Opinion
02221-2019
03-29-2021
The PEOPLE of the State of New York, Plaintiff, v. Melvin ALVAREZ, Defendant.
The People by: Assistant District Attorney Danielle Catinella, 125-01 Queens Boulevard, Kew Gardens, New York 11415 The Defendant by: Lisa Saltzman, Esq., Queens Defenders, 118-21 Queens Boulevard, Suite 212, Forest Hills, New York 11375
The People by: Assistant District Attorney Danielle Catinella, 125-01 Queens Boulevard, Kew Gardens, New York 11415
The Defendant by: Lisa Saltzman, Esq., Queens Defenders, 118-21 Queens Boulevard, Suite 212, Forest Hills, New York 11375
Gene R. Lopez, J.
The defendant, Melvin Alvarez, is charged with Aggravated Unlicensed Operation of a Vehicle in the First Degree ( VTL § 511[3][A][I] ), two counts of Aggravated Driving While Intoxicated ( VTL § 1192[2][a] ), four counts of Driving While Intoxicated ( VTL § 1192[2], [3] ), two counts of Drinking Alcohol in a Motor Vehicle on a Highway (VTL § 1227.1[1]), and two counts of Operating a Motor Vehicle without a License ( VTL § 509[1] ). These charges stem from two separate incidents, one occurring on January 20, 2019, and the second occurring on November 16, 2019.
The People filed a certificate of compliance, pursuant to CPL § 245.50[1], on June 26, 2020. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials. The People oppose the defendant's motion.
Relevant Law
On January 1, 2020, the new Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia , expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Sess Law News of NY Ch. 56 [S 7506-B] Part HHH [McKinney's].)
Pursuant to CPL § 245.20, prosecutors are now required to disclose "all items and information that relate 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 and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. ( CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.
In making such disclosures, "The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [ CPL § 245.20(1) ] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." Importantly, "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." ( CPL § 245.20[2].) The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245 ( CPL § 245.20[7].)
In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." ( CPL § 245.60.)
The new discovery law also, for the first time, ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL § 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL § 245.20[1]. ( CPL § 245.50[1].) Therein, the People must affirm 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." (Id. ) In addition to this statement, the certificate must include a list of the discovery materials provided. (Id. ) Moreover, if the People provide additional discovery in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information provided." ( CPL § 245.50[1].) Notably, the statute also specifies, "No adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." ( CPL § 245.50[1].)
At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL § 30.30. 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 the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The statute further clarifies that, "[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [ CPL § 245.80(b) ], despite diligent and good faith efforts, reasonable under the circumstances." And CPL § 30.30 also now reflects this change, stating, "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 ...." ( CPL § 30.30[5] ).
Curiously, CPL § 245.80(b), part of the section of the discovery law addressing remedies and sanctions for non-compliance, states, "When material or information is discoverable under this article but cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost material may have contained some information relevant to a contested issue." Thus, this section addresses only situations in which material is "lost" or "destroyed," leaving unclear the meaning of "otherwise unavailable" in CPL § 245.50(3).
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An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL § 30.30[5] ; People v Barnett , 68 Misc 3d 1000, 1002 [Sup Ct NY Co 2020].) However, in evaluating a claim regarding the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper certificate" of compliance, which it makes the prerequisite to an announcement of trial readiness. ( CPL § 245.50[3].) Given that the statute specifies that "[n]o adverse consequences" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances," ( CPL § 245.50[1] ), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.
In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Erby , 68 Misc 3d 625, 633 [Sup Ct Bronx Co 2020] ; People v Gonzalez , 68 Misc 3d 1213(A), *1, 3 [Sup Ct Kings Co 2020] ; People v Knight , 69 Misc 3d 546, 552 [Sup Ct Kings Co 2020] ; People v Lustig , 68 Misc 3d 234, 247 [Sup Ct Queens Co 2020] ; People v Randolph , 69 Misc 3d 770, 770 [Sup Ct Suffolk Co 2020] ; People v Davis , ––– NYS3d ––––, 2020 NY Slip Op 20298, 2020 WL 6576095, at *5-7 [Crim Ct Bronx Co, October 9, 2020].) Indeed, in People v Erby, 68 Misc 3d at 633, a court of coordinate jurisdiction addressing a discovery challenge observed:
As the legislative history of Article 245 indicates, and as the Article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20.
Similarly, in People v Knight, another court addressed a situation in which the People had provided "a very few [additional] discovery items" to the defendant after filing their certificate of compliance. ( 69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that, "[b]y any measure it was filed ‘in good faith’ and ‘reasonable under the circumstances’ " and, thus, was "valid." (Id. )
The Present Motion
In his motion, the defendant has included a long list of materials, which he asserts are discoverable, that the People did not provide prior to filing their certificate of compliance. In their opposition papers, the People have addressed each of these items in turn. For most of these materials, the People have given a detailed explanation of their efforts to locate this material and their determination, after these efforts, that the requested material does not exist or that the People have already provided the defense with all existing material relevant to the specific request. (See Defendant's Motion, ¶ (a)(1)(ii) [voucher and towing paperwork for Ford automobile involved in November 16, 2019 incident]; ¶ (a)(1)(v) [District Attorney's body-worn camera checklist for January 20, 2019 incident]; ¶ (a)(1)(vi) [police paperwork relating to the blood kit for the January 20, 2019 incident]; ¶ (a)(1)(vii) [paperwork and notes of NYPD laboratory employees Marcy Garcia, Tracy Marrero, Dana Fields, and Thomas Rao]; ¶ (a)(1)(viii) [typed intake bureau crime report relating to January 20, 2019 incident]; ¶ (a)(1)(xi) [police paperwork and notes of Lieutenant Torres]; ¶ (a)(1)(xiv) [police paperwork of Sergeant Caliguri]; ¶ (a)(1)(xvi) [all documents relating to the defendant's consent to the blood test in this case]; ¶ (d)(i) [gas chromatography records for a period of six months before and six months after the breath test]; ¶ (d)(vi) [simulator solution records for simulator solution lot 19180]; ¶ (d)(vii) [proof of certification for Office Fasano]; ¶ (d)(xiii) [records of calibration conducted on the Intoxilyzer 9000 for February, March, and April of 2020]; and ¶ (d)(xv) [records of calibration for the Drager portable breath test for June 2019 and December 2019].)
This court finds that the efforts the People describe with respect to these items, including calling numerous relevant officers and/or agencies, discussing the existence of such material with them, and either confirming its non-existence or attempting to locate it, amounted to due diligence. As a result, the People's efforts here exhibited due diligence, good faith, and reasonableness under the circumstances. Accordingly, the People fulfilled their discovery obligations pursuant to CPL § 245.20(1) with respect to these alleged items.
Moreover, there are a few materials in the defendant's list that the People assert they have already provided. (See Defendant's Motion, ¶ (a)(1)(v) [memobook of Police Officer Singh]; ¶ (a)(1)(vii) [chain of custody paperwork relating to the blood kit for the January 20, 2019 incident]; ¶ (a)(1)(ix) [page two of the Request for Laboratory Examination Report]; ¶ (d)(iii) [the June 17, 2019 Field Inspection Report]; ¶ (d)(xiv) [the field unit inspection reports dated October 21, 2019, October 28, 2019, November 7, 2019, November 12, 2019, and November 18, 2019]; ¶ (d)(xv) [records of calibration for the Drager portable breath test for September, October, and November 2018]; ¶ (d)(xvi) [repair records of the Intoxilyzer 9000 and Drager portable breath test]; ¶ (d)(xvii) [blood alcohol reports related to the testing of the blood sample]; and ¶ (d)(xviii) [the BAC Library Hits Report].) With respect to one of these items, page two of the Request for Laboratory Examination Report, defense counsel contends that the People provided them with an illegible copy of this document. In their response papers, the People have indicated that they obtained an additional copy of this material and provided it to counsel on December 23, 2020, thus remedying the issue. The court finds that the People have also fulfilled their discovery obligations with respect to all of these items.
As for the remaining materials, the People argue that certain items requested are not discoverable pursuant to CPL § 245.20. These items warrant further discussion.
Adequate Contact Information
The defense contends that the People have failed to provide adequate contact information as required by CPL § 245.20(1)(c), because they have provided the defense with means of contacting the civilian witness through the Verizon Witness Portal, rather than the witness's personal phone number and address. The People contend that the information allowing the defense to contact the witness through the Verizon Witness Portal amounts to adequate contact information.
The statute states that the People must disclose, "names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses." ( CPL § 245.20[1][c].) Nevertheless, the statute makes clear, "[n]othing in this paragraph shall require the disclosure of physical addresses." (Id. )
Initially, to the extent that the defendant is claiming that the contact information provided by the People was inadequate because it did not include the witness's address, this court rejects that contention. The plain language of the statute establishes that the People have no duty to disclose such information.
As for the Verizon Witness Portal, the service is the functional equivalent of providing the defense with the witness's phone number. Through this service, first, the defense attorney is given an identification number that they can use to access the Portal. The witness is also assigned a numeric code by Verizon that is linked to the witness's personal phone number. The People then provide the defense with the witness's name and assigned code, as well as an 800 number they may use to contact witnesses through the Portal. When an attorney calls the 800 number, enters their own identification code, and then enters the witness's assigned code, they then have the option to record an audio message, which the witness would receive before deciding whether to accept their call. The call then connects to the witness's personal phone. The witness is able to see that the call originates from the Verizon Portal and they may answer if they choose to do so. If they answer, the service plays counsel's audio message. The witness then is given the option of accepting or rejecting the call. If they miss the call, the call goes to the witness's voicemail, where the service plays counsel's recorded message. There is no meaningful difference between this process and requiring the People to disclose the witness's phone number, because when counsel places a call through the Portal it causes the witness's personal phone to ring, just like any call placed directly to them.
The defendant claims that this service is inadequate, because it alerts the witness that a defense attorney may be calling them and they can choose whether to answer or reject the call. He also argues that this service prevents the attorney from being able to verify that the person they are speaking to is, in fact, the witness.
These concerns, however, do not distinguish this process from a regular phone call. A witness may always choose whether to answer or reject an attorney's call. Modern phones typically identify the number of the caller and, even if an attorney were to call from their own number, the witness could look the number up and ascertain that the call was coming from a defense attorney on their own. They could then decide whether or not to speak with them. They have that choice regardless of how they are contacted. If anything, the Portal service may be beneficial to counsel in this regard. Many people do not answer phone calls from unknown numbers to avoid spam calls. The Verizon Portal at least identifies that the call is coming from that service, which alerts witnesses who wish to speak with defense counsel to the fact that this is not a spam call, but rather, a communication from a defense attorney.
Moreover, it is possible with any type of phone call that someone other than the witness themselves could answer the phone. Under such circumstances, it would be difficult for the caller to verify that they were talking to the correct person, if the person who answered wished to deceive them for whatever reason, in a situation where they have not met the witness in person before. The Portal is not unique or inferior to a direct phone call in that way.
Indeed, other courts have reached the same conclusion, determining that the Verizon Witness Portal and similar services constitute adequate contact information. (See People v Todd , 67 Misc 3d 566, 570-582 [Sup Ct Queens Co 2020] ; People v Escamilla , 70 Misc 3d 1216[A] [Sup Ct Kings Co 2020].)
For these reasons, this court finds that the People have provided adequate contact information within the meaning of CPL § 245.20(1)(c).
FDNY Paperwork
The defense has also requested FDNY EMT reports relating to the January 20, 2019 incident. Initially, the People have clarified that FDNY did not report to the scene of the offense on that date, but rather, to the 112 Precinct, after the police determined that the defendant required medical assistance. Further, the People contend that these materials are not necessary to comply with their discovery obligations, because the FDNY is not in their constructive possession and control. Thus, they claim that this material is not necessary to fulfill their obligations under CPL § 245.20. The People also note that they have nonetheless subpoenaed this information, but have not yet received the materials requested.
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." At the same time, the statute provides, "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (Id. )
Here, the FDNY was not working in a law enforcement capacity when they removed the defendant from 112 Precinct to the hospital. Although there are some circumstances under which the FDNY acts in a law enforcement capacity, thereby rendering their materials and information constructively in the control of the prosecution, such as in an arson case (see People v. Jackson , 154 Misc 2d 718, 726-27 [Sup Ct Kings Co 1992] ), that is not the case here. As the statute sets forth, the People are not required to obtain by subpoena materials which the defense could obtain on their own. Accordingly, the People were not required to turn over these materials to fulfill their automatic discovery obligations under CPL § 245.20. As a result, their absence does not invalidate the People's certificate of compliance.
Of course, since the People have requested the materials by subpoena and they undoubtedly relate to the subject matter of the case ( CPL § 245.20[1] ), they are required to turn them over promptly once they are in their possession.
Laboratory Vault Log Book Entries
The defendant has requested all custody documents relating to the blood sample in this case, including laboratory vault log book entries. The People deny that the log book entries are relevant and, accordingly, assert that they are not discoverable. Neither party, however, has described these materials or what kind of information relating to the case, if any, they may contain. It is the moving party's responsibility to set forth a good faith basis for their requests in their motion. As the defendant has failed to articulate any basis for its belief that these items contain material relating to the subject matter of this case, their motion to invalidate the certificate of compliance on this basis is denied.
In any event, the People state that this information is in the possession of the OCME, which is not under their constructive control. They are correct in this assertion. (See People v Washington , 86 NY2d 189, 192 [1995] ; People v Lustig , 68 Misc 3d at 245.) Thus, the People were not required to disclose this material in order to validly certify this case.
OCME Materials Relating to Gas Chromatography for January 1, 2019 Incident
The People state that they ordered these materials from the OCME belatedly following the filing of their certificate of compliance, owing to an oversight. As with the laboratory vault log book entries, however, this information is in the possession of the OCME and is not within the People's control. Its absence, therefore, does not vitiate their certificate of compliance. But, since the People have requested the documents, they are required to provide them to counsel promptly upon their receipt.
Information Regarding Blood Tubes Used to Collect Sample
The defendant also claims that the People's certificate is invalid because they have not disclosed the name of the manufacturer of the tubes used to collect the blood sample in this case. He also contends that the People were required to disclose the serial number and other identifying information regarding the specific blood tubes used. The People disagree, arguing that this information does not relate to subject matter of the case and is not in their possession.
Because the defendant's blood was drawn at a hospital, the tube used in its collection would have been a hospital supply. The hospital's records regarding their supply procurement and more specifically, the manufacturers from whom they purchase their blood-draw tubes, are, quite obviously, not in the People's constructive possession. The People, accordingly, have no duty to turn over this information.
OCME Quality Control Manual
The defense asserts that the People should have turned over the OCME laboratory's quality control manual. The People oppose this claim, arguing that this material is not in their possession and control and, moreover, is public information readily available on the OCME's website. As discussed previously, OCME paperwork is not constructively within the People's possession. Thus, they were not required to disclose this material in advance of certifying their compliance with CPL § 245.20.
Documentation Regarding OCME Testing Procedures
The defense also contends that they are entitled to documents relating to OCME testing procedures in general. The People again note that this is public information, which is available on the OCME website, and is not within their control. For the reasons discussed above, this court agrees.
Gas Chromatography Records Relating to Simulator Solution Lots 19030 and 19090
The People disclosed the gas chromatography records relating to simulator solution lot 19180, which is the simulator solution that was used in the defendant's breath test, prior to filing their certificate of compliance. The defense argues that the People are also required to provide them with the gas chromatography records for the simulator solutions that were used to calibrate the Intoxilyzer 9000. The People contend that those records do not relate to the subject matter of the case, but have nonetheless provided them in the course of responding to the defendant's motion, because they had access to them.
Pursuant to CPL § 245.20(1)(s) :
In any prosecution alleging a violation of the vehicle and traffic law, ... all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument.
The People were not remiss in complying with their discovery obligations in this regard. The only gas chromatography records referred to in the statute are those "utilized to perform any scientific tests and experiments" that, in accordance with CPL § 245.20(1), "relate to the subject matter of the case." The gas chromatography records for simulator solutions that were not used in the breath test performed in this case do not relate to the subject matter of this case. Consequently, the People validly certified their compliance with their discovery obligations without these materials.
"Tox Form Spreadsheet(s)"
The defendant asserts that he is entitled to Tox Form Spreadsheets. The People explain that the Tox Form Spreadsheet is a form that contains all data from every simulator solution lot and they have already provided the specific information contained in the spreadsheet relating to the lot at issue in this case, lot 19180. The court finds that this was sufficient to comply with the People's discovery obligations.
Proof of Certification
The defense has also requested the proof of certification for certain individuals involved in the calibration, maintenance, or other inspections related to the machines and their components used in scientific testing in this case; the People contend that this material is not discoverable.
As noted above, under CPL § 245.20(1)(s) :
In any prosecution alleging a violation of the vehicle and traffic law, ... all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument.
The only certification proof the People must provide, then, is the certificate of the "operator of the machine or instrument" that was used in "any scientific test [or] experiments, including but not limited to any test of a person's breath, blood, urine or saliva." The context and framing of this language in the context of Vehicle and Traffic Law offenses makes clear that the statute is primarily referring to machines used to assess a person's intoxication. Thus, it is clear that the operator of the machine referred to is the person who conducted any testing that was occasioned by the stop and arrest itself, not any person involved in prior testing done on the machines used in such tests. This is underscored by CPL § 245.20(1) ’s limitation that such material must "relate to the subject matter of the case."
In other words, the statute does not require that the People obtain every certificate possessed by anyone who at any point calibrated, assessed, or otherwise interacted with the machines used in the scientific testing at issue. Indeed, such a requirement would place an enormous burden on the People, as each piece of discovery they obtained relating to the machines would then require them to acquire new discovery regarding the person who generated such documentation. The discovery statute simply does not require such an undertaking. If the People were to call any of the individuals involved in the calibration and inspection of the instruments as witnesses, that would present a different matter. However, because the People have no apparent plan to do so, this material is not subject to discovery.
Refrigeration Logs for Refrigerated Compartments used to Store Blood Sample, Etc.
The defendant claims that the People were required to disclose the refrigeration logs for any refrigerated compartments in which the blood sample or reagents or other materials used in the blood testing were stored. The People contend that such material does not relate to the subject matter of this case and is not within their control.
The defendant has failed to describe what, if any, relevance this material has or its basis for believing such logs exist. Further, such materials would be in the possession of the hospital and the OCME if they do exist. Thus, the People had no obligation to disclose them.
Calibration Records for Any Weight and Measuring Devices Used in Scientific Analysis
The defense contends that they are entitled to calibration records for weight and measuring devices used in scientific analyses conducted in this case, including pipettors. The People disagree, claiming that such material is irrelevant and outside their control.
The defendant has failed to describe how the disclosure of these materials is mandated by CPL § 245.20(1). This court finds that CPL § 245.20(1)(s) does not extend to these components. And, at any rate, they are not within the People's control. The People, therefore, had no duty to provide them to counsel.
Copies of Correspondence Regarding Scientific Testing
The defendant asserts that the People failed to turn over correspondence pertaining to the scientific testing in this case. The People explain that this information is within the OCME certified file, which they have requested from the OCME and will provide to defense counsel upon receipt. Thus, the information is not currently within their control and they had no obligation to turn it over in advance of filing their certificate of compliance.
All Records of Calibration, Certification, Inspection, Repair, or Maintenance and Underlying Data from OCME
The defense claims that the People have failed to provide all records of calibration, certification, inspection, repair or maintenance of machines and instruments used by OCME. The People explain that they have provided a letter from Dr. Gail Cooper of OCME, explaining that these documents are "created in multitude every day and would be exceptionally voluminous and nearly impossible to download and turn over." In order to fulfill their discovery obligation, the People note that the letter states that the materials are available for defense counsel to inspect at the OCME by arranging a visit.
The People have already complied with this obligation by providing all of the calibration, inspection, and certification records relating to this case in their possession, as well as the gas chromatography records, which both the People's response papers and their extensive list of all items they have turned over, which is attached to their papers as an exhibit, demonstrate. As discussed thoroughly above, the OCME is not within the People's control. If the OCME will not turn over these records to the People due their voluminous nature, and they are not in the People's actual possession, the People have no obligation to provide them. The alternative the OCME has fashioned permits the defense access to these documents without having to obtain a subpoena. Accordingly, the court finds that the People have met their discovery obligations in this regard.
Impeachment Material
The final category of material that the People argue is not discoverable is the underlying documentation regarding CCRB cases against police witnesses. The People contend that such material is not discoverable because the subsection requiring disclosure of impeachment material does not mandate the disclosure of the underlying records. They assert that they have complied with their discovery obligations by providing disclosure letters regarding the CCRB allegations against each police witness.
The CCRB is not an agency within the People's control. The People, therefore, have no obligation to disclose underlying CCRB records where they do not have them in their possession. On the other hand, if the People do have such materials in their actual possession, they may be required to disclose them. Thus, if the People have no underlying records relating to these CCRB cases, they have met their discovery obligation with respect to this material. If they are in possession of any underlying records relating to the CCRB cases, they are hereby ordered to turn them over to the court for in camera inspection and a determination of whether they are discoverable pursuant to CPL § 245.20(1)(k).
As for the remaining materials, the People disclosed a number of items belatedly upon reviewing the defendant's motion and conducting further inquiries. (see Defendant's Motion, ¶ (a)(1)(i) [police accident report]; ¶ (a)(1)(3) [voucher and towing paperwork for Hyundai vehicle involved in January 20, 2019 incident]; ¶ (a)(1)(xii) [memo book of Police Officer Ryan Watson]; ¶ (d)(xiii) [calibration record of May 2020]). There are also two additional documents that the People have not yet been able to obtain: the memo books for Police Officer Serpico and Police Officer Johnson. With respect to Police Officer Johnson's memo book, the People contend that they have no reason to believe that it contains any information relating to the subject matter of this case, because he was merely guarding the defendant while he was being held at the hospital. Nonetheless, the People have made efforts to obtain these materials and stated that they will turn them over when they receive them.
The court finds that the delayed disclosure of these items does not render their certificate of compliance invalid. Given that it was made in good faith and reasonable under the circumstances, the court finds that the original certificate was proper, pursuant to CPL § 245.50(3).
The defendant's motion is, therefore, denied, except to the extent that the People must produce any underlying CCRB records in their possession for in camera inspection.
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.