Opinion
Docket No. CR-020409-23BX
05-23-2024
The People of the State of New York, v. Jordani Sanchez Paulino, Defendant.
For the People: David Berris, Assistant District Attorney, Office of the Bronx District Attorney For the Defendant: Alice Thompson, Esq., The Bronx Defenders
Unpublished Opinion
For the People: David Berris, Assistant District Attorney, Office of the Bronx District Attorney
For the Defendant: Alice Thompson, Esq., The Bronx Defenders
Carmen A. Pacheco, J.
Defendant moves for an order: (i) deeming the People's November 10, 2023 Certificate of Compliance improper; (ii) deeming the People not ready for trial pursuant to CPL §§ 245.50(3) and 30.30(g); (iii) dismissing the criminal court information pursuant to CPL §§ 30.30(1)(b); 30.30(5-a); 210.20(1)(g); (iv) granting defendant an opportunity to file a reply pursuant to People v. Luperon, 85 N.Y.2d 71, 78 (1995); and granting defendant a hearing on the underlying facts pursuant to People v. Allard, 28 N.Y.3d 41 (2016); (v) suppressing all observations of defendant made by the police; (vi) suppressing all evidence relating to defendant's chemical test; (vii) suppressing all statements taken from defendant; (viii) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; and (v) granting such additional relief as the Court deems just and proper.
For the foregoing reasons, defendant's motion to dismiss the accusatory instrument is granted.
Factual and Procedural History
Pursuant to the accusatory instrument, defendant while driving under the influence of alcohol collided with a parked car causing the parked car to crash into another vehicle. Officer Rochayne Clarke arrived at the scene and observed defendant exit a black 2011 Honda Accord that had damage to the front bumper. Thereafter, Officer Clarke approached defendant and noticed that defendant had a strong odor of alcohol from his breath and had bloodshot eyes. As a result, defendant was arrested and transported to the Intoxicated Driver's Testing Unit ("IDTU"). Defendant subsequently was arraigned on September 17, 2023 and charged with Vehicle and Traffic Law §§ 1192(3) (driving while intoxicated); 1192(2) (driving while intoxicated, per se); 1192(2-a)(a) (aggravated driving while intoxicated, per se); 1192(1) (driving while impaired); and 1192-a (driving while intoxicated, under the age of twenty-one).
At arraignment, the complaint was deemed an information and defendant arraigned on the information. The matter was adjourned to October 25, 2023 for the People to file a Certificate of Compliance ("CoC"). On October 25, 2023 (38th day), the People failed to file their CoC and the matter was adjourned to December 20, 2023. Prior to the next court appearance, on November 10, 2023 (55th day), the People filed with the court and served on defendant the CoC and Statement of Readiness ("SoR").
The discovery served upon defendant's attorney by OneDrive and AxonEvidence.com pertained to three police officers including potential testifying witnesses Officers Clarke and Zimmer. On December 7, 2023 (81st day) by electronic mail delivery, defendant requested the People provide the names of all law enforcement personnel present when defendant was arrested. Specifically, defendant requested the names of eight additional officers visible in the body-worn camera ("BWC") footage, the BWC footage, memo books, and Giglio evidence for eight unnamed and undisclosed officers.
Three days later, on December 11, 2023 (85th day), the People noted that they would "look into these additional officers as [they] don't recall there being 9 additional officers on the scene or in any way related to the arrest of defendant." As a follow-up, on the next day, defendant provided the People with timestamped BWC footage depicting the non-disclosed additional officers. Additionally, for the first time defendant requested photographs taken by the arresting officer. On December 14, 2023 (88th day), as to the undisclosed officers, the People provided: (i) names of eight officers; (ii) BWC footage for six officers; (iii) a statement that the remaining two officers had no BWC footage; and (iv) a statement that memo books for the eight undisclosed officers were not subject to automatic discovery. However, the People failed to serve a Supplemental Certificate of Compliance ("SCoC") detailing the reasons for the belated disclosure.
On December 20, 2023 (94th day), the court held a discovery conference. During that conference, the court directed the People to file a SCoC for the disclosures made on December 14th and to turn over memo books pertaining to the belatedly disclosed officers. Additionally, the court ordered the parties to confer and file a joint letter by January 18, 2024. The matter was adjourned for another discovery conference on January 25, 2024.
Later on December 20th, the People filed a SCoC stating that disclosure of the BWC footage for the additional officers was not part of their automatic discovery obligations but disclosed in good faith and to promote full disclosure. On December 27, 2024 (101st day), in between court appearances, the People disclosed a memo book for a belatedly disclosed officers and filed a second SCoC. The People stated in their SCoC, that they were disclosing the memo book because the officer transported defendant to the 45th Precinct for IDTU testing and therefore was involved in defendant's arrest, but failed to detail a reason for the delayed disclosure.
Thereafter, between January 5, 2024 (110th day) and January 12, 2024 (117th day), the People and defendant attempted to reach a possible disposition. However, on January 24, 2024 the parties reached an impasse as a disposition became unattainable. Thus, the parties reshifted their focus to outstanding discovery matters.
At the court appearance of January 25, 2024 (120th day), the court held a second discovery conference. After hearing the arguments of counsel, the court ordered the People to turn over photographs taken by the arresting officers and memo books for the eight belatedly disclosed officers. Instead of having the People fulfill their discovery obligations, defendant requested a motion schedule to challenge the validity of the People's CoC. Considering that defendant was filing a motion, the next day the People turned over six memo books for the belatedly disclosed officers and a photograph of defendant's license plate taken by the arresting officer and simultaneously served a SCoC. The People in their SCoC noted that the memo books and photographs were not automatically discoverable and, thus, were being disclosed to show good faith. Regardless of receiving the additional discovery, defendant remained steadfast on motion practice challenging the People's CoC.
Now before this court is defendant's motion to render the People's CoC illusory for belatedly disclosing the names and work affiliation of eight officers and for failing to provide BWC footage for several officers, the memo book for one officer, and Giglio material for non-testifying officers. In opposition, the People argued that the additional officers on the scene were incidental to defendant's arrest because they were effectuating a different arrest around the corner and arrived after defendant was handcuffed. Since these officers arrived after the arrest occurred, they were not listed in the BWC checklist resulting in the BWC footage not being turned over. Consequently, the materials pertaining to the belated disclosed officers were not related to the subject matter of the instant action since defendant was already under arrest when they arrived.
Legal Analysis
General Application
"[T]he right to a speedy trial in New York does not depend entirely on state statutes, but rests on a broader constitutional basis." 60 St. John's L. Rev. 205 fn 34 (1985). It is a 'fundamental' right imposed by the Due Process Clause of the Fourteenth Amendment on the States. Klopfer v. State of North Carolina, 386 U.S. 213 (1967). "Although the words 'speedy trial' appear in the title to CPL 30.30 and the section is often referred to as expressing a statutory right to a speedy trial, in both form and intention it articulates only the right of a defendant to a dismissal 'where the people are not ready for trial.'" People v. Brothers, 50 N.Y.2d 413, 417 (1980).
The legislature enacted CPL 30.30 to "serve the narrow purpose of insuring prompt prosecutorial readiness for trial." People v. Brown, 28 N.Y.3d 392, 403 (2016) (when readiness is declared the People are required to ensure that the record explains the reason for adjournments). To further such purpose, "[t]he legislature tethered the People's CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements." People v. Bay, 41 N.Y.3d 200 (2023). Moreover, the "'speedy trial' statute was intended only to address delays occasioned by prosecutorial inaction." People v McKenna, 76 N.Y.2d 59, 63 (1990). Moreover, it is the prosecutor's duty to ensure a speedy trial even when defendant fails to assert that right. People v. Prosser, 309 NY 353 (1955). However, when defendant fails to pursue that right as part of a trial strategy, the court may determine that defendant consciously abandoned and waived defendant's right under both CPL § 30.20 and CPL § 30.30. See People v. Rodriguez, 50 N.Y.2d 553, 557 (1980) ("intentional relinquishment or abandonment" of speedy trial right required to constitute waiver); but see, Barker v. Wingo, 407 U.S. 514, 529 (1972) (prosecution charged with responsibility that defendant constitutional speedy trial right waiver must be knowingly and voluntarily and made).
Once a CoC is served and filed, the People also must declare their readiness for trial either by making a statement of readiness in court "transcribed by a stenographer, or recorded by the clerk" or by written notice sent to both defendant's attorney and the court clerk to halt the CPL § 30.30 clock. People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023). The People's statement of readiness is presumed to be valid absent proof to the contrary. People v. Brown, 28 N.Y.3d 392 (2016); People v. Gonzalez-Mendoza, 82 Misc.3d 508 (Putnam Cnty. Ct. 2023). However, the court must conduct an inquiry on the record as to the truthfulness of the People's readiness. CPL § 30.30(5).
Giglio Material for Non-Testifying Officers
Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963), require the People to "disclose evidence favorable to the accused that is material to guilt." United States v. Rittweger, 524 F.3d 171, 180 (2d Cir. 2008). Hence, the People have an indisputable-affirmative duty to disclose timely evidence that is "material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Consequently, because timely disclosure of exculpatory and impeachment evidence are Constitutional obligations, under Brady and Giglio such evidence must be disclosed regardless of whether defendant makes the request. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). To insure prosecutorial compliance, the New York Rules of Professional Conduct, in pertinent part, provide that:
(b) A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.
Part 1200, Rules of Professional Conduct, Rule 3.8: Special Responsibilities of Prosecutors and other Government Lawyers". Therefore, the People's obligation to disclose impeachment evidence for witnesses "falls within the ambit of a prosecutor's Brady obligation." People v. Fuentes, 12 N.Y.3d 259 (2009); see also People v. Rodriguez, 50 N.Y.2d 553, 557 (1980) ("intentional relinquishment or abandonment" of speedy trial right required to constitute waiver); People v. White, 32 N.Y.2d 393, 399 (1973) (waiver of constitutional speedy trial right must be both "knowingly and voluntarily" made); Barker v. Wingo, 407 U.S. 514, 529 (1972) (prosecution responsible to show that claimed waiver of constitutional speedy trial right was made knowingly and voluntarily). Nonetheless, to prove that the People failed to comply with its constitutional obligation "a defendant must show that: (1) the government, either willfully or inadvertently, suppressed evidence; (2) the evidence at issue is favorable to the defendant; and (3) the failure to disclose this evidence resulted in prejudice." United States v. Kirk Tang Yuk, 885 F.3d 57, 86 (2d Cir. 2018) (quoting United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001)).
Moreover, in 2020 the People's Brady / Giglio obligation was embedded in CPL § 245.20(1)(k). People v. Lustig, 68 Misc.3d 234 (Sup. Ct. Queens Cnty. 2020); People v. Best, 76 Misc.3d 1210(A) (Crim. Ct. Queens Cnty. 2022). However, the "People's specific discovery obligation under CPL § 245.20(1)(k)(iv) goes beyond the Supreme Court's mandate in Brady v. Maryland, 373 U.S. 83 (1963)." People v. Pennant, 73 Misc.3d 753 (Dist. Ct. Nassau Cnty. 2021); see People v. Edwards, 74 Misc.3d 433 (Crim. Ct. NY Cnty. 2021) (CPL 245.30(1)(k)(iv) requires the People disclose impeachment evidence regardless of its materiality). Thus, the People must disclose "all 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." CPL § 245.50(1)(k)(iv). Yet, the People are not required to disclose every piece of evidence or "perfectly with their discovery obligations." People v. Suarez, 82 Misc.3d 1228(A) (Crim. Ct. Bronx Cnty. 2024).
Notably, criminal courts stand divided as to whether the People's Giglio obligation under CPL § 245.20(1)(k) extends to non-testifying officers. See, e.g., People v. Edwards, 77 Misc.3d 740 (Crim. Ct. Bronx Cnty. 2022) (People are not required to turn over disciplinary records for officers the People do not expect to testify); People v. Kennedy, 79 Misc.3d 973 (Crim. Ct. Kings Cnty. 2023) (People are not under an obligation to turn over Giglio material for non-testifying officers) cf. People v. Jawad, 78 Misc.3d 1217(A) (Crim. Ct. Queens Cnty. 2023) (noting that impeachment evidence for non-testifying officers can fall under other categories of CPL § 245.20(1)(k)); People v. Amir, 76 Misc.3d 1209(A) (Crim. Ct. Bronx Cnty. 2022) (People must disclose impeachment evidence for non-testifying officers). Consequently, since no binding precedent exists extending the People's obligation to serve Giglio material beyond testifying officers, this court finds it best to adhere to the plain language of CPL § 245.20(1)(k).
CPL § 245.20(1)(k) begins with sweeping language requiring the People to disclose "[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":
(i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information.CPL § 245.20(1)(k)(i) - (vii). Logically, by creating a list of evidence and information to be disclosed should limits disclosure of "[a]ll evidence and information..." to the specifically listed items. Hernandez v. Barrios-Paoli, 93 N.Y.2d 781, 788 (1999) ("a court's role is not to delve into the minds of legislators, but rather to effectuate the statute by carrying out the purpose of the statute as it is embodied in the words chosen by the Legislature."). Any other interpretation would directly contradict settled principles of statutory construction that "[a]ll parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof." NY Stat § 98; see People ex rel. Smith v. McClellan, 133 Misc. 280, 285 (Sup. Ct. Westchester Cnty, Special Term 1929). Moreover, "[w]hen presented with a question of statutory interpretation, primary consideration is to ascertain and give effect to the intention of the Legislature." Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660 (2006). Thus, "[i]f the words chosen have a 'definite meaning, which involves no absurdity or contradiction, then there is no room for construction and courts have no right to add or take away from the meaning.'" People v. Roberts, 31 N.Y.3d 406 (2018) (citation omitted). Therefore, the statute must be read "in juxtaposition with 'words that define or delimit the reach of the statutory provision.'" People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023); People v. Hedgeman, 70 N.Y.2d 533, 539 (1987).
By all means, to require the People to disclose Giglio materials for non-testifying officers runs counter to the plain reading of CPL § 245.20(1)(k) since impeachment can only occur against testifying witnesses. People v. Smith, 27 N.Y.3d 652, 660 (2016) ("impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful.") (citation omitted). Surely, "[h]ad the legislature wished to extend [the CPL § 245.20(1)(k)(iv)] obligation to all witnesses, and not only testifying, it could have easily done so, but it chose not to." People v. Edwards, 77 Misc.3d 740, 744 (Crim. Ct. Bronx Cnty. 2022) (questioning whether the People are required to comb through an officer's divorce proceeding to find impeachment evidence). Accordingly, since the People disclosed impeachment evidence for the designated testifying officers their discovery obligations were satisfied as to those officers.
However, simply disclosing impeachment evidence concerning testifying officers does not alone beget a valid CoC. To be deemed ready for trial, the People are obligated to represent that that the CoC was served, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery." CPL § 245.50(1). Thereafter, should service of additional discovery upon defendant occur, a supplemental certificate of compliance ("SCoC")" shall be served upon the defendant and filed with the court identifying the additional material and information provided." Id. (emphasis added). The SCoC "shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance." CPL § 245.50 (1-a). Nevertheless, filing a SCoC shall not impact the validity of the CoC should it be determined that it was filed in "good faith and after exercising due diligence pursuant to section 245.20 of this article, or if the additional discovery did not exist at the time of the filing of the original certificate of compliance." Id.; see People v. Bay, 41 N.Y.3d 200, 212 (2023). However, failure to file a SCoC renders an initial CoC invalid since the court cannot determine whether the People acted with good faith and due diligence. People v. Markovtsii, 81 Misc.3d 225 (Crim. Ct. Kings Cnty. 2023).
The reasons provided in the SCoC must demonstrate the People acted with good faith and due diligence when fulfilling their discovery obligations. A conclusory statement that the People disclosed the delayed discovery in good faith does not provide the court with sufficient information to make a sound decision regarding the validity of the SCoC. Additionally, a decision by the People to withhold documents and information on the assumption that they are not discoverable is misplaced and does not excuse failure to comply with their discovery obligation. People v. Giuca, 33 N.Y.3d 462 (2019) ("Nor is the nondisclosure of material evidence excused by the good faith belief of the prosecutor that the material was not relevant."). Therefore, the People's failure to articulate a reason for the delayed disclosure prevents the court from evaluating whether the CoC was filed in good faith and, such failure should deem the CoC invalid. CPL § 245.50(1-a); People v. Suarez, 82 Misc.3d 1228(A) (Crim. Ct. Bronx. Cnty. 2024).
Belated Discovery Disclosures
The validity of the CoC hinges on a showing that the People acted with "good faith, due diligence and reasonabl[y] under the circumstances." People v. Rodriguez, 73 Misc.3d 411 (Sup. Ct. Queens Cnty. 2021). Recently, the Court of Appeals People v. Bay provided non-exhaustive factors to consider when confronted with determining the validity of the People's CoC. The factors to consider include "the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery." People v. Bay, 41 N.Y.3d 200, 212 (2023). Moreover, CPL 245.50 and CPL 30.30 require that due diligence must be conducted prior to filing a COC... and "post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed." Id.
Here, the People disclosed the names and work affiliations of three of the eleven officers visible on body worn camera footage. Hence, the People's failure to disclose the information as to the remaining eight officers prior to filing their CoC, without explanation, constitutes lack of due diligence. People v. Hughes, 79 Misc.3d 1235(A) (Richmond Cnty. Crim. Ct. 2023) (People failed to act diligently and with good faith when they "failed to review the materials it actually produced to defense counsel against materials already in their possession."). Undisputable, the People failed to provide "[t]he names and work affiliations of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto ". CPL 245.20(1)(d); see also People v. Edwards, 77 Misc.3d 740 (Crim. Ct. Bronx Cnty. 2022).
To exacerbate matters, when the People finally decided to disclose the names and affiliations of the missing eight officers, they refused to disclose related memo books until the court stepped in and ordered the People to produce. There is no dispute that memo books are discoverable as they are made by the police department. CPL § 245.20(1)(e) ; People v. Audino, 75 Misc.3d 969 (Crim. Ct. NY Cnty. 2022). However, the People refused to turn over the memo books under the pretext that they were not related to the instant action. The People also cannot unilaterally decide the importance or relevancy of a document or item. People v. Valdez, 80 Misc.3d 544 (Crim. Ct. Kings Cnty. 2023). Instead, defendant should be provided all material in the People's control to be able to "determine its relevance to a particular defense, and prepare arguments as to its use on cross-examination at hearing and trial." People v. Castellanos, 72 Misc.3d 371 (Crim. Ct. Bronx Cnty. 2021). Also, despite the People's constant remarks that the officers were not involved, one officer resulted in being the officer who transported defendant to IDTU testing.
As to the belatedly disclosed photograph taken by the officer, the People's bare assertion that they overlooked requesting the photograph does not amount to good faith and due diligence. Generally, "inadvertent errors or omissions will not automatically invalidate a COC and SOR." People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2022) (People inadvertently deleted the Statement of Readiness from the shared OneDrive folder). However, an inadvertent error is only excusable when the People provide a reason or explanation for the mistake. See e.g., People v. Middleton, 79 Misc.3d 418 (Crim. Ct. NY Cnty. 2023) (delayed disclosure of memo books was not due to a lack of due diligence in acquiring and reviewing the material nor bad faith but rather because defendant had not communicated with the People as to any discovery issues); People v. Nelson, 75 Misc.3d 1203(A) (Crim. Ct. NY Cnty. 2022) (unknown technical error prevented BWC to be transferred). Clearly the People did not promptly turn over the missing photograph despite being notified of the missing photograph on December 12, 2023 and at the December 20, 2024 court appearance. People v. Ramirez, 73 Misc.3d 664 (Crim. Ct. NY Cnty. 2021) (failure to request photographs taken by officer prior to filing a CoC was an omission). Nonetheless, it was not after the January 25, 2024 court appearance that the People requested it from law enforcement to subsequently serve the additional photographs on defendant. There is no doubt that the People have the burden of proof to show that due diligence and reasonable inquiries were made before filing a COC even when there is missing disclosure that results in the filing of the required SCoC.
The court therefore finds that the People did not meet their burden and failed to act with good faith and due diligence prior to filing their CoC.
Conclusion
The court finds that the People's CoC and SoR filed on the 55th day were invalid. At a minimum, the People are charged 94 days from September 28, 2023, the day after defendant's arraignment to December 20, 2024 when defendant requested a discovery conference. Therefore, the People have exceeded their speedy trial time and the matter must be dismissed.
This constitutes the decision of the court.