Opinion
Index No. 1884/2019
10-28-2021
The PEOPLE of the State of New York v. Felix BENITEZ, Defendant.
Cyrus R. Vance, Jr., District Attorney (Kathryn Suma of counsel), for plaintiff. The Legal Aid Society (Lamar Miller of counsel) for defendant.
Cyrus R. Vance, Jr., District Attorney (Kathryn Suma of counsel), for plaintiff.
The Legal Aid Society (Lamar Miller of counsel) for defendant.
Steven M. Statsinger, J. Defendant has moved for an Order "[d]eeming the prosecution's certificate of compliance (COC), filed on August 3, 2021, to be improper." He also asks that the requirement that the defense file its own COC, see C.P.L. §§ 245.10(2) and 245.50(2), be deferred until 30 days after "the prosecution files and serves a valid COC." Defendant's motion is DENIED in its entirety. The defense is directed to file its own COC within thirty days of this decision. FACTUAL BACKGROUND
On June 15, 2019, defendant was arrested on an outstanding parole violation warrant in the vicinity of 50 Avenue D, in New York County. An inventory search of his fanny pack revealed small packages containing drugs - crack cocaine, heroin and marijuana.
The indictment charges the defendant with criminal possession of a controlled substance in the third degree, fourth degree, and seventh degree, and he was arraigned on the indictment on July 30, 2019. The People provided discovery and, on August 3, 2021, filed a COC.
Defendant filed the instant motion on September 24, 2021. The motion specifies that the "following discovery materials were not provided to the defense prior to the [People's] filing of the COC in this case: Radio Runs. See C.P.L. § 245.20(1)(e)." Affidavit of Lamar Miller, Esq., at ¶ 8, double emphasis in original. The People have acknowledged that they did not provide recordings of the radio runs, explaining that by the time they sought them from the NYPD the recordings had been deleted. Affidavit of Kathryn Suma, Esq., at ¶ 13. The People did, however, turn over to the defense the Sprint reports, which included transcriptions of the radio runs. Id. at ¶. The defendant's motion also alludes, in a non-specific way, to disclosures relating to police officer disciplinary records. Miller Aff. at ¶¶ 32-69. However, it does not identify any particular item or items of discovery, relating to any particular individual, that the defense believes it is entitled to but did not receive.
LEGAL DISCUSSION
1. The Motion Is Moot Because the People Have Not Yet Answered Ready for Trial
In People v. Barnett , 68 Misc. 3d 1000, 129 N.Y.S.3d 293 (Sup. Ct. N.Y. County 2020), this Court held that a defendant's motion seeking a stand-alone declaration that a COC was invalid - that is, a declaration of a COC's invalidity not associated with a parallel claim that the People's statement of trial readiness (SOR) was invalid - was moot. Barnett reasoned that, since the only purpose of a COC is to serve as "a necessary prerequisite to a valid statement of readiness" for C.P.L. § 30.30 purposes, it follows that the question of the validity of a COC is only ripe for adjudication in the context of a judicial determination of the validity of an SOR. See C.P.L.§§ 30.30(5) ; 245.50). Barnett , 68 Misc. 3d at 1002, 129 N.Y.S.3d 293.
The case at bar is identically postured. The People have yet to answer ready, the speedy trial clock is currently tolled due to motion practice, and defendant explicitly asserts in his motion that he is not seeking relief pursuant to C.P.L. § 30.30. Miller Aff. at ¶ 14. The defense does not even mention, let alone attempt to distinguish, Barnett in its motion papers, but the Court cannot see any reason why its holding would not apply here.
Indeed, the only cases the defense cites are cases in which a court considered the validity of a COC as a means of determining the validity of an SOR. Miller Aff. at ¶ 12. As noted above, those cases are simply inapposite here, and the Court, in its own research, has been unable to locate any case in which a court has considered the merits of a stand-alone motion to invalidate a COC. Certainly, every case to cite Barnett has done so only in the context of the interaction between the COC requirement and C.P.L. § 30.30. E.g. , People v. Haymon, 71 Misc. 3d 1203(A), 142 N.Y.S.3d 790 (County Court, Albany County, 2021).
Those cases are: People v. Adrovic , 69 Misc. 3d 563, 130 N.Y.S.3d 614 (Crim. Ct. Kings County 2020) (analyzing validity of COC while ruling on defendant's 30.30 motion); People v. Askin , 68 Misc.3d 372, 124 N.Y.S.3d 133 (County Ct., Nassau County, 2020 (analyzing validity of COC at "a hearing to challenge the validity of the People's certificate of compliance and statement of readiness"), emphasis added; People v. Rosario , 70 Misc. 3d 753, 139 N.Y.S.3d 498 (County Ct., Albany County, 2020) (considering validity of a COC at hearing to consider validity of prosecution's SOR).
Given this, defendant's motion is denied as moot.
2. The Relief Sought Is Not Authorized
There is second reason, not discussed in Barnett , for denying this motion. The relief requested - a judicial declaration that a COC is invalid, absent an SOR, is not authorized by the relevant provisions of the C.P.L. There is only one circumstance that allows for testing the validity of a COC - a judicial inquiry into the validity of an SOR. C.P.L. § 245.50(3) provides that absent "special circumstances," the "prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." A parallel provision in C.P.L. § 30.30(5) provides that once the People state that they are ready for trial, there must be an "inquiry on the record as to their actual readiness." Furthermore that SOR
must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter [that is, a COC] and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met.
Read together, these two sections clearly set out the single path that the Legislature has laid for testing whether a COC is "proper." During the mandatory judicial inquiry into actual trial readiness, the defense has its opportunity "to be heard" on that very issue.
As evidenced by § 30.30(5), the Legislature clearly knows how to establish procedures for testing the validity of a prosecutor's assertion of compliance with its discovery obligations. That it chose to do so only in the context of testing the validity of an SOR provides a strong negative inference that the Legislature did not intend to authorize a stand-alone challenge to a COC outside of that single context. See, e.g. , Lomaglio v. Lomaglio , 42 Misc. 3d 827, 847 n.17, 978 N.Y.S.2d 783 (Sup. Ct. Monroe County 2013) (drawing a negative inference from Legislature's failure to limit the award of attorneys's fees to the prevailing party in a provision in Section 238 of the Domestic Relations Law ).
At its core, the defendant's complaint about the COC is nothing more than a garden-variety complaint that there has been a discovery violation: the radio runs were not preserved, were not disclosed, and can never be disclosed because they were not preserved. The remedies for discovery violations such as this are contained in C.P.L. § 245.80(2), and that list of remedies does not include a stand-alone declaration that a COC is invalid. The statutorily-prescribed "remedies and sanctions" are that a court may:
make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges, or make such other order as it deems just under the circumstances.
That declaring a COC invalid is not on this list further supports the negative inference that the legislature did not authorize a stand-alone challenge to a COC outside the context of assessing trial readiness.
Nor would the catch-all "make such other order as it deems just under the circumstances" encompass the relief that defendant seeks here. The remedies and sanctions contained in § 245.80 are just that: remedies. They are intended to mitigate the prejudice that might ensue to one side due to the other side's discovery violation. An order declaring a COC invalid, by itself, does nothing to further that legislative goal.
For these reasons as well, defendant's motion is denied.
3. CONCLUSION
Defendant's motion is denied. The defense is directed to file its own COC within thirty days of the date of this decision.
This constitutes the Decision and Order of the Court.