Opinion
2017BX031191
04-04-2018
The People of the State of New York, Plaintiff, v. Raul Tovar-Ramirez, Defendant.
For the People: ADA Jade Newby, Esq, Bronx County District Attorney's Office For the Defendant: Michael Thomas, Esq., The Bronx Defenders
For the People: ADA Jade Newby, Esq, Bronx County District Attorney's Office For the Defendant: Michael Thomas, Esq., The Bronx Defenders Tara A. Collins, J.
Defendant Raul Tovar-Ramirez is charged with Driving While Intoxicated (VTL § 1192[3]), Driving While Ability Impaired (VTL § 1192[1]), Aggravated Unlicensed Operation of a Motor Vehicle (VTL § 511[1][a]), and Unlicensed Operation of a Motor Vehicle (VTL § 509[1]). The issue presented in this case is what, if any, sanction is appropriate where the People have failed to provide discovery to the defense by the court's deadlines, but where they ultimately did so months before the commencement of any hearings or trial. The Court holds that no sanction lies when the defendant has not demonstrated a prejudice to his defense. Moreover, the Court determines that the recent promulgation of the "Order to Counsel in Criminal Cases" does not change this outcome.
PROCEDURAL HISTORY
The defendant was arrested and arraigned on August 6, 2017. Defense counsel submits that a written discovery request was served on the People on September 27, 2017. On four subsequent court appearances, the court has ordered the People to turn over discovery materials to the defense and imposed a deadline. However, these orders were not followed. The People ultimately provided the discovery materials to the defense on the record on January 31, 2018. A total of 178 days had elapsed since the commencement of the criminal action to this date.
It must be noted that the case was on the court's calendar for hearings and trial for each of these appearances.
By the instant motion, the defense asks this Court to preclude the People from using certain evidence at trial. According to the defense, the discovery that the People turned over were crucial materials that had a "substantial effect on how and whether defense counsel decides to proceed in trial" (Defense Memo, at 6). Furthermore, this Court had asked the defense counsel during the court appearance on March 7, 2018, to identify in the motion what prejudice the defendant has suffered by the People's delay in providing the discovery materials. In the motion, the defense contends that "[i]t is very difficult, if not impossible, to properly determine the strength of a case without discovery. By dragging the case out and forcing Mr. Tovar-Ramirez to come back to court multiple times, it pressures him to plead guilty so he does not have to keep coming back to court" (Defense Memo, at 9). In their response, the People submit that their delay in complying with the discovery demand was not willful or in wanton disregard for the court's orders. They state that the delay was caused by the assigned assistant district attorney's hospitalization for two of the defendant's court dates and internal supervisory review process. Moreover, they argue that the issue is moot because the requested materials have been served on the defense counsel on January 31, 2018, prior to the commencement of any hearings or trial.
DISCUSSION
In 2009, the New York State Justice Task Force ("Task Force") was convened by then Chief Judge Jonathan Lippman. Its mission was "to eradicate the systemic and individual harms caused by wrongful convictions and to promote public safety by examining the causes of wrongful convictions and recommending reforms to safety by examining the causes of wrongful convictions and recommending reforms to safeguard against any such convictions in the future" (New York State Justice Task Force [2014], Criminal Discovery, at 1 [issued July 2014]). The Task Force was chaired by the Honorable Janet DiFiore, then District Attorney for Westchester County, and currently the Chief Judge of the Court of Appeals, and counted among its members many prominent prosecutors, defense attorneys, judges, police chiefs, legal scholars, government officials, forensic experts and victims' advocates of New York State (id.).
The Task Force's research culminated in a report in 2014 where it stated that "[w]hen prosecutors disclose material information in their possession in advance of trial, the entire criminal justice system benefits" (id. at 3). Early disclosures not only "encourage early resolutions where appropriate, and conserve prosecutorial resources" but also "help defense lawyers by better enabling them to investigate their cases and prepare for trial" (id.). Despite this recognized advantage of early discovery, the Task Force also found that "the available discovery often comes too late to permit both sides to investigate facts fully and make informed decisions before trial" (id. at 5). To alleviate this problem, the Task Force made several recommendations aimed at accelerating and broadening the scope of discovery.
Since the beginning of this year, the criminal courts in this borough have begun issuing the "Order to Counsel in Criminal Cases," colloquially known as the "DiFiore order." This order promulgated from an initiative undertaken by Chief Judge DiFiore to reduce the backlog and eliminate wrongful convictions in New York's criminal justice system (The State of Our Judiciary [2018], Excellence Initiative: Year Two [issued February 2018]) and was an adoption of the recommendation by the Task Force. This order reminds the People of their Brady and discovery obligations while also reminding the defense attorneys to be effective advocates for their clients.
In addition to the current emphasis by the courts on early discovery in criminal cases, there have also been a push for change in the political realm as well. For example, Governor Cuomo has announced plans to reform the current discovery system in New York. In an op-ed opinion published in the New York Times, the governor stressed that "New York is one of only 10 states where prosecutors are not required to share with a defendant's lawyers basic evidence, including police reports and witness statements, until just before the trial" (Andrew M. Cuomo, Governor Cuomo: The Way to a More Just New York State, NY Times, Op Ed, Jan. 16, 2018, A21). In his 2018 State of the State address, the governor has suggested several reforms aimed at tackling the problem of late disclosure of prosecution's evidence (see Governor Cuomo Unveils 22nd Proposal of 2018 State of the State: Restoring Fairness in New York's Criminal Justice System, https://www.governor.ny.gov/news/governor-cuomo-unveils-22nd-proposal-2018-state-state-restoring-fairness-new-yorks-criminal [last accessed Mar. 26, 2018]).
Moreover, fearing that the governor is not doing nearly enough to push the necessary reforms, the Senate's Democratic conference has simultaneously introduced several bills to change the discovery rules in criminal cases (Josefa Velasquez, Senate Democrats Unveil Criminal Justice Proposals Fearing 'Watered Down' Reforms, NYLJ, Feb. 14, 2018). For instance, Senators Brian Benjamin and Jamaal Bailey proposed a bill that would change the Criminal Procedure Law to include automatic early discovery upon commencement of a criminal action (2018 NY Senate Bill S7722). The bill also proposes amending the law to compel the prosecutors to turn over discovery pre-indictment as well before a guilty plea can be taken (id.).
However, the outlook on the criminal justice reforms in the political arena seems unlikely at the time of the writing of this decision (see e.g. Kirstan Conley, Ride-sharing fee, NYCHA monitor in latest Cuomo budget, New York Post, Mar. 29, 2018, available at https://nypost.com/2018/03/29/ride-sharing-fee-nycha-monitor-in-latest-cuomo-budget/ [last accessed Mar. 29, 2018]["Early voting, criminal justice reform measures are among the policy issues that have fallen to the wayside as the lawmakers race to pass a $168 billion-plus spending plan before Passover begins at sundown on Friday"]). --------
Amidst this political, cultural, and institutional talks of discovery reforms, then, the late disclosure of the evidence by the People in this case — despite the court's clear and repeated directives to do so by the deadline — leaves something to be desired in the ways of how a prosecutor pursues a criminal case. Certainly, CPL § 240.70(1) confers upon this Court a wide range of sanctions for the People's failure to provide timely discovery. One of them is preclusion of the evidence, which the defendant seeks.
However, while the Court recognizes the political, cultural, and institutional climate change, it is also constrained by the existing case law. The law is that a preclusion of evidence is "a severe sanction," which must not "be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction" (People v. Jenkins, 98 NY2d 280, 284 [2002]; see also People v. Kelly, 62 NY2d 516 [1984]). In this regard, the People are correct that the defense has not suffered a legal prejudice by the late discovery. The defendant was not forced to go forward with the suppression hearings or trial against his wishes or without the demanded discovery.
Under our current law, the defendant's argument may be more meritorious if the People had represented that certain discoverable materials did not exist only to ambush the defendant with such evidence as the trial unfolded. This is why the defendant's reliance on People v. Walker is misplaced (42 Misc 3d 1201[A][Crim Ct, Bronx County 2013]). The issue in Walker was a motion to preclude based on the People's continuous and persistent representation that no 911 recording existed. However, when the People disclosed on the eve of trial that a 911 recording did exist, that they planned on using it, and that they would turn it over the following day, the court granted the defendant's request for preclusion. In the case at hand, the People have never made any such representation with regards to the existence of the requested discovery materials.
Furthermore, the Task Force recommended that "sanctions for the failure to provide discovery materials should be proportionate to the harm caused by the failure to provide such materials" (New York State Justice Task Force, at 13). More specifically, "[a]s under current law, sanctions for providing discovery materials after the deadline for production of such materials should be imposed only if the opposing party is prejudiced by the belated production" (id.). The defense in this case has failed to demonstrate any legal prejudice or impediment to presenting his defense to this Court. Defense is now in possession of the discovery materials and has been since January 31, 2018, thereby rendering the issue of preclusion moot.
The "DiFiore order" does not compel the Court hold otherwise, either. It states that "[d]isclosures are presumptively 'timely' if they are completed no later than . . . 15 days before commencement of trial in a misdemeanor case" (see Order to Counsel in Criminal Cases). Moreover, "[d]isclosures that pertain to a suppression hearing are presumptively 'timely' if they are made no later than 15 days before the scheduled hearing date" (id.). In this case, no hearings or trial have commenced. By the time the instant motion was filed on March 9, 2018, the defense counsel had more than a month with the discovery. Not only did he have an ample amount of time to fully investigate the case and to prepare an adequate defense with the discovery, but he could also use them, if he so chooses, in his cross-examination of the witnesses both at the hearings and trial. In short, there is no legal prejudice.
The Court acknowledges that the defendant has appeared several times for hearings and trial in this case. This Court does not take that lightly. The Court is working diligently to expedite matters as best it can without compromising the defendant's rights and the complainant's interests. However, this Court cannot agree with his argument that his having to return to court "pressures him to plead guilty." As a starting point, the defendant has not taken a plea of guilty and the case is still pending. In addition, to alleviate the strain on the defendants who take time off from work, school, or medical appointments, this Court frequently allows the defendants in those circumstances to be excused or be placed on one-hour alert whereby the defendant would be required to come to court on one-hour notice if the case were proceeding to a hearing or trial. In reviewing the court's action sheet, it appears that the defense counsel has neither asked the court for one-hour alert nor for the defendant's appearance to be excused.
Moreover, not necessarily by any one party's fault, our system of laws in this State requires litigants to appear several times to ensure due process and justice. In this case, some delay was occasioned by the defendant's right to file motions. However, there were two adjournments to accomplish this goal. Defense caused delay by not adhering to the Court's first deadline for the omnibus motion, causing an extra adjournment for a month and a half for the Court to render a decision. The need to decide the instant motion to preclude has further caused an additional one-month delay whereas, without which, the Court would have had the option of adjourning the case for a short period of time until there was a trial part. Thus, the fact of the defendant's having to return to court, by itself, is not sufficient to warrant a preclusion of evidence.
The Court ponders, though, if the defendant's argument edges a more serious issue, which is not having a fixed trial date in this jurisdiction. The Task Force recommended that "fixed trial dates be set and adhered to by the court in order to have a workable discovery process, unless refusal to adjourn a trial date would impair the fair administration of justice" (Criminal Discovery, at 10). Without fixed trial dates, it is not only the defendants who suffer by having to come to court repeatedly for hearings and trial that do not take place, but prosecutors and their witnesses as well. Moreover, the prosecutors claim the lack of fixed trial dates as one of the "major impediments to providing earlier discovery because early discovery followed by trials that are delayed for months or even years raises concerns about protecting the safety and integrity of civilian witnesses, and the integrity of investigations" (id.). Thus, under the current legal framework, this Court considers the proper remedy to be a strict adherence to the trial dates as much as it is legally and practically possible.
For the foregoing reasons, this Court holds that no sanction lies when the defense has suffered no prejudice and was granted an opportunity to obtain and examine the materials in issue. Accordingly, the motion to preclude is denied.
This constitutes the decision and order of this Court. Dated: April 4, 2018 Bronx, New York Hon. Tara A. Collins