Opinion
8189-2018
02-08-2021
The PEOPLE of the State of New York v. Manuel ESCAMILLA, Defendant.
For the Defendant: Harold C. Baker, Esq. For the People: Eric Gonzalez, District Attorney, Kings County (Jonathan Visotzky, of counsel).
For the Defendant: Harold C. Baker, Esq.
For the People: Eric Gonzalez, District Attorney, Kings County (Jonathan Visotzky, of counsel).
Heidi C. Cesare, J.
Defendant challenges the prosecutor's certificates of compliance with the automatic discovery statute ( CPL 245.50 [4] ). The statute requires the prosecutor to provide defendant with adequate contact information for potential civilian witnesses ( CPL 245.20 [1] [c] ). The issue presented by defendant's challenge is whether the prosecutor violated that requirement by disclosing information that permits defense counsel to contact a witness through a third-party, proxy telephone service that conceals the witness's actual telephone number.
BACKGROUND
On February 13, 2020, the prosecutor filed a certificate of compliance with automatic discovery and provided defendant with information about how to contact potential civilian witness through a third-party, proxy telephone service named WitCom. The prosecutor thereafter switched to another third-party, proxy telephone service named Verizon Witness Bridge. Both services function the same, albeit through slightly different means.
The WitCom service operates through an internet web portal. The witness receives the name of defense counsel and a proxy telephone number for defense counsel. Defense counsel receives a proxy telephone number assigned to the witness and can call the number or send a text message. When defense counsel calls or sends a text, the witness receives notice that the call or text is from defense counsel. If the call is unanswered, the witness receives notice that defense counsel called and can return the call using the proxy telephone number. Defense counsel also receives notice that the telephone call was placed but not answered. The District Attorney registers the witnesses and defense counsel in WitCom, but does not maintain WitCom and has no access to any records of calls or texts, data or metadata of such calls or texts, or the contents of any such communications.
In Verizon Witness Bridge, the telephone number of the witness is assigned a unique ID number, which is provided to defense counsel along with a Defense Counsel Bridge Telephone Number. Defense counsel calls the bridge number, enters the witness's unique ID number, and can record a greeting or other message. The service routes defense counsel's call to the witness's telephone without revealing the telephone number. If the call is not answered, the greeting or recording is left as a voice mail for the witness, and the witness can return the call through the service. The District Attorney has no access to any Verizon Witness Bridge records or the contents of any telephone calls.
Defendant objects to use of WitCom or Verizon Witness Bridge. In his view, neither service constitutes adequate contact information under CPL 245.20 (1) (c). Defendant contends that adequate contact information requires disclosure of a witness's address, telephone number, or email address.
LAW
Under CPL 245.20 (1), the prosecutor's initial automatic discovery obligation requires disclosure to the defense of "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" ( id. ). The statute contains an inexhaustive list of categories of "items and information" to be automatically disclosed ( see id. at [1] [a]—[u]).
After fulfilling that initial discovery obligation, the prosecutor must file a certificate of compliance ( CPL 245.50 [1] ). The certificate must identify the discovery that was provided, and state "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. ). The prosecutor cannot be ready for trial under CPL 30.30 without filing "a proper" certificate of compliance ( CPL 245.50 [3] ; see 30.30 [5]). Any defense challenge to the certificate of compliance "shall be addressed by motion" ( CPL 245.50 [4] ).
Under CPL 245.20 (1) (c), the prosecutor must provide defendant with "[t]he 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" ( id. ). The statute does not define adequate contact information aside from stating that disclosure of "physical addresses" is not required except by order of the court upon a showing of good cause by the defendant ( id. ).
Defendant plainly is not entitled to the address of a potential witness. Although the statute does not define what constitutes adequate contact information, it does expressly state that the prosecutor need not disclose a physical address unless ordered to do so by the court upon a showing of good cause by the defendant. No such showing has been made in defendant's papers. Thus, the outcome of defendant's challenge turns on whether use of a third-party, proxy telephone service to connect defense counsel to a potential civilian witness qualifies as adequate contact information under the statute.
To determine the statutory meaning of adequate contact information, this court must construe the clear and unambiguous language in the statute "to give effect to the plain meaning of the words used" ( People v Holz , 35 NY3d 55, 59 [2020] [internal citation and quotation marks omitted]). In the absence of a statutory definition of adequate, this court will be guided by dictionary definitions to determine the "ordinary and commonly understood" meaning of that word ( id. [internal citation and quotation marks omitted]). Dictionary definitions of "adequate" include "enough or satisfactory for a particular purpose;" "sufficient for a specific need or requirement," "good enough," and "of a quality that is acceptable but not better than acceptable."
Cambridge Dictionary Online (Cambridge University Press 2021), adequate (B2) (https://dictionary-cambridge-org.nwulib.nwu.ac.za/us/dictionary/english/adequate) (last visited 1/29/21).
Merriam-Webster Dictionary Online (Merriam-Webster, Inc. 2021), adequate (1) (https://www.merriam-webster.com/dictionary/adequate) (last visited 1/29/21).
--------
Based upon the common and ordinary understanding of the word adequate, this court finds that use of either WitCom or Verizon Witness Bridge satisfies the legal requirement of providing adequate contact information. Both services provide defense counsel with a means to contact a witness. Defense counsel can reach the telephone of the witness and talk to the witness if the witness answers the call. If the witness does not answer the call, the witness receives notification that the missed call was from defense counsel and can return the call. Defense counsel is informed if the witness does not answer the call, either by receiving notification that the call was not answered or by leaving a recorded greeting or message, and can attempt another call if the witness does not return the unanswered call. Either service is sufficient, or good enough, to permit defense counsel to reach and speak to a witness if the witness is willing to speak. This court therefore agrees with the authorities that have found that these proxy services constitute adequate contact information under CPL 245.20 (1) (c) ( see People v Todd , 67 Misc 3d 566, 572—573 [Sup Ct, Queens County 2020] ; People v Baptiste , 2020 NY Slip Op 20331, *3 [Crim Ct, NY County 2020]).
Defendant's argument that adequate contact information means a telephone number or an email address is not supported by People v He (34 NY3d 956, 958 [2019] ). In that case, the Court addressed a defendant's constitutional due process right of "meaningful access" to favorable witnesses under Brady v Maryland (373 US 83 [1963] ), not the right to adequate contact information under CPL 245.20 (1) (c). The Court also did not rule that the defendant had an unqualified right to receive direct contact information, such as a telephone number or email address, for favorable witnesses. Instead, the Court ruled that the prosecutor had effectively suppressed the contact information for those witnesses by offering to provide the witnesses with defense counsel's contact information and by refusing either to disclose the contact information or "to provide any means for defense counsel to contact the witnesses other than through the prosecution itself" ( People v He , 34 NY3d at 959 ). Thus, He provides little, if any, guidance for determining the meaning of adequate contact information under CPL 245.20 (1) (c).
Lastly, for all the reasons stated in this opinion, this court respectfully disagrees with, and declines to follow, People v Feng (NYLJ, February 28, 2020, at 21, col 1 [Sup Ct, Kings County 2020]), which ruled that "the People's use of the WitCom system did not provide adequate contact information."
CONCLUSION
This court denies defendant's motion for an order invalidating the certificate of compliance, dated February 13, 2020, and the supplemental certificate of compliance, dated July 13, 2020, and for an order directing full compliance with CPL 245.20 (1) (c).
Defendant is reminded of the obligation to provide reciprocal discovery to the prosecutor within 30 days from the date of this decision and order ( see CPL 245.10 [2] ).
This is the decision and order of this court.