Opinion
No. CR-006525-22BX
04-24-2023
The People of the State of New York v. Carlos Delgado Fortty, Defendant.
For the People: Oliver Lee, Assistant District Attorney Office of the Bronx District Attorney For the Defendant: William John, Esq. The Bronx Defenders
Unpublished Opinion
For the People: Oliver Lee, Assistant District Attorney Office of the Bronx District Attorney
For the Defendant: William John, Esq. The Bronx Defenders
Carmen A. Pacheco, J.
Defendant moved for an Order: (i) dismissing the proceeding pursuant to CPL §§ 30.30 and 170.30 alleging that the People's Certificate of Compliance and Statement of Readiness were illusory; (ii) granting sanctions pursuant to CPL § 245.80(2) for failure to disclose evidence; (iii) barring introduction of evidence related to defendant's chemical breath analysis test; and (iv) suppressing statements taken from defendant by law enforcement pursuant to CPL § 60.45(2)(b)(ii) and CPL § 710.20(3).
For the reasons set forth herein, the court grants defendant's motion for pre-trial hearings pursuant to Mapp/ Dunaway/ Huntley and denies the additional relief requested. The court also deems valid the People's Certificate of Compliance and Statement of Readiness filed on June 27, 2022.
Factual and Procedural History
On April 17, 2022, defendant was arrested and charged with Vehicle and Traffic Law §§1192.3 (common law driving while intoxicated, an unclassified misdemeanor), 1192.2 (driving while intoxicated, per se), and 1192.1 (driving while impaired). The arresting officer was Dmitriy Lyubchenko. He is the same officer who was determined in People v. Alifonso to have provided phantastic testimony. N.Y.L.J. 2018BX042208 (Crim. Ct. Bronx Cnty. 2019).
In Alifonso, Officer Lyubchenko and Officer Joseph Vitale pulled over defendant's vehicle for speeding. The stop resulted in defendant's arrest for driving while impaired. At a suppression hearing, both officers testified that defendant's walk was "unsteady," had a "little sway in his stance," and was "swaying." The officers also testified that defendant had "watery bloodshot eyes." However, the officers' testimony was contradicted by dash cam footage and by the gaze nystagmus test taken at the 45 Precinct's Intoxicated Driver Testing Unit. Thus, the court found both officer's testimony refuted by hard evidence. The case, therefore, was dismissed and sealed.
Subsequently, Alifonso commenced a civil lawsuit against the City of New York, the New York City Police Department, and Officer Joseph Vitale. See Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019). Officer Lyubchenko was not named in the lawsuit. The defendant now requests that the People provide information regarding the civil lawsuit beyond the documents publicly available on the New York State Courts Electronic Filing System.
On June 27, 2022, the People filed a Certificate of Compliance ("CoC") and Statement of Readiness ("SoR") off calendar. The People did not affix a signature to those documents. On August 4, 2022, at the next court appearance, the People confirmed their readiness for trial. During that court appearance, defendant raised objections to the People's CoC and requested an adjournment for a discovery conference. The court granted defendant's request and adjourned the matter to September 13, 2022. Noteworthy, the court cautioned the People that absent a protective order, the Civil Complaint Review Board ("CCRB") records must be served unredacted for the CoC to be deemed valid.
Between August 4, 2022 and September 13, 2022, the parties engaged in discovery related discussions. The discussions related to missing police reports and unredacted CCRB records for testifying Officers Lyubchenko and Natoli. Also at issue was the People's failure to affix an attorney signature to the CoC and SoR.
Specifically, in an e-mail dated August 4, 2022, defendant requested that the People disclose any police reports and unredacted CCRB records for Officer Lyubchenko. Defendant also alerted the People that the filed CoC and SoR were missing signatures. On August 11, 2022, the People confirmed that police reports were served previously on defendant. Moreover, the People requested that defendant save a specific e-mail as a form of digital signature for the unsigned CoC and SoR. Defendant remained silent as to any matters surrounding the signature. Discovery disputes remained unresolved regarding the redacted CCRB records.
On September 1, 2022, the People served two unredacted CCRB reports. On that same day, defendant filed with the court a joint discovery letter annexing the parties e-mail exchanges. In the joint letter, defendant argued that the People were obligated to obtain an unsealing order to disclose the Decision and Order and transcripts from the hearing in People v. Alifonso, N.Y.L.J. 2018BX042208, (Crim. Ct. Bronx Cnty. 2019). Consequently, at the scheduled court appearance of September 13, 2022, defendant requested a motion schedule which request halted the speedy trial clock. See CPL § 30.30 . On that date, there was no determination as to the validity of the People's CoC or the People's readiness for trial.
Defendant argued that the People's CoC and SoR should be deemed illusory since the Peopled failed to: (i) provide the Decision and Order from People v. Alifonso; (ii) provide information related to Alifonso v. The City of New York; (iii) file a Supplemental Certificate of Compliance after providing unredacted CCRB records; and (iv) sign the CoC and SoR. Specifically, defendant believes that the People were obligated to obtain an unsealing order and disclose the Decision and Order and transcripts from People v. Alifonso, N.Y.L.J. 2018BX042208 (Crim. Ct. Bronx Cnty. 2019) as they constitute impeachment material under CPL § 245.20(1)(k). The defendant also contends that the People were required to produce all documents regarding the civil action Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019).
Conversely, the People maintain that they fulfilled their obligations by providing information regarding People v. Alifonso, N.Y.L.J. 2018BX042208 (Crim. Ct. Bronx Cnty. 2019). The People are unable to seek an unsealing order since there is no statutory authority permitting the People to request the unsealing of an unrelated sealed criminal case. Moreover, the People allege that they are not required to turnover information regarding the civil lawsuit, Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019) since they were unaware of the civil action. Also, the People are not required to obtain and turn over all lawsuits involving testifying officers.
Legal Analysis
Since defendant was charged with a misdemeanor the People must be ready for trial within 90 days of the commencement of the criminal action. People v. Alvia, CR-003225-22BX (Crim. Ct. Bronx Cnty. 2023); CPL § 30.30(1)(b); see CPL § 1.20 (16-17). "A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court." CPL § 1.20 (17). However, when a desk appearance ticket is issued the criminal action "must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to a ticket." CPL § 30.30(7)(b); but see People v. Weaver, 1 66 Misc.2d 488, 491-492 (Crim Ct. NY Cnty. 1995) (defendant's presence in courthouse on an unrelated matter is not an appearance in response to an appearance ticket).
The People cannot be deemed ready for trial "until it has filed a proper certificate." CPL § 245.50(3); People v. Erby, 68 Misc.3d 625, 630 (Crim. Ct. Bronx Cnty. 2020) (noting that CPL § 245.50(3) requires the People to file a proper certificate of compliance before being deemed ready for trial). A valid CoC can only be filed after "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." CPL § 245.50(1). Moreover, the People must certify that they disclosed all known material and information subject to discovery and identify the items provided. Id. "No adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate in good faith....". CPL § 245.50; see People v. Alvia, CR-003225-22BX (Crim. Ct. Bronx Cnty. 2023) citing People v. Gonzalez, 68 Misc.3d 1213(A) (Sup. Ct. Kings Cnty. 2020) ("absence of certain discovery items from the disclosure memorialized in the original CoC (such as the scratch complaint report, an updated disclosure letter pertaining to a detective, and the resume of an expert) does not vitiate the original certificate."). However, sanctions are authorized when an aggrieved party shows prejudice by untimely disclosure. CPL § 245.80(1). The court may therefore grant an aggrieved party additional time to "prepare and respond to the new material." Id.
In addition to filing a valid CoC, the People must declare their readiness for trial. CPL § 245.50. The People must declare their readiness after "bring[ing] the case to a point where it may be tried." People v. England, 84 N.Y.2d 1, 4 (1994). The People's readiness can be announced either by making a statement of readiness on the record or by "written notice of readiness sent... to both defense counsel and the appropriate court clerk, to be placed in the original record." People v. Kendzia, 64 N.Y.2d 331, 337 (1985). Once the People are deemed ready, the CPL § 30.30 speedy trial time is halted. See People v. Anderson, 66 N.Y.2d 529 (1986) (speedy trial right under CPL § 30.30 is tied to prosecutorial readiness for trial); cf. People v. Quinlan, 71 Misc.3d 266 (Crim. Ct. Bronx Cnty. 2021) ("Declaring 'readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock.'"). Additionally, once the People file a CoC and SoR, the defendant must raise objections or challenges to the CoC by written motion. CPL § 245.50(4).
A motion pursuant to CPL § 30.30(1)(b) must be granted when the People fail to announce their readiness within 90 days of the commencement of a misdemeanor criminal action. Furthermore, defendant should file and serve all pre-trial motions "within forty-five days after arraignment and before commencement of trial." CPL § 255.20(1). Any pre-trial motion served more than forty-five days after arraignment may be summarily denied as untimely. CPL § 255.20(3). However, the court must decide a motion on its merits when defendant was unaware of it within the forty-five day period. Id. Here, since defense counsel could not file the instant motion until the People filed their CoC and SoR, the court must decide the motion on its merits.
Evidence from Unrelated Cases
The court denies defendant's request to invalidate the People's CoC and SoR for not seeking an unsealing order to obtain Brady /Giglio material from the unrelated sealed criminal case People v. Alifonso. See People v. Davis, 67 Misc.3d 391 (Crim. Ct. Bronx Cnty. 2020) ("[E]ven if the potentially impeaching evidence in the sealed case constituted evidence that must be provided to the defense under the new discovery statute, the People cannot fulfill that obligation through no fault of their own."). There is no statutory or constitutional requirement obligating the People to unseal unrelated criminal cases. See Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 203 (2005) ("Legislature has limited a court's authority to make sealed records available to a prosecutor."). Sealed information is not in People's possession, custody, or control. See People v. Davis, 67 Misc.3d 391 (Crim. Ct. Bronx Cnty. 2020) (People are without a viable legal means to obtain the records from a sealed case) . "The People may not be compelled to do which they are forbidden to do by the statute." Id. at 398, citing CPL § 160.55. Nevertheless, CPL § 160.50 permits unsealing of cases under limited circumstances, none of which would allow the People to apply for an unsealing order under these facts.
Giglio v. United States, 405 U.S. 150 (1972).
Brady v. Maryland, 373 U.S. 83 (1963).
Defendant's request for an unsealing of the unrelated sealed criminal case People v. Alifonso has been rendered moot. In People v. Taveras, the Court held that People v. Alifonso is no longer under seal since defendant waived any confidentiality privilege by filing a civil lawsuit. 2023 WL 2851146 (Crim. Ct. Bronx Cnty. 2023). Accordingly, the case documents can be accessed by both parties. In addition, despite the People's inability to seek an unsealing order, the People disclosed the case information in their Giglio disclosure. Id. ("Because the court record is accessible to both parties, the court finds that the People have no further discovery obligations in this regard."). As a result, defendant independently obtained a copy of the Decision and Order.
The court also denies defendant's request to invalidate the People CoC and SoR for not producing documents in an unrelated civil action Alifonso v. The City of New York. The People are not obligated to obtain documents from the New York City Law Department and perform a search for pending or closed civil actions involving testifying officers. See People v. Kelly, 71 Misc.3d 1202(A) (Crim Ct. NY 2021) ("The People have no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witnesses."); People v. Diaz, 77 Misc.3d 727 (Crim. Ct. Bronx Cnty. 2022) (The People must only turn over civil lawsuit documents in their possession). To impose such an obligation would create an undue burden on the People. See People v. Kelly, 71 Misc.3d 1202(A) (Crim Ct. NY 2021) ("People have no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witnesses."); cf. People v. Diaz, 77 Misc.3d 727 (Crim. Ct. Bronx Cnty. 2022) (People must only turn over civil lawsuit documents in their possession). Moreover, the People "shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain". CPL § 245.20(2).
The court finds that the People had no obligation to turnover materials from Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019). However, the People are reminded of their continuing obligation 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...". CPL § 245.20(1)(k).
Redacted and Unredacted CCRB Records
The court finds that the People fulfilled their discovery obligations despite producing redacted CCRB absent a protective order. The court determines that the CCRB is not an agency within the custody or control of the People. People v. Perez, 73Misc.3d . 1717 (Sup. Ct. Queens Cnty. 2021) ("[T]he CCRB is not a law enforcement entity or, indeed, any kind of agency within the People's control."). Moreover, the People are only required to disclose CCRB records with substantiated and unsubstantiated findings. People v. Castellanos, 72 Misc.3d 371 (Sup. Ct. Bronx. Cnty. 2021).
The court also finds that the People were not required to file a supplemental CoC after providing unredacted CCRB records. A supplemental CoC must be filed when the People subsequently learn about and disclose additional material or information which it would have been under a duty to disclose. CPL § 245.50(1); CPL § 245.60 . Moreover, "[t]he filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence." CPL § 245.50(1-a).
The People served redacted copies of the CCRB records which disclosed substantiated, unsubstantiated, and pending findings. The People produced copies of unredacted CCRB records. Although the People failed to seek a protective order prior to redacting the CCRB records, the records were available to the public. People v. Taveras, 2023 WL 2851146 (Crim. Ct. Bronx Cnty. 2023) (noting that CCRB records are publicly available and outside the scope of the People's automatic discovery obligations because they are "equally accessible to both sides."). Once the People served the CCRB records, it fulfilled their discovery obligations relating to substantiated and unsubstantiated findings. People v. Castellanos, 72 Misc.3d 371 (Sup. Ct. Bronx. Cnty. 2021). Notwithstanding, the People remedied any concerns surrounding CCRB records once defendant was served with both unredacted and redacted copies of the CCRB records. Moreover, since additional material or information was not served upon defendant, the People were not required to file a supplemental CoC.
CoC and SoR not Signed
The court finds that both a CoC and SoR require a signature attesting to the veracity and truthfulness of the document. The CoC requires an attorney to make attestations concerning diligent actions taken concerning compliance with discovery mandates. Both the People and the defense counsel, within their respective CoC, certify that each has disclosed and made available all known material and information subject to discovery. See CPL § 245.20(1) and CPL § 245.70. Similarly through the filing of a SoR, the People are attesting to their readiness for trial. Thus, the CoC and SoR represent to the court that the parties have satisfied their respective discovery obligations. Consequently, a signature should be affixed to those documents to be deemed valid.
Under Criminal Procedure Law certain documents require a signature prior to filing. For example, an information, misdemeanor complaint, and felony complaint "must be subscribed and verified by a person known as the 'complainant'." CPL § 100.15; People v. Williams, 63 Misc.3d 765 (Crim. Ct. NY Cnty. 2019). Likewise, a supporting deposition must be "subscribed and verified by a person other than the complainant... upon personal knowledge or upon information and belief." CPL § 100.20; People v. Sanchez, 47 Misc.3d 612 (Crim. Ct. NY Cnty. 2015). Moreover, failure to properly verify an accusatory instrument is a jurisdictionally fatal defect. People v. Richard, 33 Misc.3d 855, 859 (Crim. Ct. NY Cnty. 2011).
Even within the Civil Law context "[e]very pleading, written motion and other paper served on another party or filed or submitted to the court" must be signed by the attorney or party. 22 NYCRR 130-1.1a. The signature serves as an acknowledgment that the contents in the document are not frivolous, the matter was not obtained through illegal conduct, and the matter was not obtained in violation of Rule 4.5 of the Rules of Professional Conduct. Moreover, Section 130-1.1a mandates the court to strike any unsigned document if the missing signature is not corrected promptly.
However, the Criminal Procedure Law is barren of any explicit requirement that the CoC and SoR be signed prior to filing. A proper CoC only needs to "state that the People disclosed all known material and information subject to discovery and must identify the items provided," CPL § 245.50(1) and that it complied with the statutory requirement that "[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). Notwithstanding, the People may represent its readiness either on the record in open court or by written notice sent to defense counsel and the court. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).
In the instant matter, the People's CoC and SoR were unsigned when filed with the court. Thereafter during discovery related communications, defense counsel requested that the documents be signed. To resolve this issue, the assigned ADA directed defense counsel to save an e-mail communication that stated, "this email can serve as a digital signature." Thereafter, defendant remained silent concerning the ADA's digital signature confirmation e-mail. Defendant's silence can be interpreted as an acquiescence.
New York courts have held that "e-mails exchanged between counsel, which contained their printed names at the end, constituted a signed writing (CPLR § 2104) within the meaning of the statute of frauds". See Williamson v. Delsener, 59 A.D.3d 291 (1st Dept. 2009); Herz v. Transamerica Life Insurance Company, 172 A.D.3d 1336 (2d Dept. 2019); Ehlenfield v. Kingsbury, 206 A.D.3d 1671 (4th Dept. 2022). Furthermore, a signature can be "any memorandum, mark or sign, written, printed, stapled, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing."). See NY Gen Constr § 46; People v. Adams, 65 Misc.3d 289, 294 (Crim. Ct. NY Cnty. 2019) (electronic signature has the same "validity and effect as the use of a signature by hand.").
Accordingly, the court finds that in this limited instance, the e-mail by the assigned ADA served as an electronic signature for both the CoC and SoR. However, the court cautions attorneys that the preferred practice is to affix a hand or digital signature onto a filed court document.
Belated Disclosures Remedy
Defendant contends that the accusatory instrument should be dismissed or, in the alternative, preclude Officer Lyubchenko from testifying. Defendant fails to advance any meaningful argument that he experienced prejudice resulting from belated discovery.
CPL § 245.80 grants the court discretion to issue sanctions when prejudice results from belated disclosure of discoverable materials. Specifically "[w]hen material or information discoverable.... 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." CPL § 245.80(1)(a).
The court finds that defendant has not suffered any delay or prejudice. People v. Pierna, 74 Misc.3d 1072 (Crim. Ct. Bronx. Cnty. 2022); People v. Nelson, 67 Misc.3d 313 (Franklin Cnty. Ct. 2020) (Sanctions are authorized "only if the defendant shows actual prejudice."). This is particularly so since neither hearings nor trial dates are scheduled in this case. See People v. Cano, 71 Misc.3d 728 (Crim. Ct. Queens Cnty. 2020) (defendant's ability to use the evidence related to the breathalyzer test has not "thwarted in his ability to use these materials - nor [was] he deprived of sufficient time to review them.").
Accordingly, the court declines to impose any sanctions on the People since there is no determinable prejudice. However, the People are to remain vigilant as to the timeliness of their disclosure obligations under CPL Article 245.
Suppression of Evidence and Statements
A court can either determine a motion for suppression summarily or grant a hearing to make the necessary findings of fact. People v. Mendoza, 82 N.Y.2d 415 (1993). Here the People did not oppose defendant's request for a Huntley hearing on the issues of the voluntariness of defendant's statements. Thus the court orders that a Huntley hearing be scheduled. The court also holds that there are sufficient grounds to order a Mapp and Dunaway hearing.
The court orders a Mapp/ Dunaway/ Huntley hearings on the issues of probable cause to arrest and voluntariness of defendant's statements. The court also holds that the People's CoC and SoR filed on June 27, 2022 were not illusory and deemed valid. Consequently, the motion to dismiss pursuant to CPL § 170.30(1)(e) based on the People having failed to be ready for trial within 90 days as mandated by CPL § 30.30(1)(b) is denied.
This constitutes the decision of the court.