Opinion
Docket No. CR-007444-22BX
03-15-2023
The PEOPLE of the State of New York, v. Denise HOWARD, Defendant.
For the People, Darcel D. Clark, District Attorney, Bronx County, (by Robert F. Lindston, Esq.) For the Defendant, The Bronx Defenders, (by Sara Wolovick, Esq.)
For the People, Darcel D. Clark, District Attorney, Bronx County, (by Robert F. Lindston, Esq.)
For the Defendant, The Bronx Defenders, (by Sara Wolovick, Esq.)
Matthew Bondy, J. This Omnibus Motion raises what appears to be an issue of first impression under the 2019 discovery reform law: whether "items and information" in CPL § 245.20(1)(k) are "deemed to be in the possession of the prosecution" under CPL § 245.20(2) when those materials concern New York City Special Patrolmen, who are designated as Peace Officers in CPL § 2.10(27). In the case at bar, the Special Patrolmen are Co-op City Police Department ("CCPD") Officers. Based on the record and the legal analysis set forth herein, the court holds that such "items and information" are not "deemed to be in the possession of the prosecution" and are therefore not subject to the automatic disclosure requirements of CPL § 245.20(1)(k). Rather, they are subject to the prosecution's obligations set forth in CPL § 245.20(2) for material or information not within the prosecution's possession, custody or control.
Throughout their Opposition papers, the People alternate their spelling of Co-op City as Co-op City, with a lower-case o in "op," and Co-Op City, with an upper-case O in "Op." The website for Co-op City shows that the first spelling is correct, and this is the spelling that the Court will use in this Decision and Order. In addition, the People, and occasionally defendant, alternate between referring to defendant as "he" and "she." Because defendant consistently refers to defendant as "Ms.", the court refers to defendant as "she." The Court also capitalizes Special Patrolmen and Peace Officer, which are statutory terms.
Defendant is charged with four counts of operating a motor vehicle under the influence of alcohol or drugs ( Vehicle and Traffic Law ["VTL"] §§ 1192[3], [1], [2], [2-a] ). On July 22, 2022, the People filed a Certificate of Compliance ("COC") and Notice of Readiness. Defendant filed this Omnibus Motion on October 7, 2022, seeking ten enumerated requests for relief related to defendant's right to a speedy trial under CPL § 30.30(1)(b) and the suppression of evidence, or alternatively, requesting hearings regarding certain evidence.
Specifically, defendant's requests numbers one, two, and three seek an order: (i) deeming the COC and Statement of Readiness ("SOR") invalid; (ii) deeming the People not ready for trial pursuant to CPL § 245.50 ; and (iii) dismissing the criminal court information pursuant to CPL §§ 30.30(1)(b) and 170.30(1)(e). Defendant's requests numbers four, five, six, seven, and eight seek an order: (iv) suppressing evidence related to her chemical breath test, or in the alternative, requesting an Ingle/Johnson/Atkins/Mapp/Dunaway hearing; (v) suppressing observations of defendant made by police, including the Intoxicated Driver Testing Unit video of defendant, or in the alternative, requesting a Mapp/Dunaway/Ingle hearing; (vi) suppressing statements taken from defendant for which the People served proper notice pursuant to CPL § 710.30, or in the alternative, requesting a Huntley/Dunaway hearing (to which the People consent) (vii) suppressing evidence and testimony relating to identifications of defendant for which the People served proper notice pursuant to CPL § 710.30, or in the alternative, requesting a Wade/Crews hearing; and (viii) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts and citing Sandoval/Ventimiglia. Although request number eight does not specifically seek a hearing, the court construes this request as alternatively requesting a hearing.
SOR refers to the People's Notice of Readiness.
Defendant's request number nine seeks an order directing the People to make timely disclosures of information favorable to the defense, as required by CPL § 245.20, Brady , Giglio , Geaslen , the United States and New York constitutions, and Rule 3.8(b) of the New York State Rules of Professional Conduct. Request number ten asks the court to grant the defense an opportunity to submit a reply — which the defense did, twice, first on December 14, 2022, and then a "Supplement to Reply Memorandum of Law" on December 16, 2022. Defendant further moves in request number ten that if the People oppose the motion, the court conduct a hearing on the underlying facts pursuant to People v. Luperon , 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (1995) and People v. Allard , 28 N.Y.3d 41, 45-47, 41 N.Y.S.3d 196, 63 N.E.3d 1140 (2016).
The court decides defendant's motion and rules as follows:
The court DENIES defendant's requests numbers one, two and three, namely, the motions for an order invalidating the COC and SOR, deeming the People not ready for trial, and dismissing the criminal court information.
The court refers to the trial judge defendant's requests numbers four, five, six, and seven, and eight, the suppression motions, and GRANTS defendant's requests for hearings.
With respect to defendant's request number nine, it appears from the parties’ papers that the People no longer have outstanding discovery obligations because of the People's subsequent disclosure of Giglio material related to the CCPD Officers. In her reply papers, defendant does not dispute the People's contention that they have disclosed all Giglio materials relating to the CCPD Officers. Defendant's request number nine is therefore moot.
As previously stated, defendant submitted not one but two replies to the People's opposition papers, so this portion of defendant's request number ten is moot. The court DENIES defendant's motion for a hearing on the underlying facts in request number ten.
The court DENIES defendant's request in her Supplement to Reply to charge the People with additional time during motion practice.
Finally, the court orders defendant to file a COC pursuant to CPL § 245.50(2). Procedural Background and Timeline of the People's Disclosures
Defendant was arrested by the CCPD on April 30, 2022 and charged with violating VTL §§ 1192(3) and (1). Defendant was arraigned on May 1, 2022 and released on her own recognizance.
On June 6, 2022, the People emailed their internal Discovery Compliance Bureau seeking "Giglio materials" for five officers and noted that "two of the officers are designated CCPD." (People Mem., at Ex. A). The two Officers "designated CCPD" were "Pardi" and "Marsonico[.]" [Sic] (id. ). Shortly after the People sent this email, they received a reply acknowledging the request and providing further instructions (see id. at Ex. C).
On July 15, 2022, the People followed up on the June 6, 2022 request and stated, "Please provide the Giglio materials as soon as possible as the 30.30 date is 7/22/22." (Id. ). Also on July 15, 2022, the People emailed an employee at riverbaycorp.com with a pdf attachment entitled, "Howard SUBPOENA DUCES TECUM." This email stated in part, "As we discussed over the phone, please find attached the subpoena relating to the release of the body worn camera relating to this case. Please let me know if you require any additional legal service?" (Id. at Ex. B). The email continued, "[P]lease find below a list of Officers who may be called as witnesses in this case. Could you please provide the Giglio materials relating to [Officers Pardi and Marsanico]. Please let me know if you require any additional legal processes to facilitate this request." (Id. ).
According to the Co-op City website, "Riverbay Corporation is the corporate entity of Co-op City." https://www.coopcity.com/aboutus (visited on February 27, 2023).
The record does not indicate whether the People received a response to their request to the employee at Riverbay Corporation to provide Giglio materials for Officers Pardi and Marsanico, or whether "any additional legal processes" were needed to do so.
On July 17, 2022, a Trial Prep Assistant working for the People emailed the Assigned Assistant District Attorney ("ADA"), "I am working on this one for [sic] I will continue on Monday to get things before the 20th. I am sending you what we have in house via One drive. Pardi's material I have to request we have nothing in house." (Id. at Ex. D).
On July 18, 2022, the People filed and served on the court and defense counsel a superseding information charging the defendant with violating VTL §§ 1192(2-a) and 1192(2), in addition to the previous charges. The People filed the SOR and the COC on July 22, 2022, certifying that "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the People have disclosed and made available to the defendant all known material and information that is subject to discovery under CPL § 245.20(1), except for discovery that is lost, or destroyed, any information and material that is the subject of a protective order issued by a court pursuant to CPL § 245.70 (and former CPLR § 240.50), and/or any information and material that is exempt from disclosure by a protective mandate."
At an August 8, 2022 court appearance, the complaint was deemed an information without objection, and defendant was arraigned on the superseding information and pleaded not guilty. The parties were ordered to diligently confer pursuant to CPL § 245.35(1) to reach an accommodation as to any discovery dispute before the next court date.
Subsequent correspondence between the People and defense counsel shows that the parties diligently conferred as ordered. On September 1, 2022, the People emailed defense counsel regarding any outstanding discovery issues (People Mem., at Ex. G). Defense counsel responded on September 8, 2022, regarding outstanding CCRB allegation history, NYPD internal investigations documents for Officer Marsanico, and CCRB/NYPD internal investigations documents for Officer Pardi (see id. ).
On September 9, 2022, the People again followed up with their Discovery Compliance Bureau regarding additional Giglio materials for Officer Pardi (see id. at Ex. F). Shortly thereafter, the Assigned ADA received an email from the same Trial Prep Assistant with whom he had previously corresponded, this time requesting information for a subpoena. The Assigned ADA replied, "For future reference, please inform me if you need a subpoena for a case as soon as possible. The delay in requesting documents, and thus our due diligence, may impact the viability of this case moving forward." (Id. ).
On September 13, 2022, the People responded to defense counsel in relevant part, "Officer's [sic] Pardi and Marsanico are both members of the Co-op City Department of Public Safety and as such, are not within our custody and control. I have previously reached out to our discovery compliance division on two occasions to request these documents and will do so again, but at this time I have only received the documents relating to Officer Marsanico. I have attached them to this email." (Id. at Ex. I). In the Affirmation in Opposition to defendant's motion, the People state, "On September 13, 2022, the People passed along an erroneously omitted document relating to Officer Marsanico's Giglio material as provided by the Co-Op City Police Department. The People additionally noted that we had requested Officer Pardi's Giglio material and would pass it along as soon as we received it." (People Aff., at ¶ 13). Defense counsel emailed the People on September 16, 2022, disagreeing with the People's characterization of the Co-op City Officers as beyond the custody and control of the District Attorney's Office: "[C]o-op city police are both NYC special patrolmen, which means they are means that [sic] they are appointed by and responsible to the NYPD commissioner, and NYS peace officers. I therefore believe that the [C]o-op city police should be considered a state or local police or law enforcement agency and all information in their possession is statutorily ‘deemed to be in the possession of the prosecution.’ CPL section 245.20(2). I would appreciate if you could provide me with this missing discovery at your earliest opportunity." (People Mem., at Ex. I).
It is unclear from the record when the People received Officer Marsanico's Giglio materials.
In their Opposition papers, the People elaborate on this "erroneously omitted document" and state, "The People learned on September 8, 2022 that the People's discovery production containing Officer Marsanico's Giglio file was erroneously incomplete and turned over the erroneously omitted document on September 13, 2022. It appears that the document containing Officer Marsanico's Giglio material was not properly uploaded to OneDrive, the portal which the People use to pass along discovery materials." (People Mem., at 4-5).
In a court conference on September 16, 2022, the parties noted their disagreement over the CCPD materials, and defense counsel requested a motion schedule. The court ordered defendant to file her motion on September 30, 2022, and the People to file their opposition on October 14, 2022, with a decision date scheduled for November 18, 2022. On September 30, 2022, the defense sought an extension until October 6, 2022, to file motions. The application was neither granted nor denied. On October 7, 2022, defendant filed her Omnibus Motion. On October 12, 2022, the People received the Giglio materials for Officer Pardi (see id. ). The People shared these materials with defense counsel on October 21, 2022 (see People Aff., at ¶ 14). On November 26, 2022, the People filed an Opposition. Defendant filed reply papers on December 14, 2022, and a Supplement to Reply on December 16, 2022.
Discussion
I. Validity of the COC and SOR
A challenge to a statement of trial readiness requires an inquiry into "whether the People have done all that is required of them to bring the case to a point to where it may be tried." ( People v. England, 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ). "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." ( Id. ).
The People's compliance with their discovery obligations is tied to the running of the speedy trial clock under CPL § 30.30. "The People ‘shall not be deemed ready for trial’ under CPL 30.30 until they have filed ‘a proper certificate’ " under CPL 245.50(1) ( CPL 245.50[3] )." ( People v. Edwards , 74 Misc.3d 433, 437, 160 N.Y.S.3d 532 [Crim. Ct., New York County 2021] ).
CPL § 245.20(1) requires prosecutors to disclose to the defendant "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 and control." The statute sets forth a non-exhaustive list of materials subject to disclosure.
Whereas CPL § 245.20(1) addresses the disclosures of 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, CPL § 245.20(2) states in relevant part that the prosecution:
shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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 ; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material
or information which the defendant may thereby obtain. 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 (emphasis added).
CPL § 245.55(1) mandates a "flow of information" between the prosecution and "the police and other investigative personnel" "sufficient to place within [the prosecution's] possession or control all material and information pertinent to the defendant and the offense or offenses charged," including discoverable evidence or information under CPL § 245.20(1)(k).
CPL § 245.50(1) sets forth the requirements for a COC:
When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article ... it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising 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. It shall also identify the items provided.
The last sentence of CPL § 245.50(1) states, "No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article."
CPL § 245.10 contains a timeline for the automatic disclosures under § 245.20. Untimely disclosures, however, do not necessarily invalidate a COC that was made in good faith after the exercise of due diligence:
As the legislative history of article 245 indicates, and as the article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable
to comply with every aspect of the automatic discovery rules specified in CPL 245.20. ( People v. Erby , 68 Misc.3d 625, 633, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020] ).
(see also People v. Perez , 73 Misc.3d 171, 176, 150 N.Y.S.3d 868 [Sup. Ct., Queens County 2021] ["[N]umerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable."]).
Pursuant to CPL § 30.30(1)(b), the prosecution must be ready for trial within ninety days of the commencement of the action. Whether the People have satisfied their obligation is determined by "computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." ( People v. Cortes , 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).
A valid COC is one that was "filed in good faith and [is] reasonable under the circumstances." ( CPL§ 245.50[1] ). "If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged. They must detail the reasonable inquiries made to obtain these discoverable materials." ( People v. Perez , 75 Misc.3d 1205(A), at *3, 2022 WL 1494658 [Crim. Ct., Bronx County 2022] ).
A. The Parties’ Arguments
Defendant cites CPL § 245.20(2) and argues, "Co-cop City police records are constructively within the prosecution's possession and control." (Defendant Mem., at 8). According to defendant, the CCPD website states that CCPD Officers are Special Patrolmen, and "New York City Code Section 14-106 states that special patrolmen are ‘subject to the orders, rules, and regulations of the department [NYPD],’ appointment by the NYPD commissioner, etc." (Id. ). Defendant continues, " CPL 2.10(27) also designates all NYC special patrolmen as NY state peace officers. Co-op City police are therefore a state or local police or law enforcement agency and as such, all information in their possession is statutorily ‘deemed to be in the possession of the [People]’ " under CPL § 245.20(2) (id. at 8-9).
Defendant acknowledges that although the People have "made efforts to obtain the Co-op City police records" since filing the COC, the People failed to describe their efforts to obtain these records before filing the COC (id. at 9). Defendant further faults the People for failing to obtain the records before filing a COC and failing to file a motion for an extension in reliance on its position that "unlike ordinary NYPD records, these records were not in the [People's] possession." (Id. at 9). These failures, argues defendant, result in the entire time from arraignment on May 1, 2022, until the setting of a motion schedule on September 16, 2022, as chargeable to the People — a total of 138 days (see id. at 13).
The People's responses to these arguments are two-fold. First, the People argue that the COC is valid because they "exercised good faith and due diligence in inquiring into and obtaining the discovery in this case." (People Mem., at 4). In support of this assertion, the People emphasize the chronology of their efforts to obtain and produce the Giglio materials for the CCPD Officers (see id. at 4-5). According to the People, the timing of these disclosures amounts to the exercise of due diligence sufficient to satisfy CPL § 245.50, particularly when they "do not have direct access to NYPD IAB records" and need to request Giglio materials from "outside agencies" such as the Co-op City Public Safety Department (id. at 5).
Second, the People dispute defendant's argument that "the Co-Op City Police Department is within the People's custody and control as CCPD Officers are designated ‘special patrolmen’ pursuant to the CCPD website." (Id. at 6). In essence, the People argue that the CPL distinguishes Peace Officers from Police Officers; CCPD Officers are Peace Officers under the CPL; and therefore, CCPD Officers’ CPL § 245.20(1)(k) records are not in the People's possession, custody or control or in the possession of persons under their direction or control. In support of this argument, the People cite and discuss CPL. § 2.10(27) ; Administrative Code § 13-01; CPL § 1.20(34), and 9 CRR-NY 6035.1 (see id. at 6-7).
Additionally, the People note that they were required to serve a subpoena to obtain Officer Marsanico's Giglio material, and CPL § 245.20(2) does not require them to subpoena material or information that is not in their possession, custody or control and which defendant may obtain (see People Mem., at 7-8). The People also maintain that although Special Patrolmen must "conform to the NYPD's general rules, this does not explicitly mean that the NYPD exerts direct supervision or direct control over the special patrolmen." (Id. at 8). The People claim that "the Co-op City Department of Public Safety's internal affairs unit is not tied into the NYPD's internal affairs system" as "evidenced by the attached disciplinary reports." (Id. at 8). These attached "Disciplinary Action Reports" for Officers Marsanico and Pardi show that copies were provided to Human Resources, the employees, the Union Delegate, and the File — but not to the NYPD. The People also cite an unpublished 2021 decision from Bronx County, People v. Freddy Polanco and Xavier Burgess , Indictment No. 2423/19 (Marcus, J.), to support their assertion that "whether a private police force, in that case Parkchester Department of Public Safety, is ‘deemed to be in possession of the prosecution’ " under CPL § 245.02(2), is an "open question" that the statute does not explicitly address (id. ).
The People's assertion that they were required to subpoena Officer Marsanico's Giglio material appears to be a typo. The exhibit to which the People cite, and previous discussion in the People's Opposition Memorandum, indicate that the People were required to subpoena Officer Pardi's Giglio material, not Officer Marsanico's Giglio material.
In her December 14, 2022 reply papers, defendant makes three arguments in response. First, defendant argues that under CPL § 245.50(1), the People may not file a COC unless it has disclosed all known material and information subject to discovery. Second, defendant criticizes the timetable of the People's efforts to obtain Giglio information and material and states that "the fact that the prosecution did not disclose that there was known outstanding discovery statutorily in the Certificate of Compliance, nor did they explain what steps they were taking to obtain those materials, belies claims of good faith compliance." (Defendant Reply Mem., at 7). Third, defendant relies on People v. Turner , 71 Misc.3d 1219(A) at *3, 2021 WL 1899469 (Sup. Ct., Monroe County 2021), a case in which the court held that parole materials, which required subpoena by the People to obtain, were subject to automatic discovery requirements. Defendant argues that Turner necessitates a finding that the CCPD material at issue should be "deemed to be in the possession of the possession of the prosecution" — and to hold otherwise "could lead to significant due process violations for people arrested in New York by entities policing New York communities." (Defendant Reply Mem., at 10).
B. The Court's Analysis
The People represent that the CCPD is "authorized" under the Special Patrolman's Act pursuant to New York City Administrative Code § 13-01. People Mem., at 6. The People do not state when the CCPD applied for and was granted Special Patrolmen status pursuant to § 13-01. Nonetheless, the court will assume that the People's representations to the court are correct, and such an application was made and granted.
A review of the relevant statutory framework is helpful to the court's analysis. New York City Administrative Code § 14-106 sets forth the New York City Police Commissioner's power to appoint Special Patrolmen, who possess "the powers, perform the duties, and [are] subject to the orders, rules and regulations of the department in the same manner as regular members of the force." (Administrative Code § 14-106[b]). Upon the application of "any person or persons, corporation or corporations, showing the necessity therefor," the Commissioner has the authority to "appoint and swear":
any number of special patrolmen to do special duty at any place in the city upon the person or persons, corporation or corporations by whom the application shall be made, paying, in advance, such special patrolmen for their services, and upon such special patrolmen, in consideration of their appointment, signing an agreement in writing releasing and waiving all claim whatever against the department and the city for pay, salary or compensation for their services and for all expenses
connected therewith[.]"
It appears that the NYPD License Division handles the Special Patrolmen application process. (See https://licensing.nypdonline.org/contact-us/ [visited on March 12, 2023]).
Special Patrolmen are subject to the Commissioner's orders, must obey department rules and regulations, and shall "conform to its general discipline and to such special regulations as may be made and shall during the term of their holding appointment possess all the powers and discharge all the duties of the force, applicable to regular members of the force." (Id. ).
Pursuant to Title 38, Rule 13-01 of the Rules of the City of New York, "Housing complexes" are among the " ‘agencies or institutions" whose employees may apply for Special Patrolmen status (38 RCNY 13-01[b][2]). The designation of Special Patrolman "confers limited Peace Officer powers upon the employee pursuant to New York State Criminal Procedure Law § 2.10(27)." (Id. at 13.01[c]).
Special Patrolman status must be renewed every two years upon the requisite showing of continuing fitness of the employee and continuing necessity by the employer (see id. at § 13.01[d]). A Special Patrolman must be of "good moral character" and possess various qualifications (id. at § 13.01[e]). Applicants must undergo a background investigation, which is based upon a review of "the circumstances of previous arrests, employment records, mental history, reports of misconduct reflecting on character as referred to above, and any other pertinent records or information." (Id. at § 13.01[f]).
CPL § 2.10 contains 85 categories of "Persons designated as peace officers." Subsection 27 discusses Special Patrolmen appointed by the Police Commissioner pursuant to Administrative Code § 14-106 and states in part, "Special patrolmen shall have the powers set forth in section 2.20 of this article only when they are acting pursuant to their special duties[.]" ( CPL § 2.10[27] ).
CPL § 2.20 sets forth the powers of Peace Officers.
Furthermore, CPL § 1.20, which defines terms of general use in the chapter, distinguishes between "Peace officer" in subsection 33, which means "a person listed in section 2.10 of this chapter", and "Police officer" in subsection 34, which means persons (a) through (v) — and, as the People point out, none of whom include Officers employed by the CCPD. As the People also observe, "law enforcement agency" is defined in Procedures for Accreditation of Law Enforcement Agencies as "any law enforcement agency or department of any municipality, any police district, or any agency, department, commission, authority or public benefit corporation of the state of New York employing a police officer or police officers as that term is defined in paragraphs (a), (b), (c), (d), (e), (f), (j), (k), (1), (o), (p), (s), and (u) of subdivision thirty-four of section 1.20 of the Criminal Procedure Law." (9 CRR-NY 6035.1). The court's own research has failed to uncover authority to support the inclusion of Peace Officers within the CPL § 245.20(2) umbrella of "law enforcement agency."
Notably, CPL § 245.20(1)(k) refers to, "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case[.]" (Emphasis added). Likewise, CPL § 245.20(2) states, "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." (Emphasis added). CPL § 245.55 speaks of a flow of information between the prosecution and the "police or other investigative personnel." Neither party opines on the meaning of "other investigative personnel," and the court is unable to find any authority to suggest that "other investigative personnel" include Peace Officers.
To be sure, the Legislature purposefully distinguished "Peace Officers" and "Police Officers" as different sorts of persons, with different powers and duties. The Legislature could have added Peace Officers to §§ 240.20(1)(k), 245.20(2), or 245.55. It did not. The court therefore declines defendant's invitation to add a new category of automatic disclosure materials to the People's burden where the statute provides no basis for doing so (see People v. Finnegan , 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995] ["The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words’ used. Equally settled is the principle that courts are not to legislate under the guise of interpretation."]). Given that Special Patrolmen must renew their designations every two years, and this review includes a background investigation, it is conceivable that the prosecution may have Giglio materials related to a Special Patrolman in its possession, custody or control. If so, the prosecution must disclose these materials pursuant to CPL § 245.20(1)(k). However, these materials should not be "deemed to be in the possession of" the prosecution under § 245.20(2).
Although there appears to be no case law directly on point, courts have held that materials maintained by private security officers, including the CCPD, are not in the possession of the prosecution and are instead in the possession of private parties (see People v. Mendscole , 64 Misc.3d 128[A], at * 1-2, 2019 WL 2529347 [App. Term 1st Dept., June 19, 2019] [holding that the defendant, who drove intoxicated through Co-op City, was not entitled to an adverse inference charge with respect to recordings and memo book entries made by "private security officers employed by the River Bay Corporation, the property manager." The record established that this evidence was "never in the possession of the police or prosecution," and therefore "the People [had] no constitutional or statutory duty to acquire, or prevent the destruction of, evidence generated and possessed by private parties."]; People v. Covington , 42 Misc.3d 1232[A], 2014 WL 888516 [Sup. Ct., Bronx County 2014] [holding, with respect to the inadvertent destruction of a video by Parkchester Security at the Parkchester South Condominium, "The People have ‘no constitutional or statutory duty to acquire, or prevent the destruction of, evidence generated and possessed by private parties.’ "]; People v. Robertson , 256 A.D.2d 254, 683 N.Y.S.2d 235, 236 [1st Dept. 1998] [holding that, even assuming Rosario materials existed, "[T]hey were generated by private hospital security personnel and therefore were not in the People's control. Neither the special patrolman status nor the limited law enforcement functions of these private citizens brought them within the ‘law enforcement chain.’ ")]. These authorities further reinforce the court's belief that the People should not be "deemed to be in the possession of" CPL § 245.20(1)(k) materials relating to a Special Patrolman who is employed by a private police force at a housing complex.
The court also takes judicial notice of a New York City Council resolution entitled, "Resolution in support of granting the officers of the Co-op City Department of Public Safety peace officer status." The Council's findings include, "Whereas, Co-op City has a special private police force of roughly 100 officers[,]" and, "Whereas, The cost of maintaining this private police force is shared by Co-op City residents and the Riverbay Corporation[.]" (http://legislation.nyc/id/1672839 [visited on March 2, 2023]). (See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co. , 61 A.D.3d 13, 19-20, 871 N.Y.S.2d 680 [2d Dept. 2009] ) ([examples of the proper application of judicial notice include: census data; agency policies; certificates of corporate dissolution maintained by the Secretary of State; resignation of public officials; legislative proceedings; legislative journals; the consumer price index; the location of real property recorded with a clerk; death certificates maintained by the Department of Health; "undisputed" court records and files; and material derived from official government websites]).
People v. Turner , upon which defendant relies, does not alter the court's analysis. In Turner , the court held that the defendant's parole materials were deemed to be in the People's possession, although the People were required to subpoena these materials (see Turner, 71 Misc.3d 1219[A] at *2-3 ). Parole officers are state actors employed by the Department of Corrections and Community Supervision (see CPL § 2.10[27] ). Parole records are therefore more likely to be within the "law enforcement chain," and thus in the actual or constructive possession of the prosecution, notwithstanding the need for a subpoena in Turner . In contrast, the personnel files of a Special Patrolman employed by a private security company are not maintained by any governmental entity.
Nor will the court's holding "lead to significant due process violations," as defendant warns, because the court would "open[ ] the door to allow the prosecution to sidestep their obligation" to turn over "other basic pieces of evidence such [as] body worn camera footage, records of emergency calls, and arrest paperwork in a timely manner for individuals arrested by peace offers and special patrolmen." (Defendant Reply Mem., at 10). The court's holding is limited to "items and information" in CPL § 245.20(1)(k) when those materials concern New York City Special Patrolmen. The record also shows that the People subpoenaed the Riverbay Corporation to obtain the body worn camera and then disclosed footage from that camera on July 22, 2022. Thus, the statute itself addresses due process concerns and provides for a mechanism for the parties to obtain discovery materials.
Turning back to this case, prior to filing the COC, the People attempted to determine the existence of Giglio materials for Officers Marsanico and Pardi and produce them to defendant. The record indicates that the People did not yet know if Giglio materials existed for Officer Pardi when they filed the COC on July 22, 2022 but had been making good faith attempts to obtain any such materials. The People also state that the failure to produce a document relating to Officer Marsanico's Giglio material by July 22, 2022 was an error. As such, this failure will not invalidate the COC (see Perez , 73 Misc.3d at 176, 150 N.Y.S.3d 868, 150 N.Y.S.3d ).
Moreover, it was only after filing the COC that the People learned that they needed to subpoena any Giglio materials for Officer Pardi. The People expressed concern about this delay and any "impact on the viability of this case moving forward." (People Mem., at Ex. F). Although the People are not required to subpoena materials under CPL § 245.20(2), "The statute does not bar the People from serving a subpoena to demonstrate their diligent, good-faith efforts to make discoverable materials available." ( People v. Ajunwa , 75 Misc.3d 1220[A], at *3, 2022 WL 2525665 [Crim. Ct., Bronx County 2022] ). As previously stated, the People disclosed footage from the body worn camera on July 22, 2022.
After filing the COC, the People conferred with defense counsel and continued to fulfill their discovery obligations with respect to producing Officer Pardi's Giglio materials. Under these circumstances, the People complied with their responsibilities to "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." ( CPL § 245.20[2] ).
Lastly, the court denies defendant's request to grant a hearing on the underlying facts pursuant to People v. Luperon , 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (1995), People v. Allard , 28 N.Y.3d 41, 45-47, 41 N.Y.S.3d 196, 63 N.E.3d 1140 (2016), and CPL § 210.45. These authorities, which address dismissal of indictments, do not support defendant's request for a hearing. The court also denies defendant's request to charge the People with additional time during motion practice. Neither party followed the original court-ordered briefing schedule, and in any event, defendant did not request that the court order a new briefing schedule for the parties. (See CPL § 30.30[4] ).
Because defendant was arraigned on May 1, 2022, the People are charged with 82 days. Accordingly, the People filed their July 22, 2022 COC and SOR within the statutory speedy trial deadline and complied with their discovery obligations. The court orders defendant to file a COC pursuant to CPL § 245.50(2).
The court's calculation of time is as follows: May 1, 2022 — July 22, 2022 (82 days charged): Defendant was arraigned on May 1, 2022. On May 4, 2022, the matter was adjourned to June 3, 2022 for COC and conversation. On July 18, 2022, the People filed and served on the court and defense counsel a superseding information. A total of 78 days are chargeable to the People for that period. The People filed the COC and SOR on July 22, 2022, four days later.
II. Defendant's Suppression Motions and Requests for Hearings
The court refers defendant's suppression motions, requests four through eight, to the trial court for determination. The court grants hearings on these motions pursuant to the authorities cited in defendant's motion papers and a sufficient showing of disputed factual allegations where necessary. These hearings are as follows:
An Ingle/Johnson/Atkins/Mapp/Dunaway hearing with respect to request number four to suppress any and all evidence related to the chemical breath test given to defendant;
A Mapp/Dunaway/Ingle hearing with respect to request number five to suppress any observations of defendant made by police, including the Intoxicated Driver Testing Unit video of defendant;
A Huntley/Dunaway hearing with respect to request number six to suppress any and all statements taken from defendant for which the prosecution served notice pursuant to CPL § 710.30 ;
A Wade/Crews hearing with respect to request number seven to suppress any and all evidence and testimony relating to identifications made of defendant for which the prosecution served notice pursuant to CPL § 710.30 ; and
A hearing regarding whether the People should be precluded from introducing at trial any evidence of defendant's prior convictions or bad acts, pursuant to Sandoval/Ventimiglia.
The foregoing constitutes the opinion, decision, and order of the court.