Opinion
No. 22050138
11-10-2023
The People of the State of New York, v. Tyrone L. Johnson, Defendant.
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff. Julie Cianca, Monroe County Public Defender (Griffin Dault of Counsel), for defendant.
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff.
Julie Cianca, Monroe County Public Defender (Griffin Dault of Counsel), for defendant.
Thomas J. DiSalvo, J.
History of the Case.
The defendant was charged with operating a motor vehicle impaired by drugs, VTL § 1192 (4), drove across hazard marking, VTL 1128 (d), moved from lane unsafely, VTL § 1128 (a), and unlicensed operator, VTL § 509 (1) on May 19, 2022 at 9:01 P.M. on NYS Route 104 as it passed through the Town of Webster. The defendant was given simplified traffic informations, as defined by CPL § 1.20 (5) (b), by the arresting Webster Police Officer, which stated that "The matter is scheduled to be handled on the appearance date below", to wit: June 22, 2022. In addition the defendant was served with a Uniform Appearance Ticket, wherein the defendant was directed to appear on the said date of June 22, 2022.
The defendant duly appeared on that date for arraignment. However, the arraignment was adjourned to August 3, 2022 by the Court to allow the defendant to secure the services of an attorney. On that date the defendant was arraigned, while represented by the Public Defender's Office. The matter was then adjourned for further disposition to September 7, 2022 at the request of the defense counsel. It was again adjourned to September 21, 2022 for further disposition. However, since the defendant failed to appear on that date, the matter was adjourned to October 19, 2022 for the appearance of the defendant at the request of defense counsel. The defendant did appear on October 19th, whereupon the case was adjourned for motion argument on December 21, 2022. On October 20, 2022 defense counsel filed Omnibus Motions with the court. In addition, defense counsel filed a motion to dismiss the charge of operating a motor vehicle impaired by drugs, VTL § 1192 (4), wherein it was requested that said charge be dismissed due to the defendant being denied a speedy trial based on the prosecution not having declared readiness within the statutorily prescribed time frame pursuant to CPL §§ 30.30 and 170.30 (1) (e). On December 21, 2022 the mater was further adjourned to February 24, 2023 for a decision on the defendant's speedy trial motion. The People had not filed with the Court a Certificate of Compliance/Readiness for Trial as of the date of the defendant's speedy trial motion, to wit December 19, 2022.
This court ruled in a written decision dated February 24, 2023 that none of the time to that date was chargeable to the People. (People v. Johnson, 2033 NY Slip Op.50126[U], *3) Thus the court held that "The motion to dismiss the charges herein pursuant to CPL §§ 30.30 and 170.30 (1) (e) is hereby denied. At this time the court would not impose any sanctions provided by CPL § 245.80, since no prejudice to the defendant to date has been alleged by the defendant as would be required by CPL § 245.80 (1) (a)." The issue of prejudice suffered by the party entitled to disclosure is relevant when the discovery is provided subsequent to the time allowed for for initial discovery pursuant to CPL § 245.10 (1) (a), but prior to the expiration of the time within which the People must be ready for trial pursuant to CPL § 30.30 (1).
(Id.)
In the meantime, the People filed a "Discovery Disclosure Cover Letter CPL § 245.20(1)(p) & 245 20(1)(q) Disclosure" on March 20, 2023. The People also filed a "Discovery Disclosure Cover Letter Certificate of Compliance Statement of Readiness" on March 20, 2023. On. April 18, 2013 the People filed a Notice of Readiness for Trial.
(Duplicates of said documents were filed with the court on other dates. The court will refer to the document filed on the earliest date.)
Subsequently, the matter was set down for a probable cause hearing and a Huntley hearing both of which were conducted on July 14, 2023. At which time the court denied defense counsel's motion to suppress the statements of the defendant and found that the police had probable cause to make the arrest of the defendant. The matter was then adjourned to September 29, 2023 for further disposition.
In the interim the People filed with the court on July 12, 2023 a document entitled
"SUPPLEMENTAL CERTIFICATE
OF COMPLIANCE CPL § 245.50(1),
245.60"
"CERTIFICATE OF COUNTS
CPL § 30.30 (5-A)"
"STATEMENT OF READINESS"
On the same date the People filed a separate "NOTICE OF READINESS FOR TRIAL"
On or about July 13, 2023 the defense filed a motion with the court requesting an "An order declaring the prosecutor's March 20, 2023, discovery certificate of compliance as invalid, and declaring the supplemental discovery certificate of compliance filed on July 13, [sic] as invalid." The case was adjourned for the court's decision.
Facts of the Case.
Defense counsel's motion papers point out two alleged deficiencies with the initial discovery required by CPL § 245.20.
CPL § 245.20 [1] [e] All statements etc.
Subsequent to the filing of the Certificate of Compliance on March 20, 2023 defense counsel notified the prosecutor by phone on July 12, 2023 that the Drug Recognition Evaluation from Trooper Hotchkiss had not been turned over to the defense. That notification was required by CPL 245.50 (4) (b) which states "To the extent that the party is aware of a potential defect or deficiency related to a certificate of compliance or supplemental certificate of compliance, the party entitled to disclosure shall notify or alert the opposing party as soon as practicable." During that phone call the prosecutor acknowledged that he located said report in his physical file and subsequently sent the report to defense counsel.
CPL § 245.20 [1] [k] Exculpatory and Impeachment Information.
Secondly, the defense counsel points out that in the Certificate of Compliance filed on March 23, 2023 "NOT APPLICABLE" was checked, relative to any said exculpatory and impeachment information. Defense counsel states that as of the date of its motion herein the rolling logs of Trooper Hotchkiss had not been provided.
Thus the motions request that the Certificate of Compliance dated March 23, 2023 be declared invalid because it failed to comply with CPL §§ 245.20 (1) (e) and 245.20 (1) (k).
Finally, the motion papers further demand that the Court hold that the Supplemental Certificate of Compliance filed with the court by the People on July 12, 2023 be declared invalid as being in violation of CPL § 245.50 (1-a). The Supplemental Certificate of Compliance memorializes the providing of the aforementioned "NYS Drug Recognition Evaluation" to the defense. Said two page document having been found in the People's file during a phone conference with defense counsel on July 12, 2023.
Issue Presented.
Is the Certificate of Compliance filed by the People on March 23, 2023 invalid?
Is the Supplemental Certificate of Compliance filed by the People on July 12, 2023 invalid?
Legal Analysis.
Drug Recognition Evaluation.
This court already ruled that all time through February 24, 2023 was chargeable to the Defendant. The question now is whether the Certificate of Compliance filed on March 23, 2023 was invalid. The drug recognition evaluation prepared by Trooper Hotchkiss would be part of the People's initial discovery responsibility as set out in CPL § 245.20 (1) (e), i.e. "All statements, written or recorded" etc. CPL 245.10 (1) (a) (ii) states
(People v. Johnson, 2033 NY Slip Op.50126[U], *3)
"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."
That time period can only be extended pursuant to a motion by the People when there are special circumstances. One of those special circumstances is when the discoverable material "are otherwise not in the actual possession of the prosecution". That was not the case herein as the prosecutor found the said drug recognition evaluation in their file during the phone call between defense counsel and the prosecutor on July 12, 2023. Said date was 343 days after the arraignment.
(CPL § 245.10 [1] [a] [iv] [B])
(Id.)
Rolling Logs.
The second alleged defect in the Certificate of Compliance was the failure to provide the rolling logs of the drug recognition expert [DRE] in accordance with the initial discovery requirements of CPL § 245.20 (1) (k), relative to "Exculpatory and Impeachment Information" That section states as follows:
"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, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article."
A Rolling log "... includes toxicology evaluations of subjects obtained prior and subsequent to the Defendant's evaluation is essential for evaluating the DRE's work and for possible impeachment of the DRE's testimony at trial. As such, production of the Log is mandated by the automatic discovery provisions of CPL § 245.20." (People v. Knorr, 73 Misc.3d 285, 152 N.Y.S.3d 556,559 [Just Ct., Cook J. 2021) According to the prosecutor's Affirmation in Opposition the defense counsel's motion, "It is the People's understanding that the Drug Recognition Rolling Logs were electronically delivered to Defense Counsel on August 1st, 2023 after motions were filed by Defense Counsel bringing that the materials were not in their possession to the attention of the People." The court has since confirmed that said rolling logs were received by defense counsel.
Both the drug recognition evaluation and the DRE rolling logs must be deemed to have been in possession of the prosecution. CPL § 245.20 (2) states in pertinent part "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."
As to the drug recognition evaluation, the People contend that they met their initial discovery obligation under CPL § 245.10 (1) (ii) because "Defense Counsel was not prejudiced in the July receipt of the Drug Recognition Evaluation". However, in determining whether or not a Certificate of Compliance is or is not valid, prejudice to the defense is not an issue. (See People v. Gaskin, 214 A.D.3d 1353, 1355, 186 N.Y.S.3d 467,470 [4th Dept. 2023])
CPL 245.50 (1) states in pertinent part:
"When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 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."
One of the purposes of the Certificate of Compliance is to stop the speedy trial clock set out in CPL 30.30 (1) by allowing the People to state their readiness for trial. "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20..."
(CPL § 30.30 [5])
In this case the defense was not in possession of the Drug Recognition Evaluation when the People filed its Certificate of Readiness on March 23, 2023. That evaluation was not provided to the defense until on or about August 1, 2023. No explanation was given as to why the logs were not provided to the defense until that date.
"As other courts have indicated, 'belated disclosures should not [always] 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' (People v. Georgiopoulos, 71 Misc.3d 1215 [A], 2021 WL 1727831 [Sup. Ct., Queens County 2021]). A reading of CPL 30.30 and Article 245, and their intersections, indicates that 'good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated' (People v. Rodriguez, As other courts have indicated, 'belated disclosures should not [always] 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' (People v. Georgiopoulos, 71 Misc.3d 1215 [A], 2021 WL 1727831 [Sup. Ct., Queens County 2021]). A reading of CPL 30.30 and Article 245, and their intersections, indicates that 'good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated' (People v. Rodriguez, 73 Misc.3d 411, 417, 152 N.Y.S.3d 879 [Sup. Ct., Queens County 2021]; see People v. Gaskin, 214 A.D.3d 1353, 1355, 186 N.Y.S.3d 467 [4th Dept. 2023]; People v. Pierna, 74 Misc.3d 1072, 1088, 163 N.Y.S.3d 897 [Crim. Ct., Bronx County 2022]).; see People v. Gaskin, 214 A.D.3d 1353, 1355, 186 N.Y.S.3d 467 [4th Dept. 2023]; People v. Pierna, 74 Misc.3d 1072, 1088, 163 N.Y.S.3d 897 [Crim. Ct., Bronx County 2022])." (People v. Pardo, ___ N.Y.S.3d ___, 2023 NY Slip Op. 23337 *2)
In People v. Rodriquez, 73 Misc.3d 411, 417, 152 N.Y.S.3d 879,884 [Sup. Ct., Queens County 2021] the court held "... where the People fail to set forth their efforts to locate items of discovery or determine that they do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated." It has been held that, when the People obtained a police memo book after the absence of said memo book was brought to the prosecutions' attention, the People had not shown the due diligence required by CPL § 245.50 (1). (See People v. Pierna, 74 Misc.3d 1072, 1089, 163 N.Y.S.3d 897,909 [Crim. Ct., Bronx County 2022]). Again, since neither the reason for not turning over the drug recognition evaluation nor for absence of the rolling logs at the time of the filing of the Certificate of Compliance, nor for providing the efforts of the People to obtain said logs, the court must find that the People failed to exercise the said required due diligence.
Supplemental Certificate of Readiness.
The People filed a Supplemental Certificate of Compliance on July 12, 2023. That document states in part "... the People have learned of additional material or information and have disclosed and made available to defendant all such additional material or information identified and/or attached ineh accompanying Supplemental Discovery Record." The document then names the item in question, to wit: "NYS Drug Recognition Evaluation (2 pages)." However as previously stated herein the prosecutor found the said drug recognition evaluation in their file during the phone call between defense counsel and the prosecutor on July 12, 2023. In addition the court is unaware of a Supplemental Certificate of Readiness relative to the disclosure rolling logs of the drug recognition expert [DRE]
CPL § 245.50 (1) states as follows:
" If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. 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."
The sub-section that deals with the required contents of a supplemental certificate of compliance is CPL § 245.50 (1-a) which states in pertinent part "Any 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." The Supplemental Certificate of Compliance herein does not state the basis for the delayed disclosure. Thus the said Supplemental Certificate of Compliance is not in accordance with CPL § 245.50 (1-a).
Conclusion
For the reasons set forth herein, the motion of the defendant for an order to declaring the prosecutor's March 24, 2023 discovery certificate of compliance as invalid and declaring the supplemental certificate of compliance filed on July 13, 2033 as invalid is hereby granted.