Opinion
Docket No. CR-029409-22QN
10-14-2023
The People of the State of New York, v. Luke, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Harpreet Kaur) For Mr. Luke: Todd Greenberg, Esq.
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Harpreet Kaur)
For Mr. Luke: Todd Greenberg, Esq.
Wanda L. Licitra, J.
On the last day of the C.P.L. § 30.30 readiness period, the People filed a certificate of automatic discovery compliance and stated ready for trial. In that certificate, the People were required to certify, in good faith, that "after exercising due diligence and making reasonable inquiries to ascertain the existence of [discoverable] material..., the prosecutor has disclosed and made available all known [discoverable] material." (C.P.L. § 245.50[1]).
Here, the People did not file their certificate in good faith. They certified they had disclosed all known discovery even though they knew that an officer's body-worn camera footage had not yet been disclosed. They certified they had disclosed all known discovery even though they had not yet heard back from the police about whether any property vouchers existed. And they certified they had exercised due diligence to ascertain the existence of discoverable material even though they had yet to review body-worn camera footage; ascertain the identities of all police officers with knowledge about the case; and ascertain whether those officers had made notes about this case. These circumstances strongly suggest that the People did not file their certificate of compliance because they had actually complied with their discovery obligations. Rather, it appears they filed it simply because it was the last day on the readiness clock.
Therefore, the People's statement of readiness was not valid. Before stating ready, the People failed to do all that was required of them to bring the case to a point where it may be tried. The defense has now filed a C.P.L. § 30.30 motion to dismiss. Because the People have exhausted their readiness time, the motion must be granted.
LEGAL ANALYSIS
I. Legal Standard
"[A]bsent an individualized finding of special circumstances," a proper, good-faith certificate of automatic discovery compliance is a "prerequisite to the People being ready for trial." (People v. Hamizane, 194 N.Y.S.3d 666, 668 [App. Term, 2d Dep't 2023] [citing C.P.L. §§ 30.30[5], 245.20[1], 245.50[3]]). "Consequently," a statement of readiness "is invalid if it is accompanied or preceded by" a certificate of compliance "that is later determined to be improper, where no special circumstances exist." (Id.).
Criminal Procedure Law § 245.50[1] defines a proper, good-faith certificate of compliance, and it requires the People to certify two things. First, that the People has exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (C.P.L. § 245.50[1]). And second, that "after" doing so, they "made available all known material and information subject to discovery." (C.P.L. § 245.50[1]). "These are two separate statements that the People must certify, in good faith, to each be true." (People v. Nisanov, 78 Misc.3d 1224 [A], at *1 [Crim. Ct., Queens County 2023]).
Courts and litigants must take care to "analyze both prongs of a certificate of compliance." (People v. Rafoel, 77 Misc.3d 1231 [A], at *1 [Crim. Ct., Queens County 2023]). "A certificate is not proper if the People complied with the first requirement, but then violated the second." (Id.).
The result is one of common sense. The People cannot, in good faith, file a certificate in which they certify that they exercised "due diligence" and made "reasonable inquiries" to ascertain the existence of discoverable material if they did not, in fact, do so. (E.g., People v. Hamizane, 194 N.Y.S.3d 666, 669 [App. Term, 2d Dep't 2023] [certificate not in "good faith" because "none of the People's submissions... showed that the People had attempted to obtain any police disciplinary records, or attempted to find out whether any such records existed"]; People v. Rahman, 79 Misc.3d 129 [A], at *2 [App. Term, 2d Dep't 2023] [certificate "not filed in good faith" because the People, in fact, "failed to exercise due diligence and make reasonable inquiries to ascertain the existence of FDNY/EMS records"]; People v. LaClair, 188 N.Y.S 850, 853 [App. Term, 2d Dep't 2023] [certificate was "not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to ascertain the identities of all law enforcement witnesses related to the case"]; Guzman, 75 Misc.3d 132[A], at *3 [certificate "was not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to obtain [a dashcam] video"]).
Nor can the People, in good faith, file a certificate in which they certify they have "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Quinlan, 71 Misc.3d 266, 271 [Crim. Ct., Bronx County 2021]; see also People v. Ashraf, 2023 NY Slip Op. 51068[U], at *3 [Crim. Ct., Richmond County 2023] [same]; People v. Toussaint, 78 Misc.3d 504, 508 [Crim. Ct., Queens County 2023] [same]; People v. Haymon, 71 Misc.3d 1203 [A], at *2 [County Ct., Albany County 2021] [same]; People v. Salters, 72 Misc.3d 1219 [A], at *6-*6 [Dist. Ct., Nassau County 2021] [same]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020] [same]; see also People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021] [holding that a certificate of compliance is not complete until discoverable material is "actually produced" to the defense]). As Judge Raja Rajeswari recently summarized:
Indeed, that is precisely what the statute directs the People to do in their certificate of compliance: they must certify 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."(People v. Hughes, 79 Misc.3d 1235 [A], at *2 [Crim. Ct., Richmond County 2023]). It is "[a]longside this plain text" that "courts hold that a certificate of compliance 'cannot be deemed complete' until discovery is 'actually produced' to the defense." (Id. [quoting Ferro, 197 A.D.3d at 787-88]).
Where the defense alleges that the People improperly certified compliance, "the People must establish that they have met their burden." (See Hamizane, 194 N.Y.S.3d at 669 [none of the "People's submissions" established the certificate was proper]).
II. Application
The People admit that they filed their certificate of compliance even though they knew that "Officer Dicamillo's body worn footage" was "missing." (Pr. Resp. at 8). In other words, even though the People knew that all known discovery had not been disclosed, they certified that all known discovery had been disclosed. "Obviously, this is not how certificates are supposed to work." (Rafoel, 77 Misc.3d 1231[A], at *2). A certificate "must in good faith attest that [its] statements are actually true." (People v. Vargas, 76 Misc.3d 646, 649 n.2 [Crim. Ct., Bronx County 2022] [citing" Certificate," Merriam-Webster Dictionary [2022] [defining a "certificate" as a "document containing a certified statement especially as to the truth of something"]]). The People cannot in good faith certify a statement that they know is false.
Even if one bracketed away this problem, the People still could not be said to have filed a good faith certificate of compliance here. That is because the People filed their certificate even though they were still awaiting an answer from the police as to whether the police created property vouchers in this case. (See Pr. Resp. at 11-12). Without first obtaining an answer to that question, the People nonetheless certified that all known material had been disclosed. That is not how certificates are supposed to work, either. The People cannot in good faith certify a statement to be true if they are unsure about whether it is true.
The People nonetheless insist that they chose to file their certificate because they believed that their "efforts had amounted to reasonable and diligent efforts." (Pr. Resp. at 8). That misses the point. A certificate of compliance is not simply a certificate of "reasonable and diligent efforts." To the contrary, a proper certificate claims compliance of both: (1) due diligence and reasonable inquiries to ascertain the existence of discovery; and (2) disclosure of all known discoverable material. (See C.P.L. § 245.50[1]). Only the "first component" of the certificate deals with diligently and reasonably "ascertain[ing] the existence of discoverable material and information." (People v. Williams, 73 Misc.3d 1209 [A], at *1 [Crim. Ct., NY County 2021]). After the People diligently and reasonably ascertain the existence of discovery, they cannot then "fail[] to satisfy the second part," disclosing it. (See id.).
In any event, the People also fail to establish that they did, in fact, diligently ascertain the existence of discoverable material before filing their certificate. The People do not specify any efforts to obtain the property vouchers or Officer Dicamillo's body-worn camera until February 20, 2023-that is seven weeks after discovery was due and merely three days before the speedy-trial deadline. (Pr. Resp. at 9, 11). These materials do not seem to have been difficult to produce; the police produced all of it within eight days. The People provide no reasonable explanation for why they did not inquire about these materials much sooner, like within the first 35 days of the case when discovery was due. (See C.P.L. § 245.10[1][a]). Surely, delaying their inquiries to three days before the speedy-trial deadline for the whole case is not "due diligence." Nor did the People ever avail themselves of the "numerous opportunities to petition a court for relief." (Vargas, 76 Misc.3d at 648 [noting that the discovery statute allows the People to ask a court to modify discovery periods for "good cause" or state ready without a proper certificate because of "special circumstances"]). After receiving and reviewing these materials from the police-which, again, only took the police eight days to produce-the People then realized that another officer had been involved in the case. Thus, solely because of their own dilatoriness, when the People filed their certificate, they had not yet ascertained the identities of all police officers involved or the existence of all officers' memobooks. In sum, the People did not, in fact, exercise "due diligence" to "ascertain the existence" of discoverable material before filing their certificate. (Cf. C.P.L. § 245.50[1]).
Under these circumstances, the People appear to have filed their certificate of compliance only because it was the last day on their readiness clock, not because they had actually complied with their discovery obligations. They filed it knowing that body-camera footage was outstanding; suspecting that property vouchers were outstanding; and without yet having diligently reviewed these materials. It was therefore a certificate "in name only," one improperly designed to be a "simple placeholder that the People file while they continue to disclose discovery files piecemeal." (Vargas, 76 Misc.3d at 647; see also People v. Pennant, 73 Misc.3d 753, 766 [Dist. Ct., Nassau County 2021] [noting the discovery statute "cannot be read to mean that the People may mete out discovery in a piecemeal fashion and file repetitive" certificates]).
Without a proper certificate of compliance, the People's statement of readiness was illusory. The People had ninety days from commencing the case to validly state ready for trial. (C.P.L. § 30.30[1][b]). It is now the People's burden to prove that any time "should be excluded" under C.P.L. § 30.30[4] and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 A.D.3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 A.D.2d 1122, 1122 [4th Dep't 1993]). Here, the People do not explicitly claim any such exclusion. (See generally Pr. Resp.). Nonetheless, they allege that the defense requested a motion schedule on April 5, 2023, which tolls the clock. (See C.P.L. § 30.30[4][a]). Therefore, the C.P.L. § 30.30 calculation runs from November 25, 2023, to April 5, 2023. That is 131 days, more than the ninety days the People are allowed.
As a result, the case must be dismissed.
The foregoing constitutes the decision and order of the court.