Opinion
Ind. No. 70806/2023
07-03-2023
The PEOPLE of the State of New York v. Devin MERCADO, Pia St. Lawrence, Defendants.
Melinda Katz, District Attorney (Yong Sam Kim of counsel), for the People. Fern Merenstein, Esq., 718-286-2412, [email protected], Peter Laumann, Esq., 718-286-2047, [email protected], for Pia St. Lawrence, defendant.
Melinda Katz, District Attorney (Yong Sam Kim of counsel), for the People.
Fern Merenstein, Esq., 718-286-2412, [email protected], Peter Laumann, Esq., 718-286-2047, [email protected], for Pia St. Lawrence, defendant.
David J. Kirschner, J. By indictment filed March 6, 2023, defendant Devin Mercado is charged with two counts of criminal possession of a weapon in the second degree (PL § 265.03 [1] [b]), both class C violent felonies, criminal possession of a weapon in the third degree (PL § 265.02 [8]), a class D violent felony, two counts of criminal possession of a firearm (PL § 265.01-b [1]), both class E felonies, and other related charges. Defendant Pia St. Lawrence is charged with two counts of criminal possession of a firearm (PL § 265.01-b [1]), both class E felonies.
These charges are based on the allegations that on October 19, 2022, at approximately 8:00 a.m., inside 107-61 77th Street, 2nd Floor, in Queens County, detectives from the New York City Police Department's Financial Crimes Task Force (NYPD FCTF) executed a search warrant issued by U.S. Magistrate Judge Cheryl Pollak on October 8, 2022. Pursuant to its execution, detectives recovered three loaded handguns. From inside defendant Mercado's bedroom, detectives recovered a SCCY Luger 9mm caliber pistol loaded with four live rounds in the magazine and one in the chamber in a satchel next to the bed, two additional fully loaded 10-round capacity magazines, also next to the bed, along with two boxes each containing 45 additional rounds. From inside defendant St. Lawrence's master bedroom, detectives recovered a Kel-Tec PMR 30 .22 caliber pistol loaded with 26 live rounds in the magazine (27-round capacity) and one in the chamber in the master bathroom vanity cabinet underneath a shelf. Detectives also recovered articles of U.S. Postal mail bearing defendants’ names addressed to 107-61 77th Street, 2nd Floor, in Queens County.
By motion submitted May 16, 2023, defendant St. Lawrence moves for omnibus relief including but not limited to: (1) inspection of the grand jury minutes and/or reduction or dismissal for insufficient evidence or other defects pursuant to CPL §§ 210.20, 210.25, 210.30 and 210.35 ; (2) an order controverting the search warrant issued on October 8, 2022, by U.S. Magistrate Cheryl Pollak; (3) suppression of property under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, § 6, of the New York State Constitution, as improper and fruits of an unlawful arrest; (4) suppression of statement evidence noticed pursuant to CPL § 710.30 ; (5) preclusion of non-noticed statement/identification evidence pursuant to CPL § 710.30 ; (6) a pre-trial voluntariness hearing of statements made by defendant to law enforcement and/or civilians intended to be used by People during cross-examination; (7) an order invalidating the People's Certificate of Compliance under CPL §§ 245.50 (1) and 30.30 (5) ; and (8) reservation of rights to make additional motions as necessary and additional relief that the Court deems just and proper.
Also, by motion submitted May 31, 2023, defendant Mercado moves for omnibus relief including but not limited to: (1) inspection of the grand jury minutes and/or reduction or dismissal for insufficient evidence or other defects pursuant to CPL §§ 210.20, 210.25, 210.30 and 210.35 ; (2) an order controverting the search warrant issued on October 8, 2022, by U.S. Magistrate Cheryl Pollak and granting a Franks /Alfinito hearing; (3) suppression of property under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, § 6, of the New York State Constitution, as improper and fruits of an unlawful arrest; (4) suppression of statement evidence noticed pursuant to CPL § 710.30 ; (5) granting a Sandoval / Ventimiglia / Luck hearing; (6) an order compelling the People to provide a bill of particulars and demand for discovery; (7) (12) directing the prosecution to comply, timely and fully, with the annexed Brady /Vilardi "specific requests"; and (8) reservation of rights to make additional motions as necessary and additional relief that the Court deems just and proper.
The People: (1) oppose dismissal and or reduction of any charges contained in the indictment; (2) oppose defendants’ motion to controvert the search warrant and request for a Franks .Alfinito hearing; (3) oppose defendants’ motion to suppress property; (4) oppose defendants’ motion to suppress noticed CPL § 710.30 statement evidence; (5) oppose defendant St. Lawrence's motion to preclude non-noticed CPL § 710.30 statement/identification evidence; (6) oppose defendant Mercado's application for Sandoval hearing as premature; (7) oppose defendant Mercado's request for an order compelling the People to provide a bill of particulars and respond to his demand for discovery; (8) state their certificate of compliance disclosing discoverable materials was proper; (9) acknowledge their continuing obligations under Brady and Rosario ; and (10) consent to defendant making additional motions within the prescribed statutory period.
After review of the motion papers, the minutes of the proceeding before the grand jury, the indictment and other papers on file with the court, and prior court proceedings, the decision and order of the court on defendants’ respective motions is as follows.
I. Grand Jury Proceeding
Defendants’ motion to inspect the grand jury minutes is granted to the extent that this Court has conducted an in-camera inspection of them. In so doing, this Court examined the evidence in the light most favorable to the People, which "if unexplained and uncontradicted, would warrant conviction by a petit jury" ( People v. Gaworecki , 37 N.Y.3d 225, 154 N.Y.S.3d 33, 175 N.E.3d 915 [2021], quoting People v. Grant , 17 N.Y.3d 613, 616, 935 N.Y.S.2d 542, 959 N.E.2d 479 [2011] ). this Court finds the evidence before the grand jury was both competent and sufficient to support every element of each count in the indictment (see CPL §§ 190.65 [1] ; 210.20 [1]; 210.30 [1]; 70.10 [1]; see also People v. Jensen , 86 N.Y.2d 248, 630 N.Y.S.2d 989, 654 N.E.2d 1237 [1995] ; People v. Calbud Inc. , 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980] ). It is also worth noting that the People enjoy broad discretion in their grand jury presentations and have no obligation to adduce evidence exculpatory or favorable to the defendant ( People v. Mitchell , 82 N.Y.2d 509, 605 N.Y.S.2d 655, 626 N.E.2d 630 [1993] ; People v. Lancaster , 69 N.Y.2d 20, 511 N.Y.S.2d 559, 503 N.E.2d 990 [1986] ). Thus, there is no basis to dismiss or reduce any count in the indictment. Further, the minutes reflect that the District Attorney's legal instructions to the grand jury on the relevant legal principles were adequate and proper ( Calbud , 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 ).
This Court is also satisfied that the proceedings were procedurally proper: the grand jury minutes also reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the District Attorney instructed the grand jury on the law; each witness testified under oath; the District Attorney complied with the applicable rules of evidence in accordance with CPL 190.30 ; and that no unauthorized person within the meaning of CPL 190.25 was present at any time during the proceeding ( People v. Sayavong , 83 N.Y.2d 702, 613 N.Y.S.2d 343, 635 N.E.2d 1213 [1996] ).
Overall, there were no irregularities or defects in the grand jury proceedings rising to the level of impairing the integrity of the proceeding, as would be required for dismissal of the indictment ( People v. Adessa , 89 N.Y.2d 677, 657 N.Y.S.2d 863, 680 N.E.2d 134 [1997] ; People v. Huston , 88 N.Y.2d 400, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). As such, defendants’ application for release of the grand jury minutes beyond that which the District Attorney has provided pursuant to CPL article 245 is denied. Defendants’ remaining arguments relating to the grand jury proceedings have been reviewed and are without merit. Accordingly, the motion to dismiss the indictment is denied. II. Search Warrant
Defendants moved to controvert the search warrant issued by federal Magistrate Judge Cheryl Pollak of the Eastern District of New York. The People oppose. As a preliminary matter, this Court is without authority to controvert a warrant issued by a federal magistrate and executed in accordance with federal law. But it does have authority to evaluate whether a search, issued in federal court, is supported by sufficient probable cause. On this point, the parties do not disagree. And to underscore defendant Mercado, it makes sense that if the People seek to offer evidence from its execution at trial, it should be scrutinized under prevailing New York authority.
Preliminarily, then, defendants have standing to challenge the search warrant, if for no other reason than in relying on the District Attorney's allegations that both resided at the location it authorized to search, 107-61 77th Street, 2nd Floor, in Queens County. That said, this Court conducted an in-camera inspection of the search warrant and underlying affidavit authorizing the police to enter and search this premises resulting in the recovery of, inter alia, a loaded 9mm caliber pistol, a loaded Kel-Tec PMR 30 .22 caliber, two loaded 10-round capacity magazines, two boxes of 90 rounds of ammunition (each containing 45), and articles of U.S. Postal mail bearing defendants’ names.
Regarding its validity in New York, it is well-settled that search warrants reviewed and authorized by a neutral magistrate are presumed valid ( People v. Castillo, 80 N.Y.2d 578, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ; People v. Johnson , 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ). Such a review should be limited to a finding it was supported by probable cause, i.e., that the facts and circumstances considered collectively—as distinguished from a hyper-technical reading—support a reasonable belief evidence of a crime may be discovered at a certain place (see People v. Edwards , 69 N.Y.2d 814, 513 N.Y.S.2d 960, 506 N.E.2d 530 [1987] ; People v. Bigelow , 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; People v. Apelbaum , 33 Misc.3d 4, 930 N.Y.S.2d 401 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011] ).
After carefully examining and considering the warrant, supporting affidavit, and applicable law, this Court finds the search warrant application was amply supported by probable cause and satisfies the Aguilar-Spinelli test.
Defendants further claim the information used to obtain the search warrant was stale at the warrant's issuance and subsequent execution. This Court disagrees. While CPL § 690.30 (1) requires a search warrant be executed not more than ten days after being issued, it provides no time constraint within which a warrant must be issued after law enforcement officers establish probable cause. Nor can the courts set an arbitrary time limit. In determining staleness, courts weigh two considerations: the nature of the crime under investigation and the nature of the property sought by the warrant. The existence of stale information in an affidavit, however, will not render a warrant automatically defective if it also contains additional, more recent, facts constituting probable cause ( People v. Church , 31 A.D.3d 892, 819 N.Y.S.2d 155 [3rd Dept. 2006] ).
As it relates to the nature of the crime, courts will generally find information is not stale when the constituting probable cause indicates a continuing offense. ( People v. Clarke , 173 A.D.2d 550, 570 N.Y.S.2d 305 [2nd Dept. 1991] ; People v. Tune , 103 A.D.2d 990, 479 N.Y.S.2d 832 [3rd Dept. 1984] ; People v. Pierre , 51 Misc.3d 1035, 29 N.Y.S.3d 110 [Sup. Ct., Kings County 2016] ). Even with the passage of time, information giving rise to probable cause may still be sufficient if the property sought is such it would be likely to present despite such delay. ( People v. Varas , 110 A.D.2d 646, 487 N.Y.S.2d 577 [2nd Dept. 1985] ; People v. Fernandez , 210 A.D.3d 693, 177 N.Y.S.3d 631 [2nd Dept. 2022] ).
Here, the nature of the crimes being investigated as outlined in the federal warrant were those of a "continuing nature" sought after a long-term investigation was conducted jointly by the United States Postal Inspector Service (USPIS) and the New York City Police Department (NYPD). And the type of property being searched for—items involved in a check-washing operation—are of such a nature to be present long-term. This Court, therefore, finds that the information contained in the affidavit upon which the warrant was issue was not stale.
Moreover, defendants fail to demonstrate, and no evidence exists, that the warrant application was predicated in whole or in part on intentionally or knowingly perjurious information or with reckless disregard of the truth (see CPL § 690.40 [2] ; Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978] ).
As for defendant St. Lawrence's claim the search warrant was improperly executed, CPL § 690.30 (1) requires a warrant "be executed not more than ten days after the date of issuance" (emphasis supplied). Here, the warrant was issued on October 8, 2022, and executed on October 19, 2022—eleven days after its issuance. The People argue, however, that CPL § 690.30 (1) is inapplicable since the warrant was issued by a federal magistrate and executed by federal agents in accordance with federal law. Such contention, however, is predicated on distinguishing between the application of constitutional doctrines and statutory protocols. Specifically, in analyzing the warrant's sufficiency, the People ask this Court to rely on State search and seizure standards but apply Federal statutory rules for its execution.
Regarding State constitutional application, the Court of Appeals held "the aims of predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens are best promoted by applying State constitutional standards" ( People v. Johnson , 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ). Three years later, they reinforced and strengthened this when applying State law to federal search warrants by highlighting the protections afforded under the State's search and seizure protections. "[If] defendant [is being] tried for crimes defined by the State's Penal Law, we can discern no reason why he should not also be afforded the benefit of our State's search and seizure protections" ( People v. Griminger , 71 N.Y.2d 635, 641, 529 N.Y.S.2d 55, 524 N.E.2d 409 [1988] ; see also People v. Apelbaum , 33 Misc.3d 4, 930 N.Y.S.2d 401 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011] ).
Paradoxically, the People asked this Court to analyze the federally issued search warrant under New York's Aguilar-Spinelli test rather than the Federal Gates standard, yet simultaneously urges it to eschew CPL 690 for federal standards of its execution. Such an incongruous dichotomy not only defies logic but is antithetical to federalism. Obviously, where an explicit conflict between a state law and federal law exists, federal law predominates. But states have always been free to afford greater rights and protections than federal law requires, and when it does, state law presumptively prevails. Accepting the People's argument, then, would endorse the proposition that any state law enforcement agency could simply ask the federal government to obtain and execute a search warrant on an entirely different—and arguably lower—standard.
To be clear, there is no allegation that NYPD FCTF petitioned the USPIS to do their bidding. On the contrary, by all accounts this appeared to be an entirely federal law enforcement investigation with a search warrant executed in good faith. But unlike federal search and seizure law, New York does not embrace a "good faith" exception—yet another glaring basis to reject the application of federal law.
Given this, it would be nonsensical not to apply the protections granted by New York Search and Seizure Law to New York's Criminal Procedure Law. Following the logical progression of the Court of Appeals’ decisions, which apply State standards to search warrant issuance, it becomes evident that defendants charged in State Court with offenses under the New York Penal Law should categorically receive the safeguards afforded by State law. Concluding otherwise opens the door to the diminishment of rights granted to all criminal defendants in New York State the moment a federal law enforcement agency is involved. As such, this Court believes Griminger applies to New York's Search and Seizure constitutional and statutory rubric for any defendant charged under the New York Penal Law regardless of the law enforcement agency that conducted the investigation.
That said, when law enforcement officers fail to execute a warrant within the ten-day statutory period prescribed under CPL § 690.30 (1), they must explain to the issuing court why it was not timely executed and apply for another warrant either attesting that the information upon which it was based is not stale or provide additional facts supporting probable cause. But they cannot merely present an identical warrant containing the same information set forth in the original affidavit. If they fail to do so, evidence obtained from its execution must be suppressed ( People v. Kiah , 156 A.D.3d 1054, 1058, 67 N.Y.S.3d 337 [3rd Dept. 2017] ; People v. Jacobowitz , 89 A.D.2d 625, 452 N.Y.S.2d 679 [2nd Dept. 1982] ; People v. De Jesus , 125 Misc.2d 963, 964, 480 N.Y.S.2d 807 [Sup. Ct., Kings County 1984]. Here, they did neither. And it is of no consequence that the warrant sought items related to a postal check-fraud scheme for federal prosecution, not firearms for State prosecution—at least not under any New York authority. As indicated, the search warrant was executed eleven days after its issuance, which is outside the ten-day statutory period required by CPL 690.30 (1). Accordingly, the firearms, ammunition, and all other items obtained from the execution of the search warrant on October 19, 2022, must therefore be suppressed, and cannot be utilized in the State's prosecution against either defendant.
Regarding defendants’ other arguments relating to the issuance and execution of the search warrant, CPL 690.05 [1], requires the applicant be a duly authorized police officer, district attorney, or other public servant acting in the course of their official duties such as an assistant district attorney (see, CPL § 690.05 [1] ). And, notably, a police officer cannot apply on behalf of an agency without statutory authority for its issuance (see B.T. Prods., Inc. v. Barr , 44 N.Y.2d 226, 405 N.Y.S.2d 9, 376 N.E.2d 171 [1978] ). CPL 690.25 (1) requires the warrant be "addressed to a police officer whose geographical area of employment embraces or is embraced or partially embraced by the county of issuance." Subdivision two further requires it be executed by the police officer to whom it is addressed or their authorized agent. (See CPL § 690.25 [1], [2] ; see also CPL § 120.60 ). While this Court need not address whether a federal agent would be a proper applicant under CPL 690.05 (1), it is patently clear the warrant was not issued by a New York Court pursuant to CPL 690.20. Such issuance is a prerequisite to its execution within the State (see CPL § 690.20 ).
As for whether federal officers were authorized to execute the warrant, the grand jury testimony reflects detectives from the New York City Police Department's Financial Crimes Task Force (NYPD FCTF) executed the search warrant. That federal agents may have been present during, or participated in, its execution is a separate matter, one this Court need not address.
Finally, as it relates to defendant St. Lawrence's argument that the NYPD exceeded the scope of the search warrant by searching her bedroom and bathroom since neither she nor her space were the target of the warrant, this Court disagrees. While here is a dearth of New York authority on this issue, courts generally distinguished between a "multi-unit" building and a "multi-occupancy" unit, the former referring to multiple individual living units (i.e. separate apartments), while the latter describing circumstances where several persons or families occupy the premises together with separate bedrooms but share common living areas.
A search warrant authorizing the search of an entire "multi-occupancy" unit is not defective as overbroad simply because it is based upon the suspected illegal activities of less than all its occupants where all occupants have unrestricted access to the entire premises ( People v. Santana , 154 Misc.2d 994, 586 N.Y.S.2d 858 [Sup. Ct., Westchester County 1992] ; see also People v. Capers , 2020 NYLJ LEXIS 1950 [Sup. Ct., Queens County 2020], aff'd 213 A.D.3d 947, 183 N.Y.S.3d 563 [2nd Dept. 2023] ). Here, though defendants maintained separate bedrooms, nothing before this Court indicates each was precluded, actually or constructively, from gaining access to the other's bedroom or space.
Defendants’ remaining contentions vis-à-vis the issuance and execution of the search warrant are without merit. III. Physical Evidence
Defendants move to suppress property of an evidentiary nature recovered or seized from defendant, specifically a loaded 9mm caliber pistol, a loaded Kel-Tec PMR 30 .22 caliber, two loaded 10-round capacity magazines, two boxes of 90 rounds of ammunition (each containing 45), and articles of U.S. Postal mail bearing defendants’ names, or in the alternative a Mapp hearing, to determine the legitimacy of such seizure ( Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ). Such a hearing, however, presupposes defendants had a legitimate expectation of privacy (see People v. Wesley , 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76 [1988] ); People v. Rodriguez , 69 N.Y.2d 159, 513 N.Y.S.2d 75, 505 N.E.2d 586 [1987] ). As to standing, then, the evidence presented to the grand jury, establishes they do ( People v. Ramirez-Portoreal , 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ; Wesley , 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76 ; Rodriguez , 69 N.Y.2d 159, 513 N.Y.S.2d 75, 505 N.E.2d 586 ). But given these items were allegedly seized pursuant to the execution of a search warrant that this Court found violated CPL § 690 and suppressed in its entirety, this aspect of defendants’ motion need not be addressed.
IV. Statements and Admissions
Regarding statements allegedly made by defendant to investigating and arresting officers, defendant seeks suppression or, in the alternative, that a Huntley/Dunaway hearing be conducted to determine their admissibility ( People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ; Dunaway v. New York , 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979] ). The People oppose.
It should be noted, however, that while People maintain they were properly elicited after obtaining a knowing, intelligent, and voluntary Miranda waiver, it is just that—their assertion. The People nevertheless saw fit to serve notice of their intention to elicit such evidence pursuant to CPL 710.30 (1) (a) thus triggering defendant's right to a hearing on this issue pursuant CPL 710.60 (3) (b) and 710.20 (3). It is therefore incumbent on the People to establish the lawfulness of such statements at an evidentiary hearing where the court may make a finding of facts and conclusions of law ( CPL § 710.60 [6] ).
Accordingly, this Court orders a Huntley/Dunaway hearing be conducted to determine their admissibility ( People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ; Dunaway v. New York , 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979] ).
V. CPL § 710.30 Preclusion
Defendant St. Lawrence's motion to preclude the People from offering in evidence any statements subject to CPL 710.30 (1) (a) for which notice was not provided is denied as premature. Defendants has not specified which, if any, statement(s) the People intend to offer are beyond the statutorily mandated notice provisions pursuant to CPL 710.30.
Similarly, her motion to preclude the People from offering in evidence any identification procedure(s) alleged to have involved defendant pursuant to 710.30 (1) (b) is denied as premature. Defendant has not specified which, if any, identification procedures the People intend to offer are beyond the statutorily mandated notice provisions pursuant to CPL 710.30. In fact, based on the People's representations, no identification within the meaning of CPL 710.30 (1) (b) was conducted.
VI. Voluntariness of Non-Noticed Statements
Defendant St. Lawrence also moves for a pre-trial "voluntariness" hearing for non-noticed statements made by her to any police officers and/or civilians that the prosecution intends to use on cross-examination. Such motion is denied, without prejudice, as premature with leave to renew in the event the People attempt to offer any unnoticed statements.
VII. CPL Article 245
Defendant Mercado's motion to compel the District Attorney to comply with defendant's request for a bill of particulars and demand for discovery or for preclusion of any matter contained in them that the District Attorney refuses to provide is denied. First, CPL article 245 no longer requires a defendant to file or serve a demand for is discovery; indeed, the District Attorney must now automatically provide it.
That said, should a defendant opt to do so, CPL 200.95 clearly requires that they initially submit a bill of particulars and a demand for discovery to the District Attorney. Should the District Attorney refuse to respond to a particular request—and here they responded—defendant may then move to compel disclosure of the item of information the District Attorney refused to provide. There being no allegation that the District Attorney has declined to respond to defendant's request, that portion of defendant's motion is denied without prejudice to renew upon the District Attorney's refusal to disclose information required by law to be disclosed. Upon renewal of the motion, defendant must (1) specify the item(s) of information which the District Attorney has not disclosed, (2) demonstrate that such information is relevant and applicable to this case, and (3) specify the provision of law or authority requiring disclosure of such information.
Defendant St. Lawrence, however, seeks to have this Court declare the People's March 6, 2023, Certificate of Compliance and May 10, 2023, Supplemental Certificate deficient. First, it bears noting that nowhere within Article 245, or CPL 30.30 (5) for that matter, is there a requirement that the People provide every item listed in CPL 245.20 (1) before filing a certificate of compliance and announcing their readiness for trial. In fact, the opposite is true: the People must exercise due diligence in making reasonable inquiries to ascertain their existence.
In this regard, defendant's claim that the People failed to provide numerous items, including surveillance videos and every law enforcement document in their certificate, among other things, is without merit. This Court also finds the People's representation of their good faith efforts regarding the LEOW letters, officers names and commands, and any outstanding discovery relating to memo-books, arrest reports, etc, satisfactory. Though perhaps not in accordance with defendant's unrealistic perfect prosecutor standard for preparing and filing a certificate of compliance—and nothing in the legislations supports such a standard—this Court finds it comports with precisely that which was intended: good faith disclosure, not an indexed, cross-referenced and bate-stamped package neatly tied in a bow. The People need only timely disclose it and certify they have done so. Counsel is then invited to review it.
Regarding grand jury minutes, CPL § 245.20 (1) (b) provides that the People must provide "[a]ll transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant" (emphasis added). Defendant argues that since grand jury reporters are employed by the Queens District Attorney's Office, and are present during testimony, such testimony should be immediately available and provided to him as a condition precedent to filing a certificate of compliance. Of course, grand jury reporters are employed by the Queens District Attorney's Office. As such, they are obviously within the People's custody and control—which the People recognize. They argue, however, that due to a limited availability of transcription resources, the transcript of the grand jury proceeding in this case was not produced and did not become available until after filing their March 6, 2023, Certificate of Compliance. At the outset, what a stenographer records during a proceeding, be it in the grand jury or otherwise, are cryptic notes indecipherable to anyone other than a stenographer—not a verbatim recitation. And they are certainly not intelligible transcripts. In fact, their notes would be unintelligible and effectively useless to anyone other than those who received the extensive, specialized training and education necessary to record and generate a meaningful transcript. Thus, after having taken their notes, it is they who must subsequently review and transmute them into what we colloquially refer to as a transcript.
CPL § 245.20 (1) (b) explicitly requires the People to disclose the transcript of grand jury testimony, not the reporter's notes or work product. Whether a delay in producing the transcript is reasonable may, of course, be the subject of another CPL 245 discussion—but it is untenable to excoriate the failure to provide that which does not exist. And here, their obligation to disclose began on May 4, 2023, when they were created—not when the stenographer took their notes. Their "failure" to produce and include them in their March 6, 2023, Certificate of Compliance, then, did not render it invalid.
Regarding CPL 245.20 (1) (k) (iv), it provides that the People must turn over "[a]ll 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 impeach the credibility of a testifying prosecution witness." This is umbrellaed by CPL 245.20 (1) as being items and information that "relate to the subject matter of the case " (emphasis added). Simply put, this means that the People are not required to disclose material unrelated to the prosecution of the case, other than for impeachment purposes, as a condition precedent to filing their certificate of compliance. See People v. Akhlaq , 71 Misc.3d 823, 144 N.Y.S.3d 835 (Sup. Ct., Kings County 2021) ; People v. Mauro , 71 Misc.3d 548, 143 N.Y.S.3d 511 (Westchester County Ct., 2021) ; People v. Davis , 70 Misc.3d 467, 134 N.Y.S.3d 620 (Crim. Ct., Bronx County 2021) ; People v. Suprenant , 69 Misc.3d 685, 130 N.Y.S.3d 633 (Glen Falls City Ct. 2020).
Finally, the People contend their "disclosure letters" regarding the testifying officers that included information about substantiated and unsubstantiated allegations of misconduct was sufficient for defendants to impeach the prosecution witnesses should defendant so elect. This Court agrees.
It is also worth noting that the People are not required to obtain and disclose records relating to the Civilian Complaint Review Board (CCRB) before filing their certificate of compliance. The CCRB is "an independent agency," that, other than investigating allegations of police misconduct, is not related to law enforcement. It follows, then, the People cannot be deemed to be in possession of that agency's documents. (See About CCRB, https://www1.nyc.gov/site/ccrb/about/about.page, last accessed March 1, 2022). And, since it is not a "New York state or local police or law enforcement agency," this Court need not determine whether the documents defendant seeks "relate to the prosecution of a charge" (see CPL § 245.20 [2] ). Consequently, the People are not deemed to be in "possession" of these records. Furthermore, due to recent administrative and legislative changes, CCRB documents are now accessible to the public, including defendant. Nevertheless, if, and when, the People obtain these documents, they must expeditiously disclose any relevant Brady and Giglio material related to the case.
Additionally, the same can be said for civil lawsuits. If a testifying officer is a named defendant in any civil lawsuit, the People would be deemed to have fulfilled their obligation under CPL 245.20 (1) (k) (iv) once they provide defendant with the relevant and sufficient information that may tend of impeach the credibility of the witness. Additionally, this information should enable defendant to access these publicly accessible court documents if they so wish. Once however, the People do obtain these documents, they are required to disclose and turn over any relevant Brady and Giglio material that is related to the case.
Like CCRB documents and records, the People are not required to disclose any documents or materials created by NYPD's Internal Affairs Bureau (IAB) unrelated to the underlying charges before filing a sufficient certificate of compliance. To hold otherwise would employ an unmanageable and untenable obligation encompassing virtually any document—admissible or otherwise—limited only by defendant's imagination. Most significantly, though, while much has been said about the discovery reform and the sufficiency of certificates of compliance and statements of readiness, suffice to say that had the Legislature intended the People to file every possible document as a prerequisite to such filings, it certainly would have said so. It did not, and with good reason. It's neither rational nor reasonable.
As such, absent any indication that the CCRB/ IAB records defendant seeks arose from the officers’ conduct in this case or are related to the prosecution of a charge, they are not deemed to be in the People's possession. Accordingly, the People were not required to disclose the underlying complaint or CCRB/ IAB proceedings against the officers as a condition of filing a sufficient certificate of compliance and statement of readiness ( People v. Perez , 73 Misc.3d 171, 150 N.Y.S.3d 868 (Sup. Ct., Queens County 2021]).
That said, in keeping with the spirit of CPL § 245.20 (7), ("there shall be a presumption in favor of disclosure when interpreting CPL §§ 245.10, 245.25, 245.20 [1]"), the People are directed, upon request of defendant, to exercise their required due diligence in obtaining the underlying records of actual testifying officers and disclosing them to defendant. Acting in good faith, however, the People have nonetheless provided defendant with information known to them that may tend to impeach the credibility of the witnesses as required by CPL 245.20 (1) (k) (iv). See also CPL §§ 245.50 [1] ; 245.20 [2]).
This Court makes no determination as to their content or admissibility; any such determinations are reserved and deferred to the trial court.
Thus, upon comparison of the discovery items defendant St. Lawrence alleges the People impermissibly withheld with those previously disclosed along with their explanation as to why such items were not disclosed, this Court is satisfied they filed their certificate of compliance certificate in good faith (see CPL 245.50 [1] ). To this end, the items defendant claims were impermissibly withheld were either: (a) previously disclosed to defendant and/or otherwise made available for inspection; (b) not related to the subject matter of the case (see CPL 245.20 [1] ); (c) obtainable by defendant via subpoena (see CPL 245.20 [2] ); (d) not required to be disclosed by statute (see People v. Colavito , 87 N.Y.2d 423, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996] ); (e) not in the People's custody or control; and/or (f) not shown to exist. That said, any specific items, such as memo books or activity logs not provided, the parties are directed to first diligently confer and then, if necessary, seek judicial intervention.
Defendant St. Lawrence's remaining contentions regarding the People's March 6, 2023, Certificate of Compliance and May 10, 2023, Supplemental Certificate are without merit. Having failed to demonstrate, then, that it was defective, defendant's motion to controvert it is denied (see CPL 245.60 [1] ; 245.80).
The District Attorney is, however, advised to review and comply with the Brady order pursuant to the Administrative Order of the Chief Judge and reminded of their ongoing duty to expeditiously disclose under CPL § 245.20 (1)(k) information favorable to the defense as soon as reasonably possible upon their receipt of it as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ), Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972] ), People v. Geaslen, 54 N.Y.2d 510, 446 N.Y.S.2d 227, 430 N.E.2d 1280 [1981] ) and their progeny under the United States and New York State Constitutions, CPL article 245 and Rule 3.8 (b) of the New York State Rules of Professional Conduct. Such obligation includes the duty to learn of such favorable information known to others acting on the government's behalf regardless of its form or whether the District Attorney credits it.
The District Attorney is further reminded of the obligation to preserve and disclose all statements of any witness called to testify and to produce the same prior to that witness testifying as required by People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961] ).
VIII. Prior Criminal Convictions and Bad Acts
Pursuant to CPL 240.43, immediately prior to the commencement of jury selection or earlier if directed to do so by the court, the District Attorney shall notify defendants of all specific instances of any prior uncharged criminal, vicious or immoral conduct of which they have knowledge and intends to use at trial for purposes of impeaching the credibility of defendants. To the extent necessary, a Sandoval hearing is granted and deferred to the trial court ( People v. Sandoval , 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ; see also People v. Ventimiglia , 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ; Luck v. United States , 348 F.2d 763 [D.C. Cir. 1965] ).
IX. Reservation of Rights
Defendants’ motion to reserve the right to supplement and/or amend these motions, or submit additional motions is denied subject to rights under CPL 255.20 (3) to move for further leave upon good cause shown.
This constitutes the decision and order of this Court.