Opinion
No. CR-045468-23KN
08-05-2024
The People of the State of New York v. Yolkingtz Bienaime, Defendant.
Eric Gonzalez, District Attorney, Kings County, Zenon Halatyn, A.D.A. The Legal Aid Society, Christopher Razadouski, Esq., of counsel for the Defendant.
Unpublished Opinion
Eric Gonzalez, District Attorney, Kings County, Zenon Halatyn, A.D.A.
The Legal Aid Society, Christopher Razadouski, Esq., of counsel for the Defendant.
Patrick Hayes Torres, J.
Defendant is charged with Vehicle & Traffic Law §1192 (3) Operating a Motor Vehicle Under the Influence of Alcohol or Drugs, among other charges. Defendant moves for an order deeming the prosecution's Certificate of Compliance ("COC") invalid because the prosecution failed to fulfill their initial discovery obligation under CPL 245.20 (1), and dismissing the accusatory instrument [CPL 30.30, 170.30(1)(e).
The defendant's motion claiming the People's Statement of Readiness (SOR) was illusory because COC/SOR along with a Motion to Dismiss a Count were filed after 5pm on the 90th day is Denied. However, defendant's motion to dismiss for failure to provide mandatory discovery is Granted.
PROCEDURAL HISTORY
On December 13, 2023, defendant was arraigned on a misdemeanor complaint charging him with Vehicle & Traffic Law § 1192 (3) Operating a Motor Vehicle Under the Influence of Alcohol or Drugs among other charges. Since the top count charged in the information was an unclassified misdemeanor punishable by up to a year in jail the People were required to be ready for trial within 90 days. See CPL 30.30 (1) (b) ; Vehicle & Traffic Law § 1193 (1) (b) (i).
On March 11, 2024, after 5pm and on the 90th day of speedy trial calculation, the People served and filed a COC, (SOR), and Notice of Disclosure Form (NDF). The People also filed a Motion to Dismiss a Count, namely Vehicle and Traffic Law §509 Unlicensed Operator.
On April 2, 2024, the parties appeared in Court and no objections were made about discovery.
On May 8, 2024, the defense sent a conferral letter listing some deficiencies with missing discovery material. On the following day, May 9, 2024, the defense submitted the instant motion to dismiss.
STATEMENT OF READINESS
The Criminal Procedure Law contains no requirement that the People must file the COC and SOR before the court's business hours. People v. Licius, 81 Misc.3d 18 (App Term 2nd Dep't 2nd, 11th & 13th Jud. Dist. 2023); People v. Murray, 77 Misc.3d 1205 (A) (Mount Vernon City Ct. 2022). Moreover, there is "[no] specific statutory requirement that a statement of readiness must be made during business hours." People v. Middleton, 79 Misc.3d 418, 421 (Crim. Ct., NY County 2023) (citation omitted); see also People v. Palma-Amaya, 80 Misc.3d 897 (Crim Ct., Kings County 2023) (noting that like Election Law § 59 and General Construction Law § 25-a, the CPL § 30.30 statute calculates calendar days and not business hours). Hence "[i]f the Legislature wanted CPL § 30.30 to be counted in hours, as opposed to days, they would have specifically articulated that in the statute, as they did in CPL § 180.80." People v. McLean, 77 Misc.3d 492, 498 (Crim. Ct., Kings County 2022).
Accordingly, the People can file their statement of readiness after normal business hours and before the end of the day. People v. Licius, 82 Misc.3d 18 (App Term 2nd Dep't 2nd, 11th & 13th Jud. Dist. 2023); People v. McLean, 77 Misc.3d 492, (Crim Ct., Kings County 2022); People v. Harris, 80 Misc.3d 932 (Crim Ct., Bronx County 2023); People v. Middleton, 7 9 Misc.3d 418 (Crim Ct., NY County 2023); People v. Murray, 77 Misc.3d 1205 (A) (Mount Vernon City Ct. 2022).
The defense alleged that when the People filed their COC/SOR, after hours on the 90th day, along with a Motion to Dismiss a Count it affected their readiness and was illusory, since a Court could not act on their motion. The Court is of the opinion that Motion to Dismiss a Count of Vehicle and Traffic Law §509 had no effect and was not illusory. As this Court has Stated in People v Simonelli, 83 Misc.3d 1225(A) (Crim Ct. Kings County 2024), the filing of Motion to Dismiss a Count was a ministerial that was to be adjudicated in Criminal Court. It was a motion that neither compelled a response from the defense nor required litigation time nor did it require time to contemplate a decision. People v M.V. 79 Misc.3d 448 (Crim. Ct., Kings County 2023); People v S.E.,79 Misc.3d 1233 (A) (Crim. Ct., Queens County 2023).
In this circumstance, the People's SOR was valid when they filed a COC along with a Motion to Dismiss a Count on the 90th day, even though the filing occurred after 5pm. The Motion to Dismiss a Count of Vehicle and Traffic Law §509 was a ministerial act. The People did certify that upon the Court dismissing the count of Vehicle and Traffic Law §509 that all counts charged in the accusatory instrument met the requirements of CPL §§ 100.15 and 100.40 and those counts not meeting the requirements of CPL §§ 100.15 and 100.40 have been dismissed. Thereby complying with CPL 30.30(5-a). Thus, the filing of the Motion to Dismiss the Count on the same day they filed their COC/SOR would have no effect on the People's Statement of Readiness. See People v Williams 83 Misc.3d 21 (App. Term 2nd Dep't, 2, 11, 13 Jud. Dist. 2024). Thus, the People's COC/SOR filed on the 90th day was valid.
CERTIFICATE OF COMPLIANCE
A COC is not proper unless the prosecutor has disclosed to the defense all known material subject to discovery after having exercised due diligence and made reasonable inquiries to find out what discovery existed. People v Hutchins, 74 Misc.3d 1234 (A) [Sup. Ct., Kings County 2022]. In a challenge to the validity of a COC the Court must determine whether the People exercised the requisite level of diligence in obtaining the materials, whether their certification was filed in good faith, and whether it was reasonable under the circumstances. People v. Valdez, 80 Misc.3d 544 (Crim. Ct., Kings County 2023); People v. Markovtsii, 81 Misc.3d 225 (Crim. Ct., Kings County 2023); People v McKinney, 71 Misc.3d 1221 (A) (Crim. Ct., Kings County 2021) ; People v Adrovic, 69 Misc.3d 563 (Crim. Ct., Kings County 2020).
The defendant has the initial burden of identifying a specific defect with the People's COC. (People v Brown, 74 Misc.3d 1227 [A] [City Ct, Albany County 2022]).
If the People provide additional discovery after filing their certificate of compliance (CPL 245.60), they must serve and file a supplemental certificate identifying the additional material and information provided (CPL 245.50 [1]). Additionally, "[a]ny supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance." (CPL 245.50 [1-a]).
Under 245.50(1) a COC/SOR can be found valid even if the discovery is still outstanding if the People can demonstrate that they acted in good faith with due diligence. Article 245 does not define due diligence. However, the Court of Appeals in People v. Bay, 41 N.Y.3d 200 (2023), set forth a number of factors to consider when assessing due diligence. These factors include but not limited to efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements; the volume of discovery provided and outstanding; the complexity of the case; how obvious any missing material would likely have been to a prosecutor exercising due diligence; the explanation for the discovery lapse; the People's response when apprised of any missing discovery are some of the factors a court can consider. Id at 212.
The defendant claimed the following items of discovery were missing which would affect the COC: Audit trails for all officers, unredacted accident report with vehicle owner information; Police misconduct material for Officers Khan, Blummoses, Zerella, Vigiano, Derise, Desimone, Goldstein, and Joyce; Civilian photos and videos taken at the scene, and visible from Officer Martinez's and Officer Joyce's body-worn camera; Interviews with civilian witnesses; and Credentials and contact info of all individuals listed in lab work and calibration records of OCME.
Underlying Police Disciplinary Records
The defense argued that the People failed to disclose underlying police disciplinary records for all Eleven officers who were involved in this arrest. The Court disagrees with the defense contention. In People v Hamizane the Court held, "... with respect to every listed potential police witness, it was the People's obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records." People v. Hamizane, 80 Misc.3d 7, 11 (App. Term, 2nd Dept 9 & 10 Jud. Dist. 2023). Thus, under Hamizane, the People are required to provide the defense with the underlying records of substantiated and unsubstantiated allegations of misconduct of testifying officers. The People here explained that Police Officers Winner, Kerzner and Martinez were the only law enforcement officers deemed as potential witnesses. Thus, the People were required to disclose the underlying police disciplinary records for three testifying officers not all 11 officers.
The People in their haste to file their COC on March 11, 2024, disclosed outdated Giglio Summary Disclosure Letters and on that date filed a request for updates on an expedited basis. On March 13, 2024, the People filed a supplemental COC with updated Giglio letters but no underlying records. The People's stance as to CPL 245.20 (1) (k) is that the statute does not require them to disclose underlying police disciplinary records and that their obligation was satisfied when they provided a Giglio Summary Disclosure Letter for each of the officers who may be called upon to testify.
Giglio Summary Disciplinary Letters are insufficient to satisfy the requirements of CPL 245.20 (1) (k). As a practical matter, the People should not be cast as the gatekeeper in determining impeachment material for the defense. People v Markovtsii 81 Misc.3d 225 (Crim Ct. Kings County 2023). Thus, "[c]ase summaries prepared by the People are insufficient to satisfy the mandates imposed by CPL 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witnesses, should not be filtered through the prosecution." People v. Goggins, 76 Misc.3d 898, 901, 173 N.Y.S.3d 901 (Crim. Ct., Bronx County 2022). See Also People v. Pennant, 73 Misc.3d 753, 156 N.Y.S.3d 690 (Crim Ct., Nassau County 2021). In sum, summary letters are not sufficient to satisfy CPL 245.20 (1) (k).
The People further claimed they were not required to disclose underlying records of police misconduct for testifying officers citing to People v. Johnson 218 A.D.3d 1347, 1350 (App. Div., 4th Dept. 2023), People v Weisman, (2023 NY Slip Op 51248 [U] [App Term, 2d Dep 2023]), People v. Fuentes, 81 Misc.3d 136 (A) (App. Term, 9th & 10th Jud. Dist. Dec. 14, 2023) and People v Woerner, 81 Misc.3d 136 (A), (App. Term 2nd Dept., 9th & 10th Jud. Dist. Dec. 14, 2023)
People v. Johnson 218 A.D.3d 1347, 1350 (App. Div., 4th Dept. 2023) is not binding within the Second Department in light of the conflicting determination reached by the Hamizane court in the Appellate Term, Second Department as well as the case of Matter of Jayson C., 200 A.D.3d 447 (1st Dept., 2021). Absent a determination by the Court of Appeals, the criminal courts of the Second Department are bound to follow the determinations of the Appellate Term, Second Department when in conflict with the decisions of the Appellate Division of another department. People v. Graham, 177 Misc.2d 542, 543-544 (App. Term 2d Dept. 1998); People v. Pardo, 81 Misc.3d 858 (Crim. Ct., Bronx County, 2023). Thus, the 4th Department case of People v. Johnson, 218 A.D.3d 1347, 1350 (App. Div., 4th Dept. 2023) is not binding within the Second Department. Further, in People v Weisman, 81 Misc.3d 129 (A) [App Term, 2d Dep 2023]) the court noted in its decision that the lack of disclosure of Giglio materials was not preserved for review and, the Court's discussion of IAB records were dicta.
Moreover, Fuentes, and Woerner, stand in contrast to Hamizane, in that those cases held that IAB records of testifying law enforcement witnesses need not be disclosed because the records did not relate to the subject matter of the case while Hamizane, had no such limitation. Neither of the cases expressly overruled Hamizane. Notwithstanding, the scope of the People's disclosure obligations under CPL 245.20 (1) (k) is an issue that has yet to be settled within the Appellate Division, Second Department. As a result, there is no well-defined binding appellate authority.
It is this court's position that impeachment material used to test credibility should always be deemed related to the subject matter of the case . People v. Hamizane 80 Misc.3d 7, 11 (App. Term 2nd Dept., 9 & 10 Jud. Dist. 2023); People v. Silva-Torres, 2023 WL 7502493 (Crim. Ct., New York County 2023); People v. Pardo, 81 Misc.3d 858 (Crim. Ct., Bronx County 2023); People v Edwards, 74 Misc.3d 433, 440 (Crim. Ct., New York County 2021); People v. Soto, 72 Misc.3d 1153,1159 (Crim. Ct., New York County 2021). Thus, the People are obligated to disclose the underlying substantiated and unsubstantiated disciplinary records. See People v. Bay, 41 N.Y.3d 200 (2023) ; People v. Hamizane, 80 Misc.3d 7, 11 (App. Term, 2nd Dept 9 & 10 Jud. Dist. 2023). Thus, the People failed to disclose substantiated and unsubstantiated records for testifying police officers.
Moreover, the People in their affirmation failed to detail their good faith and due diligence in obtaining these materials. The Court notes the first time an attempt was made to obtain the Giglio records or updated records was on the 90th day March 11, 2024. Obviously, the lack of a detailed record was also a factor in deeming that the People lacked due diligence in complying with the statute.
BWC Audit Trails
The People concede they did not disclose audit trails and acknowledge no effort was rendered to obtain the audit trails. This Court follows the rationale in People v. Ballard, 82 Misc.3d 403 (Crim. Ct. Queens Cty. 2023) and People v. Torres, 2023 NY Slip Op 50532 (Crim. Ct. NY Cty. 2023) in finding that these materials are discoverable, as the information is electronically created on behalf of law enforcement pursuant to C.P.L. §245.20(1)(u)(i)(B). See also People v Harris 83 Misc.3d 1250(A) (Sup. Ct. Kings County). The Ballard Court held an evidentiary hearing where a representative from the NYPD's BWC unit Legal Bureau testified that, an NYPD officer records what type of arrest and level of investigation they performed digitally. The NYPD Legal Bureau representative stated that the comments and categorization of the video can be changed by the officer and even allow another officer to add information. Clearly this is a writing and does relate to the case. The testimony further elucidated that Axon was a third party contracted "on behalf of" the NYPD to store BWC information created by officers. "Although the software automatically records the information in audit trails, the substance of that information is created, stored, and obtained by or on behalf of law enforcement." Id at 413.
The NYPD Legal Bureau representative explained that audit trails contain technical information such as when video was uploaded and deleted, battery life of the camera and who the officer shared the authority to view the video including the prosecutor's office. Therefore, body worn camera audit trails are an element of the body worn camera.
The Ballard Court reasoned that audit trails contained written statements by law enforcement (CPL 245.20 [1][e]). Further the Ballard Court reasoned that audit trails may have a basis to impeach testifying witnesses (CPL 245.20 [1][k][iv]). It is this court's position that impeachment material used to test credibility should always be deemed related to the subject matter of the case . People v. Hamizane 80 Misc.3d 7, 11 (App. Term 2nd Dept., 9 & 10 Jud. Dist. 2023); People v. Silva-Torres, 2023 WL 7502493 (Crim. Ct., New York County 2023); People v. Pardo, 81 Misc.3d 858 (Crim. Ct., Bronx County 2023); People v Edwards, 74 Misc.3d 433, 440 (Crim. Ct., New York County 2021); People v. Soto, 72 Misc.3d 1153,1159 (Crim. Ct., New York County 2021).
Moreover, Article 245 encourages and promotes a presumption of openness in favor of discovery. See CPL 245.20(7). Thus, material in the People's file would most likely be related to defendant's case and as a result need to be disclosed. See People v Lustig, 68 Misc.3d 234 (Sup. Ct. Queens County 2020). As the Court in Lustig stated that 245.20 was "... so expansive as to "virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." Lustig at 238. Unfortunately, the People expended no energy to obtain this discovery item.
OCME
Defendant alleged that contact and credential information for employees of OCME was a part of the People's discovery obligation. OCME is an independent, non-law enforcement agency that is not within the direction or control of the District Attorney's office See People v Washington, 86 N.Y.2d 189, 193 [1995]; People v Lusti g 68 Misc.3d 234, 245 (Sup Ct. Queens County 2021). "The People have no power to dictate contents or practices within OCME. Id at 193. Therefore, the People are not required to obtain records and information from any agency not within their control. Thus,"... the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain." CPL §245.20(2).
The defense remaining complaints were deemed moot since the People claimed the requested discovery did not exist. Viewing the People's conduct in their totality, in that the People failed to detail any steps taken to obtain underlying Giglio material or audit trails which probably was due to certifying this case after hours on the 90th day. the Court finds that the People did not act with good faith and due diligence prior to certifying compliance with their discovery obligations. People v. Bay, 41 N.Y.3d 200 (2023).
SPEEDY TRIAL CALCULATION
The People's CPL § 30.30 time commenced on December 13, 2023, the day after defendant was arraigned. People v. Stiles, 70 N.Y.2d 765 (1987). On March 11, 2024, when the People filed their COC and SOR, 90 days were chargeable to the People. However, the People's COC was improper due to the People's failure to provide mandatory discovery and as a result did not stop the CPL § 30.30 time. The CPL § 30.30 time was not effectively stopped until May 13, 2024, when defendant filed the instant motion. CPL § 30.30 (4)(a). The People are charged 152 days of speedy time from December 13, 2023, to May 13. 2024. Accordingly, the defendant's motion to dismiss pursuant to CPL §30.30 [1] [b] is granted.
The foregoing constitutes the opinion, decision, and order of the Court.