Opinion
No. 123
08-11-2022
The People of the State of New York v. Mejia, Defendant.
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Melissa Zacharias) For Mr. Mejia: The Bronx Defenders (by William John)
Unpublished Opinion
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Melissa Zacharias)
For Mr. Mejia: The Bronx Defenders (by William John)
Wanda L. Licitra, J.
The defense has filed a C.P.L. § 30.30 motion to dismiss, alleging that the People's certificate of discovery compliance was not proper. They argue that the People did not disclose discoverable material related to a civil lawsuit in which the People's police witness, Saad Mughal, was sued. Therefore, the defense concludes, the People did not validly state ready within 90 days of arraignments, and time has elapsed on the C.P.L. § 30.30 clock.
The motion is DENIED. Nonetheless, the People are ORDERED to disclose:
1. All impeachment or Giglio information about Officer Saad Mughal held by the New York City Law Department, including any lawsuit documents from Montanez v. City of New York, 035122/2019E;
2. The entirety of their file and the police file for this case except for any work product or any material under a protective order; and
3. All evidence and information, including any underlying documents, known to the People or the police, that impeaches the credibility of any witness against Mr. Mejia.
LEGAL ANALYSIS
I. The legal standard
Article 245 of the Criminal Procedure Law requires that the People "actually produce" automatic discovery to the defense. (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021]). Automatic discovery covers "all items and information" that "relate to the subject matter of the case" in the People's constructive or actual possession. (C.P.L. § 245.20[1]). The People's constructive possession includes impeachment material-also called" Giglio" material-that is "known to police," (C.P.L. § 245.20[1][k][iv]), or "in the possession" of police, (C.P.L. § 245.20[2]). If discoverable material is not within the People's actual or constructive possession, Article 245 requires them to make "diligent, good faith effort[s]" to do two things. (Id.). First, they must make a "diligent, good faith effort" to "ascertain the existence" of discoverable material. (Id.). Second, they must make a "diligent, good faith effort" to "cause" that material to "be made available for discovery." (Id.).
Once the People complete these steps, Article 245 directs them to certify it in a certificate of discovery compliance ("COC"). (C.P.L. § 245.50[1]). The COC must truthfully 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." (C.P.L. § 245.50[1]). A proper COC is a prerequisite to a valid statement of readiness. (C.P.L. §§ 245.50[3], [1]).
Documents relating to a lawsuit in which the People's police witness was sued are discoverable impeachment-or Giglio -information. (C.P.L. § 245.20[1][k][iv]; People v. Payne, 75 Misc.3d 1224 [A] [Crim. Ct., Bronx County 2022]; People v. Polanco-Chavarria, 75 Misc.3d 1210[A], at *4 [County Ct., Rockland County 2021]; see also People v. Smith, 27 N.Y.3d 652, 662 [2016] [allegations in civil lawsuits may be used to impeach a police witness at trial]; People v. Garrett, 23 N.Y.3d 878, 886 [2014] [documents relating to a lawsuit against a police witness are "favorable to defendant as impeachment evidence"]).
The People's relevant discovery burden depends on whether documents relating to a civil lawsuit are in their possession-whether actual or constructive-or not. If the documents are in the People's actual or constructive possession, they are a part of automatic discovery, and the People must "actually produce" them for their COC to be proper. (See Ferro, 197 A.D.3d at 787-88). If the documents are not in their actual or constructive possession, they must only make diligent, good-faith efforts to ascertain their existence and disclose them. (See C.P.L. § 245.20[2]).
Where the defense alleges that the People's COC was not proper, it is incumbent on the People to come forward with information establishing that they met the relevant statutory burden. (See Payne, 75 Misc.3d 1224[A], at *2 [People established they disclosed any and all documents held by the Law Department]; People v. Alvia, 2022 NY Slip Op. 22233, at *2-*3 [Crim. Ct., Bronx County 2022] [People established they disclosed body-worn camera videos]). That is because the People are the only party who know about what efforts they made. Efficiency and general principles of law suggest that "[t]he party in possession of information should bear the burden of producing it." (See People v. Spaulding, 75 Misc.3d 1219 [A], at *4 [Crim. Ct., Bronx County 2022]).
II. The submissions in this case
Here, when the defense alleged that the People failed to produce documents relating to the civil lawsuit, the People did not come forward with any relevant efforts they took before filing their COC. Instead, their initial response only described efforts taken after they filed their COC. (See Pr. Resp. to Suppl. Aff. at 3). But the question of whether a COC is proper concerns the People's efforts before they filed it. Indeed, that is "what the statute directs the People to do in their certificate of compliance." (People v. Vargas, 2022 NY Slip Op. 22227, at *1-*2 [Crim. Ct., Bronx County 2022]). "They must certify that they have complied," (id.)-that the prosecutor has filed it" after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery." (C.P.L. § 245.50[1] [emphasis added]).
As a result, the Court ordered the People to file a supplemental response. It directed the People to explain, with dates, "all" efforts that the People made to ascertain the existence of material related to civil lawsuits where Officer Mughal was sued; "all" efforts to make that material available for discovery; and the "date on which any member of the Bronx District Attorney's Office (and not merely the prosecutor assigned to this case) came into possession" of any lawsuit documents.
The Court acknowledges that it effectively gave the People two bites at the apple by doing this. It will not do so again.
The People responded with a supplemental affirmation. In this affirmation, the People failed to clearly identify the "date on which any member of the Bronx District Attorney's Office (and not merely the prosecutor assigned to this case) came into possession" of these lawsuit documents. (See Pr. Suppl. Aff. at 1-3). However, the People described other efforts. (See id.).
On September 22, 2021, ADA Melissa Zacharias-the prosecutor assigned to this case-requested "all Giglio for potentially testifying officers" from the "Bronx DA Giglio unit." (Id. at 2). On that same day, she also requested "lawsuit information" from the Law Department. (Id.). On October 15, 2021, she "again requested lawsuit information" from the Law Department. (Id.). On October 20, 2021, the Law Department sent her the "index number for Montanez v. City of New York," in which Officer Mughal was sued. (Id.). She then sent four more emails to the Bronx DA's Giglio Unit requesting "underlying lawsuit documents" on November 4, 2021, February 2, 2022, February 4, 2022, and February 17, 2022. (Id. at 2-3). The supplemental affirmation does not affirm that the Giglio Unit responded to any of ADA Zacharias' emails until February 17, 2022. (See id.). On that day, "a member of [the] Giglio Unit save[d]" copies of lawsuit documents "into a onedrive file." (Id.). However, "[s]aid one drive file is inaccessible to the assigned Assistant District Attorney," and the "Giglio Unit did not realize" this until March 23, 2022-when ADA Zacharias again emailed the Giglio Unit for underlying lawsuit documents, now for the sixth time. (Id.).
In reviewing the People's supplemental response, the Court delineates two issues. The first concerns the documents in the possession of the Giglio Unit at the Bronx District Attorney's Office. The second concerns the People's efforts to disclose documents held by the Law Department. The Court addresses each in turn.
III. Whether the COC was proper
A. Documents held by the "Giglio Unit" at the Bronx District Attorney's Office
The People's supplemental affirmation describes an office failure of the Bronx DA's "Giglio Unit" to send documents in its possession to the prosecutor on this case. The assigned prosecutor contacted the Giglio Unit at the Bronx DA's office five times -from September 22, 2021, to February 17, 2022. (Pr. Suppl. Aff. at 2-3). According to the supplemental affirmation, it was only on February 17, 2022, that the Giglio Unit responded. (Id. at 3). But even on that date, they saved the documents into a "onedrive file" that was "inaccessible" to ADA Zacharias, who then followed up a sixth time on March 23, 2022. (Id.).
This "office failure" does not meet the statute's discovery mandate. (See People v. Guzman, 75 Misc.3d 132 [A], at *4-*5 [Sup. Ct., App. Term 2d Dep't] [finding that prosecutor office's failure rendered a COC improper]). Under C.P.L. § 245.20[1], there is no distinction between documents held by an assigned prosecutor and documents held by the prosecutor's Giglio Unit. Indeed, the same is true under Brady and Giglio themselves: "The prosecutor's office is, of course, considered one entity and information possessed by one member of that office is chargeable to the entire office." (People v. Ausserau, 77 A.D.2d 152, 156 [1st Dep't 1980]). The Giglio Unit presumably has one job: to share Giglio material with line prosecutors assigned to criminal cases. Yet here, they did not even respond to the assigned prosecutor until at least three months after the People filed their COC.
Therefore, the People's COC was not proper. Before filing it, the People had not, or did not know whether they had, disclosed all discoverable material from the Giglio Unit's possession. Accordingly, this COC could not meet the requirement necessary to stop the speedy-trial clock. (C.P.L. §§ 245.50[1], [3]).
B. Documents held by the New York City Law Department
In addition, and separately, the People have failed to establish that they disclosed all impeachment information in the possession of the Law Department. This was required here, because the Law Department represented Officer Mughal in Montanez v. City of New York. (See People v. Payne, 75 Misc.3d 1224 [A], at *2-*3 [Crim. Ct., Bronx County 2022] [holding that the People properly turned over all impeachment material from the Law Department]). Courts that conclude otherwise do so by transplanting a limiting principle from constitutional due process into the discovery statute-a move with which this Court and many others disagree. (See id. at *3 [collecting cases]). The Constitution provides a floor for a prosecutor's obligations, not a ceiling.
The discovery statute requires that the People automatically disclose "all" impeachment information about their police witnesses that is "known to police." (C.P.L. § 245.20[1][k][iv]). Where the Law Department represents an individual officer in a civil lawsuit, the documents from that lawsuit are "known to police." (Payne, 75 Misc.3d 1224[A], at *2). "The well-established general rule of agency, that notice to or knowledge possessed by an agent is imputable to the principal, is applicable to the relation of attorney and client." (Russell J. Davis et al., New York Jurisprudence § 136 [2d ed. 2022] [collecting cases]). "Knowledge of facts relating to the subject matter of the [attorney's] employment, acquired while the attorney is engaged in the discharge of his or her duties under the employment, is imputable to the client." (Id.). Moreover, where the Law Department represents an officer in a civil lawsuit, it receives service of lawsuit documents on behalf of the officer. (See C.P.L.R. § 2103[b] ["[P]apers to be served upon a party in a pending action shall be served upon the party's attorney."]. Therefore, where the Law Department represents the People's police witness in a civil lawsuit, the documents held by the Law Department are "known to police," and the People's automatic discovery obligation extends to those documents.
Here, unlike what they have done in other cases, the People did not affirm that they disclosed all documents in the Law Department's possession. (Cf. Payne, 75 Misc.3d 1224[A], at *3 [in which the People swore that they communicated with the Law Department and disclosed "any and all" materials in its possession]). Instead, the People here only say that they requested "lawsuit information" from the Law Department and received a docket number and case name. (Pr. Suppl. Aff. at 2-3). This was insufficient to establish that they turned over all lawsuit documents in the Law Department's possession.
Moreover, even if the Court analyzed the People's efforts as though these documents were not in their constructive possession, it would reach the same conclusion. That is because even if the lesser standard of a "diligent, good-faith effort" applied here, the People's supplemental affirmation does not describe such efforts. (See C.P.L. § 245.20[2]). The People here emailed the Law Department only two times before filing their COC. (Pr. Suppl. Aff. at 2). They note only that they requested "lawsuit information." (Id.). In response, the Law Department apparently provided them only with "the index number for Montanez v. City of New York." (Id.). The People do not describe any other efforts to ascertain and disclose discoverable material held by the Law Department. (See id. at 2-3). Two emails to the Law Department, resulting in nothing but the name and index number of a lawsuit that they handled, does not constitute a "diligent" effort in ascertaining what the Law Department had and causing it to be made available for discovery. (See C.P.L. § 245.20[2]; see also People v. Spaulding, 75 Misc.3d 1219 [A], at *3 [Crim. Ct., Bronx County 2022] [a simple request for Giglio does not establish due diligence]).
For these reasons, as well, the COC was not proper and could not support a valid statement of readiness to stop the speedy-trial clock. (C.P.L. §§ 245.50[1], [3]).
C.P.L. § 30.30 CALCULATION
Bronx Criminal Court arraigned Mr. Mejia on September 6, 2021. The highest charge against him was an unclassified misdemeanor punishable by 364 days in jail. Therefore, the People had 90 days from arraignments to validly state ready for trial. (C.P.L. § 30.30[1][b]).
Ninety days after September 6, 2021, was December 5, 2021. However, because that day was a Sunday, the 90th day fell on the following Monday. (People v. Powell, 179 Misc.2d 1047, 1048 [Sup. Ct., App. Term 2d Dep't 1999]; People v. Mandela, 142 A.D.3d 81, 85-86 [3d Dep't 2016]). On that Monday, the defense requested a motion schedule, stopping the C.P.L. § 30.30 clock. (C.P.L. § 30.30[4][a]; People v. South, 29 Misc.3d 92, 95 [Sup. Ct. App. Term, 2d Dep't 2010]). Accordingly, 90 days have accrued from arraignments, and the People are within their speedy-trial time.
CONCLUSION
For the foregoing reasons, the People's November 4, 2022, statement of readiness and COC were illusory and not proper; however, the defense's motion to dismiss is DENIED.
Before filing another COC and statement of readiness, the People are ORDERED to produce:
1. All impeachment or Giglio information about Officer Saad Mughal held by the New York City Law Department, including any lawsuit documents from Montanez v. City of New York, 035122/2019E.
In addition, to any extent to which the People have not already done so, before filing another COC and statement of readiness, the People are also ORDERED to produce:
2. The entirety of their file and the police file for this case except for any work product or any material under a protective order; and
3. All evidence and information, including any underlying documents, known to the People or the police, that impeaches the credibility of any witness against Mr. Mejia.
The foregoing constitutes the Decision and Order of the Court.