Opinion
File No. 1872-20
10-15-2021
PEOPLE of the State of New York, v. Quashon SURGICK, Defendant.
P. David Soares, Esq., Albany County District Attorney, Alexandra vonStackelberg, Esq., Emily Schultz, Esq., Assistant District Attorneys, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202 Stephen Herrick, Esq., Albany County Public Defender, Kelly D. Vidur, Esq., Assistant Public Defender, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202
P. David Soares, Esq., Albany County District Attorney, Alexandra vonStackelberg, Esq., Emily Schultz, Esq., Assistant District Attorneys, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202
Stephen Herrick, Esq., Albany County Public Defender, Kelly D. Vidur, Esq., Assistant Public Defender, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202
Joshua L. Farrell, J.
Defendant stands charged with Criminal Impersonation in the Second Degree and Unlawful Dissemination or Publication of an Intimate Image. These charges allege that defendant, on April 16, 2021, impersonated his ex-girlfriend B.S. by posting an intimate video of her on her own Facebook account. The video allegedly depicted B.S. performing sexual acts. Needless to say, B.S. alleges that she did not consent to the posting. Defendant entered a plea of not guilty to the charges on April 30, 2021 and discovery commenced. Motion practice has been extensive, both before and after this Court's July 30, 2021 trial ready inquiry ("TRI"). The motions are all now fully submitted and the issues raised are each addressed separately below.
The complaining witness will be referred to herein by her initials.
Defendant's Challenge to the People's Certificate of Discovery Compliance
Defendant's challenge to the People's Certificate of Discovery Compliance (hereinafter "CoC") is granted only to the extent that the People failed to demonstrate that their "police personnel files" disclosure was sufficient. Defendant's challenge is otherwise denied.
CPL § 245.50(1) requires the People to file and serve a CoC confirming 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." Of course, and as explicitly set forth in the statute, the People must automatically provide defendant with the discovery materials outlined in CPL § 245.20(1) prior to filing their CoC. However, CPL § 245.50 recognizes that not all discovery will be turned over to the defense prior to CoC filing. CPL § 245.50(1) provides an explicit exception for discovery that is "lost or destroyed" or subject to a CPL § 245.70 protective order.
While recognizing that some discovery may not be provided to the defense, CPL § 245.50(1) makes no allowance for CoC non-filing. Even where some discovery items are not provided to the defense, the People's CoC filing obligation remains. The People must still "exercis[e] due diligence and mak[e] reasonable inquiries" and then provide the defense with all "known material and information." CPL § 245.50(1).
[The People's] requirement of providing "known material and information" is wholly dependent on the People first "exercising due diligence and making reasonable inquires." While neither "due diligence" nor "reasonable inquires" are statutorily defined, their plain meaning proscribes an absolute requirement. Instead, due diligence is understood as: "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. — Also termed reasonable diligence"Black's Law Dictionary (11th ed. 2019). Paired with the phrase "reasonable inquiries," the most natural and ordinary meaning of "due diligence" in this context requires the People to conduct a "reasonable" search for discovery material. To be sure, this reasonableness standard requires the People to go to great effort. The prosecution of a criminal charge where liberty is at stake demands no less. The standard, however, cannot be construed as an absolute requirement to provide the defense with all discovery material, whether known or unknown, regardless of the reasonableness of the People's searches, investigations, and inquiries.
People v Smith , Albany City Court, July 20, 2021, Farrell, J. Index No. 1872-20.
Here, the defense contests the People's discovery disclosures as set forth in four CoCs. The People initially filed a CoC, dated June 16, 2021, and then filed a second, dated July 13, 2021. By a CPL § 245.35(1) Order of this Court, the People and defense counsel were directed to "diligently confer to reach an accommodation" on their discovery disputes. Then, following the conferral, the People filed their third CoC, dated July 29, 2021. This Court conducted its TRI the next day. The parties briefed the CoC disputes twice, and defense counsel has identified three final unresolved issues: "911 / station calls; additional radio transmissions disclosed" and "police personnel files." The People thereafter filed a fourth CoC, dated August 10, 2021, identifying newly created discovery materials which are not at issue. On this record, defendant failed to demonstrate his entitlement to relief on his "911 / station calls; additional radio transmissions" challenges but did so on the "police personnel files" issue he raised.
After this matter was fully submitted the People, on September 20, 2021, filed a fifth CoC disclosing a "search warrant and associated documents." This further submission is not at issue on this motion.
Defendant first concedes that his request for "911 / station calls" has been satisfied and the People demonstrated that their search for such discovery material was reasonable. The record demonstrates that on April 18, 2021 the Albany County District Attorney's Office (hereinafter "DA") sent to the New York State Police (hereinafter "NYSP") a request for "a complete copy" of their records and files in this action. The NYSP responded with a "Discovery Checklist," dated April 19, 2021, that did not indicate the existence of any "911 Calls & /or Telephone Calls." It is uncontested that this request and response provided the People with no information about the existence of "911 / station calls" Nor is it contested that the People provided defendant with all of the materials identified in the NYSP Discovery Checklist. When defendant raised the "911 / station calls" issue in his omnibus motion, the People sought more information from the NYSP on July 12 and 26, 2021. Then, on July 29, 2021, the People "received confirmation that no such recording ever existed." Defendant concedes the non-existence of such material. On this record it is uncontested that the "911 / station calls" were never turned over because, in fact, they never existed. The People fully complied with their discovery obligations, and defendant's objections to the CoC are entirely unfounded.
Similarly unavailing is defendant's related challenge to the "additional radio transmissions disclosed" by the People's third CoC. On July 29, 2021, the People provided defendant, for the first time, with a: CAD Log, Radio Log, Radio Transmissions (5 files), and Email from NYSP re Phone Call Information. It is uncontested that the People obtained these materials by continued inquiries to ascertain the existence of discovery material, and then disclosed them to the defense expeditiously upon their receipt. The NYSP Discovery Checklist made no mention of such items, and defendant has not claimed that the People's late disclosure was in bad faith, unreasonable under the circumstances, or caused him any prejudice. Rather, in accord with CPL §§ 245.60 and 245.50(1), it appears that the People fully complied with their continuing duty to investigate and disclose. Because the People demonstrated that their "additional radio transmissions" were disclosed in good faith and reasonable under the circumstances, "no adverse consequences shall result" ( CPL § 245.50[1] ) and Defendant's objections are rejected.
Defendant did, however, demonstrate that the People's "police personnel files" disclosure failed to comply with CPL § 245.20(1)(k)(iv) ’s requirements.
The People's due diligence and reasonable inquiries obligations are especially significant for CPL § 245.20(1)(k)(iv) discovery information and materials. This provision specifically requires the People to turn over "[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 impeach the credibility of a testifying prosecution witness." CPL § 245.20(1)(k)(iv). Numerous courts have recognized that this obligation is a statutory expansion of the constitutional disclosure requirements of Brady v Maryland (373 US 83 [1963] ) and Giglio v United States (405 US 150 [1972] ). See People v Salters , 72 Misc 3d 1219(A)(Nassau Dist Ct 2021) ; People v McKinney , 71 Misc 3d 1221(A)(Crim Ct Kings Co 2021) ; People v Castellanos , 72 Misc 3d 371 (Sup Ct, Bronx Co 2021) ; People v Rosario , 70 Misc 3d 753 (Albany County Ct 2020).
Generally, CPL § 245.20(1)(k)(iv) requires the People to turn over all impeachment material concerning their law enforcement witnesses. Recognizing the practical difficulty of the People obtaining such information from law enforcement agencies, CPL § 245.55(1) specifically obligates the People to ensure that a flow of information exists for "any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20." Then, in the very next paragraph, the statute states that each law enforcement agency "shall make available to the prosecution a complete copy of its 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). Moreover, a law enforcement agency's personnel files, like all items and information related to the prosecution of a charge, are statutorily "deemed to be in the possession of the prosecution." CPL § 245.20(2). The plain language of this presumption along with the People's statutory obligations demonstrate, unequivocally, the legislature's intent: the People's due diligence and reasonable inquiries burden is exceptionally high to obtain, review, and disclose impeachment material concerning their law enforcement witnesses.
Moreover, the legislature explicitly and unambiguously explained its intent in favor of full disclosure by stating that "[t]here shall be a presumption in favor of disclosure when interpreting subdivision one of section 245.20, of this article." CPL § 245.20(7).
When the People exercise due diligence to obtain their police officer witness’ personnel records but are unable to demonstrate full compliance with their obligation, the statue provides options. CPL § 245.35 provides a framework to "facilitate compliance." CPL § 245.35(3) specifically addresses the People's CPL § 245.20(1)(k) discovery obligation, after they file a CoC, by stating:
..that the court in its discretion may issue an order: Requiring the prosecution to file an additional certificate of compliance that states that the prosecutor and/or an appropriate named agent has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article, including such evidence or information that was not reduced to writing or otherwise memorialized or preserved as evidence, and has disclosed any such information to the defendant
By its terms, this provision recognizes the filing of an initial CoC and then authorizes an order that requires an additional CoC filing. This additional CoC is focused specifically on CPL § 245.20(1)(k) information and material, requiring a further statement confirming the People's "reasonable inquiries of all police officers about the existence of any favorable evidence or information." CPL § 245.35(3). With these explicit terms the legislature made clear that even after the People exercise due diligence and submit a valid CoC, a post-CoC statement may be ordered to ensure that all CPL § 245.20(1)(k) "favorable evidence or information" is disclosed to the defense. CPL § 245.35(3). The statute further provides a catchall provision, authorizing an order "requiring other measures or proceedings designed to carry into effect the goals of this article." CPL § 245.35(4).
Of course, if the People fail to demonstrate that they have exercised due diligence and made reasonable inquiries to obtain CPL § 245.20(1)(k)(iv) material and information, their CoC would not be proper and their statement of ready would not be valid. CPL §§ 30.30(5) and 245.50(1) and (3). The People must satisfy their discovery obligations, with due diligence, prior to being ready for trial. The obligation is inflexible. No trial ready statement is valid unless the People file a CoC that truthfully asserts that the People have "exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery." Id.
On this record, the People failed to demonstrate their due diligence and reasonable inquiries to comply with CPL § 245.20(1)(k) for their three law enforcement witnesses.
The People first described the generally applicable background for their CPL § 245.20(1)(k) inquiries by submitting Chief ADA Rossi's "standing affirmation," dated January 20, 2021. They filed this affirmation four separate times in this action alone and have submitted it to this court with nearly every other CoC filed over the past year and a half. This boilerplate filing recounts Chief ADA Rossi's efforts, and that of the DA's Office, to create the required CPL § 245.55 "flow of information." The filing explains the breadth of the obligation by identifying the numerous jurisdictions, law enforcement agencies, and law enforcement officers within Albany County. He also explains the non-uniform standards the various agencies employ to retain CPL § 245.20(1)(k) impeachment materials. Chief ADA Rossi outlines the efforts his office made prior to 2020, where the DA's office required each law enforcement agency to review their internal files and provide all impeachment materials. As Chief ADA Rossi admits, not every agency complied. In part to remedy the non-compliance of the agencies and also to provide all impeachment information that was not "recorded in tangible form" ( CPL § 245.20[1][k] ), the DA's office asked each of its police officer witnesses to disclose certain impeachment information they knew about themselves by questionnaire. The questionnaires too, however, were insufficient. People v Rosario , 70 Misc 3d 753 (Albany County Ct 2020). To remedy the deficiencies, Chief ADA Rossi explains the additional efforts the DA's office took in November and December of 2020. He explains his office's written demand for the complete personnel file of all police officers from every police chief in Albany County, and the meeting his office had with those police chiefs concerning the demand (presumably this included the NYSP). This was followed by the DA's Office sending to each police chief their "Standing Request for Materials Related to CPL § 245.20(1)(k)," dated January 11, 2021 (hereinafter "Standing Request"). Chief ADA Rossi concludes by explaining, in general, what materials the DA's office is providing to the defense. He states that "we are not now providing those underlying audio and video recordings, witness statements, or other documents appertaining to those allegations Instead, the People are providing the defendant only with a summary of the substance of any allegations of wrongdoing relevant to credibility."
The DA's Standing Request is a comprehensive appeal for CPL § 245.20(1)(k) material and information. Sent to every police department, it requests the "relevant portions" of the personnel files for officers who may reasonably be expected to testify as a witness. It defines relevancy in terms of impeachment material, and then defines impeachment information. The definition of impeachment material provides a non-exhaustive list of examples, and otherwise describes the information as logically and reasonably bearing on credibility. The definition also includes all information, whether recorded or not. The DA's request recognizes that the term "personnel file" has different meanings across law enforcement agencies, and that the Standing Request is not limited to those files titled "personnel record." Rather, it is impeachment material that is sought regardless of the file or the document's title. Recognizing this difficulty in relying on title, the People specifically requested "all documents and information pertaining to[:] • Discipline • Letters of Censure • Citizen Complaints • Allegations of misconduct • Employment Applications and Background Checks. " (emphasis added). The People further clarified their request for unredacted records, explaining that they will conduct the necessary redaction review and "provide only those records which contain potential impeachment information."
Within this generally applicable background, the record demonstrates that the People's efforts to ascertain the existence of impeachment materials for their three law enforcement witnesses in this action were insufficient.
On June 16, 2021, the People filed and served their first Discovery Disclosure. The Witness List attached to the Disclosure identified two law enforcement witnesses: Investigator Michael Alteri and Trooper Kyle Rossback. Under the heading " CPL § 245.20(1)(k) ‘Brady’ Information" the Disclosure stated that "[n]one is known to exist at this time." Supplementing the Disclosure, on July 13, 2021, the People filed an updated Witness List to add a third law enforcement witness: Trooper Brent Karrow. Along with the updated Witness List, the People asserted their compliance with CPL § 245.20(1)(k) by stating:
Trooper Karrow's personnel file, totaling two pages, was provided to Defendant on July 13, 2021 [for the impeachment] records related to Investigator Michael Alteri[ t]he People have turned over all potential Brady material consisting of three pages of materials [for the impeachment] records related to Trooper Kyle Rossback[ t]he People have turned over all potential Brady material consisting of one page of materials
Despite the extensive briefing, the People's written submissions did not explain their efforts to ascertain CPL § 245.20(1)(k) impeachment materials for their three law enforcement witnesses in this action. They offered no details to explain the inquiry conducted that produced the six pages of documents for their three law enforcement witnesses. Instead, they relied wholly on Chief ADA Rossi's Affirmation and the Standing Request for their explanation. The affirmation, however, provides only background information and the Standing Request is, obviously, only a request. Neither provide case specific facts to establish the People's compliance with their discovery obligations in this action.
At its July 30, 2021 TRI, the Court sought to clarify the written record. The Court asked the People, in sum and substance, the following questions for each of their law enforcement witnesses:
What New York State government offices or departments keep files that contain information that would tend to impeach the People's three law enforcement witness?
For those offices and departments, who reviewed their physical and electronic files to cull all information for impeachment material?
The People were unable to offer any details in response and were, likewise, wholly unable to explain the NYSP's review. The People subsequently, in a written submission, identified the individuals who conducted NYSP's review. They did not, however, explain the review conducted.
Instead, to explain NYSP's review the People submitted an explanatory document titled "NYSP Member Resumes." A Member Resume, according to the unsigned and unsworn document's provisions, is an "incident summary or synopsis" for the subject NYSP employees’ disciplinary matters. The explanatory document describes the four ways in which "complaints are typically closed," and states that although "[d]isciplinary investigations result in underlying records being generated [those] records are not being automatically provided along with Member Resumes." The explanatory document also indicates that "NYSP has provided [the DA's] office with files, identified by employee name, containing letters of censure on founded personnel complaints for that employee."
This showing fails to establish the People's due diligence and reasonable inquiries to ascertain the existence of CPL § 245.20(1)(k) material and information. The People demonstrated only that they disclosed their three law enforcement witnesses’ "Member Resumes" and nothing more. They simply offered no facts concerning the underlying search that led to the "Member Resumes" disclosure, without which no finding of due diligence can be made.
Moreover, although specifically requested by the defense, the People did not provide any letters of censure for their law enforcement witnesses and offered no explanation for the failure. This non-disclosure has occurred despite the Member Resumes explanatory document's statement that the NYSP have turned all letters of censure over to the People. In an unsworn memorandum ADA Schultz states that "upon information and belief, everything turned over by the State Police was provided to the defendant in this case." She did not explain the basis for her "information and belief." Nor did she explain the discrepancy between the censure letters’ nondisclosure and the explanatory document's assertion that such censure letters were provided to the People. This unexplained contradiction precludes a finding that the People have complied with their obligations under CPL § 245.20(1)(k).
Similarly, the People offered no explanation for the NYSP's noncompliance with their Standing Request. As set forth above, the Standing Request asked the NYSP to provide the People with unredacted copies of all impeachment materials. The Member Resumes explanatory document, however, describes their disclosure as a summary of disciplinary reviews. The NYSP specifically declined the People's request to provide unredacted impeachment materials and instead explicitly stated that the "underlying records are not being automatically provided." The People offered no explanation for the NYSP's non-compliance. Nor have the People offered any explanation about NYSP's failure to provide "Employment Applications and Background Checks." The People's Standing Request sought such documents from the NYSP, the defense has demanded them, yet no explanation for their non-disclosure has been offered. Due to these unexplained gaps in their disclosure, the People did not demonstrate their compliance with CPL § 245.20(1)(k) and failed to file a proper CoC in accord with CPL § 245.50(3).
Accordingly, the People shall file and serve a Supplemental CoC that demonstrates full compliance with CPL § 245.20(1)(k) on or before October 22, 2021 at 1:30 pm.
Trial Ready Inquiry
On July 30, 2021, this Court conducted its CPL § 30.30(5) Trial Ready Inquiry ("TRI") and now finds that the People's Statement of Readiness ("SoR") is not valid.
On January 1, 2020, the law governing the People's statement of ready for trail was significantly altered. L.2019, c. 59, pt. KKK, § 1. The change now requires the Court, pursuant to CPL § 30.30(5), to conduct a trail ready inquiry:
Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met
Prior to this new trial ready inquiry legislation, Court of Appeals’ precedent had held that "a statement of readiness is presumed valid, and a defendant who challenges such a statement must demonstrate that it is illusory by showing that the People were not actually ready at the time they filed it." People v Brown , 28 NY3d 392, 407 (2016) ; see generally Donnino, McKinney Practice Commentary, CPL § 30.30. By declining to include any presumption in CPL § 30.30(5), the legislature unambiguously abrogated the presumption endorsed by the Court of Appeals in People v Brown . Instead, CPL § 30.30(5) lays no burden on the defense and requires the court to "make inquiry on the record as to the[ People's] actual readiness. " Id. (emphasis added). This is not a discovery requirement under CPL Article 245, as the People correctly note, but rather an obligation of the court to ensure that the People are actually ready for trial. see generally People v Lobato , 66 Misc 3d 1230(A) (Crim Ct, Kings County 2020), NY Senate Debate on Senate Bill S1509-C, March 31, 2019 at 2599, NY Assembly Debate on Assembly Bill A2009-C, March 31, 2019 at 340.
With the "actual readiness" inquiry, the new legislation imposed two prerequisites to a valid announcement of ready for trial. The first requirement, set forth in CPL § 245.50(3), requires the People to file a proper CPL § 245.50(1) certificate of discovery compliance. CPL § 30.30(5) itself reiterates this mandate and, with CPL § 245.50(4), provides the defense with an opportunity to challenge the People's disclosure. The second precondition, applicable only in a misdemeanor prosecution, requires the People to certify that all pending accusatory instruments are facially sufficient in accord with the requirements of CPL §§ 100.15 and 100.40. CPL § 30.30(5-a).
Although the legislation requires an "actual readiness" inquiry and sets prerequisites to a valid announcement of ready, it did not further define "actual readiness." Court of Appeals caselaw, however, fills this void. In one of its seminal decisions on trial readiness the Court of Appeals explained "the prosecutor must make his [or her] statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." People v Kendzia , 64 NY2d 331, 337 (1985). Similarly controlling, "readiness is not defined simply by an empty declaration that the People are prepared to present their direct case." People v England , 84 NY2d 1, 4 (1994). "[R]eadiness requires more than simply ‘mouthing’ the words." People v Sibblies , 22 NY3d 1174, 1177 (2014). The Court of Appeals has made the obligation clear: the People must evaluate the proof they are presently able to present at trial and, in exercising their professional judgment, honestly state that their proof would establish a pima face case at trial. see generally People v Richardson , 192 AD3d 432 (1st Dept 2021), People v Zale , 137 AD3d 634 (1st Dept 2016), People v Williams , Albany County Court, July 6, 2021, Ackerman, J. index No. DA 260-20.
Similarly evident, the obligation to state actual readiness requires more from the People than being a mere advocate. "Prosecutors, in their role as advocates and public officers, are charged with seeing that justice is done—to act impartially, to have fair dealing with the accused, to be candid with the courts, and to safeguard the rights of all." Matter of Kurtzrock , 192 AD3d 197, 219 (2d Dept 2020) ; see also 22 NYCRR 1200 - Rule 3.8(a)("A prosecutor shall not maintain a criminal charge when the lawyer knows or it is obvious that the charge is not supported by probable cause.") The People's statement of readiness must be viewed in light of this fundamental pillar of our criminal justice system: a prosecutor must seek and do justice.
Applying the requisite standards, the People's SoR is not valid in two distinct ways.
First, CPL § 245.50(3) requires a finding that the People are not ready for trial. As set forth above, because the People have not demonstrated compliance with CPL § 245.20(1)(k) for their law enforcement witnesses they have not yet filed a proper CoC. This precludes a valid statement of ready. According to CPL § 245.50(3) the People "shall not be deemed ready for trial for purposes of section 30.30 until" they have filed a proper CoC. As such, the People's SoR is not valid.
Second, the People failed to sufficiently demonstrate their "actual readiness" during the Court's TRI. As part of the TRI the People did not indicate that an evidence based prosecution would be viable in this action, but instead specifically identified the witnesses they consider necessary for trial. For those witnesses, however, the People declined to answer the Court's questions about their actual readiness. The People would not state whether their necessary witnesses were ready, willing, and able to testify, or even whether they had spoken with them. They did not claim that they had evaluated their witnesses. Nor did they make an assertion that they were presently able to present testimony at trial to establish a pima face case. Because the People chose not to offer any information about their necessary witnesses’ readiness, they failed to demonstrate that they are presently ready to offer sufficient evidence to present a prima facie case at trial. Thus, the People failed to establish their "actual readiness."
The People seek to justify their refusal to answer questions about their witnesses by misconstruing what "actual readiness" means. The People state:
[W]hether any particular witness is cooperative or available impacts whether the People will be able to sustain its ultimate burden a trial, not whether it is ready to proceed. (ADA Schultz Memorandum p. 7).
While it may be ill-advised under most circumstances, the People could theoretically proceed to trial without ever speaking with a victim or other witness but instead focus their trial preparations on the evidence contained in the case file itself. Under those circumstances, it is the People's ability to prevail at trial that may be impacted, not their ability to proceed to trial (ADA Schultz Memorandum p. 9).
[W]hether a victim — or any witness for that matter — has affirmatively indicated that he or she is ready, willing, and able to testify is of no real consequence to the People's statement of trial readiness. To hold otherwise would conflate the standard of whether the people are ready for trial with whether the People will successfully present their case at trial. (ADA Schultz Memorandum p. 11)
These assertions indicate a misinterpretation of "actual readiness." They demonstrate the People's willingness to provide the Court with an empty declaration of ready, without a present ability to present a prima face case that could prevail at trial. It bears repeating, such "an empty declaration that the People are prepared to present their direct case" is insufficient. People v England , supra. Of course, the People will not always prevail at trial, but that is not the inquiry. Rather, it is the People's knowledge of their ability to present a prima face case and their demonstrating such ability at the Court's trial ready inquiry. Where the People state ready at a time when they know that they do not have the present ability to offer prima facie evidence at trial, their statement of ready is invalid. It would constitute nothing more than " ‘mouthing’ the words," which is simply not enough. People v Sibblies , supra.
The People also offered hypothetical safety concerns to justify their position but offered no case specific facts arising in this action that would justify a deviation from their statutory obligation to demonstrate "actual readiness." This court is both cognizant of and sensitive to the very real safety concerns surrounding witnesses in certain domestic violence cases. Every effort must be made to ensure the safety of a complaining witness to preserve their ability to have their case heard. While the theoretical concerns of witness intimidation and batter's syndrome are too often present and demonstrable in cases before this court, in this action the People made no factual showing that the complaining witnesses’ safety is threatened. Tellingly, the People have not sought a protective order, pursuant to CPL § 245.70, to address a specific safety concern in this action. Instead, they rely on conjured hypotheticals and possibilities, with no basis in the facts of this case. Because the law provides no blanket exception that permits the People to declare trial readiness in domestic violence cases when they are not actually ready, this court cannot and will not create the exception the People seek.
Lastly, the People's reliance on People v Adams (72 Misc 3d 1208[A], Orange Co Ct 2021) is wholly unavailing. The Adams court specifically noted that the People and the defense were in contact with that case's complaining witnesses. Here, the People have made no such representation. In Adams the witness was not absent and was otherwise subject to a subpoena. In this action, the People have made no such showing. While the Adams court examined the complaining "witnesses’ desire to testify [and] the witnesses availability to testify," the People made no such distinction in this action. Rather, the record is silent. The People offered no proof of their witnesses’ desire, availability, or readiness. As correctly observed in Adams, "[a] witness indicating she has no interest in testifying does not make that witness unavailable, and a prosecution does not necessarily end because a witness may have become reluctant to cooperate." The People in this action, however, did not demonstrate reluctance. They made no showing whatsoever. On this lack of proof, the People failed to demonstrate "actual readiness."
Accordingly, the court will conduct a second trial ready inquiry at which the People must demonstrate "actual readiness" on October 22, 2021 at 1:30 pm.
Motion to Preclude Statements & Identifications - CPL § 710.30
Defendant moves for an order, in accord with CPL § 710.30, precluding the People from offering at trial any statements or identifications that he was not provided notice of within 15 days of his arraignment. The People concede that they did not serve a timely CPL § 710.30 notice. The statutory remedy for the People's failure to provide the required notice is preclusion. CPL § 710.30(3) ; People v Lopez , 84 NY2d 425 (1994). Accordingly, defendant's motion is granted. The People are hereby precluded from introducing at trial any identification evidence of defendant and any statements allegedly made by defendant that were not turned over as required by CPL § 710.30(1).
Motion for a Sandoval/Ventimiglia/Molineux Hearing
Defendant moves this Court for a hearing to determine the admissibility of any prior crimes or bad acts committed by defendant. Under People v Sandoval , 34 NY2d 371 (1974), defendant is entitled to a hearing to determine the admissibility, in cross examination impeachment of defendant, of prior criminal convictions. Under People v Molineux , 168 NY 264 (1901) defendant is entitled to a pre-trial hearing to determine the admissibility of uncharged crimes committed by defendant as part of the People's direct case. Under People v Ventimiglia, 52 NY2d 350 (1981), defendant is entitled to a hearing on the admissibility of evidence of uncharged crimes which do not directly inculpate defendant but from which guilt may be inferred. As such, defendant's motion is granted and the requested hearing will be held at least two weeks prior to trial.
Motion for Brady Material
Defendant moves for an Order pursuant to Brady v Maryland , 373 US 83 (1963). In that case, the Supreme Court held that the People must disclose to a criminal defendant evidence in its possession that is (1) favorable to defendant and (2) material either to guilt or punishment. This rule rests on the premise that proceedings cannot be fair if evidence is withheld which casts doubt on the guilt of defendant. People v Vilardi , 76 NY2d 67 (1990). It is incumbent on the People, as a matter of due process, to ensure that material evidence in its possession that is exculpatory in nature be turned over to defendant. People v Novoa , 70 NY2d 490 (1987). The People are directed to do so as such evidence, if any, comes into their possession.
Renewal of Motions
Criminal Procedure Law § 255.20(1) mandates that all pre-trial motions be brought within one set of moving papers within forty-five (45) days of arraignment. To that extent, defendant's request for leave to submit further motions is denied. Defendant may make such further motions and applications that he could not with due diligence have raised in his original motion papers that are not inconsistent with Article 255 of the CPL.
People's Motion to Compel Discovery
CPL § 245.20(4) requires the defense to provide the people with "reciprocal discovery" and then, pursuant to CPL § 245.50(2), defendant must certify that all such discovery has been provided to the People. Here, in response to the People's motion to compel a CPL § 245.50(2) certification, defendant served both discovery and the required certification. Because the People have made no claim of prejudice as a result of the late certification, the People's motion to compel is denied as moot.
Other Motions and Scheduling Order
All motions not granted herein are hereby denied.
The foregoing constitutes the Decision and Order of this Court.
SO ORDERED.