Opinion
Case No.: 19120319
12-08-2021
The PEOPLE of the State of New York v. Michael W. KRATEN, Defendant.
Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff. James L. Riotto II, Esq. (Christopher Mona, of Counsel), for defendant
Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff.
James L. Riotto II, Esq. (Christopher Mona, of Counsel), for defendant
Thomas J. DiSalvo, J.
The defendant was charged with insufficient turn signal - less than 100’, ( VTL § 1163 [b] ), common law driving while intoxicated, ( VTL § 1192 [3] ) and per se driving while intoxicated ( VTL§ 1192 [2] ) on December 18, 2019 at approximately 2:19 A.M. He was arraigned on January 8, 2020. Defense counsel submitted omnibus motions requesting, among other things, preclusion of statements purportedly made by the defendant and not contained in the People's CPL § 710.30 notice and suppression of all evidence seized or discovered as a result of the arrest pursuant to CPL § 710.20. In response to those motions the court scheduled a probable cause and a Huntley hearing. Those hearings were conducted on April 30, 2021. As a result of those hearings, the motions to suppress evidence seized or discovered as a result of the arrest of the defendant, including the statements of the defendant set out in the People's CPL § 710.30 notice, were denied. The motion to preclude statements not included in the CPL 710.30 notice was also denied because the motion to suppress constituted a waiver of any motion to preclude. However the court reserved "... on defendant's motion relative any alleged failure of the People to comply with their discovery obligations under CPL § 245.20, pending receipt from the defendant of a specific written list of any such breaches of said obligations." In fact, in addition to filing the said Omnibus Motions, which were dated October 14, 2020, defense counsel filed a motion entitled "Defendant's Objection to People's Certification of Compliance and Statement of Readiness", also dated October 14, 2020. The said objection requested that the court strike the People's statement of readiness, which was filed with the court on or about March 23, 2021, for failure to comply with the statutory requirements of CPL § 245.00, until a proper Certificate of Compliance is filed with the court. At that time the defense indicated that it was not in receipt of a 911 call recording, a vehicle inventory, weekly breath test solution records and a certificate of conviction for [a] witness, which defense counsel indicated was not an exhaustive list, but was an example of outstanding discovery items. As stated above, the court reserved on the said original objection of the defendant at that tine. Subsequently, defense counsel filed a motion entitled "Defendant's Objection to Court's Decision and People's Certificate of Compliance and Statement of Readiness" dated July 7, 2021. The defense argued that the said Statement of Readiness was illusory and that the Court must to strike the People's Statement of Readiness until a proper Certificate of Compliance was filed with the court. The motion listed 13 items of discovery that were not provided to the defense.
(See People v. Michael W. Kraten , 71 Misc 3d 769,2021 N.Y.Slip Op 50540 [U], *6 [2021])
Id.
The defendant's motion, dated July 7, 2021, entitled "Defendant's Objection to Court's Decision and People's Certificate of Compliance and Statement of Readiness", objecting, presumably to the court's prior decision relative to any discovery issues, and objecting to the People's "Discovery Disclosure Cover Letter Certificate of Compliance and Statement of Readiness" filed with the court on January 21, 2020, a "Discovery Disclosure Cover Letter Certificate of Compliance Statement of Readiness", filed on February 7, 2020, a "Discovery Disclosure Cover Letter Certificate of Compliance Statement of Readiness" dated March 23, 2020 and a "Supplemental Certificate of Compliance CPL 245.50 (1) and CPL 245.60 Certification of Counts CPL 30.30 (5-a) Statement of Readiness" dated April 17, 2020. The defendant's motion set out 13 specific items which he alleged were not received and that were subject to the automatic discovery provisions of CPL § 245.20.
The defendant was arraigned on January 8, 2020 and released on his own recognizance. The law requires that "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." ( CPL § 245.10[1][a][ii] ) The initial Certificate of Compliance was filed with the court on January 21, 2020. The second Certificate of Compliance was filed 30 days after the arraignment, i.e. February 7, 2020. The remaining Certificates of Compliance were filed on or about 75 days and 92 days, i.e. March 23, 2020 and April 17, 2020, respectively, after the arraignment. Finally attached to the "People's Response" is another "Supplemental Certificate of Compliance CPL 245.50 (1) and CPL 245.60 Certificate of Counts CPL 30.30 (5-a) Statement of Readiness", dated September 9, 2021.
The People's response to the instant motion dated September 9, 2021, specifically addresses each of the items that the defense alleges it did not receive. The response either alleges that the item in question, did not exist, was not relevant or was previously provided to the defense.
Issue Presented
Has the prosecution filed a a proper certificate of compliance, making the People ready for trial for purposes of CPL § 30.30 ?
Legal Analysis
CPL§ 30.30 (1) (b) states
"Except as otherwise provided in subdivision three of this section, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 of this chapter must be granted where the people are not 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".
The time from the arraignment of the defendant on January 8, 2020 till the filing of the original C of C on January 21, 2020 was 13 days. The next time the defendant appeared in court was for argument of motions on October 21, 2020. The court notes that the courts were shut down on March 17, 2020 through July 27, 2020 and again December 9, 2020 to March 1, 2021 because of the Covid-19 pandemic. After the second court shut down the case was then set down for hearings on April 30, 2021. The court gave counsel an opportunity to submit letter briefs in support of their respective positions relative to the hearings. The court rendered a written decision on June 11, 2021. A pre-trial conference was conducted with the attorneys on September 10, 2021. The next court appearance was on November 12, 2021 for disposition and to discuss the discovery issues. Whereupon the court case was adjourned to February 22, 2022 for return of the courts decision on the defendant's discovery motions and further proceedings. In any event, none of this time can be chargeable to the People if their statement of readiness was valid.
Nevertheless, the court must go through each of the items claimed by the defense to have not been timely provided. "However, the court must determine what evidence is relate[d] to the subject matter of the case’ ( C.P.L. § 245.20(1) ). ‘The Court of Appeals has held that evidence is relevant ‘if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.’ ’ ( People v. Askin , 68 Misc 3d 372, 379, 124 N.Y.S.3d 133 (Nassau Co. Ct. 2020) )." ( People v. Williams , ––– N.Y.S.3d ––––, 2021 NY Slip Op. 21310, *7 (Sup Ct, Kings County 2021)).
The first item not received was "Giglio reports involving Sgt. Michael Wilder, Officer Ashley Lass and Officer Ethan Parrish as required by CPL § 245.20 (1) (k). The People respond that as to Sgt. Wilder the reports are non-existent. As to Officers Ashley Lass and Ethan Parish, the reports have been turned over. The second item raised by the defense was a "Certificate of Conviction for Witness Sam Weech and [his] Giglio reports CPL 245.20(1)(k). The People respond that Officer Sam Weech is not a civilian and that there are no Giglio reports for him. The third item was the "Breath Test Device Calibration Records for instrument 112506 after March 20, 2020 to June 18, 2020". The People advise that said records have been provided. The fourth item is the "DMV records accessed by law enforcement CPL 245.20(1)(j)." The People respond that said records have been turned over. The fifth item is "ejustice records accessed by law enforcement CPL 245.20 (1) (j)". The People respond that said records have been turned over. The sixth item is "Police communication records between officers CPL 245.20 (1) (g)". The People respond that they have requested said records. The seventh item was "Preliminary Breath Test Calibration Records CPL 245.20 (1)(j)". The People respond that preliminary breath test machines are not calibrated, so no such records exist. The eighth item is the "Email/text messages with law enforcement CPL 245(1)(k)". The people respond that no material communications were made. The ninth item is "Hand written notes CPL 245.20(1)(k)". The People respond that they have turned over all hand written notes to date, which were from Officer Lass's AIR and that they contacted the other officers to inquire if they have any said notes. The tenth item is "Vehicle Inventory/search Report [CPL] 245.20(1)(k)". The People respond that the said search was conducted and all information regarding same was turned over. The eleventh item is "Mobile Data Text (MDT) from law enforcement vehicles CPL 245.20(1)(g)". The People respond that they are not required to turn over Mobile Date Text from law enforcement vehicles". The twelfth item is "Webster Police Department General Orders regarding DWI investigations and Breath Test Device Operation [CPL] 245.20(1)(k)".The People respond that said item does not need to be provided unless the stop was the result of a checkpoint, which this stop was not so executed. The thirteenth item is" Standardized Field Sobriety Testing certifications from the NHTSA for arresting officer [CPL] 245.20(1)(k). The People respond that said information is not required to be turned over under [CPL] 245.20(1)(k). The defense has not replied or objected to the various responses of the People.
Also known as police discipline records.
The defense moved to have the statement of readiness stricken based on the alleged violations of the People's discovery obligations. CPL § 245.50 (1) states in pertinent part that "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 defendant does not allege any lack of good faith on the part of the People. Nor does it appear to this Court that there was any lack of good faith or that the People acted unreasonably. CPL 245.20 (2) sets out the duties of the prosecution as follows:
"The prosecutor 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. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph (c) or (e) of subdivision one of this section."
It has been further held that "Any assessment of a prosecutor's due diligence with discovery compliance must be considered in conjunction with the provisos contained within C.P.L. § 245.55 (1) and (2) including whether the People made good faith efforts to provide evidence, including impeachment material, relevant to the defendant's case ( People v. Rosario , 70 Misc 3d 753, 756 [County Ct, Albany County 2020] )." ( People v. Williams , ––– N.Y.S.3d ––––, 2021 NY Slip Op. 21310, 8* [Sup Ct, Kings County 2021]) In addition, this court agrees with the principle "... that where the People exercised due diligence and made a good faith effort to obtain and provide all of the discoverable items in a timely fashion, the striking of a certificate of readiness is a ‘drastic remedy which should be used both sparingly and judiciously.’ " ( People v. Pealo , 71 Misc 3d 337,345, 142 N.Y.S.3d 751,756 [Penfield, Just Ct 2021, Mulley J.] ) Finally, it should be noted that CPL § 245.80 (1) states in pertinent part that "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." In this case the defense does not allege that any of the items listed in its objection prejudiced its case in any way. There is no presumption that the failure to provide any item of discoverable material is in and of itself prejudicial to the case of the party entitled to said disclosure.
Conclusion.
The court hereby finds that the prosecution filed a proper certificate of compliance and statement of readiness making the People ready for trial for purposes of CPL § 30.30. Furthermore the court does not find that any of the time since the date of arraignment is chargeable to the People. Wherefore, the defendant's motion to strike the statement of readiness is hereby denied. This constitutes the decision and order of this court.