Opinion
Docket No. CR-001905-24NY
07-15-2024
The People of the State of New York, v. Shakur Burden, Defendant.
Danielle Haley, The Legal Aid Society Assistant District Attorney Catherine Maranga, New York County District Attorney's Office
Unpublished Opinion
Danielle Haley, The Legal Aid Society
Assistant District Attorney Catherine Maranga, New York County District Attorney's Office
Marva C. Brown, J.
Shakur Burden, hereinafter "defendant," is charged with assault in the third degree, a class A misdemeanor, and various related charges. By Notice of Motion to Dismiss, dated May 17, 2024, the defense challenges the validity of the People's Certificate of Compliance (COC) and seeks dismissal pursuant to CPL 30.30. The People oppose by motion dated June 7, 2024, and the defense filed reply papers.
Upon review of the submissions, the Court file and relevant legal authority, this court finds that the People's COC is INVALID, and thus, the People's Certificate of Readiness (COR) is ILLUSORY. As there are 98 days chargeable to the People, the defendant's motion to dismiss is hereby GRANTED.
PROCEDURAL HISTORY
The defendant was arraigned on January 16, 2024. Bail was set, and the case was adjourned to January 19, 2024, for conversion. On January 19, 2024, the People served and filed a supporting deposition, and the case was adjourned to February 1, 2024, for trial. On February 1, 2024, the people were not ready, and the case was adjourned to February 14, 2024, for trial. On February 14, 2024, the people were not ready, and the case was adjourned to March 26, 2024, for trial. On March 26, 2024, the people were not ready, and the case was adjourned to April 23, 2024, for trial.
The defendant has since made bail.
On April 15, 2024, at 7 p.m. and 90 days after the defendant's arraignment, the People served and filed a COC along with a COR. In their automatic discovery form (ADF), the People indicated that "additional arrest documents may exist," and that "the People were not able to confirm or retrieve them due to the arresting officer, Officer Alaimo, no longer working at the NYPD and the precinct not being able to locate her documents." The People indicated that they turned over everything they had received for the arresting officer.
On April 23, 2024, defense counsel argued that the People's COC was invalid and asked for the instant motion schedule, and the case was adjourned to, for decision.
VALIDITY OF THE PEOPLE'S CERTIFICATE OF COMPLIANCE
Under CPL 245.20[1], "the prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to" the items listed in CPL 245.20[1][a]-[u]. All items and information related to the prosecution of 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]; see also CPL 245.55[1] [prosecution must "ensure that a flow of information is maintained between the police and other investigative personnel and his or her office"]). The prosecution must also "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20[1]] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control" (CPL 245.20[2]). "Read together, CPL 245.50 and CPL 30.30 require that due diligence must be conducted prior to filing a COC" (People v Bay, 41 N.Y.3d 200, 212 [2023]).
CPL 245.10 sets forth time periods for automatic disclosure, requiring that "[w]hen the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment" (CPL 245.10[1][a][ii]; see also Bay, 41 N.Y.3d at 209). Prosecutors cannot validly state "ready for trial" under CPL 30.30 until they have filed a proper COC pursuant to CPL 245.50[1] (Bay, 41 N.Y.3d at 214, citing CPL 245.50[3]). Likewise, CPL 30.30[5] states: "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of C.P.L. § 245.20 and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met."
The defense must "notify or alert" the prosecution "as soon as practicable" of any defects or deficiencies relating to a COC, and any challenges relating to the sufficiency of a COC or supplemental COC shall be addressed by motion (CPL 245.50[4]). Although belated disclosures do not automatically invalidate a COC, in such instances, the People bear the burden of establishing that they exercised "due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure" (Bay, 41 N.Y.3d at 213, citing People v Santos, 68 N.Y.2d 859, 861 [1986]). The Court of Appeals in Bay discussed how courts can evaluate prosecutorial due diligence and reasonableness as it pertains to discovery compliance:
Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the 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 any discovery lapse, and the People's response when apprised of any missing discovery (id.).
While the statute does not require a "perfect prosecutor", "the plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence" (Bay, 41 N.Y.3d at 213, citing CPL 245.20[2]; CPL 245.50[1], [3]; and People v Anderson, 66 N.Y.2d 529, 536 [1985] [statutory requirement of due diligence established that more than good faith was required]). If the prosecution fails to demonstrate that they exercised due diligence prior to filing their COC, "the COC should be deemed improper, the readiness statement stricken as illusory, and - so long as the time chargeable to the People exceeds the applicable CPL 30.30 period - the case dismissed" (Bay, 41 N.Y.3d at 213). "[A] defendant need not demonstrate prejudice to obtain speedy trial dismissal based on failure to timely comply with discovery obligations" (id., citing People v Hamilton, 46 N.Y.2d 932, 933-34 [1979] and CPL 30.30[1]).
The parties agree that the following items were not turned over prior to the People's COC - the scratch report and handwritten notes from the arresting officer, Officer Alaimo, and Officer Balduf's body-worn camera (BWC) and activity log, who went to visit the complainant at home the day after the defendant's arrest. This court will now analyze these items individually to determine whether the People's failure renders their initial COC and accompanying COR invalid.
A. Arresting Officer Alaimo's Scratch Arrest Report and Handwritten
Here, the parties agree that the People failed to disclose the scratch copy of the arrest report and the handwritten notes of the arresting officer, who has since left the NYPD. The People do not dispute that these items are automatically discoverable. However, the People claim their COC was valid without these missing items because they exercised due diligence in attempting to obtain this discovery prior to filing their COC. The People argue that they are not responsible for the lack of NYPD procedure associated with storing paperwork once an officer has left. Additionally, the People argue that they informed the defense of these items in their ADF, rendering their COC valid. The defense argues that the People failed to exercise due diligence in obtaining these documents, rendering their COC and accompanying COR invalid.
First, this court does not find that the People have met their burden to show that the missing items were lost or destroyed (see People v Banch, 80 N.Y.2d 610, 620 [1992] [the prosecution has the burden to establish that missing discovery is truly lost or destroyed]; People v Martinez, 71 N.Y.2d 937, 940 [1988] [when the People fail to preserve material they have a duty to produce "it is no answer to a demand to produce that the material has been lost or destroyed"]). "Disclosure of witnesses' statements to facilitate effective cross-examination is a matter of basic fairness; the obligation should not be lightly treated or lightly excused" (Banch, 80 N.Y.2d at 621). An item's mere absence from the case file is not a sufficient basis to show either that it is lost, that it was never created, or that it is not discoverable (Banch, 80 N.Y.2d at 620-621 ["the trial court did not conduct the inquiry that is required when Rosario material is lost or destroyed-an inquiry into the contents of the material and the circumstances of its disappearance"]).
No one has said these items are lost or destroyed - not even Officer Alaimo, who both parties agree created these documents. Notably, the People here have never once called Officer Alaimo to ask about these missing items - either while she was still working at NYPD or since she left. Officer Alaimo appears to have left the NYPD sometime around March 1, 2024, at least a month and a half after this defendant's arrest, and beyond the 35-day timeline required by CPL 245.10[1][a][ii] for the People to perform their initial discovery obligations. Officer Alaimo is the one police witness out of 26 that the People indicated in their ADF that they planned to call to testify. Here, the People first contacted Officer Alaimo about the missing discovery via email on January 30, 2024. When the officer failed to respond, instead of calling to ask why she didn't respond, the People waited until April 5, 2024, to follow up again with an email asking for the missing discovery. Both the January 30th and April 5th emails went unanswered. The only calls the People made attempting to locate this missing discovery were made sometime in April, to the desk sergeant and Officer Alaimo's partner, Officer Rodriguez. Further, the People apparently have done nothing since they filed their COC to find this missing discovery. These actions constitute a failure under CPL 245.55[1], which requires the People ensure that a flow of information is maintained between the police department and their office.
The People failed to indicate when Officer Alaimo actually left the NYPD, so the court is relying on information provided by the defense.
It is unclear when these calls were made, but they are referenced in the People's affirmation after an April 5th email to Officer Alaimo went unanswered.
The People did not indicate the name of the desk sergeant they spoke to about Officer Alaimo's paperwork.
Officer Alaimo's scratch report and handwritten notes are not necessarily lost or destroyed simply because they had yet to be discovered by the time the People filed their COC. No one has said these items are lost or destroyed, rather the People simply deemed them as such when they filed their COC on the 90th day without them. All that the People were able to establish prior to filing their COC was that as of April 5th, Officer Alaimo had left the NYPD; the desk Sergeant did not have Officer Alaimo's documents; and Officer Alaimo's partner, Officer Rodriguez, does not have the documents, does not know where they are and does not know what was created. These actions do not unequivocally support the conclusion that these discovery items are permanently lost or destroyed, nor do they constitute due diligence. In all likelihood, these items exist and could be disclosed if the People pursued this issue further. Lastly, given their duty to preserve this material from their one designated testifying officer, these actions still cannot constitute due diligence even if this discovery is no longer available, as the People claim.
As such, the People's failure to disclose Officer Alaimo's scratch report and handwritten notes renders their COC and the accompanying COR invalid.
B. Officer Balduf's BWC and Activity Log
The People concede that they failed to turn over Officer Balduf's BWC and Activity Log. Officer Balduf was an officer involved in a home visit to the complainant on January 16, 2024, the day after the defendant's arrest. The People make several arguments about these items that are both irrelevant and unpersuasive.
First, the People argue that when they first filed their COC, they had provided "comprehensive discovery to the defendant in satisfaction of CPL 245.20[1]." The People argue that the discovery for this case "involves a fair amount of complexity, particularly for a misdemeanor"; "the complex nature of this case generated a heavy discovery lift;" and "there was nothing nefarious at play here" (P's Response at p. 12-14). The People argue that, as such, they acted with the requisite due diligence and good faith when they filed their COC, and this court should uphold its validity despite their failure to disclose these items. However, no matter the complexity of a case, substantial compliance and lack of bad faith will not suffice under Article 245, and the Legislature has rejected amendments such as these (People v Carrillo, 75 Misc.3d 1227 (A), *4 [Crim Ct, Bronx County 2022], quoting Gov. Kathy Hochul, Public Safety Package [2022]). The same can be said here - the fact that the People may have diligently disclosed a substantial amount of discovery for a complex case, does not end the court's inquiry as to whether their initial COC was valid.
At the time of filing the instant motion, defense counsel was unaware that this case involved over 28 officers and numerous successful DV home visits. The defense only received discovery from one home visit - the home visit referenced in this decision. The defense argues that the prosecution should disclose all discovery regarding any additional DV home visits and that the People's COC and COR are invalid if these items exist and were not disclosed. If this were the only contested issue, this Court would require a hearing to determine whether the People's initial COC and COR were valid. However, given the fact that this court has invalidated the People's COC on other grounds, this issue is now moot.
Second, the People argue that defense counsel's motion should be denied for their failure to raise these issues early, instead lying-in-wait until the speedy trial clock expired. However, that cannot be said here, where the People waited to file discovery and their COC at 7 p.m. on the 90th day. In doing so, the People left no time for the defense to diligently confer about missing discovery. At the very next court date, one week from the People's COC filing, the defense asked for the instant motion schedule. The People cannot now complain that they "were not afforded the opportunity to respond [to the missing discovery claims] as they were not apprised of discovery issues until the defendant's motion was filed" (P's Response at p. 14). The People's filing of their COC at the final hour is the reason there was no time to confer about missing discovery. Certainly, this delay cannot be used as a reason to deny defense counsel's motion.
Third, the People's argument that these materials would not have been obvious to a diligent prosecutor is simply not true. Officer Balduf conducted a home visit the day after the defendant's arrest, while the defendant was still incarcerated for this case. Officer Balduf appears in the BWC of his partner and can be seen throughout the video. It took the defense approximately one week to determine that Officer Balduf's BWC and activity log were not turned over. This is not a situation where there is no indication within the existing discovery that Officer Balduf participated in this case and generated discovery.
For the aforementioned reasons, it cannot be said that the People acted with due diligence and their failure to disclose Officer Balduf's BWC and activity log renders their COC and accompanying COR invalid.
SPEEDY TRIAL
Pursuant to CPL 30.30[1][b], when a defendant is charged with a misdemeanor punishable by a sentence of more than three months, the prosecution must be ready within 90 days from the commencement of that criminal action. To satisfy the initial burden under CPL 30.30, the defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 N.Y.2d 71, 77-78 (1995); see also People v Goode, 87 N.Y.2d 1045, 1047 [1996]). Once the defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action, the prosecution bears the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 N.Y.2d 333, 349 [1980]). Absent a valid COC, the People cannot be deemed ready for trial (CPL 245.50[3]).
Defendant was arraigned on January 16, 2024. Bail was set, and the case was adjourned to January 19, 2024, for conversion. (3 days charged)
On January 19, 2024, the People were not ready for trial, and the case was adjourned to February 1, 2024, for trial. (13 days charged; 16 days total)
On February 1, 2024, the people were not ready, and the case was adjourned to February 14, 2024, for trial. (13 days charged; 29 days total)
On February 14, 2024, the people were not ready, and the case was adjourned to March 26, 2024, for trial. (41 days charged; 70 days total)
On March 26, 2024, the People were not ready, and the case was adjourned to April 23, 2024, for trial. On April 15, 2024, the People served and filed a COC along with a COR. However, as outlined above, this COC and accompanying COR were invalid and unable to stop the speedy trial clock. As such, they are charged for this entire adjournment. (28 days charged; 98 days total)
On April 23, 2024, defense counsel argued that the People's COC was invalid and asked for the instant motion schedule, and the case was adjourned to, for decision. This adjournment is excluded for motion practice. (0 days charged)
As more than 90 chargeable days have accrued, defense counsel's motion to dismiss is GRANTED, and this case DISMISSED.
This constitutes the Decision and Order of this Court.