k) information turned over in conjunction with the Certificate of Compliance in this case."
Contrary to the People's position, the issue is not whether all LEOW documents in the actual physical possession of the Queens District Attorney's Office were turned over, but whether all the personnel records from the police department were provided to the assigned Assistant District Attorney, as required by CPL 245.55, and then whether those records were provided to the defense as required by CPL 245.20 (1) (k).
The "filing of the certificate of compliance pursuant to CPL 30.30 (5)" cannot "be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel Ferro v Brann, 197 A.D.3d 787, 788 [2d Dept 2021], lv denied 38 N.Y.3d 909 [2022]) (emphasis added). The trial courts have consistently held that the People are required to disclose the complete files prior to filing the certificate of compliance (see People v Spaulding, 75 Misc.3d 50544[U], 2022 NY Slip Op 50544[U], *2 [Crim Ct, Bronx County 2022]).
See also Darren, 2022 NY Slip Op 50415(U), *3; Edwards, 74 Misc.3d 433, 436; Barralaga, 73 Misc.3d 510, 512-513; Soto, 72 Misc.3d at 1156; Williams, 2021 NY Slip Op 50743(U), *4; Kelly, 2021 NY Slip Op 50264(U), *2; Perez, 2021 NY Slip Op 50374(U), *3; Herrera, 2021 NY Slip Op 50280(U), *3; Rosario, 70 Misc.3d at 757.
CPL 245.20 (2) states that what the police possess, the District Attorney possesses. Further, CPL 245.55 requires the "district attorney and the assistant responsible for the case":
"For purposes of subdivision one of this section, all 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" (CPL 245.20 [2]).
"to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article."
This is not a case where the People were awaiting discovery, reviewing recently received discovery or mistakenly not disclosing information in good faith, or documents they never knew existed nor is this a situation of inadvertent failure to disclose discovery. Rather, here, the People knowingly failed to disclose discoverable material in their possession without leave of the court or a protective order demonstrating a blatant disregard for the disclosure requirements of the statute.
This Court holds that when the People have actual possession or are statutorily presumed to be in possession of police officer disciplinary records, including the underlying documentation, and they willfully elect not to disclose that information then they cannot be deemed in compliance with their discovery obligations and any corresponding certificate of compliance must be invalidated. Accordingly, defendant's motion to invalidate the certificate of compliance filed in this case is granted.
Speedy Trial
The defendant moves to dismiss pursuant to CPL 170.30 (1) (e) on the ground that he has been denied his right to a speedy trial (CPL 30.30). Since the top count charged is a class A misdemeanor, the People have 90 days from the commencement of the criminal action to be ready for trial (CPL 30.30 [1] [b]; People v Cooper, 98 N.Y.2d 541, 543 [2002]). The criminal action commenced on November 4, 2021, when the defendant first appeared in response to the appearance ticket (CPL 30.30 [7] [b]).
"[O]nce a defendant has shown the existence of an unexcused delay greater than [90 days], the burden of showing that time should be excluded falls upon the People" (People v Barden, 27 N.Y.3d 550 [2016], quoting People v Santos, 68 N.Y.2d 859, 861 [1986]; see People v Santana, 80 N.Y.2d 92, 105 [1992]):
"Generally, the burden is on the People to establish their entitlement to exclude any pre-readiness delays from the calculation under a CPL 30.30 motion and the burden is on a defendant to prove that any post-readiness delays that directly implicate the People's ability to proceed with trial are chargeable to the People, unless the People failed to satisfy their burden to ensure that the record is sufficiently clear as to who is chargeable for an adjournment" (People v Robinson, 67 A.D.3d 1042 [3d Dept 2009], citing People v Cortes, 80 N.Y.2d 201, 210, 215-216 [1992]).
The following is the court's period-by-period analysis:
November 4, 2021 to January 19, 2022. On November 4, 2021, the defendant first appeared in response to an appearance ticket. The felony complaint charged the class E felony of criminal mischief in the third degree (Penal Law § 145.05 [2]). The matter was adjourned to January 19, 2022, for grand jury presentment. On January 18, 2022, the People, through EDDS, delivered to the court a supporting deposition, certificate of compliance, and statement of readiness. However, since a felony complaint was still pending, the People could not announce their readiness for trial.
It should be noted that the People state in their reply that the 75-day period of delay - from the commencement of the criminal action on November 4, 2021, to January 18, 2022, when the People delivered a statement of readiness on January 18, 2022 - should be the only period included in speedy trial calculations. However, the People have failed to explain how they could be ready for trial on a felony complaint. A reduction of a felony complaint to a misdemeanor accusatory instrument can only be accomplished if the mechanism of CPL 180.50 is followed (see People v Yolles, 92 N.Y.2d 960, 961 [1998]; People v Toribio, 68 Misc.3d 128 [A], 2020 NY Slip Op 50933[U] [App Term, 2d, 11th & 13th Jud Dists 2020]; People v Kane, 57 Misc.3d 35, 38 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Such a procedure was not utilized on January 18, 2022.
January 19, 2022 to March 18, 2022 (58 days included). On January 19, 2022, the court dismissed the felony count upon the People's motion. Applying CPL 30.30 (7) (c) to the instant case, this commenced the 90-day speedy trial time limit (see Cooper, 98 N.Y.2d at 544).
In court on January 19, 2022, the People stated that they were ready for trial. The matter was adjourned to March 18, 2022 for a discovery update.
The People cannot be deemed ready for trial without a valid certificate of compliance (CPL 245.20 [3]). Until the People have fully complied with their discovery obligations, any certificate or statement of readiness is invalid. To permit the People to state their readiness for trial without having a properly filed certificate of discovery compliance (which must have some meaning and not just be a piece of paper having no force and effect) would render the speedy trial statute toothless when it comes to blatant and willful discovery violations and improperly filed certificates of discovery compliance. Therefore, the statement of readiness is invalid.
Therefore, this 58-day period of delay is included in speedy trial calculations.
March 18, 2022 to April 26, 2022 (39 days included). On March 18, 2022, the court stated that there was an issue as to the underlying disciplinary records and the matter was adjourned to April 26, 2022. Since the certificate of compliance and the statement of readiness based on that certificate were invalid, this 39-day period of delay is included in speedy trial calculations.
April 26, 2022 to August 1, 2022 (0 days included). On April 26, 2022, a motion schedule was set therefore stopped the speedy trial clock (CPL 30.30 [4] [a]).
The court finds 97 days included in speedy trial calculations which exceed the 90-day limit pursuant to CPL 30.30 (1) (b). Accordingly, the defendant's motion to dismiss is granted.
IT IS SO ORDERED. The clerk is directed to enter this order. Sealing is stayed 30 days.