Opinion
No. CR-012933-23QN
09-30-2024
The People of the State of New York v. Nunez, Defendant.
For the People: District Attorney of Queens County, Melinda Katz (by Kristina Colon, Esq.) For Mr. Nunez: Scott Grauman, Esq.
Unpublished Opinion
For the People: District Attorney of Queens County, Melinda Katz (by Kristina Colon, Esq.)
For Mr. Nunez: Scott Grauman, Esq.
Wanda L. Licitra, J.
Pending before the court is a C.P.L. § 30.30 motion to dismiss alleging that the prosecution's statement of readiness was illusory. It argues their readiness was illusory because they failed to first file a proper certificate of automatic discovery compliance. A necessary component of a proper certificate of compliance is that, prior to filing it, the prosecution "in fact" exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (See generally People v. Bay, 41 N.Y.3d 200, 213 [2023]). 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." (Bay, 41 N.Y.at 212). "However, the fact that the People turned over substantial discovery does not by itself establish due diligence." (People v. Nigel D., 83 Misc.3d 1280 [A], 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., 83 Misc.3d 1280[A], 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"]).
Bay requires a case-specific analysis. (Bay, 41 N.Y.at 212). The prosecution here has accused Mr. Nunez of false personation, (P.L. § 190.23), allegedly occurring during an automobile stop. At the upcoming suppression hearing, they intend to prove that the arresting officer knew that Mr. Nunez provided a false name because "he... looked at a report via DAS-lite." (Pr. Resp. at 11). This report, also called an "Entity Report," provides "the defendant's photo, name, date of birth, phone number, physical attributes, and arrest history." (Id.). The prosecution learned the officer "knew the defendant was providing him with the wrong pedigree information" because of this report when they "prepped the witness... the morning of the hearing." (Id. at 14). "[A]s part of that prep," they explain, they "had [the officer] walk through the events just as they happened on the date of the incident." (Id.). Shortly after learning that the officer had relied upon the DAS Entity Report to determine that Mr. Nunez provided a false name, the prosecution disclosed the report.
The prosecution first argues that upon learning that the officer relied on the DAS Entity Report to determine that Mr. Nunez provide a false name, they disclosed the report without any delay. That is true, but it is not the point. The "key question" here is "whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery" prior to filing their certificate of compliance. (Bay, 41 N.Y.3d at 211; see id. at 213 ["[T]he People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure."] [emphasis added]).
The prosecution next argues that the DAS Entity Report "did not exist at the time the People filed their original COC," and so they were under no obligation to disclose it. They assert that on the day of the arrest, the officer "merely looked at a report via DAS-lite" and "did not save or download the report." Thus, they imply, at the time of their initial certificate, there was no report to disclose. The prosecution cites an Appellate Division case, People v. Jenne, 224 A.D.3d 953 [3d Dep't 2024], to support this claim.
This argument is perplexing. For starters, the supposed "report" at issue in Jenne is not like the report at issue here. In Jenne, a DOCCS deputy superintendent observed a JPay message sent by Mr. Jenne to the complainant. In other words, while the deputy superintendent testified that he "ran a report" on JPay, he in fact simply viewed Mr. Jenne's JPay message. Here, in contrast, the NYPD officer did, in fact, review an actual report-one created and maintained by the NYPD, at that. (See C.P.L. § 245.20[2] [noting that police records related to a prosecution of the charge are in the prosecutor's constructive possession]). Contrary to the prosecution's claim, the DAS Entity Report did exist at the time they filed the certificate of compliance; indeed, it existed at the time of the arrest. It is a report that resides in the NYPD's own database. The mere fact that an officer did not hit "save" or "download" when he viewed this NYPD report sitting on an NYPD database is a distinction without a difference.
"JPay is a company that provides services to incarcerated individuals... that allows for... the sending and receiving of messages through email, 'videogram' or instant messaging." (People v. Jenne, 224 A.D.3d 953, 955 n.1 [4th Dep't 2024]).
A DAS Report is simply a report corresponding to a person's identity as stored in the NYPD's Domain Awareness System. (E.g., People v. Amir, 76 Misc.3d 1209 [A], at *3 [Crim. Ct., Bronx County 2022]).
But in any event, again, the relevant question is not whether the prosecution failed to disclose a document; rather, it is whether the prosecution established that they exercised due diligence to ascertain the existence of discoverable material prior to filing their certificate. On the record supplied, the answer is that question here is no. The problem is not simply that the prosecution belatedly disclosed a report. Rather, the problem is that the prosecution apparently did not ascertain the sequence of events that led to the arrest in this case until "the morning of the hearing" when they "had [the officer] walk through the events just as they happened on the day of the incident." (Pr. Resp. at 14). Once they finally-and very belatedly-had this conversation with the arresting officer, they recognized that the report needed to be disclosed. But "due diligence" to "ascertain" the existence of discoverable material, (C.P.L. § 245.50[1]), requires prosecutors in a case like this to speak to the arresting officer and have him walk through what led to the arrest well before the very day of the suppression hearing, over one year after the case commenced. A prosecutor cannot be said to have diligently ascertained the existence of discoverable material when they waited so long to even ask their arresting officer to walk through what led up to an arrest, especially when those events are what underlie a charge in the case.
Consequently, the certificate of compliance was improper, and the attendant statements of readiness were invalid. The prosecution commenced this case on May 7, 2023. Thus, they had until August 5, 2023, to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The prosecution fails to show that they did so. The prosecution also fails to show 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]). Indeed, the prosecution does not make out any reason why any such exclusion should apply before June 11, 2024, when this motion schedule was set. (C.P.L. § 30.30[4][a]). Thus, the clock runs from May 7, 2023, to June 11, 2024. That is 401 days.
The case must be dismissed. (See C.P.L. § 30.30[1][b]).
The foregoing constitutes the order and decision of the court.