Opinion
No. 23-207257
10-04-2024
The People of the State of New York v. Jason A. Bresnan
For the People: Sandra Doorley, Monroe County District Attorney, by Kaleigh Wurz, Asst. District Attorney For the Defense: Brandy L. Shafer, Esq.
For the People: Sandra Doorley, Monroe County District Attorney, by Kaleigh Wurz, Asst. District Attorney
For the Defense: Brandy L. Shafer, Esq.
Robert L. Cook, J.
Defendant Jason A. Bresnan was arraigned on December 12, 2023 on a single count of Criminal Obstruction of Breathing/Blood Circulation in violation of P.L. §121.11. He entered a plea of not guilty and was released on recognizance.
On August 12, 2024, Defendant filed a motion requesting invalidation of the Prosecution's Certificate of Compliance, Supplemental Certificates of Compliance, Statements of Readiness, and dismissal of the information on the basis of C.P.L. §245 and C.P.L. §30.30. The People filed a Response and Cross-Motion in Opposition to Defendant's Motion on September 10, 2024. Argument on the motion was held on that date.
This decision and order constitute the Court's findings of fact and conclusions of law.
STATEMENT OF FACTS
Although the Monroe County Public Defender's Office represented Defendant at his arraignment on December 12, 2023, they withdrew due to a conflict. Assigned Counsel was appointed on December 15, 2023 and appeared on behalf of Defendant at his next Court appearance on January 4, 2024. On that date, the People filed a Certificate of Compliance (COC) and Statement of Readiness for Trial (SOR). Upon review of the COC, Defendant protested that discovery was not complete and indicated that an appropriate motion might be filed in the future. Specifically, Defendant reported that 911 calls and the potential prosecution witness/alleged victim's arrest report had not been provided. The Court noted that, with incomplete discovery, the COC/SOR may be illusory, but reserved decision on the issue and instructed the People to complete mandatory discovery. The case was adjourned to February 12, 2024.
On January 16, 2024, the People provided the Defendant with the 911 calls and related records and filed a Supplementary COC/SOR. At the February 12, 2024 appearance, the Defendant acknowledged receipt of the 911 calls and related records, but again protested that the victim's arrest report was outstanding. The People explained that the 911 calls were forwarded to the Defendant as soon as they were received. The People thought the victim's arrest report had been provided. The case was adjourned to February 28, 2024 for completion of discovery and a screen by the People for a potential plea.
On February 14, 2024, the People produced the victim's arrest report and filed a Supplemental COC/SOR.
On February 28, 2024, prior to the time to appear, Defendant requested an adjournment due to counsel's illness, which was granted to March 19, 2024. On February 29, 2024, the People made an offer to the Defendant to plead to the charge in exchange for one year of interim probation with domestic violence conditions. If the interim probation were successful, the Defendant could withdraw the plea and plead to Harassment 2nd with the promise of a one-year conditional discharge and two year no contact order of protection. If unsuccessful, the original plea would stand and the Court would sentence at its discretion.
At the March 19, 2024 return date, the Defendant acknowledged receipt of the People's screen and the Supplemental COC, waived C.P.L §245 and C.P.L. §30.30 time and requested an adjournment to consider the People's offer and the filing of a dismissal motion if the offer were rejected. The case was adjourned to April 25, 2024. On the afternoon of April 25, 2024, Defendant again waived time and requested a further adjournment of the matter to provide the People with a video recording of Defendant's upcoming visitation with his daughter and to engage in further discussions with the People concerning the case. The case was adjourned to May 22, 2024. Due to counsel's conflict with an out of town court appearance, the case was further adjourned at Defendant's request to June 18, 2024.
At the June 18, 2024 appearance, the People's offer was rejected and Defendant advised that a dismissal motion likely would be filed if a new screen were not offered. The case was adjourned to July 11, 2024 for possible submission of the motion or a new screen. At the July 11, 2024 appearance, Defendant indicated that progress was being made and that with a week's adjournment the case might be able to be resolved. Defendant waived time and the case was adjourned to July 18, 2024.
Prior to the July 18, 2024 appearance, the Defendant advised the Court that the People had confirmed that a new screen was not forthcoming. Defendant requested a final adjournment to decide whether interim probation was acceptable or the case should be scheduled for trial. A final adjournment to August 12, 2024 was granted. At the August 12, 2024 return date, Defendant advised that they expected to request a trial, but first would seek to invalidate the COC and seek dismissal due to discovery violations. They thereupon filed the dismissal motion, citing as discovery violations the late-filed 911 calls, late-filed victim's arrest report, and the lack of submission of Body Worn Camera (BWC) audit logs. The Court granted the People until August 26, 2024 to respond to the motion and scheduled argument for September 3, 2024.
On August 26, 2024, the People advised the Court that their written motion response was complete, but requested BWC audit logs had not yet been received. They asked if the response should be submitted without the logs, with the logs to follow, or delayed until submitted with the attached logs. The Court, under the impression that the response with logs would be filed prior to the return date advised the People that everything should be filed together.
At the September 3, 2024 return date for motion argument, the People's response still had not been filed. The People requested additional time to file its response with the audit logs. The Defendant moved for immediate dismissal due to the People's failure to respond by the Court's deadline. However, due to the apparent miscommunication between the Court and People concerning the timing of the response submission, the Court granted one week's adjournment for the filing of the People's response, with or without the audit logs. The People's response, with attached BWC audit logs, was filed on September 10, 2024, argument was held on that date, and the Court reserved decision.
RELATIONSHIP BETWEEN C.P.L. §245 AND C.P.L. §30.30
It is settled law that to ensure a Defendant's right to a speedy trial, a valid COC is requisite for the filing of a non-illusory SOR, which must be filed within ninety days of a Defendant's misdemeanor arraignment. Initial discovery must be completed within 35 days. Delayed discovery must include an explanation for the delay. Without a valid COC, the SOR is deemed illusory and if the speedy trial clock has run, the case must be dismissed pursuant to C.P.L. §30.30. (People v Bay, 41 N.Y.3d 200, 210, 232 N.E.3d 168, 208 N.Y.S.3d 490 [2023].) A COC is invalid if the People have not exercised due diligence and reasonable efforts in obtaining and producing discovery dictated by C.P.L. §245.20. (Id. at 213.) If the speedy trial clock has not run, sanctions pursuant to C.P.L. §245.80, proportionate to the prejudice suffered by the Defendant, rather than dismissal, may be warranted. (Id. at 214.)
911 CALLS AND VICTIM'S ARREST REPORT
Defendant contends that the belated delivery of the 911 calls and victim's arrest report were without an adequate explanation, which should invalidate the initial COC and Supplementals, rendering the initial and subsequent SORs illusory. The People argue that both items were provided within the ninety-day readiness period. They further argue, without conceding that the initial COC/SOR and Supplementals were invalid, that, if found so by the Court, sanctions pursuant to C.P.L. §245.80 might be warranted, rather than dismissal, because dismissal would be disproportionate to the prejudice, if any, suffered by the Defendant.
The Court finds that the initial COC was invalid and the SOR illusory. The 911 calls and the victim's arrest report were clearly pertinent to the case and should have been provided prior to the filing of the COC. Likewise, the Supplemental COC and SOR filed on January 16, 2024 were invalid and illusory, respectively. Although the People's explanation that delay in receiving the 911 calls caused the short delay in producing them may have been an adequate explanation for that delay, they had no excuse for the still missing victim's arrest report that Defendant had previously alerted them to on the record.
But for the issue of the missing BWC audit logs, which will be addressed next, upon production of the victim's arrest report and filing of the second Supplemental COC/SOR on February 14, 2024, discovery could be considered complete within the ninety-day speedy trial window. That would uphold the validity of the second Supplemental COC and SOR. Sanctions for the delayed discovery could be considered, pursuant to C.P.L. §245.80, if the delayed discovery had prejudiced Defendant's case, but no prejudice was cited by Defendant. In fact, Defendant argued that they were seeking dismissal only and had no interest in sanctions. Accordingly, the validity of the People's COCs and SORs hinges on whether the BWC audit logs needed to be provided pursuant to the automatic discovery provisions of C.P.L. §245.
BWC AUDIT LOGS
Although the question of whether BWC audit logs are discoverable pursuant to C.P.L. §245 is a matter of first impression in this Department, it has been the subject of frequent litigation in New York City's criminal courts, resulting in two opposing camps. To date, no clarifying appellate decisions have been issued.
Defendant argues that BWC audit logs are discoverable as "electronically created or stored information seized or obtained by or on behalf of law enforcement from (B) a source other than the defendant which relates to the subject matter of the case," (C.P.L. §245.20[1][u][i]), which is possessed or constructively possessed by the People, (C.P.L. §245.20[2]), or contains information the People are duty bound to obtain and disclose. (C.P.L. §245.55 and C.P.L. §245.20[1][k].)
The majority of courts that have addressed this issue agree with Defendant that C.P.L. §245.20 dictates that BWC audit logs be produced by the People as part of their automatic discovery responsibility. (People v Torres, 2023 NY Slip Op 50532[U]**1, 79 Misc.3d 1204[A] [Crim Ct, Queens Co 2023]; People v Champion, 81 Misc.3d 292, 298, 199 NYS 3d 421 [Crim Ct, New York Co 2023]; People v Ballard, 82 Misc.3d 403, 405, 202 NYS 3d 683 [Crim Ct, Queens Co 2023 ] ; People v Rollerson, 2024 NY Slip Op 50291[U]**4, 82 Misc.3d 1212[A], 206 NYS 3d 517 [Crim Ct, Bronx Co 2024]; People v Cumbe, 2024 NY Slip Op 50524[U]**6, 82 Misc.3d 1242[A], 208 NYS 3d 920 [Crim Ct, Kings Co 2024]; People v Shar, 2024 NY Slip Op 50589[U]**10, 82 Misc.3d 1251[A], 209 NYS 3d 923 [Crim Ct, Richmond Co 2024]; People v Duran, 2024 NY Slip Op 24120***3, 210 NYS 3d 710 [Crim Ct, Bronx Co 2024]; People v Budhu, 2024 NY Slip Op 51086[U]**2 [Crim Ct, Queens Co 2024]; People v J.M.W., 2024 NY Slip Op 51249[U]**4 [Sup Ct, Kings Co 2024]; People v Robert K, 2024 NY Slip Op 50838[U]**5, 83 Misc.3d 1229[A], 212 NYS 3d 915 [Crim Ct, New York Co 2024]; People v. Gourdine, 2024 NY Slip Op 51031[U]**3, 83 Misc.3d 1264[U] [Sup Ct, Kings Co 2024].)
The minority view, advanced by the People in this case, is that the BWC audit logs are not subject to automatic discovery, but may be discoverable upon a showing of a compelling rationale for their production . They argue that the Logs provide only "metadata" and no information beyond that provided by other discoverable material; the Logs are generated and maintained by a private company outside the direction and control of law enforcement and the People; contain little more than chain of custody information; and do not contain information electronically generated by law enforcement personnel. (People v Larkin, 72 Misc.3d 663, 668, 146 NYS 3d 914 [Sup Ct, Kings Co 2021]; People v Williams, 73 Misc.3d 1091, 1110, 157 NYS 3d 877 [Sup Ct, Kings Co 2021]; People v. Rodriquez, 214 NYS 3d 666, 671 (Sup Ct, Kings Co 2024); People v Vargas, 2023 Slip Op 50425[U] **5, 78 Misc.3d 1235[A]; 187 NYS 3d 584 [Crim Ct, Bronx Co 2023].) The People further argue that even if there were discovery violations in this case, the Defendant must show prejudice to their defense was caused by the violations to obtain dismissal pursuant to C.P.L. §30.30.
But see: J. Gonzalez-Taylor who decided Vargas reversed this holding in Rollerson at **4 and Duran at ***3. joining the consensus that BWC Logs are automatically discoverable as police reports.
The People's arguments are belied by the findings in the majority's cases, particularly those from the evidentiary hearing held in Ballard concerning the NYPD's BWC system, protocols and audit logs. "BWC audit trails (also known as 'audit logs') are automatically discoverable pursuant to C.P.L. §245.20(1)(e), (k), (u)(i)(B)." (Ballard at 405.)
Implicit in Defendant's argument in favor of automatic discovery of BWC Audit Logs is that the Monroe County Sheriff's BWC system, protocols, and logs are similar in manner and operation to that of the NYPD. The People did not dispute that implication in their reliance on Larkin which also dealt with the NYPD's system, protocols, and logs.
BWC audit logs often contain notes and comments of police, that are discoverable under C.P.L. §245.20(1)(e). (Id. at 410 - 411.) They contain electronic information concerning the subject matter of the case created and obtained on behalf of law enforcement. Although stored by a third-party contractor, "the software automatically records the information in audit trails, the substance of that information is created, stored, and obtained by or on behalf of law enforcement. Law enforcement agencies regularly contract with other companies to process and store electronic information," (Id. at 413) which has been deemed discoverable by the Courts as information obtained for and under the control of law enforcement. By the same rationale, BWC audit log information is discoverable under C.P.L. §245.20(1)(u)(i)(B). (Id. at 411 - 414.) BWC audit logs may contain information that could be used to impeach testifying law enforcement witnesses. Impeachment information is automatically discoverable pursuant to C.P.L §245.20(1)(k)(iv). (Id. at 412 - 413.) BWC audit logs contain more than metadata and chain of custody information. "Therefore, the trial-level case law the People rely upon is not supported by the hearing record and audit trails are clearly not limited to 'system metadata' or chain of custody information." (Id. at 414.)
"In addition to subsections (e), (k), and (u) in C.P.L. 245.20(1), audit trails are discoverable evidence because they relate to the subject matter of the case. The legislature instructed courts and litigants alike to interpret 'sections 245.10 and 245.25, and subdivision one of section 245.20' through a presumption of openness (C.P.L. 245.20[7]"). (Id. at 414.)
The Court concurs with the prevailing view that BWC audit logs are subject to automatic discovery. The discovery statute is to be liberally construed with a presumption in favor of disclosure. It is not up to the People to decide what information about the case is relevant and needed for an accused's defense. "Body-worn camera audit trail logs contain information that is distinct from metadata and body-worn camera footage. It stands to reason that the audit trail logs may reveal information that will aid in the defendant's defense and further, the logs may contain information that could be used to impeach testifying officers. Moreover, the presumption in favor of disclosure and free flow of information mandate militates in favor of the People disclosing, rather than withholding and/or filtering information, based on their own assessment of its viability." (Cumbe at **6.)
Despite having determined that the BWC audit logs were subject to automatic discovery, the Court is troubled by Defendant's tardiness in alerting the People that they were missing. Defendant had an affirmative duty under C.P.L. §245.50(4)(b), (c) to do so, as it did with respect to the missing 911 calls and victim's arrest report. However, failure to report a discovery deficiency does not waive a Defendant's right to further challenge a COC or file a C.P.L. §30.30 motion. (C.P.L. §245.50[4][c].) Furthermore, "(s)hould a defendant bring a CPL 30.30 motion to dismiss on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure. If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and - so long as the time chargeable to the People exceeds the applicable CPL 30.30 period - the case dismissed. Contrary to the People's contentions, a defendant need not demonstrate prejudice to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations." (Bay at 213.)
Due diligence and reasonable inquiry required the People, at a minimum, to explore whether the automatic discovery provisions of C.P.L. §245 mandated production of the BWC audit logs and to err on the side of disclosure. "But the statutory presumption means the People should not withhold evidence just because they can make a 'colorable legal argument' [in this case, the minority opinion on discoverability] that it does not fall within the statute. Instead, the People should disclose evidence any time there is a 'colorable legal argument' that it does fall within the statute." (Torres at **8.) The plethora of cases establishing discoverability reflect much more than a "colorable legal argument" that disclosure was required.
In the alternative, if troubled by the conflicting, nonbinding authority concerning automatic discoverability of BWC audit logs, the People could have sought a protective order under C.P.L. §245.70 to obtain a Court determination of whether the BWC audit logs were subject to automatic discovery. (Id. at fn 13.)
Prior to responding to this dismissal motion, the People neither disclosed the BWC audit logs nor sought a protective order. They made no effort to distinguish the Torres/Ballard majority line of cases from the Larkin minority line of cases. There being no indication that the People did anything to assess whether any arguably discoverable materials were outstanding beyond those they did disclose, they have not met their burden of demonstrating due diligence and reasonable efforts to locate and produce all discoverable materials prior to the filing of their COC/SOR and Supplementals. Accordingly, the Court finds that, the initial COC, first Supplemental COC, and second Supplemental COC were invalid and the SORs illusory.
EXCLUDABLE TIME CALCULATION
272 days elapsed from the date of Defendant's arraignment to the Motion hearing date and disclosure of the BWC audit logs. The People did not request any exclusions from their chargeable time. Nevertheless, the Court has calculated excludable time for Defendant adjournment requests and offer consideration time (2/28/24 - 6/18/24, 110 days) and time requested for discussions with the People and motion time (7/11/24 - 9/3/24, 54 days), resulting in 108 days chargeable to the People.
As noted above, the People's contention that the Defendant must demonstrate prejudice to their defense to obtain dismissal after the speedy trial clock has run has been directly contradicted by the Court of Appeals. (Bay at 213.) The time chargeable to the People exceeding 90 days, the Defendant's motion is granted and the case is dismissed pursuant to C.P.L. §30.30.
So Ordered.