Opinion
Ind. No. 72467/22
04-05-2023
The PEOPLE of the State of New York v. Peter RIVERA, Defendant.
The defendant is charged with, inter alia , Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03 [1] [b] ). By motion dated February 28, 2023, the People move for leave to reargue this Court's decision rendered on February 7, 2023. The defendant, in a response, dated March 15, 2023, opposes the People's motion. This decision is based on the People's instant motion, the defendant's response, the defendant's original omnibus motion, the People's response to the defendant's omnibus motion, the People's additional memorandum of law in response to the defendant's omnibus motion, the Court's February 7, 2023 decision, and all court documents contained in the court file.
On September 30, 2022, the People filed a Certificate of Compliance (COC) and disclosed to defense counsel automatic discovery, including Law Enforcement Officer Witness (LEOW) disclosure letters for Detectives Spencer Strauss, Victor Rosario, Timothy Terrillion, Philip Giardina, Christopher Giardina, and Demetrios Kekatos; Sergeants Michael Grasso, Steven Franzel, and Vischoff; Police Officers Kevin Lynch and Gary Lyons; and Captain Kevin Abernathy. The People did not disclose LEOW letters for Officers Joseph Matzinger and Kevin Karp, Detectives Megan Barone and Scott Munro, and Lieutenant Javier Rodriguez, although they were designated as law enforcement personnel who may be called as witnesses in the COC.
On December 1, 2022, the defendant submitted an omnibus motion, seeking, inter alia , to invalidate the People's COC on several grounds, including for the People's non-disclosure of the outstanding LEOW letters. The People, in a response dated December 20, 2022, opposed the defendant's motion. Per the Court's request, on January 18, 2023, the People filed an additional memorandum of law regarding the defendant's motion to invalidate the COC, as the People failed to address same in their original response. Within the memorandum of law, the People included a section entitled "Supplemental Certificate of Compliance" in which they certified that they disclosed LEOW letters for Officer Matzinger, Detectives Barone and Munro, and Lieutenant Rodriguez to defense counsel.
The LEOW letter for Officer Kevin Karp was not listed, thus it is unclear to the Court whether this letter was also disclosed to defense counsel.
On February 7, 2023, the Court issued an omnibus decision, in which the Court granted the defendant's motion to invalidate the COC. The Court found that even though the letters may not have been generated at the time of the filing of the COC, the information therein existed at the time and to which the People had direct access. As the People failed to detail what steps, if any, they took to obtain the outstanding LEOW letters prior to the filing of the COC, the Court held that the People failed to exercise due diligence in obtaining and disclosing all LEOW letters pursuant to their discovery obligation under CPL 245.20 (1) (k). The Court therefore granted the defendant's motion to invalidate the COC.
The People now move for leave to reargue the Court's February 15, 2023 decision. The People argue that their failure to disclose the outstanding LEOW letters at the time of the filing of the COC does not mean that the COC was not filed in good faith. The People affirm that they inputted the necessary information regarding each officer (name, rank, tax registry number, command, role, force, and an indication that the officer may testify at trial), but no LEOW letters were in existence at that time for Officers Matzinger and Karp, Detectives Barone and Munro, and Lieutenant Rodriguez. The People also argue that these officers are "merely tangential" because they were "merely present" for the execution of the search warrant (People's Motion to Reargue at 10). The People assert that they listed these officers as those who may testify at trial because they were included in the investigating officers’ DD5's "and, out of an abundance of caution, indicated that they ‘may testify at trial,’ to put the defendant on notice of their presence during the execution of the search warrant" (People's Motion to Reargue at 11). "Upon review of the materials, the People acknowledge that, at this time, they do not intend to call them as witnesses, as their testimony would only serve to be cumulative" (id. ).
Additionally, the People argue that pursuant to Judge Zayas’ Administrative Order, issued on February 27, 2020, the defendant was required to diligently confer with the People regarding any dispute concerning discovery. Here, the People argue, the defendant did not raise the issue of the outstanding LEOW letters until the defendant filed their omnibus motion, 61 days after the People filed their COC. The People contend that the issue could have been easily remediated had the issue been previously raised by defense counsel. Further, the People argue, the Court must consider whether the defendant has suffered any prejudice as a result of the belated disclosure of the LEOW letters, and since the defendant has not demonstrated any prejudice, the COC should be deemed valid.
In response, the defendant argues that the statute's framework does not contemplate a prejudice analysis when assessing the validity of a COC. Prejudice, the defendant argues, is relevant only after a finding that a proper COC has been filed and the defendant moves for sanctions under CPL 245.80. The defendant contends that the Court must evaluate whether the People acted with due diligence and made reasonable inquiries to ascertain the existence of all known material and information subject to discovery. Under such standard, the defendant argues, the People's perfunctory database search for the outstanding LEOW letters exhibits a lack of due diligence and reasonable inquiries, especially since an internal unit of the Queens District Attorney's Office generates the LEOW letters. The defendant argues that the People's substantial compliance in disclosing the LEOW letters for the other law enforcement personnel is insufficient to discharge the People from their discovery obligation under CPL 245.20 (1) (k). Furthermore, the defendant argues that the People's reliance on the February 27, 2020 Administrative Order is misplaced, as the Administrative Order is not an order of this Court, is not a blanket order applicable to all criminal cases as a matter of law, and was issued over three years ago by a judge who is no longer sitting in the capacity of administrative judge.
As the People seek to reargue points which were squarely raised in the original set of motion papers, the motion for leave to reargue is granted. Upon reconsideration, the Court adheres to its original decision that the September 30, 2022 COC is invalid due to the People's failure to exercise due diligence in obtaining and disclosing all LEOW letters at the time of the filing of the COC.
Pursuant to CPL 245.20 (1), the People are required to provide automatic discovery, which includes "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control," including but not limited to specific enumerated items listed within the statute. Of particular relevance, CPL 245.20 (1) (k) requires that the People 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: ... (iv) impeach the credibility of a testifying prosecution witness." It has become standard practice for the Queens County District Attorney's Office to disclose such information in the form of a LEOW letter, which includes summaries of misconduct for each testifying prosecution witness for whom such records exist. This includes the date of the allegation, the source of the information (IAB, CCRB, NYPD internal investigation, and/or civil lawsuit), and a narrative of the allegation, including the nature of the conduct. As previously stated in the Court's original decision, this Court finds that LEOW letters are generally sufficient to satisfy the People's discovery obligation and the People are not required to produce any underlying documentation ( People v Akhlaq , 71 Misc 3d 823 [Sup Ct, Kings County 2021] ; see People v Lustig , 68 Misc 3d 234 [Sup Ct, Queens County 2020] ; People v Knight , 69 Misc 3d 546 [Sup Ct, Kings County 2020] ; People v Mauro , 71 Misc 3d 548 [Westchester County Ct 2021] ). However, at minimum, the disclosure of LEOW letters is necessary to satisfy the People's discovery obligation under CPL 245.20 (1) (k).
Here, the People disclosed LEOW letters for Lieutenant Rodriguez, Detective Munro, Detective Barone and Officer Matzinger in a supplemental COC on January 18, 2023, more than three months after the filing of the original COC. Pursuant to CPL 245.50 (1-a),
"[t]he filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if 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" (emphasis added).
Therefore, as the defendant correctly argues, the standard by which the Court must evaluate the validity of a COC despite a belated disclosure of discovery is whether the People have exercised due diligence and made reasonable inquiries to ascertain the existence of material and information and filed their certificate of compliance in good faith ( CPL 245.20 [1], CPL 245.50 [1], CPL 245.50 [1-a] ; People v Guzman , 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Only if the Court determines that the COC was filed in good faith and upon due diligence may the Court consider sanctions against the People for a belated disclosure of discovery pursuant to CPL 245.80 (see People v Gaskin , ––– NYS3d ––––, 2023 NY Slip Op 01415, *2 [4th Dept 2023] ["the (lower) court's use of a prejudice-only standard for evaluating the propriety of the certificate of compliance was error because the clear and unambiguous terms of CPL 245.50 establish that a certificate of compliance is proper where its filing is ‘good faith and reasonable under the circumstances’ "; People v Adrovic , 69 Misc 3d 563, 574-575 [Crim Ct, NY County 2020] ). Contrary to the People's argument, this analysis is consistent with the legal framework they set forth in their own motion for determining the validity of COCs:
"(1) First, the prosecutor must ‘[exercise] due diligence and [make] reasonable inquiries to ascertain the existence of material and information subject to discovery.’ CPL 245.50 (1)
(2) The next step in the legal analysis follows shortly thereafter: the certificate of compliance must have been filed in ‘good faith and [be] reasonable under the circumstances.’ CPL 245.50 (1)
(3) Next, the Court may consider appropriate sanctions: ‘[T]he court may grant a remedy of sanction for a discovery violation as provided in section 245.80 of this article.’ CPL 245.50 (1)
...
(People's Motion to Reargue at 7).
Under such framework, the Court finds that the People did not exercise due diligence in obtaining the outstanding LEOW letters prior to filing their COC. The People affirm that prior to filing the COC, they inputted the necessary information regarding each officer (name, rank, tax registry number, command, role, force, and an indication that the officer may testify at trial), but the LEOW letters for Officers Matzinger and Karp, Detectives Barone and Munro, and Lieutenant Rodriguez were not in existence at the time. The People again fail to detail what additional steps, if any, they took to obtain the outstanding LEOW letters besides this initial search. Without more, the Court must assume that no other steps were actually taken and thus, the People did not "act with due diligence and make reasonable inquiries to ascertain the existence of all known material and information subject to discovery " ( CPL 245.50 [1] [emphasis added]) — that is, as relevant here, all LEOW letters for law enforcement personnel who may be called as witnesses. As stated in the Court's original decision, the LEOW letters are produced by LEOW service, an internal unit within the Queens District Attorney's Office, and are printed on the Queens County District Attorney's letterhead (see People v Best , 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *3 [Crim Ct, Queens County 2022]). Although the letters may not have been generated at the time of the filing of the COC, the information therein existed at the time and to which the People had direct access. To satisfy their discovery obligations, the People were obligated to follow up with their internal LEOW service unit and attempt to obtain the outstanding LEOW letters.
The People now indicate that they no longer wish to designate Officers Matzinger and Karp, Detectives Barone and Munro, and Lieutenant Rodriguez as law enforcement personnel who may be called as witnesses because they were "merely present" for the execution of the search warrant (People's Motion to Reargue at 10). The applicability of CPL 245.20 (1) (k) is limited only to testifying prosecution witnesses. While the People may proceed with their case in whatever manner they choose, retracting such designations now, however, has no bearing on the Court's determination of whether the People exercised due diligence in obtaining all LEOW letters prior to filing their COC. The designation was assigned to the above-mentioned officers at the time of the filing of the COC and thus, the People were obligated to exercise due diligence in obtaining a LEOW letter for each officer at that time. The Court will not allow the People to circumvent their discovery obligation under CPL 245.20 (1) (k) by now retracting such designations. If, as the People argue, the only purpose of the designation was to "put the defendant on notice of their presence during the execution of the search warrant," the People could have disclosed such information to the defendant without designating these law enforcement personnel as potential testifying prosecuting witnesses. However, because they did designate these law enforcement personnel as potential testifying prosecuting witnesses, the People were obligated to exercise due diligence in obtaining a LEOW letter for each law enforcement personnel prior to the filing of the COC.
Lastly, the People argue that the defendant has violated the February 27, 2020 Administrative Order of the Administrative Judge of the Queens Supreme Court, which urges both parties on a matter to diligently confer with each other and attempt to solve any discovery disputes prior to seeking judicial intervention. By relying on the Administrative Order, the People incorrectly shift the burden to the defendant in reminding them of their automatic discovery obligations. The Order does not, in any way, affect the People's statutory obligation to exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery pursuant to Article 245 (see People v Rahman , 74 Misc 3d 1214[A], 2022 NY Slip Op 50120[U], *3 [Sup Ct, Queens County 2022]).
In People v Guzman , 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022], the Appellate Term, Second Department rejected a similar argument by the prosecution that defense counsel did not inform them that they had not received video of the incident until months after they filed their initial COC and the prosecution's failure to turn over the video prior to the COC was an unintentional oversight. The prosecution in Guzman had known of the existence of the video approximately ten months prior to the notification from defense. The prosecution, however, failed to explain "why they did not check the items sent to them against a list of the requested items, or against the police reports they sent to the defense" (id. at *4). The Court stated that "it is well settled that office failure does not amount to special circumstances (see e.g. People v Briggs , 38 NY2d 319, 324 [1975] )" (id. at *5). The Court found that the prosecution had failed to exercise due diligence and did not make reasonable inquiries to obtain the video and therefore, the People's COC was invalid and accompanying statement of readiness was illusory.
Similarly, here, the People were aware that LEOW letters remained outstanding, as evident by their notation in their original COC that there were "[n]o others as of September 28, 2022. Future disclosures, if applicable, will be turned over as soon as practicable" (September 30, 2022 COC at 12). Thus, it was the People's "affirmative duty" to follow up with LEOW service, an internal unit within the Queens District Attorney's Office, and obtain the letters ( People v Edwards , 77 Misc 3d 740, 748 [Crim Ct, Bronx County Nov 17, 2022] [Zimmerman, J.]; see People v Audino , 75 Misc 3d 969 [Crim Ct, NY County 2022] ). The People argue that they would have "promptly responded" had defense counsel reached out regarding the outstanding LEOW letters (People's Motion to Reargue at 13), however, notably, the People did not file a supplemental COC indicating that they had actually served the letters on defense counsel until January 18, 2023, 48 days after the defendant filed their omnibus motion when the People were allegedly on notice of the letters.
Based on the foregoing, the Court adheres to its original decision that the People failed to exercise due diligence in fulfilling their discovery obligation pursuant to CPL 245.20 (1) (k). Therefore, the People's COC filed on September 30, 2022 is deemed invalid.
This opinion constitutes the decision and order of the Court. The Clerk of the Court is directed to enter this Order. IT IS SO ORDERED.