Opinion
Docket No. CR-016898-23QN
09-12-2024
The People of the State of New York v. Lew, Defendant.
For the People: District Attorney of Queens County, Melinda Katz (by Mary Frances McTague Roth). For Mr. Lew: The Legal Aid Society (by Sarah Lemelman).
Unpublished Opinion
MOTION DECISION
For the People: District Attorney of Queens County, Melinda Katz (by Mary Frances McTague Roth).
For Mr. Lew: The Legal Aid Society (by Sarah Lemelman).
Wanda L. Licitra, J.C.C.
Pending before the court is a C.P.L. § 30.30 motion alleging, among other things, that the prosecution failed to file a proper certificate of discovery compliance before stating ready for trial. A proper certificate requires the prosecution to certify that they exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." (C.P.L. § 245.50[1]). Absent "an individualized finding of special circumstances in the instant case," the prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance. (C.P.L. § 245.50[3]). "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." (People v. England, 84 N.Y.2d 1, 4 [1994]).
The requirement that the prosecution exercise reasonable diligence does not create a rule of "strict liability" or require a "perfect prosecutor." (People v. Bay, 41 N.Y.3d 200, 212 [2023]). "However, the fact that the People turned over substantial discovery does not by itself establish due diligence." (People v. Nigel D., 2024 NY Slip Op. 51132[U], at *2 [Sup. Ct., Kings County Aug. 23, 2024]). Rather, "the key question" is "whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery." (Bay, 41 N.Y.3d at 211). "Reasonableness, then, is the touchstone-a concept confirmed by the statutory directive to make '"reasonable inquiries.'" (Id. at 211-212). This question is "case-specific," and it will "turn on the circumstances presented.' (Id. at 212).
On a C.P.L. § 30.30 motion as this one, the prosecution "bear[s] the burden" of "establishing" that they, "in fact," exercised due diligence and made reasonable inquiries "prior to filing" their certificate. (Id. at 213). "If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and-so long as the time chargeable to the People exceeds the applicable CPL 30.30 period-the case dismissed." (Id. at 214). "Conclusory assertions by the People that they filed the COC 'in good faith after exercising due diligence' will not suffice." (Nigel D., 2024 NY Slip Op. 51132[U], at *2). "Upon a challenge to a [certificate of compliance], it is incumbent upon the People to detail the efforts they made to comply with their discovery obligations." (Id.; see also People v. Hooks, 78 Misc.3d 393, 402 [Crim. Ct., Kings County 2023] [the prosecution must "show[] how their actions were diligent"]; People v. Critten, 77 Misc.3d 1219 [A], at *3 [Crim. Ct., NY County 2022] [assessing "due diligence requires the People to show how due diligence was exercised"]; People v. McKinney, 71 Misc.3d 1221 [A], at *7 [Crim. Ct., Kings County 2021] [the prosecution must provide the "necessary factual basis" on which a court could find "due diligence"]).
Here, the defense points to several places in NYPD paperwork indicating that the arresting officer referred this case to the Special Victims Unit (or "SVU"). In the Omniform System Arrest report, the arresting officer wrote, "SVU notified." (Def. Mot. Ex. F). In the scratch complaint report, he also wrote, "SVU notified." (Def. Mot. Ex. G). Indeed, he specifically listed "Det. Sebuf" as the officer at SVU whom he notified. (Id.). The same is listed in another scratch police report. (Def. Mot. Ex. H.). The defense also submits a copy of the NYPD Patrol Guide's rules regarding "complaints involving sex crimes," which require officers to "promptly report all cases involving a sex crime to a Special Victims Unit and provide preliminary details." (Def. Mot. Ex. I). The Special Victims Unit is then mandated to, at the very least, "notify patrol supervisor, precinct of occurrence and provide investigative unit's estimated time of arrival to incident," and "notify desk officer, precinct of occurrence and provide investigative unit's estimated time of arrival to incident." (Id.). The Special Victims Unit is also required to take further action if a person is arrested. (Id.). The instructions say: "Notify Special Victims Unit investigative squad concerned, provide details and coordinate response to incident." (Id.).
Despite all this, the prosecution here provided no documents or material whatsoever from the Special Victims Unit. In their response to this motion, the prosecution declares, in just one sentence:
With respect to Special Victims paperwork, the People have made diligent good faith efforts to discern the existence of any of the documents named by the Defendant, and the listed documents do not exist.
The prosecution provides no factual record substantiating this summary conclusion. They do not explain how they concluded that no Special Victims Unit documents exist, like whom they contacted or even when or whether they ever contacted anyone at all. They do not explain on whose representation, if anyone's, they are basing that conclusion. And without such a factual record, the court cannot analyze the reasonableness of their conclusion. That is why "[c]onclusory assertions by the People that they filed the COC 'in good faith after exercising due diligence' will not suffice." (Nigel D., 2024 NY Slip Op. 51132[U], at *2). And it is why "[i]f the People determine that certain material does not, in fact, exist, they should explain the inquiries they made that led to that conclusion." (People v. Georgiopoulos, 71 Misc.3d 1215 [A], at *4 [Sup. Ct., Queens County 2021]). Here, the lack of a factual record to substantiate the prosecution's sweeping conclusion is particularly problematic, as both other discovery and the NYPD Patrol Guide suggest that Special Victims Unit material would likely exist.
This is a sex-crimes case, and any reasonable prosecutor would know to determine whether and how Special Victims was involved in a sex-crimes case before filing a certificate of compliance. These are not merely tangential documents created in a sex-crimes investigation. As noted above, the NYPD's Patrol Guide mandates that a case like this one be referred to the Special Victims Unit, and there are several indications in other discovery indicating that such a notification was, in fact, made. But the prosecution here does not even indicate that they contacted anyone about SVU material at all prior to filing their certificate. Instead, they simply assure the court that they "made diligent good faith efforts to discern the existence of any of the documents named by the Defendant" and then declare, without factual basis, that despite all indications otherwise, the "documents do not exist." This summary conclusion leaves the court with nothing to adjudicate. The court cannot make a finding of due diligence "when the People have made only bare, conclusory assertions that do not detail the steps they took, prior to certifying compliance, to ascertain [the existence of] discoverable materials." (McKinney, 71 Misc.3d 1221[A], at *7). As a result, the prosecution has not met its burden of establishing: (1) that they, in fact, made inquiries regarding SVU documents in this sex-crimes case prior to filing their certificate; and (2) that those inquiries were reasonable. (See People v. Wharton, 2024 NY Slip Op. 24235, at *3 [App. Term, 2d Dep't Aug. 13, 2024] ["As the record... is bereft of any information as to whether the People made reasonable inquiries with respect to the above-referenced materials prior to filing their COCs, the People failed to show that they exercised due diligence."]).
Accordingly, the prosecution's certificate was not proper, and since they fail to establish special circumstances, their statement of readiness was illusory. The prosecution commenced this case on June 12, 2023. Thus, they had until Monday, September 11, 2023, to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The prosecution has failed to show that they did so. The prosecution also fails to establish that any time between those dates "should be excluded" under C.P.L. § 30.30[4] and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 A.D.3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 A.D.2d 1122, 1122 [4th Dep't 1993]). Indeed, the prosecution does not make out any reason why any such exclusion should apply before March 5, 2024, when the court set a motion schedule. Thus, the clock runs from June 12, 2023, to March 5, 2024. That is 267 days. The case must be dismissed. (See C.P.L. § 30.30[1][b]).
Any remaining issues are moot.
The foregoing constitutes the order and decision of the court.