Opinion
Docket No. CR-009264-23BX
02-22-2024
The People of the State of New York v. Johnny Romero, Defendant.
For the People: Miles J. Mianecki, Assistant District Attorney, Office of the Bronx District Attorney. For the Defendant: Lisa Boesen, Esq., The Bronx Defenders
Unpublished Opinion
For the People: Miles J. Mianecki, Assistant District Attorney, Office of the Bronx District Attorney.
For the Defendant: Lisa Boesen, Esq., The Bronx Defenders
OPINION
Hon. Carmen A. Pacheco, Judge.
Defendant moves for an order (i) deeming the People's June 22, 2023 Certificate of Compliance improper; (ii) dismissing the criminal court information pursuant to CPL §§ 30.30(1)(b), 30.30(5-a), and 210.20(1)(g); (iii) suppressing all physical evidence seized from defendant; (iv) directing the prosecution to produce all physical evidence on the date of the hearing; (v) suppressing all observations of defendant made by law enforcement; (vi) suppressing all statements taken by defendant; (vii) granting defendant an opportunity to inspect, photograph and test all tangible items related to the case pursuant to CPL §§ 245.20(1) and 245.20(1)(K); (viii) precluding the People from introducing at trial any evidence of defendant's prior conviction or bad acts; (ix) granting defense an opportunity to file a reply pursuant to People v. Luperon, 85 N.Y.2d 71, 78 (1995) and conducting a hearing pursuant to People v. Allard, 28 N.Y.3d 41 (2016); and (x) granting such additional relief as this court deems just and proper.
For the reasons set forth herein, defendant's motion to dismiss is denied. The People are required to provide outstanding unredacted Internal Affairs Bureau logs and Central Personnel Index and file a Supplemental Certificate of Compliance ("SCoC") within 30 days of the date of this decision. Alternatively, the People must move for a protective order within 15 days of this decision concerning any redactions.
Factual and Procedural History
Defendant was arraigned on April 30, 2023 and charged with Vehicle and Traffic Law §§ 1192(3) (driving while intoxicated) and 1192(1) (driving while impaired). At arraignment, the misdemeanor complaint was deemed an information. The allegations set forth in the accusatory instrument were that Officer Rodriguez Zarias responded to the scene of an accident. At the accident scene Officer Zarias observed a gray 2012 Dodge Durango with dents and scratches to the front right bumper. When Officer Zarias stopped defendant, defendant stated in sum and substance "They won't let me leave because they want me to pay for the damage to their car" and "It's true, I'm driving drunk but I didn't kill anybody." After defendant was arraigned on the information, the matter was adjourned to June 16, 2023 for the People to file their Certificate of Compliance ("CoC").
On June 16, 2023, at the next court appearance, the People had not fulfilled their discovery obligations. Consequently, the case was adjourned to July 27, 2023 for the People to file their CoC. On June 22, 2023, the People filed their CoC and Statement of Readiness ("SoR") off-calendar. Subsequently, on July 18, 2023, the People filed and served a Supplemental CoC ("SCoC") off-calendar. The additional discovery material served on defense counsel included a police accident report, property clerk invoices, and additional body worn camera footage.
On July 27, 2023, defendant requested additional time to confer with the People regarding discovery issues and a possible disposition. Subsequently, the matter was adjourned to August 17, 2023 for a discovery conference. On August 17, 2023, the discovery conference was not held. Instead, defendant requested an adjournment for either possible disposition or another attempt at a discovery conference since defendant had a felony matter which the instant matter was tracking. The court granted defendant's request and adjourned the case to October 4, 2023 for possible disposition or a discovery conference.
On October 4, 2023, defendant requested additional time to confer with the People. In response, the People requested that the CoC be deemed valid since 104 days had passed since its filing. Consequently, the court deemed the CoC valid without objection from defendant. Thereafter defendant requested an adjourn date of November 9, 2023 for possible disposition or a discovery conference. On November 9, 2023, defendant requested a motion schedule to challenge the validity of the People's CoC.
Defendant moved for an order deeming the CoC illusory since the People unilaterally redacted Central Personnel Index ("CPI") and Internal Affairs Bureau ("IAB') logs. The redactions were made without seeking a protective order pursuant to CPL § 245.70(3) and a court order. Defendant argued the CoC should be invalidated since the redacted material left defendant to speculate on useful information.
In opposition, the People admitted that they redacted personal information along with exonerated and unfounded police misconduct allegations from the CPI. The People averred that they are not obligated to turn over unredacted CPI when the redacted material is unrelated to the subject matter of the instant action. The People also argued that providing a Giglio disclosure letter referring to IAB reports is sufficient to satisfy their discovery obligation.
General Application
Prior to the sweeping discovery reform of 2020, defendants bore the burden of demanding discovery from the People "within thirty days after arraignment and before the commencement of trial." CPL § 240.80(1). Moreover, the People could choose to comply or file a written refusal challenging the discoverability of the item. CPL §§ 240.80(1) and (2). If the People failed to file a written refusal and failed to comply with defendant's discovery request, the court could impose sanctions including prohibiting the introduction of certain evidence or the calling of certain witnesses." CPL § 240.70. Despite the potential sanctions, the discovery procedure often resulted in gamesmanship and delayed discovery production. People v. Bay, 2023 NY Slip Op. 06407 (2023). The People often "conceal[ed] from defendant evidence against them until the eve of trial." People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023). However with the advent of the 2020 discovery reforms, the pendulum swung away from stifling discovery disclosure toward obligating the People to disclose and provide "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution" including names and contact information of witnesses, tapes or other electronic recordings, and impeachment material. See e.g. CPL §§ 245.20(1)(c), (g), and (k).
Additionally, under CPL § 245.50, the legislature "tie[d] the People's adherence to their discovery obligations and the corresponding certificate of compliance requirement to their trial readiness by providing that, '[n]otwithstanding the provisions of any other law, absent an individualized finding of special circumstances... by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of [CPL] 30.30... until it has filed a proper certificate pursuant to [CPL 245.50 (1)].''' People v. King, 216 A.D.3d 1400, 1402 (4th Dept. 2023), citing, CPL 245.50 (3) ; 30.30 (5); People v Brown, 214 A.D.3d 823, 824 (2d Dept. 2023). A CoC may be deemed valid when the prosecutor acts with "due diligence and mak[es] reasonable inquiries to ascertain the existence of material and information subject to discovery". CPL § 245.50(1). Noteworthy is that perfect compliance with the People's discovery responsibilities prior to filing a CoC is not required under the statute. People v. Alvia, 78 Misc.3d 1228(A) (Crim. Ct. Bronx Cnty. 2023). Hence, "[i]f the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid." People v. Perez, 73 Misc.3d 171 (Sup. Ct. Queens Cnty. 2021).
Moreover, unless a valid CoC is filed pursuant to CPL § 245.50(1), the People cannot be deemed ready for trial . See People v. Brown, 28 N.Y.3d 392, 404 (2016)(People's CPL § 30.30 time will continue to run should the declaration of readiness ring hollow); People v. Fortty, 78 Misc.3d 1229(A) (Crim. Ct. Bronx Cnty. 2023)(CPL § 30.30 speedy trial clock will not stop until a proper CoC is filed). Once a valid CoC is filed, the People must declare their readiness for trial by making a statement of readiness "transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk." People v. Chavis, 91 N.Y.2d 500, 505 (1998); People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023). Once the People declare their readiness for trial, "the court shall make inquiry on the record as to their actual readiness." CPL 30.30(5). People v. Bay, 2023 NY Slip Op 75341 (2023)(People's declaration of readiness is only valid when the People are truly ready to proceed to trial).
IAB Logs and CPI
CPI contain an officer's disciplinary information along with a "brief summary of the allegations and final outcome." People v. Ferrer, 72 Misc.3d 1212(A) (Crim. Ct. Bronx Cnty. 2021). Conversely, IAB logs are "more detailed summaries about the allegations and the charges against the subject officer." Id. at *6. The allegations of misconduct are discoverable, and the People are required to turn over CPI and IAB logs for testifying officers. CPL § 245.20(1)(k); People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023).
CPI and IAB logs served on defense counsel should only be redacted to the extent allowed under the Criminal Procedure Law and by the court. Under CPL § 245.20(6), the People are permitted to redact social security numbers and tax numbers from any discovery disclosed. However, should the People unilaterally redact material beyond the information authorized under the Criminal Procedure Law or without a court order it "is made at their peril and is not without potential consequences including dismissal." People v. Eleazer, 78 Misc.3d 1222(A) (Crim. Ct. NY Cnty 2023).
The People can avail themselves to procedural mechanisms set forth in Criminal Procedure Law. The Criminal Procedure Law permits the People to move for a protective order to deny, restrict, or condition "discovery or inspection of any kind of material or information." CPL § 245.70(1). Nevertheless, before redacting a document the People should either move for a protective order pursuant to CPL § 245.70 or move for an in-camera inspection by the court. Moreover a protective order is appropriate when "the files contain any material which should not be disclosed." People v. Randolph, 69 Misc.3d 770, 773 (Sup. Ct. Suffolk Cnty. 2020)(court ordered the People to provide IAB logs involving substantiated or unsubstantiated allegations of misconduct with only personal information redacted); see also People v. Goggins, 76 Misc.3d 898 (Crim. Ct. Bronx Cnty. 2022)(court invalidated the CoC when the People provided redacted copies of civil claims without seeking an order of protection). Alternatively, upon request or motion the court may inspect the documents and render a decision on discoverability of the redacted portion. Absent a protective order, the People are required to serve IAB logs and CPI limited to the redactions authorized by CPL § 245.20.
Clearly the People should not sua sponte redact portions of a document without moving for a protective order pursuant to CPL § 245.70 or requesting an in-camera review by the court. However before the People redact a document in compliance with CPL § 245.20(6), it should be accompanied by a log that provides information about the nature of the redacted information sufficient for defendant to make a perspicacious determination about the validity of the redaction. Alternatively, the People should consider conferring with defendant, in a good faith effort, to agree on the redacted information proffered toward determining the likelihood that the redactions are not discoverable under the Criminal Procedure Law and issues that may arise related to the redactions. As a practical matter, the People also may consider entering into a non-disclosure agreement with the defendant and/or move to incorporate the agreement into a court order. Accordingly, the People are cautioned to produce unredacted documents unless given a court order sanctioning the redacted information.
In the instant matter the People acted in good faith by relying on NY Public Officers Law § 89 2-b and should be given an opportunity to rectify their error. People v. Pardo, 2023 WL 7174597 (Crim. Ct. Bronx Cnty. 2023)(People acted in good faith to when they relied on the NYPD redactions being done pursuant to NY Public Officers Law § 89 2-b); People v. Sanders, 2023 WL 9052878 (Crim. Ct. Bronx Cnty. 2023)(People relied on NY Public Officers Law § 89 2-b when redacting IAB logs). Accordingly, the People are ordered to turn over unredacted IAB logs and CPI within 30 days of the date of this decision or in the alternative move for a protective order within 15 days of this decision.
Suppression of Evidence and Statements
A court can either determine a motion for suppression summarily or grant a hearing to make the necessary findings of fact. People v. Mendoza, 82 N.Y.2d 415 (1993). Here the court grants a Mapp/Huntley/Dunaway/Ingle/Atkins hearing on consent of the People.
Preclusion of Defendant's Prior Bad Acts
As to defendant's request for preclusion of defendant's prior convictions or bad acts pursuant to Sandoval/Ventimiglia, defendant's request is referred to the trial court.
Production of Physical Evidence and Discovery Obligations
The People are directed to comply with their continuing discovery obligations pursuant to CPL article 245.
Conclusion
Defendant's motion for an order dismissing the accusatory instrument is denied. The People are directed to serve unredacted IAB records and CPI and file a SCoC within 30 days of the date of this decision. Alternatively, the People must move for a protective order no later than 15 days of the date of this decision.
This constitutes the decision of the court.