Opinion
No. CR-012883-23BX
03-29-2024
The People of the State of New York v. Gloria Suarez, Defendant.
For the People: Casey M. McIntyre, Assistant District Attorney Office of the Bronx District Attorney For the Defendant: Yifei He, Esq. The Law Office of Yifei He, PLLC
Unpublished Opinion
For the People: Casey M. McIntyre, Assistant District Attorney
Office of the Bronx District Attorney
For the Defendant: Yifei He, Esq.
The Law Office of Yifei He, PLLC
Carmen A. Pacheco, J.
Defendant moves for an order (i) finding the prosecution's Certificate of Compliance invalid pursuant to CPL § 30.30(1)(a); (ii) directing the People to comply with CPL § 245.20; and (iii) for such other relief as this court may deem proper.
For the reasons set forth herein, defendant's motion to invalidate the People's Certificate of Compliance and dismiss the accusatory instrument is denied.
Procedural and Factual History
This matter involves a physical altercation between a mother and daughter. According to the filed complaint, defendant assaulted her mother by striking the back of the mother's head causing substantial pain to her scalp. At the time of the assault, there was a limited temporary order of protection in favor of the complainant mother directing defendant, inter alia, to refrain from assaulting, striking, harassing, or menacing the complainant. As a result, on June 15, 2023, defendant was arraigned on misdemeanor charges namely Penal Law §§ 120.00(1) (assault in the third degree); 265.01(2) (criminal possession of a weapon in the fourth degree); 120.14(1) (menacing in the second degree); 215.50(3) (criminal contempt in the second degree); and 240.26 (harassment in the second degree). After defendant was arraigned, the case was adjourned to August 16, 2023 for the People to convert the misdemeanor complaint to an information and file a Certificate of Compliance ("CoC").
On August 16, 2023, the People failed to convert the complaint to an information and file their COC. Consequently, the matter was adjourned to September 29, 2023 for the People to file a CoC and convert the misdemeanor complaint to an information. Between court appearances, on September 11, 2023 (87th day) the People contacted complainant's son who provided additional information concerning the incident and a supporting deposition signed by complainant mother. On September 13, 2023 (89th day), the People served and filed the signed supporting deposition, underlying temporary order of protection, CoC, and Statement of Readiness ("SoR"). Thereafter, on September 25, 2023 (101st day), the People served and filed a Supplemental Certificate of Compliance ("SCoC") which included the 911 call, Special Police Radio Inquiry Network ("SPRINT") report, and radio run.
On the next appearance date, September 29, 2023, defendant's attorney failed to appear. Consequently, the matter was adjourned to October 12, 2023 for defendant's attorney to be present. On October 12, 2023, at the request of defendant's attorney, the case was called without defendant resulting in a bench warrant being issued but stayed until October 17, 2023. In addition, defendant's attorney made a record that motion practice would ensue addressing the validity of the CoC. Later that day, defendant appeared. Therefore, the case was recalled leaving the appearance date unchanged and the bench warrant stayed was vacated.
On October 17, 2023, defendant once again failed to appear. Defendant's attorney indicated that he was unable to contact defendant because she did not have a cellular phone. While defendant's attorney made his record, the Fortune Society requested to be heard to note that if defendant was placed on supervised release the Fortune Society could provide a cellular phone. Consequently, the court stayed a bench warrant until October 25, 2023 for defendant to appear and to be placed on supervised release.
Prior to the next court appearance, defendant filed a motion to dismiss on CPL 30.30 grounds. On October 25, 2023, the scheduled appearance date, defendant failed to appear resulting in the issuance of a bench warrant. Also, the court in its discretion decided to hold defendant's motion in abeyance pending defendant's return to court.
On December 18, 2023, defendant voluntarily returned on the warrant and the warrant was vacated. Additionally, the court deemed the accusatory instrument an information and arraigned defendant. The matter was also adjourned to January 17, 2024 for a discovery conference and defendant was placed on supervised release.
On the adjournment date of January 17, 2024, defendant failed to appear in court. Defendant's attorney indicated that a motion to dismiss was filed by defendant's prior attorney. Instead of issuing a bench warrant, which the court felt would place the motion in abeyance, defendant's attorney was ordered to notify the court as to whether communication was reestablished by January 26, 2024. The court therefore adjourned the matter to March 6, 2024 for decision. In keeping with the court's order, on January 26, 2024, defendant's attorney notified the court that communication was reestablished with defendant. Defendant's motion was now before the court.
Defendant moved for an order invalidating the People's CoC for failing to disclose the 911 call, SPRINT report, and radio run prior to filing their CoC. Defendant argued that those items are in the custody and control of the New York City Police Department ("NYPD") and must be disclosed regardless of the substantive value of the item. Consequently, the CoC was illusory and the case must be dismissed pursuant to CPL § 30.30.
In opposition, the People maintained that they acted in good faith and with due diligence when complying with their discovery obligations. Specifically, the People served approximately 70 pages of Giglio material and hundreds of pages of paperwork from the NYPD and District Attorney's office. The paperwork from the District Attorney's office included items such as the DA case summary.
Additionally, when complying with their discovery obligations, the People relied on the documents provided by the NYPD. Specifically, the NYPD arrest checklist indicated that no Intergraph Computer Aided Dispatch ("ICAD") report was generated for the arrest. However, when reviewing the file and prior to receiving any discovery objections or requests from defendant's attorney, the People discovered a note indicating that the complaining witness made a 911 call which prompted the People to make an immediate request of those items from the NYPD. The People requested that those items be provided expeditiously. Therefore, the People's CoC was valid since they acted in good faith and with due diligence.
In reply, defendant drove home the point that the NYPD complaint contained an ICAD number. Hence it was the People's failure to act with due diligence which led to untimely disclosure that the complaining witness's daughter, Annamaria Suarez, made the 911 call. Additionally, the document indicated that the complaint was received via radio. Consequently, the belated disclosure of the 911 call, SPRINT report, radio run, and witness rendered the CoC improper.
On March 6, 2024, the court requested that the parties submit additional briefs discussing whether the People timely converted the misdemeanor complaint to an information. In accordance with the court's directive, the attorneys submitted briefs addressing the timeliness of converting the complaint to an information. When addressing the issue, defendant incorrectly asserted that defendant was not arraigned on an information therefore the case must be dismissed. However, on December 18, 2023 defendant was arraigned on the information. Conversely, the People maintained that they fulfilled their burden by filing the supporting deposition simultaneously with their CoC and SoR. Moreover, a misdemeanor complaint is converted to an information once the supporting deposition is filed. Thus, arraigning defendant, which is a court driven procedure, is of no consequence when converting the complaint to an information.
General Application
When defendant is accused of no felonies and at least one misdemeanor "punishable by a sentence of imprisonment of more than three months and none of which is a felony", the People must be ready for trial within 90 days of the commencement of the criminal action. CPL § 30.30(1)(b); People v. Alvia, 78Misc.3d . 1228(A) (Crim. Ct. Bronx Cnty. 2023). Failure to be ready for trial prior to the expiration of the CPL § 30.30 speedy trial time requires dismissal of the accusatory instrument. CPL §§ 30.30(1); 170.30(1)(e); 210.20(1)(g).
Moreover, to avoid dismissal, the People must satisfy two conditions to halt the CPL § 30.30 clock. First, the People are required to file a proper CoC certifying compliance with their discovery obligations. To be valid, the CoC must state that "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). However, the People are not required to comply perfectly with their discovery obligations. People v. Erby, 68 Misc.3d 625 (Sup. Ct. Bronx Cnty. 2020); People v. Alvia, 78Misc.3d . 1228(A) (Crim. Ct. Bronx Cnty. 2023). Second, the People are required to declare their readiness for trial after filing a proper CoC. People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023).
Moreover, "[a] proper, good-faith certificate of automatic discovery compliance is a prerequisite to a valid SOR." People v. Markovtsii, 81 Misc.3d 225 (Crim Ct. Kings Cnty. 2023)(citations omitted). For a valid declaration of readiness, the People may make a statement of readiness on the record "transcribed by a stenographer, or recorded by the clerk... ", People v. Chavis, 91 N.Y.2d 500, 505 (1998), or state their readiness for trial by "written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record." People v. Kendzia, 64 N.Y.2d 331, 337 (1985). The People genuinely must be ready for trial to bring the People's speedy trial time to a halt. See People v. England, 84. N.Y.2d 1, 4 (1994)(People were not ready for trial when defendant could not be arraigned on the indictment prior to expiration of the CPL 30.30 time); People v. Brown, 28 N.Y.3d 392, 404 (2016)(matter remitted for trial court to determine whether the People's statement of readiness was illusory). Importantly, even when the People declare their readiness for trial, a continuous obligation remains to provide "additional material or information which it would have been under a duty to disclose... had it known of it at the time of a previous discovery obligation or discovery order." CPL § 245.60.
Consequently, when additional material is discovered and served on defendant, the People must file a SCoC explaining the reason for the delay. "The failure to file the supplemental COC impacts the original COC because good faith and due diligence can't be demonstrated. Thus, a failure to file a supplemental COC while filing late discovery will invalidate the COC. In sum a failure to file a supplemental COC is fatal and will inevitably invalidate the COC." People v. Markovtsii, 81 Misc.3d 225, 229 (Crim Ct. Kings Cnty. 2023).
Moreover, the SCoC must "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); People v. Sanders, 2023 NY Slip Op 51435(U)(Crim. Ct. Bronx Cnty 2023)(a defective CoC can be saved when the court finds the People acted in good faith and through the filing of a SCoC) (citation omitted). Consequently, failure to file a SCoC after belatedly disclosing discovery precludes the court from determining the validity of the original CoC. People v. Markovtsii, 81 Misc.3d at 229 (failure to file a SCoC "impacts the original COC because good faith and due diligence can't be demonstrated. Thus, a failure to file a supplemental COC while filing late discovery will invalidate the COC."). Clearly, a SCoC is a "necessary document and not an administrative filing." Id.
Conversion of Felony and Misdemeanor Complaints are Distinctive
When "[a] felony complaint was previously filed in local criminal court, the Criminal Procedure Law imposes a nondelegable duty on the trial court to arraign the defendant" to obtain jurisdiction. People v. Goss, 87 N.Y.2d 792, 798 (1996). Once an indictment is filed, the superior court must provide defendant with at least a two day notice of the arraignment date before defendant is directed to appear. CPL § 1.20(2). As a result of the two-day notice requirement in felony matters, "a statement of readiness made contemporaneously with the filing of the indictment can be effective to stop the 'speedy trial' clock if the indictment is filed at least two days before the CPL 30.30 period ends." People v. Carter, 91 N.Y.2d 795, 798 (1998)(citations omitted). Thus, the People's failure to file an indictment and have defendant arraigned prior to the expiration of their CPL 30.30 time renders their statement of readiness invalid since the court cannot obtain jurisdiction over defendant. People v. England, 84 N.Y.2d 1 (1994) (People's Statement of Readiness was invalid when the indictment was filed exactly six months after the commencement of the criminal action since arraignment of the defendant on the indictment would occur after the expiration of the CPL 30.30 time). However, there is a presumption that the People's statement of readiness is valid, "[i]n the absence of proof that the readiness statement did not accurately reflect the People's position." People v. Lisene, 201 A.D.3d 738 (2d Dept. 2022) citing People v. Carter, 91 N.Y.2d at 799.
In felony matters, the court acquires jurisdiction over the defendant through defendant's arraignment on the indictment. Unlike felony matters, in misdemeanor matters the court secures jurisdiction once defendant is arraigned on an unconverted complaint. People v. Dumay, 23 N.Y.3d 518, 522 (2014)("a misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action"); see CPL § 100.40(1)(misdemeanor controlling statute lacks language that obligates the court to provide prior notice to a defendant of an arraignment date). Consequently, the court retains jurisdiction when the misdemeanor complaint is converted to an information even if defendant is not arraigned on the information. However to prosecute a misdemeanor, absent a waiver by defendant, the People are required to convert the misdemeanor complaint to an information. People v. Kalin, 12 N.Y.3d 225, 228 (2009). As a result, the decisions regarding felony complaints cannot be applied to misdemeanor cases or "preclude the People from being ready on an [misdemeanor] information, notwithstanding that defendant has not been arraigned on the information pursuant to CPL § 170.65(1)." People v. Santos, 165 Misc.2d 950, 953 (Crim Ct. Bronx Cnty. 1995).
Accordingly, the People's filing of a proper supporting deposition converted the misdemeanor complaint into an information. Since the supporting deposition was filed contemporaneously with the CoC and prior to the expiration of their speedy trial time, the People's declaration of readiness was timely.
Delayed Disclosure of Police Records
As to the People's discovery obligations, the court finds that the People acted in good faith despite belatedly disclosing the 911 call, SPRINT report, and radio runs. It is undisputed that the People must disclose "all items and information that relates 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...". CPL § 245.20(1). When determining whether the People satisfied their discovery obligations, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated." People v. Rodriguez, 73 Misc.3d 411 (Sup. Ct. Queens Cnty. 2021); People v. Perez, 73 Misc.3d 171 (Sup. Ct. Queens Cnty. 2021). With respect to "due diligence", the Criminal Procedure Law does not provide a definition. Additionally, there is "no precise formula by which due diligence is measured, instead, each case must be reviewed on an individual basis to determine if the People made reasonable efforts... ". People v. Pondexter, 76 Misc.3d 349, 354 (Crim. Ct. NY Cnty. 2022).
Recently in People v. Bay, the Court of Appeals provided guidance for the court to consider whether the People acted with due diligence . 2023 WL 86229188 (2023). The Court of Appeals noted that:
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, 2023 WL 86229188 (2023). The Court also noted that the elements were non-exhaustive. Additionally, when determining whether the People exercised due diligence lies within the court's discretion should be evaluated on a case-by-case basis.
After the Bay decision, the Appellate Division Fourth Department weighed in and applied the Court of Appeals factors to 911 belated disclosure calls. People v. Walkins, 2024 WL 508287 (4th Dept. 2024). In Walkins, defendant appealed a judgment convicting him of Penal Law §§ 130.65 (sexual abuse in the first degree) and 130.50(3) (criminal sexual act in the first degree) and alleged that the court erred in its denial of defendant's motion to dismiss the indictment. When the People initially filed their CoC, they indicated that there were no 911 calls corresponding with the case. Prior to filing the COC, the People reviewed and relied on the police reports which indicated that the victim was taken by her parents to the child advocacy center and the center contacted the police. However, while preparing for trial, the People spoke to the victim's parents and were informed that the parents made phone calls to 911 prior to taking their daughter to the child advocacy center. Id. Subsequently, the People obtained and served a copy of the 911 calls made by the parents and filled a SCoC. Accordingly the Appellate Division Walkins court held that it was reasonable for the People to conclude that no 911 calls existed and acted in good faith and with due diligence when they immediately requested the 911 calls and filed a SCoC. Id.
Like Walkins, the People's reliance on the NYPD arrest checklist was reasonable and justifiable. See People v. Walkins, 2024 WL 508287 (4th Dept. 2024). Additionally, the People's "[i]nadvertent errors or omissions will not automatically invalidate a COC and COR ." People v. Pondexter. 76 Misc.3d 349 (Crim. Ct. NY Cnty 2022); see also People v. Quinones, 79 Misc.3d 1244(A) (Crim. Ct. Bronx Cnty. 2023). Furthermore, "in many cases a simple oversight may also be excusable, so long as it is corrected and addressed with due diligence once it is brought to the prosecutor's attention." People v. Georgiopoulos, 71 Misc.3d 1215(A) (Sup. Ct. Queens Cnty. 2021).
Here the NYPD arrest checklist, which indicates the documents sent by arresting officer to the People, showed that there was no ICAD Print Out. An ICAD Print Out is generated when a 911 call or radio run exists. Hence like Walkins, the People's reliance on the NYPD arrest checklist indicating that there were no 911 calls, radio run, or SPRINT report was reasonable and justifiable, even when defendant maintains that the information was easily ascertainable. See People v. Walkins, 2024 WL 508287 (4th Dept. 2024). Critical is that upon discovering that a 911 call was made, the People promptly requested the missing items, turned them over to defense counsel, and filed a SCoC. Only 12 days had elapsed since the filing of the People's CoC and defendant raised no discovery issues.
Accordingly, the People acted with good faith and due diligence when fulfilling their discovery obligations, therefore their CoC and SoR are valid.
Conclusion
The court holds that the People's CoC and SoR filed on September 13, 2023, the 89th day were not illusory and are deemed valid. The court therefore denies defendant's motion to dismiss the criminal court information.
This constitutes the decision of the court.