Opinion
Docket No. CR-030861-22NY
09-29-2023
The People of the State of New York, v. Christopher Colon, Defendant.
The Legal Aid Society (Terra Brockman, Esq. of Counsel), for Defendant Alvin Bragg, District Attorney (Matthew Jacinto, Esq. and Jill Hoexter, Esq. of Counsel), for the People
Unpublished Opinion
The Legal Aid Society (Terra Brockman, Esq. of Counsel), for Defendant
Alvin Bragg, District Attorney (Matthew Jacinto, Esq. and Jill Hoexter, Esq. of Counsel), for the People
HON. LUMARIE MALDONADO-CRUZ, J.C.C.
Defendant Christopher Colon, charged with one count of Operating a Motor Vehicle While Intoxicated [VTL § 1192(2)], Operating a Motor Vehicle While Intoxicated [VTL § 1192(3)], and Operating a Motor Vehicle While Impaired by Alcohol [VTL § 1192(1)] moves, by notice of motion dated May 4, 2023, for an order: 1) deeming the prosecution's certificate of compliance filed on January 13, 2023, and subsequent supplemental certificates of compliance invalid; 2) dismissing the accusatory instrument pursuant to CPL§§ 30.30 and 210.20(1)(g); and 3) granting such other relief as this Court may deem proper.
For reasons that follow, Mr. Colon's motion to invalidate the People's certificate of compliance dated January 13, 2023, and subsequent supplemental certificates of compliance is GRANTED IN PART and DENIED IN PART. The Defendant's motion to dismiss pursuant to CPL §§ 30.30 and 210.20(1)(g) is DENIED.
Background and Procedural History
Mr. Colon was arrested on November 24, 2022, for allegedly driving a motor vehicle while intoxicated on the same date. Mr. Colon was arraigned the next day. The case was then adjourned to January 10, 2023, for trial.
See, Peo. Info. p. 1.
On January 10, 2023, the People were not ready for trial. The case was adjourned for trial to February 10, 2023.
On January 13, 2023, off calendar, the People filed and served an automatic disclosure form (ADF), a certificate of compliance (COC), discovery list (DL), and a certificate of readiness (COR) through the Electronic Document Delivery System (EDDS).
On February 6, 2023, off calendar, the People filed and served a second ADF, a supplemental certificate of compliance (SCOC), DL, and a COR through the EDDS.
On February 9, 2023, off calendar, the Defendant filed an omnibus motion through the EDDS.
On February 10, 2023, the People stated ready. The case was adjourned for the People's response to Defendant's motion and the Court's decision to March 8, 2023.
On March 1, 2023, off calendar, the People filed their response to Defendant's omnibus motion through the EDDS.
On March 8, 2023, the Court granted the Defendant's request for Huntley, Mapp, Dunaway, and Johnson hearings. The case was adjourned for hearings and trial to March 28, 2023.
On March 28, 2023, the People stated ready. Defense counsel then stated on the record that she was missing discovery from the People. The Court instructed the parties to duly confer about the missing discovery, pursuant to CPL § 245.35. The case was then adjourned for hearing and trial to May 4, 2023.
On March 30, 2023, off calendar, the People filed and served an ADF, a second SCOC, DL, and a COR through the EDDS.
On April 27, 2023, off calendar, the People filed and served an ADF, a third SCOC, DL, and a COR through the EDDS.
On May 4, 2023, the People stated ready. Defendant then filed the instant motion to dismiss. The court set a motion schedule and the case was adjourned for decision to June 26, 2023.
On June 1, 2023, off calendar, the People filed and served a response to Defendant's motion to dismiss.
On June 9, 2023, off calendar, Defendant filed and served a sur-reply to the People's motion response.
On June 26, 2023, the Court was still working on a decision for the instant motion to dismiss. The case was then adjourned to August 14, 2023, for decision.
On July 7, 2023, off calendar, the Court reached out to the People and Defense Counsel and requested that the parties participate in an on-the-record hearing to address the Court's questions raised by the parties' motion papers. The case was then advanced to August 4, 2023, for the hearing.
On August 4, 2023, off calendar, the People filed a SCOC and COR. The Court, on the same date, held a hearing in which it heard testimony from an expert witness presented by the People. The case was then adjourned back to August 14, 2023, for decision. Later that same day, following the hearing, Defense Counsel requested to submit additional paperwork by August 15, 2023, relating to her motion. The Court granted Defense Counsel's request.
On August 14, 2023, the Court was still waiting for Defense Counsel's additional paperwork. The case was adjourned for decision, again, to.
On August 15, 2023, Defense Counsel submitted additional paperwork to the Court.
Discussion
Pursuant to CPL § 245.20(1), the "prosecution shall disclose to the defendant and permit the defendant to discover, inspect, copy, photograph and test, 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 or control...." CPL § 245.20(1). The statute also requires the prosecutor to "make a diligent, good faith effort to ascertain the existence of material or information... where it exists but is not within the prosecutor's possession, custody, or control..." and turn that over to the defendant. CPL § 245.20(2). When the People have met their discovery obligations, they shall then file a certificate of compliance. CPL § 245.50(1).
Mr. Colon challenges the validity of the People's COCs dated January 13, 2023, and SCOCs dated, February 6, 2023, March 30, 2023, April 27, 2023, and August 4, 2023, asserting that the People failed to disclose certain discoverable materials pursuant to CPL § 245.20(1). Namely, Defendant argues that prior to filing their initial COC, the People failed to turn over: 1) Police Officer (PO) Johan Hernandez's memobook; 2) substantiated Civilian Complaint Review Board (CCRB) materials for PO Hernandez and PO Katarina Pjetri; 3) simulator solution certificate and gas chromatographs for lot No. 22260; and 4) simulator solution certificate and gas chromatographs for lot #s 21340, 21070, 22100, 21420, and 22190. See, Def. mot. challenging certificate of compliance, p. 6, ¶ 25-26. Mr. Colon acknowledges that these items 1 through 3 were turned over prior to the filing of the People's most SCOC dated April 27, 2023, and the instant motion. Id. Item 4 was turned over prior to the discovery hearing on August 4, 2023. Hearing Test. at p. 57, lines 20-22.
The People acknowledge that PO Hernandez's memobook and underlying CCRB materials should have been disclosure prior to the filing of a valid COC and argue that the speedy trial time should stop as of February 6, 2023, when they filed their first SCOC. See, Peo. Mot. Res. ¶ (3)(ii). The People further assert that they filed their COC dated January 13, 2023, and subsequent SCOCs, in good faith and after exercising due diligence. Id. at p. 6. The People further argue that their belated disclosure of the aforementioned items listed by the defendant do not invalidate their initial COC. Id. at 17. CPL § 245 expressly provides that the People have an ongoing "duty to disclose" once they become aware of new discoverable material that has not been previously shared. Further, CPL § 245 also provides that the sharing of additional discovery after a COC has been filed does not automatically invalidate that COC. See CPL 245.50.
CPL § 245.60 provides that "[i]f either the prosecution or defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article."
Officer Hernandez's Memobook
Here, Defendant contends that the People's COC dated January 13, 2023, is invalid because the People did not share PO Hernandez's memobook until February 6, 2023, at which point they filed a SCOC. This item was disclosed to Defense Counsel, on February 6, 2023, prior to the expiration of the People's CPL § 30.30 time. As previously discussed, the People concede that this item should have been disclosed prior to the filing of their initial COC, but argue that the speedy trial clock stopped as of the filing of the SCOC dated February 6, 2023, rather than the COC dated January 13, 2023. This Court agrees with the People and Defendant that PO Hernandez's memobook should have been turned over prior to the filing a valid COC and likewise finds that the speedy time clock stopped as of the filing of their SCOC on February 6, 2023.
See, Peo. Mot. Res. ¶ (3)(ii).
CCRB Materials
The question remains whether the People acted in good faith and with due diligence when they filed their SCOC on February 6, 2023, without the disclosure of all underlying CCRB materials for PO Hernandez and PO Pjetri's substantiated allegations.
Neither Defendant, nor the People, address what, if any, outstanding discoverable materials exist for PO Pjetri in their motion papers. Further, Defendant explicitly writes that the only outstanding discoverable materials in the instant matter, as of the filing of his motion, are the gas chromatographs listed on page 6, paragraph 26 of Defendant's motion to dismiss. For this Court's analysis, this Court is adhering to Defendant's contention that any underlying documentation for any substantiated claims for PO Pjetri are not outstanding and are not currently in dispute.
Pertinent to the instant case, CPL § 245.20(1)(k) requires that the prosecution disclose: "All 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: (iv) impeach the credibility of a testifying prosecution witness; [ I]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information." CPL § 245.20(1)(k) (emphasis added). However, the materials as detailed in CPL § 245.20(1)(k) only apply to those within the People's " possession, custody or control of the prosecution or persons under the prosecution's direction or control." CPL § 245.20(1).
This Court has held in the past, as have other lower trial courts, that underlying CCRB materials, not in the People's actual custody and control, are not subject to the disclosure requirements of CPL § 245.20(1)(k). The People, however, do have an obligation to make diligent, good faith efforts to try and obtain these materials under CPL § 245.20(2). When these materials are in the actual custody and control of the People, they must be turned over in accordance with CPL § 245.
People v. Sanders, 78 Misc.3d 1209 (A) at 3 (Crim. Ct. NY Co; 2023); People v. Abdul Salaam, CR-019124-21NY, Decision and Order, April 19, 2022
People v. Peralta, 79 Misc.3d 945, 956 (Crim. Ct. Bronx Co. 2023); People v. Valdez, 2023 NY Slip Op. 23239 *3 (Crim. Ct. Kings Co. 2023); People v. Carter, NY Slip Op. 50837[U].*6, 2022 WL 3971927 (Crim. Ct. Bronx Co. 2022);
CPL § 245.20(2) stated that the People shall "make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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...."
The People contend that by January 6, 2023, they disclosed Officer Hernandez's Disclosure Advisory Form (DAF), and Officer History. Peo. DL filed on 2/6/2023, p. 3. The People further contend that they shared additional Giglio materials for PO Hernandez on January 13, 2023, and February 6, 2023, including PO Hernandez's CCRB history, additional disclosure notices, and filings for two civil lawsuits. Id. at. pp.3-4. Lastly, after sending an expedited request for underlying information, the People shared additional unspecified disclosure materials for both PO Hernandez and PO Pjetri on March 30, 2023, in accordance with the People's continuing obligation to disclose discoverable information pursuant to CPL § 245.60.
CPL § 245.60 provides that "[i]f either the prosecution or defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article."
This Court finds that the People fulfilled their discovery obligations pursuant to CPL § 245 when they disclosed the CCRB materials to the Defendant, that they had in their actual custody and control, at the time they filed SCOC on February 6, 2023. Likewise, this Court finds that the People also fulfilled their discovery obligations under CPL § 245.20(1) and CPL § 245.60 when they People sent an expedited request to CCRB for PO Hernandez's underlying substantiated investigation documents, subsequently received said materials, disclosed these documents to the Defendant, and filed another SCOC on March 30, 2023. This Court sees no reason to invalidate the People's SCOC dated February 6, 2023, notwithstanding the belated disclosure of additional CCRB materials for PO Hernandez on March 30,2023.
Since this court deems that the People's SCOC dated February 6, 2023, was filed in good faith, with due diligence, and in a manner that was not meant to be "intentionally deceptive," it finds no reason to invalidate the People's SCOC dated February 6, 2023, or subsequent SCOCs based upon failure to disclose all of PO Hernandez's disciplinary materials prior to the filing of the initial COC. Defense has not presented the court with any evidence that the People attempted to deceive, trick or otherwise intentionally withhold the documents. Rather, the People have shown that they made appropriate efforts to determine whether these items existed and attempted to provide them to Defendant prior to the filing of their initial COC. As such, no adverse consequence should result from the People's failure to disclose said items. See People v. Gaskin, 214 A.D.3d 1353, 1354, (4th Dept. 2023).
See People v. LaClair, 2023 WL 3445537 at *2.
Simulator Solutions and Gas Chromatographs for Lot # 22260
The issue here is whether the People acted in good faith and with due diligence when they filed their SCOC on February 6, 2023, which did not include the simulator solutions and gas chromatographs for lot # 22260, the simulator solution used during the Defendant's breathalyzer test on November 24, 2022.
CPL § 245.20(1)(s), provides in part, that in any prosecution where the Defendant is charged with violating the Vehicle and Traffic Law, the People must disclose, as automatic discovery,
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.... (emphasis added).
Here, the People, independently, without prompting from Defense counsel, became aware of an issue within their internal discovery system that resulted in the simulator solutions and gas chromatographs for lot # 22260 being excluded from the People's disclosure documentation relating to the Intoxilyzer 9000, the machine used during the Defendant's breath test, and the simulator solutions used in that machine. Def. Ex. 4. Upon learning of this technological issue, the People promptly alerted Defense Counsel via email on April 25, 2023, shared these documents with Defense on the same day, and filed another SCOC, DL, and COR . Id. It is well settled that inadvertent non-disclosure errors or accidental omissions of discovery do not automatically invalidate a COC and COR. Further, there is no indication from either the People, or the Defendant, that these documents were intentionally withheld. As such, no adverse consequence should result from the People's failure to disclose said items. See People v. Gaskin, 214 A.D.3d 1353, 1354, (4th Dept. 2023).
See, People v. Pondexter, 76 Misc.3d 349, 353 (Crim. Ct. NY Co. 2022); People v. Middleton, 79 Misc. 418, 425 (Crim. Ct. NY Co. 2023); People v. Nelson, 75 Misc.3d 1203 (A) (Crim. Ct. NY 2022); People v. Rodriguez, 73 Misc.3d 411, 419, (Crim. Ct. Queens Co. 2021).
Therefore, this Court finds that the People's SCOC dated February 6, 2023, was filed in good faith, with due diligence. This Court finds no reason to invalidate said SCOC as a result of the belated disclosure of the simulator solutions and gas chromatographs documentation for lot # 22260. This Court further finds that the People fulfilled their discovery obligations under CPL § 245.20(1)(s) and CPL § 245.60 when the People disclosed the inadvertently excluded gas chromatography and simulator solution documents for lot # 22260. Further, upon receipt of said materials, the People disclosed these documents to the Defendant, and filed another SCOC on April 27, 2023.
Simulator Solution Certificate and Gas Chromatographs for Lot #s 21340, 21070, 22100, 21420, and 22190
Here, the Court must determine whether the People acted in good faith and with due diligence when they filed their SCOC on February 6, 2023, which did not include the simulator solution certificate and gas chromatographs for lot #s 21340, 21070, 22100, 21420, and 22190. Defendant contends that he is entitled to these materials as they were used during the calibration process performed on the intoxilyzer machine involved in the instant matter during the six-month period before and after Mr. Colon's breath test on November 24, 2022. The People argue that Defendant is not entitled to this documentation as these materials are outside of the People's custody and control and do not relate to the "subject matter of the case." Peo. Resp. at pp. 6-8. Although decisional law on this issue is unsettled, and the Court acknowledges that there is no appellate authority on this issue, this Court finds that the simulator solution certificate and gas chromatographs for lot #s 21340, 21070, 22100, 21420, and 22190, used solely for the calibration of the intoxilyzer machine, are outside of the People's custody and control, and are not subject to the automatic discovery disclosure requirements pursuant to CPL § 245.20(1)(s).
Summary of Testimony
The only witness called to testify at the discovery hearing was Sergeant (Sgt.) Donald Schnieder of the NYPD's Highway District. Sgt. Schnieder is the breath alcohol testing program manager for the NYPD and is responsible for ensuring the intoxilyzer machines are calibrated, scheduling the repairs of such machines when necessary, and maintaining the documentation associated with these machines. Sgt. Schnieder is also responsible for approving any purchases for the intoxilyzer machines, including the simulator solutions used during the breath test and calibration of the machines, and for teaching the NYPD certification course for use of the intoxilyzer machines within the confines of New York City's five boroughs.
Sgt. Schnieder testified that the NYPD uses a breathalyzer machine called the Intoxilyzer 9000, which is manufactured by a company called CMI, Inc (CMI). Sgt. Schnieder explained that CMI is a privately owned company, located in Owensboro, Kentucky, that does business with the NYPD. He further stated that the simulator solutions used by these intoxilyzer machines during their breath tests and twice-yearly calibrations are created by another private institution called Guth Laboratories, Inc. (Guth Labs), located in Harrisburg, Pennsylvania.
When asked to elaborate on the process by which the NYPD comes into possession of these simulator solutions, Sgt. Schnieder listed each step. First, Sgt. Schnieder explained that Guth Labs is not a vendor with the NYPD, nor does the NYPD have a contract with Guth Labs to purchase their products. He clarified that every business that wishes to enter a contract with an agency associated with the City of New York must fill out a form with certain disclosures, including their financial information. Guth Labs has never been a vendor with the City of NY as they have refused to complete these disclosure forms and is not directly affiliated with any law enforcement agencies within New York City. Sgt. Schnieder further explained that the NYPD comes into possession of the Guth Labs simulator solutions and their accompanying documentation through CMI. Namely, when the NYPD wishes to buy simulator solutions to conduct the statutorily required once a year calibrations on the Intoxilyzer 9000 machines, the NYPD must reach out to CMI who then reaches out to Guth Labs to order the simulator solutions. The NYPD then sends payment for these solutions, and CMI then orders the simulator solutions from Guth Labs. Sgt. Schnieder stated that the NYPD must use the Guth Labs solutions as they, in his understanding, are the only manufacturers of a simulator solution that is compatible with CMI's Intoxilyzer 9000 machine. Further, he indicated that every law enforcement agency in the New York, except the New York State Police, uses Guth Labs simulator solutions for their breath tests.
Though NYCRR § 59.4(c) only requires that the intoxilyzer machines be calibrated once a year, the NYPD conducts calibration check on their machines twice a year.
Sgt. Schnieder testified that the NYPD must purchase simulator solutions with varying levels of ethanol to conduct their breathalyzer tests and the calibration checks on the Intoxilyzer machines. Sgt. Schnieder described that a simulator solution with.10% ethanol is used in every breath test conducted with the Intoxilyzer 9000 machine, but solutions with anywhere from 0% (distilled water) -.30% ethanol will be used to perform the statutorily required calibration checks. The.10% solution is sent from Guth Labs to the New York State police (NYS Police), who then approves it for use, and then distributes it to every law enforcement agency within New York State. This simulator solution comes with completed gas chromatography reports and underlying materials, which are provided to the People, who then provide them, as part of their CPL § 245 discovery requirements, to every defendant in driving while intoxicated (DWI) cases where the defendant participated in a breath test. The payment for the.10% solution is provided through money collected in connection with fines and a 501(c)(3) organization called Stop-DWI.
In the instant matter, these reports are associated with lot # 22260, which were disclosed on April 27, 2023, when the People learned of an error in their digital discovery system that excluded the materials from being turned over with other Intoxilyzer related paperwork.
Sgt. Schnieder then explained that, unlike the.10% solution obtained through the NYS Police, simulator solutions with other varying levels of ethanol, when purchased from Guth Labs, through CMI, are not sent with completed simulator solution and gas chromatography reports. He stated that when he contacts CMI to order new simulator solutions, which he must do every few months, CMI will send the NYPD whichever solutions they currently have in stock. The NYPD has no way to know the lot numbers of the simulator solutions they are being sent at the time they place their order and cannot request any underlying documentation for these solutions without this information. Additionally, CMI does not purchase these underlying simulator solution and gas chromatography reports when they purchase the actual simulator solution liquids from Guth Labs. Only once the NYPD physically receives the simulator solutions and can learn the lot numbers associated with these solutions, would the NYPD be able request the underlying reports simulator solutions and gas chromatography reports. However, again, because Guth Labs is not a vendor with the NYPD, to obtain these materials, Sgt. Schnieder testified that he must purchase them through CMI at $475 per lot #. He stated that it could take months to receive this documentation as evidenced by the instant matter. It was Sgt. Schnieder's testimony that when the NYPD requested and paid for the underlying documentation for simulator solution lot #s 21340, 21070, 22100, 21420, and 22190 in March of 2023, he did not receive the paperwork until August 1, 2023, at a cost of approximately $5,000.00.
Once the People received these underlying reports, they immediately turned them over to defense counsel on filed a SCOC and COR on August 4, 2023.
This, however, was not the People's first attempt to obtain the underlying documentation for simulator solution lot #s 21340, 21070, 22100, 21420, and 22190. Sgt. Schnieder testified that without a subpoena, the only documents that he received from Guth Labs for these simulator solutions was a one-page certificate that listed the ethanol level in the solution and summarized the other underlying documentation for it. This one-page document was then given by the NYPD to the People as part of the discovery relating to the intoxilyzer machine.
Here, according to the People's DL, dated February 6, 2023, the People attempted to disclose theses records on January 6, 2023.
When asked about whether the simulator solutions used in the calibration of the Intoxilyzer machine related to the subject matter of the instant case, Sgt. Schnieder answered that they do not. He clarified that the simulator solutions with.02,.03, and.04% ethanol used during the calibration process are never used during an actual breath test and that just before each breath test is conducted in a case, the intoxilyzer performs a check using the.10% solution to ensure the machine is in proper working order. Sgt. Schnieder reasoned that just before an individual blows into the intoxilyzer machine, an "air blank" blows out of the machine to make sure there is no residual alcohol in it from previous breath tests. If the machine does register residual alcohol, it automatically stops the testing process from continuing forward and prints out a report of the malfunction. The test conductor must then prompt the machine to perform another air blank, until the machine registers that there is no alcohol left in the system and provides a reading of 00. If, for some reason that machine initially being used malfunctions just before a breath test, each precinct with an intoxilyzer machine as has a backup machine that can be used instead. If, following the first air blank, the machine is working properly, the machine will conduct a second air blank, and then the individual being tested has three minutes to blow into the machine.
On cross examination, Sgt. Schnieder was asked about his attempts to obtain the underlying materials for the simulator solutions and gas chromatographs used during the calibration of the Intoxilyzer 9000 machines. Sgt. Schnieder communicated that prior to this case, he had never tried to request the underlying documentation for simulator solutions used for calibrating the machines.
On redirect examination, Sgt. Schnieder clarified CMI's relationship with the NYPD. He expounded on the differences between being a vendor with the NYPD and having a service contract with the NYPD. Sgt. Schnieder testified that the NYPD does not have a contract with CMI, rather, because CMI is on the approved vendor list with the City of New York, the NYPD is able to make individual purchases from CMI. He went to on to compare it to another company, Drager, that has a formal contract with the NYPD. Sgt. Schnieder stated that when one of Drager's products purchased by the NYPD breaks, the NYPD will send the product back to Drager and the company will repair the item and deduct the cost of the repair from the NYPD's account. In comparison, when NYPD purchases the simulator solutions from CMI, the relationship begins and ends with the purchase of the solutions.
On re-cross examination, Sgt. Schnieder testified that, even if the NYPD asked CMI to purchase the underlying simulator solution and gas chromatographs reports with the liquid simulator solutions, CMI could refuse to do so because they are private company.
In summary, Defense counsel argued that the NYPD has other options for purchasing intoxilyzer machines and their accompanying simulator solutions and gas chromatographs. She further argued that by choosing to purchase these products from CMI and Guth Labs, knowing they will not provide the underling documentation, the NYPD is purposely trying to avoid having to share these items as discovery.
In turn, the People discussed their attempts to obtain the underlying documentation for the simulator solutions and gas chromatographs for the solutions used during the calibration checks. The People stated that they are unable to subpoena these documents because their subpoena power for misdemeanors does not extend to private owned companies located outside the state of New York. The People further stated that they have tried calling and emailing Guth Labs twice to request this information but did not receive a response to either. Lastly, they stated they cannot force Guth Labs to turn over this information as Guth Labs is a privately owned company and not within their custody and control.
Analysis
As previously discussed, CPL § 245.20(1)(s), sets forth a list of the documentation that must be disclosed when an individual is charged with a crime under the Vehicle and Traffic law. However, this list of items that must be disclosed only applies to "information that relate[s] to the subject matter of the case and [is] in the possession, custody or control of the prosecution or person under the prosecution's direction or control." CPL § 245.20(1). Article 245 further states that the prosecution must make diligent, good faith efforts to obtain discoverable material that is outside of their custody and control but shall not be required to subpoena any information a defendant could obtain themselves. CPL § 245.20(2).
It is well established that CMI is not under the People's custody and control. In applying the facts as they are presented in this case, it is clear that the People are not in the custody or control of underlying simulator solution and gas chromatographs reports for lot #s 21340, 21070, 22100, 21420, and 22190 used in the calibration of the Intoxilyzer 9000 machine utilized in the instant matter and thereby were not required to turn them over pursuant to CPL § 245. Sgt. Schnieder's testimony meticulously stated the process in which the NYPD comes into possession of documents relating to Intoxilyzer machines. The NYPD makes individual purchases from CMI, a private company, not within their custody control, of products CMI has already purchased from Guth Labs, another privately owned company that apparently refuses to do direct business with the agencies within the City of New York. As these companies are privately owned companies, outside the People's custody and control, the People cannot dictate which paperwork CMI or Guth Labs chooses to include with the purchase of liquid simulator solutions.
See People v. Robinson, 53 A.D.3d 63, 73 (2nd Dept. 2008) (holding that source code owned and copyrighted by CMI, Inc., a Kentucky corporation, was not in the People's actual or constructive possession).
Further, this Court finds that the People did exercise diligent, good faith efforts to obtain the underlying simulator solution and gas chromatographs in this matter. Defendant argues that the People have an obligation to obtain the underlying reports even if Guth Labs is considered outside of their custody and control because they can be obtained for a fee. During the discovery hearing, the People stated that they made multiple attempts via both phone call and email to contact Guth Labs regarding these underlying reports but were ignored each time. This court also notes that both CMI and Guth Labs are outside of the People's subpoena power as the Defendant is charged with a misdemeanor offense and both companies are located outside the state of New York.
See CPL § 610.30(3).
Additionally, Sgt. Schnieder's testimony also established that the underlying simulator solution and gas chromatographs reports used for the calibration of the Intoxilyzer 9000 machine do not relate to the subject matter of the instant case. Defendant argues that these items do relate to the subject matter of the case because they could potentially show that the calibration of the machine was incorrectly performed, thereby skewing any subsequent breath tests performed on the machine. Defense Letter Dated 8/15/23 p. 3. This concern, however, was addressed in Sgt. Schnieder's testimony where he stated that before each and every breath test is performed on an intoxilyzer machine, the machine itself conducts, not one, but two air blank examinations to ensure there is no residual alcohol left in the machine from prior breath tests and conducts a calibration using the.10% simulator solution. Hearing Test. p. 27-30. Further, Sgt. Schnieder testified that if the machine registered some sort of malfunction during testing, the machine would abort the test, produce a printout of the malfunction, and longer allow for the test to continue. Id. This testimony shows that Defendant's concern that the intoxilyzer machine was not in proper working order at the time of his breath test is unfounded.
Since this court deems that the People's SCOC dated February 6, 2023, was filed in good faith, with due diligence, and in a manner that was not meant to be "intentionally deceptive," it finds no reason to invalidate the People's SCOC or any subsequent SCOCs for any purported failure to disclose the simulator solution certificate and gas chromatographs for lot #s 21340, 21070, 22100, 21420, and 22190. Defense has not presented the court with any evidence that the People attempted to deceive, trick or otherwise intentionally withhold the documents. Rather, the People have shown that they made appropriate efforts to determine whether these items existed and intended to provide them to Defendant prior to the filing of their SCOC. As such, no adverse consequence should result from the People's failure to disclose said items. See People v. Gaskin, 214 A.D.3d 1353, 1354, (4th Dept. 2023).
See People v. LaClair, 2023 WL 3445537 at *2.
For these reasons, Mr. Colon's motion to invalidate the People's SCOC dated February 6, 2023, and subsequent SCOCs, is DENIED.
Speedy Trial Calculation
The Court makes the following speedy trial calculations with respect to each adjournment:
November 24, 2022 - January 10, 2023
The case was arraigned and adjourned for trial. The People did not file a COC or COR. This period is chargeable to the People. 47 days are charged.
January 10, 2023 - February 10, 2023
On January 13, 2023, off calendar, the People filed an ADF, DL, COC, and COR. The People concede that this COC was invalid.
On February 6, 2023, off calendar, the People filed an ADF, DL, SCOC, and COR.
On February 9, 2023, off calendar, Defendant filed an omnibus motion. 27 days are charged.
February 10, 2023 - March 8, 2023
On February 10, 2023, the case was adjourned for the People to file a response and for the Court's decision.
On March 1, 2023, off calendar, the People filed their motion response. This period is excludable. 0 days are charged.
March 8, 2023 - March 28, 2023
On March 8, 2023, the Court rendered a decision granting the Defendant's request for Huntley, Mapp, Johnson, and Dunaway hearings. The case was adjourned for hearings and trial to March 28, 2023. 0 days charged.
March 28, 2023 - May 4, 2023
On March 28, 2023, the People stated ready. Defense counsel made a record that they were missing discovery. The Court then instructed the parties to confer pursuant to CPL 245.35. The case was then adjourned for hearings and trial to May 4, 2023. 0 days are charged.
May 4, 2023 - June 26, 2023
On May 4, 2023, the People stated ready. The Defendant then filed the instant motion to dismiss. The Court set a motion schedule and the case was adjourned to June 26, 2023, for decision.
On June 1, 2023, off calendar, the People filed a response to Defendant's motion.
On June 9, 2023, the Defendant filed a sur-reply to the People's motion response. This period is excludable pursuant to CPL 30.30 (4)(a). 0 days charged.
June 26, 2023 - August 14, 2023
On June 26, 2023, the Court was still working on a decision and adjourned the case again for decision to August 14, 2023.
On July 7, 2023, the Court reached out to the parties to request that they participate in an on the record hearing to address the Court's questions raised by the parties' motion papers. The case was then advanced to August 4, 2023, for the hearing. 0 days charged.
August 4, 2023- August 14, 2023
On August 4, 2023, off calendar, the People filed a fourth SCOC and COR. On that day, the Court conducted a hearing in which it heard testimony from an expert witness presented by the People. The case was then adjourned to August 14, 2023, for decision. Later that same day, following the hearing, Defense Counsel reached out to the People and the Court and requested to submit supplemental documentation for the Court's consideration by August 15, 2023. The Court agreed. 0 days charged.
August 14, 2023
On August 14, 2023, the Court was still awaiting Defendant's supplemental paperwork. The case was then adjourned to, for decision.
On August 15, 2023, Defendant submitted the supplemental documentation to the court. 0 days charged.
By the Court's calculation, the total includable speedy trial time amounts to 74 days, within the 90-days permitted for a class A misdemeanor.
Conclusion
For the reasons stated therein, Mr. Colon's motion to invalidate the People's certificate of compliance dated January 13, 2023, and subsequent supplemental certificates of compliance is GRANTED IN PART and DENIED IN PART. The Defendant's motion to dismiss pursuant to CPL §§ 30.30 and 210.20(1)(g) is DENIED.
This opinion constitutes the decision and Order of the Court.