Summary
In People v McKinney, 71 Misc 3d 1221 [Crim Ct Kings County 2021], that Court reasoned that the use of the word "all" in CPL § 245.20(1)(k)(iv) is intended to expand the disclosure obligations with regard to impeachment materials beyond those directly related to the current Court action.
Summary of this case from People v. Sozoranga-PalaciosOpinion
CR-019208-20KN
05-19-2021
The PEOPLE of the State of New York v. Shakin MCKINNEY, Defendant.
For the defendant: John Brewer, The Legal Aid Society. For the People: Irene Castro, Kings County District Attorney's Office.
For the defendant: John Brewer, The Legal Aid Society.
For the People: Irene Castro, Kings County District Attorney's Office.
Michael D. Kitsis, J.
The defendant, charged with Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2)); Menacing in the Second Degree (P.L. § 120.14(1)); and Menacing in the Third Degree (P.L. § 120.15); now moves for an order deeming the People's Certificate of Compliance invalid and dismissing the information pursuant to C.P.L. § 30.30(1)(b).
After careful review of the defendant's motion, the People's response, the defendant's reply, and all relevant legal authority, the motion to dismiss is granted. The Court finds that 91 chargeable days have accrued since arraignment.
October 7, 2020 — December 7, 2020
On October 7, 2020, the defendant was arraigned on a misdemeanor complaint on which the highest charge was a Class A misdemeanor, punishable by a maximum imprisonment term of one year. Thus, the People had 90 days to be ready to proceed to trial. C.P.L. § 30.30(1)(b). The defendant was released on his own recognizance and the case was adjourned to December 7, 2020 for conversion and for the People to comply with their discovery obligations under Article 245.
61 chargeable days.
December 7, 2020 — January 6, 2021
On December 7, 2020, the case was conferenced and adjourned for the People to provide a supporting deposition and discovery. On December 24, 2020, the People served and filed a supporting deposition, a Certificate of Compliance (COC) pursuant to C.P.L. § 245.50(1), and a Statement of Readiness for trial (SOR). A review of the court file does not reveal whether the requisite inquiry into the People's actual readiness, under C.P.L. § 30.30(5), was made on the following court date. However, based on the discussion below, the Court finds that the People's COC was incomplete, and therefore the People were not actually ready for trial on December 24, 2020. Consequently, the People are charged for the entire adjournment. See People v. Brown , 28 NY3d 392, 404 (2016) ( citing People v. England , 84 NY2d 1, 4 (1994) ).
30 chargeable days.
January 6, 2021 — April 6, 2021
On January 6, 2021, the case was conferenced, and the defendant was directed to serve and file a reciprocal Certificate of Compliance, as required by C.P.L. § 245.50(2). The case was adjourned to April 6, 2021. Because the adjournment was for the defendant to comply with his discovery obligations, this adjournment is excluded. See C.P.L. § 30.30(4)(a).
0 chargeable days.
April 6, 2021 — May 19, 2021
On April 6, 2021, the case was conferenced, and newly assigned defense counsel announced that he would challenge the People's previous Certificate of Compliance and file a motion to dismiss. The Court set a motion schedule, adjourning the case to May 19, 2021 for decision. Periods for motion practice are excludable under C.P.L. § 30.30(4)(a), so this adjournment is excludable.
0 chargeable days.
The December 24 Certificate of Compliance
As noted above, on December 24, 2021 the People served and filed a certificate of compliance. The defendant has challenged the validity of the certificate and argues that there are five categories of outstanding discovery.
Text Messages
C.P.L. § 245.20(1)(e) requires the prosecution to disclose "all statements, written or recorded or summarized in any writing or recording made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto[.]" The defendant argues that this category includes the text messages sent between the arresting officer and his partner while on the scene. The People have responded that, according to Officer Genau, "the text messages were erased a long time ago" and that the purpose of the messages had been for Officer Genau to check that Detective Rivera "was fine as Detective Rivera was alone with the defendant and witnesses." Peo. Aff. & Memo. of Law p. 5-6 (Apr. 27, 2021). In an email to the Court and defense counsel, attached as Court Exhibit 1, the assigned ADA stated that Detective Rivera also does not have a copy of the text messages. Email from the assigned ADA (May 14, 2021) (Court Exhibit 1). Neither Detective Rivera nor the PSA 1 precinct's desk sergeant were aware of any backup or storage system for preserving text messages on NYPD-issued phones. Id. The People do not establish that any steps were taken to try to preserve the text messages prior to their erasure.
Based upon the representations of the People, the text messages appear to constitute lost or destroyed material; failure to disclose lost or destroyed material may be remedied by a motion for sanctions under C.P.L. § 245.80.
Complaint Against The Defendant's Stepson
Following the defendant's arrest, the complaining witness told police officers that the defendant's stepson had threatened her and menaced her with a knife. The interaction between the complaining witness and the defendant's stepson was alleged to have happened after the defendant's arrest. See Def. Aff. ¶ 15-16 (Apr. 6, 2021). Police paperwork was generated in connection with the allegations against the defendant's stepson, and the defendant claims that he is entitled to this paperwork under C.P.L. § 245.20(1)(e). The People respond that they are not required to disclose the paperwork because the complaint against the defendant's stepson was closed when the defendant was arrested. Peo. Aff. & Memo. of Law p. 6 (Apr. 27, 2021). Additionally, the People state that the People were unaware of the complaint against the defendant's stepson until the defendant raised it, and contend that the complaint against the defendant's stepson is duplicative of the complaint against the defendant. Id. The People do not address any additional police records that may have been generated in connection with the complaint against the defendant's stepson, such as activity log reports or body camera footage.
According to the People, the complaint against the defendant's stepson was linked to the complaint against the defendant, because of their familial relationship and because the complaining witness in each report is the same. Because the complaint accuses a different individual of committing a different, albeit similar, offense, the Court fails to see how the information contained in any resulting report could be duplicative of the complaint report that was created relating to the charges against the defendant.
The fact that the complaint against the defendant's stepson has been closed, whether erroneously or not, and that the People were unaware of these materials, which were generated by NYPD and therefore presumed to be in the People's possession, does not satisfy the People's discovery obligations. However, the defendant is not charged with having acted in concert with his stepson to menace the complainant after the defendant had already been placed under arrest. The allegations against the defendant's stepson could not be used to prosecute the charges that are pending against the defendant, and the Court fails to see how these allegations, or any documentation of these allegations, are germane to any defense the defendant could raise. Therefore, the People were not required to disclose these items as part of their initial discovery obligations.
February 2019 Incident
According to the defendant, police paperwork in this case references a previous incident in February 2019, and the defendant argues that he is entitled to all police paperwork connected to that incident. The People have responded that the February 2019 incident did not involve the defendant, or anyone connected to the defendant; rather, in what appears to be a wholly unrelated incident, the complaining witness had reported that someone had thrown a rock against her vehicle, damaging it. Peo. Aff. & Memo. of Law p. 7 (Apr. 27, 2021).
The broad disclosure requirements imposed by Article 245 are restricted to material and information that "relate to the subject matter of the case[.]" C.P.L. § 245.20(1). Similarly, statements and police reports that must be disclosed are those which are "relevant to any offense charged or to any potential defense thereto[.]" C.P.L. § 245.20(1)(e). The fact that the complaining witness has made a previous police report for an unrelated incident, occurring a year and a half before the instant allegations, has no apparent bearing on any of the charges or a potential defense to them. Therefore, any material and information in connection with the February 2019 incident need not be disclosed as part of the prosecution's initial discovery obligations.
The defendant argues that a previous complaint may have bearing on the complainant's credibility and so must be disclosed pursuant to C.P.L. § 245.20(1)(k)(iv). This would be true only if the information established a possibility that the previous complaint by the complaining witness had been falsely made. See People v. Diaz , 20 NY3d 569, 576 (2013) (complainant's history of making false allegations was material issue of defendant's defense); People v. Bridgeland , 19 AD3d 1122, 1123 (4th Dept. 2005) (complainant's credibility "impeached with evidence that she had possibly made prior false allegations of abuse") (emphasis added). A prior, true complaint by the complaining witness has no bearing on any potential defense, and does not tend to impeach the complainant's credibility. If the defendant can set forth a factual basis showing that the previous incident is reasonably likely to be material to the instant case, he can file a motion seeking additional disclosures pursuant to C.P.L. § 245.30(3). However, in the absence of any showing that the February 2019 complaint constitutes a false allegation, or otherwise has some bearing on the complainant's credibility, the Court sees no connection between that incident and the allegations charged here, and the People were not required to disclose the materials and information related to that incident as part of their initial discovery obligations.
Although not raised in the defendant's motion, the People stated in their response that the defendant's daughter initiated a complaint against the complaining witness for harassment on March 10, 2020. Peo. Aff. & Memo. of Law p. 7 (Apr. 27, 2021). The defendant then argued in his reply that the belated disclosure of this complaint invalidated the People's COC. The complaint report provided by the People states that the defendant's daughter complaint has been closed, but does not indicate whether the complaining witness was arrested as a result of that complaint. Nor have the People explained their belated disclosure of the complaint report. The prior complaint accusing the complaining witness of committing the offense of harassment against the defendant's daughter constitutes "evidence and information ... that tends to ... impeach the credibility of a testifying prosecution witness." C.P.L. § 245.20(1)(k)(iv). Because the report containing this information was generated and maintained by NYPD, it is presumed to be in the possession of the People. C.P.L. § 245.20(2).
Although the People themselves raised the fact of the complaint report against the complaining witness and their belated disclosure, they provided no explanation why this item was not disclosed until several months after their Certificate of Compliance. See Peo. Aff. & Memo. of Law p. 7 (Apr. 27, 2021). The lone statement the People make in their papers about their diligence in ascertaining the existence of discoverable items and making them available to the defendant is the following single sentence: "The People after making diligent inquiries with the arresting officers and the PSA 1 precinct concerning discovery had provided all known discovery items to the defense." Peo. Aff. ¶ 8 (Apr. 27, 2021). This bare-bones assertion does not provide the Court with the necessary factual basis to make a finding that the People have, in fact, acted diligently, especially in light of the deficiencies in the People's December 24 Certificate of Compliance, including the failure to disclose impeachment material and all police reports, as detailed below. The People complain repeatedly about the defendant's failure to timely challenge the People's Certificate of Compliance, but ignore their own obligation to be diligent in the first instance, and further to provide facts explaining the steps they took to comply with their discovery obligations, prior to certifying compliance. The single sentence contained in the People's papers states their own conclusion that they were diligent, but does not permit the Court to independently, based on facts, draw the same conclusion.
Body Worn Camera Footage
C.P.L. § 245.20(1)(g) requires the prosecution to disclose "all tapes or other electronic recordings[.]" Additionally, C.P.L. § 245.20(1)(e) requires the prosecution to disclose "all statements, written or recorded or summarized in any writing or recording made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto." Such statements are often contained in body worn camera footage. Here, the People disclosed the body worn camera (BWC) footage of two officers, Officer Genau and Detective Rivera, prior to certifying compliance. The defendant has challenged this discovery as incomplete, noting that there were at least two additional officers who were the first to respond to the scene. The People then provided activity log reports for two more officers, Officer Beale and Officer Gibbons, and a supplemental Certificate of Compliance on April 27, 2021; however, the People have not yet disclosed the BWC footage of these two officers. The People assert that they were unaware that the arresting officer and his partner were not the initial responding officers. The People have also attached the body-worn camera footage checklist created by the arresting officer, which lists only footage for Officer Genau and Detective Rivera.
Under C.P.L. § 245.55(3)(a), the arresting officer is required to notify the prosecution in writing of any known police recordings made or received in connection with the investigation of a case. If the prosecution's failure to disclose such a recording is "due to a failure to comply with this obligation by police officers ... the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.80[.]" C.P.L. § 245.55(3)(b). The defendant has identified additional officers who were present on scene and who may have generated body worn camera footage. However, the statute permits the People to rely on the arresting officer's information regarding the existence of recordings when certifying their compliance with discovery. Therefore, the failure to include body worn camera footage beyond what was identified on the arresting officer's checklist will not vitiate the People's Certificate of Compliance.
But the failure to include additional body worn camera footage was not the only deficiency. In investigating the defendant's challenge and request for additional body-worn cameras, the People learned about the involvement of Officer Beale and Officer Gibbons, and provided their activity log reports. Additionally, the defendant points out that the body worn camera footage which was initially provided shows an officer with shield number 7828 who is at the scene for approximately 45 minutes. Def. Aff. ¶ 19 (May 5, 2021). The defendant states that the NYPD database identifies this shield number as belonging to Officer Sylwester Kopec of Public Service Area 1, the same command as the arresting officer's. Id. The People have not provided Officer Kopec's activity log report or other paperwork, as required by C.P.L. § 245.20(1)(e), or identified him as law enforcement personnel with "evidence or information relevant to any offense charged or to any potential defense thereto," as required by C.P.L. § 245.20(1)(d).
The People state that they "were informed by Detective Rivera and Officer Genau that on October 6, 2020 they were the responding officers and the ones who went on to investigate and make the arrest on this case. These types of cases are typically handled by the PSA 1 unit since they involve housing. On April 26, 2021, the People learned that two officers of the 60 precinct briefly responded to the location and immediately left the scene as Detective Rivera and Officer Genau were working on the case." Peo. Aff. ¶¶ 12-13 (Apr. 27, 2021). The People do not explain how they learned that two officers from the 60th precinct had initially responded; nor do the People account for their failure to disclose any evidence or information related to Officer Kopec's involvement in the case, despite the fact that he was also from PSA 1.
Police Disciplinary Records
C.P.L. § 245.20(1)(k) requires the People to disclose seven types of information that could have a mitigating or exculpatory effect on the defendant's case. In relevant part, the statute requires that the People disclose "all evidence and information ... that tends to ... impeach the credibility of a testifying prosecution witness." C.P.L. § 245.20(1)(k)(iv). This information must be disclosed "whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information." C.P.L. § 245.20(1)(k).
Here, the People have provided disciplinary summaries for Officer Genau and Detective Rivera, including four substantiated NYPD complaints and two CCRB complaints resulting in adverse findings, but they have provided none of the underlying records. The People assert that their disclosure obligations are satisfied by providing the summaries. This Court disagrees.
The People argue that preexisting Brady case law did not require the disclosure of underlying records, and that C.P.L. § 245.20(1)(k) merely codified preexisting Brady case law. While the list of items for which disclosure is required may have been partially drawn from Brady , see e .g. William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY C.P.L. § 245.10, the People's specific discovery obligations under C.P.L. § 245.20(1)(k) go beyond the Supreme Court's mandate in Brady v. Maryland , 373 U.S. 83 (1963). Importantly, the statute abandons the "materiality" requirement of Brady, see 373 U.S. at 87, in favor of broader disclosures, encompassing "all evidence and information" which "tends to impeach the credibility of a testifying prosecution witness ... irrespective of whether the prosecutor credits the information." C.P.L. § 245.20(1)(k). More expansive than Brady , C.P.L. § 245.20(1) also requires the disclosure of " all evidence and information" (emphasis added), without regard for whether such evidence and information is already known to the defendant, or was previously disclosed in a different form. Compare People v. LaValle , 3 NY3d 88 (2004).
Among the authorities the People rely on in support of this position, the People cite several unpublished trial court decisions; since the People have not provided copies of the unpublished decisions to the Court, the Court is unable to consider them. Although the People did attach, as Exhibit 6, an unpublished trial court decision on this topic, it is not actually referenced anywhere in the People's papers.
Perhaps most relevant to this decision is the more encompassing definition for what constitutes the prosecution's "possession or control" under Article 245, as opposed to how that phrase was applied under Brady . In People v. Garrett , the Court of Appeals ruled that "when a police officer engages in illegal conduct in the course of his or her investigation or prosecution of the defendant, knowledge of that misconduct may be imputed to the People for Brady purposes, regardless of the officer's motivation or the prosecutor's actual awareness." 23 NY3d 878, 888-89 (2014) (citations omitted). However, the Court held that impeachment material arising from conduct unrelated to the officer's duties in the investigation of the defendant's case occurs when "the offending officer is not acting as ‘an arm of the prosecution’ when he or she commits the misconduct, and the agency principles underlying the imputed knowledge rule are not implicated." Id. at 889 (citations omitted).
Article 245 does away with that distinction. In C.P.L. § 245.55(1), the Legislature mandated that the district attorney, as well as the assigned assistant, maintain a "flow of information" with the police department "sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) " of C.P.L. § 245.20(1) (emphasis added). C.P.L. § 245.20(1)(k), in turn, specifically requires disclosure of " all evidence and information" — not just summaries.
Previously, the disclosure of underlying police personnel records was limited by Civil Rights Law § 50-a, which made such records confidential absent a lawful court order mandating disclosure. See People v. Cooper , 2021 NY Slip Op 21039 (Erie Co. Ct. 2021). In repealing Civil Rights Law § 50-a, the Legislature found that that statute had "served to undermine the public policy goals of the Freedom of Information Law, of making government agencies and their employees accountable to the public." Id. at 4-5; see also Pub. O.L. § 84 ("The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government[.]"). In repealing the restrictions governing the disclosure of police personnel records in favor of promoting greater openness and transparency, the Legislature has maintained necessary privacy protections, permitting the redaction of certain personal information from law enforcement disciplinary records, such as home addresses and social security numbers. Pub. O.L. §§ 87(4-a), 87(4-b), 89(2-b). It is also important to recognize that the scope of discovery is not synonymous with the scope of permissible cross-examination; the trial court maintains its traditional discretion to control cross-examination. People v. Smith , 27 NY3d 652 (2016).
C.P.L. § 245.20(1)(k) requires the People to disclose "all evidence and information," and this Court interprets that language to require exactly what those words say. So long as the evidence and information has a tendency to "impeach the credibility of a testifying prosecution witness," the People must disclose it. C.P.L. § 245.20(1)(k)(iv).
However, not all allegations of misconduct have a tendency to impeach credibility. The NYPD determines a charge to be "exonerated" where the complained of act was "legal, proper and necessary and ‘unfounded’ when the[ ] evidence establish[es] that the act did not occur." People v. Randolph , 69 Misc 3d 770, 772 (Sup. Ct. Suffolk Co. 2020). Under these definitions, a complaint which was exonerated or unfounded would not tend to impeach the credibility of the officer who had been so accused. Conversely, a complaint which has been ‘substantiated’ is one "where it is determined that the facts clearly support the allegation, [and] ‘unsubstantiated’ when the allegation cannot be resolved because sufficient evidence is not available." Id. A substantiated allegation has a tendency to impeach the witness's credibility; an unsubstantiated allegation at the very least provides defense counsel with a good faith basis to inquire into previous potential misconduct, as well as a basis to conduct their own investigation. See People v. Smith , 27 NY3d 652, 662 (2016). Therefore, disclosure of the underlying records for substantiated and unsubstantiated, and not just summaries of misconduct, is required. See People v. Porter , 71 Misc 3d 187, 190 (Crim. Ct. Bx. Co. 2020) ("[T]he clear intent of the legislature is to further enable defense access to [police personnel] files."); People v. Randolph , 69 Misc 3d 770 (Sup. Ct. Suffolk Co. 2020).
In relying on a narrower reading of their statutory obligations, the People have cited several trial court decisions approving that interpretation, and to date, no appellate court has provided specific guidance contrary to the People's position. Therefore, the Court deems that the People acted reasonably and in good faith in making only the disclosures they believed to be required. People v. Porter , 71 Misc 3d 187, 190-91 (Crim. Ct. Bx. Co. 2020). The Court disagrees with the People's interpretation. The People's obligation extends to the NYPD personnel records which are deemed to be within the People's custody and control. C.P.L. §§ 245.20(2), 245.55(1).
Additionally, the defendant has provided to the Court and the People a letter from the Civilian Complaint Review Board (CCRB) to The Legal Aid Society stating that CCRB allegation histories for all NYPD officers who were active in or after 2015 have been provided to all New York City District Attorney Offices. CCRB has also published on its web site all CCRB complaints filed since 2000, excluding open allegations, successfully mediated allegations, mediation attempted allegations and referrals to NYPD or other investigative entities. Therefore, while CCRB is an independent agency that is not under the People's control, the People are obligated to turn over to the defendant any relevant CCRB records that they have in their actual possession if those records are not available on CCRB's web site.
Civilian Complaint Review Board, NYPD Member of Service Histories, available at www1.nyc.gov/site/ccrb/policy/MOS-records.page (last visited May 18, 2021).
Conclusion
After certifying compliance with their discovery obligations, the People learned that text messages between the two main police officers, exchanged while on the scene and interacting with the defendant and witnesses, had been destroyed; belatedly disclosed activity log reports for two officers and impeachment material for their complaining witness; and have still not addressed the involvement of another police officer on the scene. The Court cannot excuse these deficiencies and 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 and make available discoverable materials. Because the People have provided no factual basis that would support a finding of due diligence, the Court concludes that the items of missing discovery detailed above invalidate the COC that was served and filed on December 24, 2020. Although the People have since provided additional disclosures, they have still yet to provide any information related to Officer Kopec. The People have accrued 91 chargeable days, and therefore have exceeded the time in which they were required to be ready pursuant to C.P.L. § 30.30(1)(b).
For these reasons, the defendant's motion is granted and the case is dismissed.
The foregoing constitutes the Decision and Order of the court.