Opinion
Case 21080231
04-26-2022
The People of the State of New York v. Jerry L. Dorsey, Defendant.
Sandra Doorley, District Attorney, Monroe County (Ryan R. Mulcahy of Counsel), for plaintiff. Melchor E. Castro, for defendant.
Sandra Doorley, District Attorney, Monroe County (Ryan R. Mulcahy of Counsel), for plaintiff.
Melchor E. Castro, for defendant.
HON. THOMAS J. DISALVO WEBSTER TOWN JUSTICE
History of the Case.
The defendant was charged with speed not reasonable and prudent, VTL § 1180(a) and common law driving while intoxicated, VTL § 1192(3) on August 21, 2021. He was issued e-ticket uniform traffic informations for both charges by Officer Timothy J. Brewer of the Webster Police Department, directing the defendant to appear in court on September 1, 2021. In addition the defendant was provided with an electronic "Supporting Deposition / CPL 710.30 Notice to Support Simplified Traffic Information Local Criminal Court", relative to the speeding charge. Finally, the defendant was provided with a "Supporting Deposition/Bill of Particulars", which was directed toward the charge of driving while intoxicated. The initial appearance was changed to September 15, 2021 at which time the defendant appeared with his attorney and was arraigned. The matter was then adjourned for disposition and motion argument.
The simplified traffic information charging the defendant with imprudent speed, in violation of VTL § 1180(a) was previously dismissed by this court. (People v. Dorsey, __N.Y.S. 3d __, 2022 N.Y.Slip Op. 50001(U)__, (2022).
Subsequently, the People filed a Discovery Disclosure Cover Letter, Certificate of Compliance, Statement of Readiness, [hereinafter referred to as "C of C & S of R"] on September 29, 2021. In addition another said C of C & S of R was filed with the court on October 18, 2021. In the section entitled "Statement of Readiness for Trial, i.e. Section C(3) of both of said documents it states" That the People are ready for trial as the case exists in its current state. Nevertheless, the People intend to continue investigating the matter and any materials created or received as part of that continued investigation will be made available to the defendant as soon as practicable. People v. Kendzia, 64 N.Y.2d 331, 338 (1985)."
Arguments of Counsel
Defense counsel submitted a motion to dismiss the charge of common law driving while intoxicated on February 22, 2022 alleging that the defendant's right to a speedy trial pursuant to CPL § 30.30 (1) (b), was violated. Said section would require that the people be ready for trial within "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony."It is the position of defense counsel that the People's statements of readiness were illusory because he was not provided with the body worn camera footage taken by the arresting officer, within the time frames required by CPL §§ 245.10(1)(a)(ii), CPL 30.30(1)(b) and CPL 30.30 (5-a). This was the result of the inability of defense counsel to download said body worn camera footage from the district attorney's on-line discovery portal. In support of that allegation defense counsel states in his motion to dismiss that
"On September 27, 2021, I received an email from ADA Jacqueline Moyer, regarding my access to the electronic discover portal.... Following receipt of that letter, I received instructions for the use of the discovery materials stored on the electronic portal. On or about September 29, 2021, the People served me with a multi-page document consisting of a Discovery Disclosure Cover Letter, a Certificate of Compliance, and a Statement of Readiness. Paragraph 8, at page 3, which is also marked with the letter 'x' indicates that the People have requested preservation of all tapes or other electronic recordings.... Notably, the paragraph goes on to say that the People will arrange for inspection of any recordings for which a copy was not provided upon the defendant's request."
Subsequently, defense counsel sent the district attorney a letter, a copy of which was attached to his motion papers but was not dated, requesting as follows: "inspection of police body-worn camera and dashboard camera recordings relating to my client's seizure or arrest by members of the Police Department on August 21, 2021". In addition, defense counsel states that he advised the prosecutor at a January 19, 2022 court appearance that he had not
Said letter was received by the court on January 5, 2022.
"... yet received the tapes, and was unable to open the portal to see the videos. He indicated to me to let him know, if I was having any trouble with the DA Portal. After spending the balance of the week unsuccessfully trying to download the videos, I telephoned the prosecutor at his office to tell him I was still unable to get the videos. He told me that he mihjt [sic] need to give me the recordings. I told Mr. Mulcahey that it might be easier to attach the videor [sic] to an email and send them to me."
Defense counsel argues that as of the date of his motion, i.e. February 18, 2022, which would be 156 days from the date of the arraignment, he was not in receipt of the said recordings.
The assistant district attorney filed a Notice of Cross Motion and Responding Affirmation dated March 4, 2022, wherein it was argued that the filing of Certificate of Compliance on September 29, 2021 and the filing of an additional C of C on October 18, 2021 satisfied the People's responsibility to be ready for trial within the required ninety (90) days. Nevertheless, the People acknowledge defense counsel's difficulty in viewing the videos in question. The prosecutor states in his affirmation that "Mr. Castro has alleged difficulties viewing the uploaded body worn camera, and we have offered the opportunity to discuss alternative means of viewing the footage. However, to date Mr. Castro has not made contact to schedule a time to view the footage."The People go on to allege their compliance with CPL 245 and to state that defense counsel has not alleged any prejudice that warrants dismissal of the charge. In addition, the prosecutor indicated in his response affirmation of March 4, 2022 that "As a show of good faith that they will be mailing Mr. Castro a hard copy of any footage in their file with his copy of this motion response."
Defense counsel next submitted to the Court a sixteen page reply, dated April 7, 2022, to the affirmation of the assistant district attorney. In that response defense counsel evidences his frustration in having dealt with the district attorney's discovery portal. That frustration is not unique and is experienced by just about every defense counsel after having grappled with the said discovery portal. The court takes judicial notice of the inordinate amount of time required to download documents and videos. The court is also familiar with the ease with which one is booted from the portal for clicking on the wrong arrow, requiring the user to start the process from scratch. The necessity of moving from one list to another and downloading each item separately is another annoying aspect of the portal. The inability of being able to download certain videos such as in custody interrogations can also be a problem. In his reply Mr. Castro acknowledges receipt of a CD containing the body cam video on March 7, 2022, which he was able to open. However, there are times when one is not able to open the CD either. Many of these problems are technical ones, wherein computer software of a defense attorney is not compatible with the software of the discovery portal for whatever reason. Defense counsel argues that the body worn camera [BWC] footage was not uploaded to the portal till March 7, 2022. That is based on a copy of a page from the discovery portal set out as one of the exhibits in defense counsel's reply, which indicates that the "BWC" was uploaded on March 7, 2022. However, the court is aware that some of the items that are put on the portal are "timed out". When that happens that item is no longer downloadable by defense counsel. In fact, the district attorney addressed that issue in its responding affirmation of March 4, 2022, wherein he stated:
In response the People filed a cross motion and responding affirmation reiterating their position that they were ready for trial within the 90 day time frame based on the previous Certificates of Compliance dated September 21, 2021 and October 18, 2021. In addition the People filed a Supplemental Cof C and Statement of Readiness dated April 18, 2022.
Defense counsel's reply affirmation sets out a common experience by users of the portal when he stated "On February 12, 2022, your deponent emailed the prosecutor, reporting that in an attempt to review some discovery and although able to view some other entries in the portal ist on pushing the down load button. With the computer screen indicating the item was being ownloaded, and even with your deponent making multiple attempt[s] to access the evidence, no evidence was received.... Your deponent never received any communication from the prosecution from regarding the issue raised."
"ADA Moyer, initially assigned to this case, and ADA Mulcahy viewed and uploaded the disputed footage without issue in early October, 2021. However, today while drafting this response the People became aware that the footage was no longer viewable on the portal. As soon as this defect was noticed, the People requested the footage again. Within minutes they acquired a new copy of the footage."
Thus the BWC footage was re-uploaded to the portal on March 7, 2022 for a second time.
Nevertheless, the court is not unsympathetic to the time limits imposed on the district attorney by the new discovery law set out in CPL Article 245. The portal with its obviouslimitations and peculiarities assists the district attorney in providing discovery within the time constraints in question. Issue Presented.
See CPL § 245.10 (i) which states" When a defendant is in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within twenty calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint. See also CPL § 245.10 (ii) which states "When 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 on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint."
Is the fact that the defense counsel was unable download discovery from the district attorney's discovery portal make the People's Certificate of Compliance and Statement of Readiness illusory?
Was there a lack of good faith and/or a systematic denial of the defendant's due process rights on the part of the district attorney's office as alleged by defense counsel?
Legal Analysis.
In researching the issue of technological difficulties of defense counsel in accessing the district attorney's discovery portal, the court found no cases addressing that subject. Neither have the prosecution nor the defense provided the court citations of any cases on said point. As a result this appears to be a case of first impression.
The time limits required to provide "initial discovery" to the defense are set out in CPL § 245.10 (1) (a) (i) and (ii). However, there is no specific definition of what is meant as initial discovery. CPL § 245.20 (1) states that "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 statute then goes on to list just about anything possibly related to the case.
For better or worse CPL Article 245 links the providing of discovery to the issue of the prosecution being ready for trial. CPL § 245.50 (3) states "Notwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."The key word is that of "notwithstanding". That word is defined as "in spite of". (Webster's New World Dictionary and Thesaurus, 435 [2nd Edition, 2002]) Thus any remedies or sanctions imposed by Article 245 for lack of compliance are subject to that provision.
See also the Thesaurus portion of said publication which uses such words and phrases as "despite, in spite of" and "in any case". Id.
In fact CPL § 245.50 (3) also states that "Provided, however, that the court may grant a remedy or sanction for a discovery violation as provided by section 245.80 of this article." In fact, CPL § 245.80 provides a number different sanctions available to the court for discovery material "disclosed belatedly". In general terms CPL § 245.80(1)(a) states
"When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material.
The discovery law continues to evolve. For example CPL 245.80(1)(a) was amended effective May 22, 2022 to read as follows:
"When material or information discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material."
Obtained from The Legal Aid Society -The Advisory on 2022 Discovery and CPL 30.30 Reforms.
Nevertheless, the remedies or sanctions are for discovery that are obtained after the expiration of the time limits imposed by CPL § 245.10(1)(a) (i) and (ii) for the performance by the prosecution of its initial discovery obligation, i.e. within twenty calendar days of arraignment when the defendant is in custody and within thirty-five days of arraignment when the defendant is out of custody. It is discovery received beyond those time frames which would be considered disclosed belatedly. If it is determined that the People provided discovery within the applicable time frames, the Court need not address the issue of prejudice.
On the other hand if the discovery is provided not only beyond the requirements of CPL § 245 (1) (a), but also when the prosecution has failed to be ready for trial pursuant to the requirements of CPL 30.30 (1), accounting for the time not chargeable to the People pursuant to CPL § 30.30 (4), the only remedy available would be dismissal of the charges. A filed certificate of readiness would not be considered a proper certificate of readiness if the people have not complied with their discovery obligations. That would mean the time required to be ready for trial under CPL 30.30 would continue to run and the filed certificate of readiness would have to be considered illusory.
(See CPL §§ 30.30 [1] and 170.30[1][e])
The People filed the original C of C and S of R on September 29, 2021 and the supplemental C of C and S of R on October 18, 2021, 14 and 33 days after arraignment respectively. The defendant was not in custody, so the 35 day rule of CPL § 245.20 (1) (a) (ii) was not violated. Furthermore, there does not appear to be any credible evidence that the body worn camera footage had not been uploaded to the discovery portal by the time the supplemental C of C and S of R was filed with the court on October 18, 2021. In fact, the People affirm that same was uploaded to the discovery portal in early October 2021 making that footage available to defense counsel.
The problem faced by defense counsel was that he was unable access the body worn camera footage through his computer. It was not that the footage was untimely provided to him. This court is not, nor does it profess to be, any kind of computer or software expert. evertheless, it would appear that this is a computer and software compatibility issue. This court can find no basis in case law or statutory law for penalizing the People or for granting the defense a remedy for such a situation. The people cannot be held responsible for the age, type or condition of defense counsel's computer and/or software employed by defense counsel.
In addition, this court finds no evidence of either bad faith or of a systematic denial of the defendant's due process rights by the individual assistant district attorneys in particular nor of the District Attorney's Office in general as alleged by defense counsel. However, this court sincerely understands and sympathizes with defense counsel's frustration in dealing with the said discovery portal. Finally, the inability to access the BWC footage on the discovery portal is not the fault of defense counsel. Instead it appears that the problems stem from the shortcomings of the technology on both sides.
Conclusion.
The court holds that the C of C and S of R dated September 21, 2021 and October 18, 2021 were not illusory. Therefore the motion to dismiss pursuant to CPL § 170.30(1)(e), the charge of common law driving while intoxicated, based on the People having failed to be ready for trial within 90 days as required by CPL § 30.30 (1)(b), is hereby denied. This constitutes the decision and order of this court.