Opinion
Docket No. CR-002390-21SU
04-26-2022
The PEOPLE of the State of New York, Plaintiff, v. Jose Abreu RODRIGUEZ, Defendant.
Raymond A. Tierney, District Attorney of Suffolk County, Alicia Altidor / Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722 Attorney for Defendant, Christopher Shannon Esq., LEGAL AID SOCIETY, SUFFOLK COUNTY, 400 Carleton Avenue, Central Islip, NY 11722
Raymond A. Tierney, District Attorney of Suffolk County, Alicia Altidor / Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722
Attorney for Defendant, Christopher Shannon Esq., LEGAL AID SOCIETY, SUFFOLK COUNTY, 400 Carleton Avenue, Central Islip, NY 11722
Bernard C. Cheng, J.
On January 23, 2021, the defendant was charged with violations of (1) New York State Vehicle and Traffic Law ("VTL") section 1192.2-a; (2) VTL section 1192.3; and (3) VTL section 1163(D). He was arraigned on January 24, 2021. By motion dated February 4, 2022, defendant moves this court for an order dismissing the accusatory instrument pursuant to CPL sections 170.30 and 30.30, and striking the Certificate of Compliance [hereinafter "CoC"] pursuant to CPL sections 30.30(5) and 245.20.
On January 1, 2020, new legislation affecting both CPL § 30.30 and CPL § 245.50 went into effect. The new law required the People to file a CoC with the court prior to announcing readiness under CPL § 30.30 (see CPL § 245.50[3] ). In order for the People to be ready for trial, the People must: "(1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." ( People v Ramirez-Correa , Docket CR-018674-20QN [Crim Ct, Queens Cnty 2021] ).
Pursuant to CPL § 30.30(1)(b), the People are required to make an effective statement of their readiness for trial within 90 days of the commencement date of the criminal actions, taking into account all excludable time periods. The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v Berkowitz , 50 NY2d 333 [1980] ).
The gravamen of the defendant's speedy trial motion is that the People's initial CoC and accompanying readiness announcement was not valid due to the People's failure to (1) certify the facial sufficiency of the accusatory instrument (Def.’s Aff. at pp 49, 59) and (2) timely produce the certain discoverable material, namely, law enforcement disciplinary files with respect to both the arresting officer and the officer who administered the Breathalyzer test (Def.’s Aff. at p 66).
The record indicates the current criminal action was commenced on January 24, 2021. (People's Aff. at p 7). The People served their initial discovery to the defense and filed their initial CoC/readiness announcement on February 9, 2021. (People's Aff. at p 9 & Ex. C). The People later filed a supplemental CoC on October 29, 2021. (People's Aff. at p 20 & Ex. N).
A. Failure to Timely Certify the Facial Sufficiency of the Accusatory Instrument
It is undisputed that the People's initial CoC was silent regarding facial sufficient of the accusatory instrument. (People's Aff. at Ex. C). Without this affirmative statement of compliance [ CPL §§ 100.15 and 100.40 ], the People have failed to meet their burden under CPL § 30.30(5-a) ; therefore the People's initial CoC is invalid. The People's supplemental CoC, filed on October 29, 2021, contained this necessary certification of facial sufficiency. (see People's Aff. at Ex. N). The full compliance CoC was filed 278 days after commencement of the action.
The People contend that the October 29, 2021 supplemental CoC should "relate back to" and "validate" the February 9, 2021 CoC and statement of readiness. (People's Mem. of Law at Point I.B.ii, p. 17) (citing People v Plaza , 2021 NY Slip Op 21176 and People v Lewis , 2021 NY Slip Op 21125 ). This Court notes appellate courts have not addressed the question of whether a second and late-filed CoC may ‘relate back’ or ‘cure’ a defect in the original CoC. This Court, however, concurs with recent decisions in which trial courts have declined to adopt the retroactive validation argument, and instead held that "the accrual of chargeable time may be tolled only when the People properly tender a statement of readiness." People v Collado , 73 Misc 3d 1204(A), 152 NYS3d 791, 2021 NY Slip Op 50918(U), at fn 3 [NY Crim Ct, 2021] ["the retroactive-validation rule urged by the People would undermine the CPL 30.30 ‘speedy trial’ time limitations statute by obviating the requirement of a timely statement of readiness. Such a rule would enable the People to declare retroactive-readiness at any time up until the commencement of trial, without regard to the express time constraints of CPL 30.30(1)"].
Since the People's initial CoC never stopped the speedy trial clock, the People did not file a valid CoC until October 29, 2021. The time from arraignment until October 29, 2021, 278 days, is attributable to the People. The defendant's speedy trial rights have been violated.
B. Failure to Timely Disclose Law Enforcement Disciplinary Records
The defendant has further argued that the accusatory instrument should be dismissed, and the CoC stricken, on the grounds that the People failed to produce law enforcement disciplinary files prior to filing their initial CoC on February 9, 2021. (Def.’s Aff. at p 66).
In opposition to the defendant's motion, the People contend that they were not in "actual possession" and "in receipt" of law enforcement disciplinary records on February 9, 2021, when they filed their initial CoC. (People's Aff. in Opp., p. 3, p 9; People's Mem. of Law in Opp., Point II, p. 18).
Pursuant to CPL §§ 245.20(1)(h) and (1)(k), the material in question constitutes material that is automatically discoverable. (See Ryder v Engel , Index No. 614983/2021, Order dated March 16, 2022 [Sup Ct Nassau Cnty 2022], People v Salters , 72 Misc 3d 1219[A], at 3 [Nassau Crim Ct 2021] and People v Pennant , Nassau Co. Dkt. No. CR-020126-19NA, Decision and Order dated October 15, 2021 [Nassau Crim Ct 2021]).
Law enforcement disciplinary files are deemed to be in the possession of the People by operation of law. Pursuant to CPL § 245.20(2), "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution." The People are under an obligation to "ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article" ( CPL § 245.55(1) ) and, "upon request by the prosecution, each New York state and local law enforcement agency shall make available to the prosecution a complete copy of complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article" ( CPL§ 245.55(2) ). Consequently, "[r]egardless of whether the People have actual possession of discoverable material and information from law enforcement, such material and information is statutorily deemed to be in the People's possession." People v Haymon , 71 Misc 3d 1203(A) [Cnty Ct Albany Cnty 2021]. Accord , People v Pennant , Nassau Co. Dkt. No. CR-020126-19NA, Decision and Order at p. 13 [Nassau Crim Ct 2021] [possession of law enforcement records is imputed to the People]; and People v Rosario , 70 Misc 3d 753, 765 [County Ct, Albany County 2020] [same].
In this case, the People do not dispute their obligation to disclose the testifying officers’ IAB files, which they disclosed on October 29, 2021. Rather, the People argue that they did not possess the records at the time they filed their initial CoC. However, as noted above, the caselaw establishes that the People are deemed to be in possession of such records. Moreover, the record is devoid of any evidence from the People as to their efforts to obtain such records (i.e. , when they requested the IAB files), which records were not produced from more than eight months after the commencement of the action. There was no question that the IAB file for the arresting officer needed to be turned over in this case. The arresting officer was the only officer on the scene. There were no alternate witnesses, as the police officer was the only witness.
Pursuant to CPL § 245.50(3), "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The People have not demonstrated any special circumstances herein, nor was any request for an extension of discovery interposed.
It is the opinion of this Court that, with regard to the material in question, the People have failed to meet their obligation to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [ CPL § 240.20(1) ]." (See CPL § 240.20(2) ). As such, the Court finds that the CoC/readiness announcement filed on February 9, 2021 was invalid and did not serve to stop the running of speedy trial time.
C. Timeliness of Motion
Finally, this Court rejects the People's contention that the instant motion is untimely. (People's Mem. of Law in Opp., Point VI, p. 20). The People contend that the instant motion is governed by CPL § 255.20(1), which states that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial." CPL § 255.20(1). CPL § 245.50(4), which governs motions challenging the validity of CoCs, is silent as to the timing of making such a motion. In addition, there is no appellate-level precedent directly addressing the timeliness of a defendant's motion to challenge a CoC. Accordingly, this Court declines to find that the motion is untimely. See People v Mauro , 71 Misc 3d 548, 551-552, 143 NYS3d 511, 514 [NY Co Ct 2021] [citing lack of express statutory deadline for motion and courthouse closure due to pandemic as grounds for rejecting People's argument that motion challenging CoC was untimely].
By reason of the foregoing, it is hereby:
ORDERED The defendant's motion to dismiss the accusatory instrument under CR-002390-21SU pursuant to statutory speedy trial grounds is hereby GRANTED in its entirety.