Opinion
Ind. No. 76317-2023
08-23-2024
The People of the State of New York, v. Nigel D., Defendant.
For the People: Alejandro Vera, Kings County District Attorney's Office For the Defendant: Matthew Caretto, Brooklyn Defender Services
Unpublished Opinion
For the People: Alejandro Vera, Kings County District Attorney's Office
For the Defendant: Matthew Caretto, Brooklyn Defender Services
Jane C. Tully, J.
The Defense moves for an order to dismiss the indictment pursuant to CPL 30.30. In doing so, the Defense argues that the People's certificates of compliance (COCs) are invalid and statements of readiness (SORs) illusory. The People oppose the motion.
For the reasons set forth, the motion to invalidate the People's COCs is GRANTED, and the motion to dismiss the indictment is GRANTED.
Background
The defendant is charged with attempted murder in the second degree and related charges, stemming from an alleged shooting that occurred on January 25, 2022, on Church Avenue, in Kings County. NYPD officers responded to the scene and recovered three shell casings, which were sent to the NYPD Firearms Analysis Section (FAS) for microscopic analysis and entry into the National Integrated Ballistic Information Network (NIBIN) database. Detective Thomas Varghese was assigned to investigate. On January 25, 2022, and January 26, 2022, Detective Varghese and other NYPD personnel recovered video surveillance near the scene of the shooting, which allegedly depicted the defendant as the shooter. The video surveillance captured the defendant exiting the Nostrand Avenue and Church Avenue train station before the shooting. On January 27, 2022, Detective Varghese directed Detective Jose Villafane to request video from the MTA.
On February 6, 2022, Detective Hinolito Inoa (then a police officer) observed the defendant in possession of a firearm, within the confines of the 79th precinct. Detective Inoa recovered the firearm, which was submitted to the NYPD FAS to determine operability and to develop ballistics samples for entry into the NIBIN database. On February 10, 2022, Detective Varghese received a NIBIN notification indicating that the firearm that Detective Inoa recovered on February 6, 2022, was used in the shooting that occurred on January 25, 2022. Detective Varghese conducted a DAS import search of the defendant's address, which led Detective Varghese to obtain video surveillance from the areas surrounding the defendant's address. On February 17, 2022, Detective Varghese downloaded video surveillance showing the defendant entering and leaving his apartment. On March 2, 2022, Detective Varghese, and Detective Inoa communicated via text messages, and Detective Inoa identified the defendant's photograph from screenshots taken from video surveillance.
The defendant was not immediately arrested or charged with the January 25, 2022, incident. A review of the discovery shows that on March 15, 2022, Detective Varghese conferred with the People, and it appears that Detective Varghese then closed his case file. However, the defendant was arrested and charged under an indictment with criminal possession of a weapon in the second degree, and related charges in connection with the February 6, 2022, incident. On January 26, 2023, a suppression hearing was held before the Hon. Raymond Rodriguez. At the conclusion of the hearing, the court granted the defendant's motion to suppress the firearm. In doing so, the court determined that Detective Inoa's pursuit of the defendant on February 6, 2022, which led to the recovery of the firearm was unlawful. Thereafter, the indictment was dismissed and sealed. Significantly, a review of the discovery shows that on January 26, 2023, a year after the shooting and the same day that the firearm was suppressed, Detective Varghese received a notification from the People, and Detective Varghese's case file regarding the January 25, 2022, incident was subsequently reopened.
See People's Exhibit 9
See People's Exhibit 9
On June 7, 2023, the defendant was charged and arraigned in criminal court with attempted murder in the second degree, and related charges stemming from the January 25, 2022, incident. On June 9, 2023, the defendant was indicted. That indictment was dismissed, and the People represented the charges under the current indictment.
It is unexplained why the People delayed this case by waiting nearly 18 months after the January 25, 2022, incident and after the indictment which charged the defendant with criminal possession of the weapon on February 6, 2022, had been dismissed to charge the defendant or to present the instant matter to the grand jury since the People maintain that the defendant's "face is visible in video surveillance" obtained by Detective Varghese in January 2022. Furthermore, on March 2, 2022, Detective Inoa identified the defendant from video surveillance.
The People's COCs
CPL 245.20 (1) requires the People to disclose "all items and information that relate to the subject matter of the case," within or under the People's "possession, custody, or control," including but not limited to, the discovery items listed in CPL 245.20 (1) (a - u). The People must file a COC when they have provided the discovery items. The COC shall identify the discovery items 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" (CPL 245.50 [1]). The People must also file a supplemental COC when additional discovery items are disclosed (CPL 245.50[1]). The supplemental COC must "detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance" (CPL 245.50[1-a]). CPL 245 directly links the People's compliance with their discovery obligations with the People's readiness for trial under CPL 30.30. "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements" (CPL 30.30 [5]). "[A]bsent an individualized finding of special circumstances," the People "shall not be deemed ready for trial" under CPL 30.30 until they have filed a proper COC (CPL 245.50 [3]). "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock" (People v England, 84 N.Y.2d 1, 4 [1994]). "A defendant need not demonstrate prejudice to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations. CPL 245.50(3) and CPL 30.30(5), taken together, plainly require that the People file a proper COC reflecting that they have complied with their disclosure obligations before they may be deemed ready for trial" (People v Bay, 41 N.Y.3d 200, 213-214 [2023]).
The disclosure mandate of CPL 245.20 does not create a rule of "strict liability" or require a "perfect prosecutor" (see Bay at 212). However, the fact that the People turned over substantial discovery does not by itself establish due diligence. Rather, "the key question in determining if a proper COC has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery" (id. at 211]). "Reasonableness, then, is the touchstone-a concept confirmed by the statutory directive to make '"reasonable inquiries"' (id. at 211-212). The question as to whether the People made reasonable efforts and exercised due diligence "is a mixed question of fact and law" (id. at 215), "case-specific," and "will turn on the circumstances presented" (id. at 212). This requires a court to consider, relevant factors such as: "the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery" (id). 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" (id. at 213). "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" (id. at 214). Conclusory assertions by the People that they filed the COC "in good faith after exercising due diligence" will not suffice. Upon a challenge to a COC, it is incumbent upon the People to detail the efforts they made to comply with their discovery obligations (see People v Guzman, 75 Misc.3d 132 [A] [App Term, 2d Dept, 9th & 10th Jud Dis. 2022]).
On July 11, 2023, the People filed a COC, with a SOR, a Notice and Disclosure Form, and turned over discovery items under the former indictment. On November 21, 2023, the People filed a COC, with a SOR, a Notice and Disclosure Form, and turned over discovery items under the current indictment. Since November 21, 2023, the People have filed multiple supplemental COCs, and SORs, and have turned over additional discovery items. Under the facts of this case, the circumstances presented, and based on the relevant factors outlined in People v Bay, this Court finds that the People failed to show that they exercised due diligence or made reasonable inquiries to identify mandatory discovery items prior to filing the COC and supplemental COCs.
The Court rules on each of the belated disclosures as follows:
Screenshot Images of Text Messages
CPL 245.20 (1) (e) requires the People to disclose all "statements, written or recorded or summarized in any writing or recording made by persons who have evidence or information relevant to any offenses charged..." On April 9, 2024, the People filed a supplemental COC, and disclosed screenshot images of the text messages between Detective Varghese and Detective Inoa from March 2, 2022, in which Detective Iona identified the defendant. The People claim that in preparation for the suppression hearings, the People met with Detective Varghese and obtained the screenshot images. The People state that the screenshot images were requested on April 9, 2024, to support the People's arguments at the suppression hearings. The People maintain they previously requested all discoverable items from Detective Varghese and the NYPD prior to filing the COC. However, the People do not detail any efforts taken to obtain the screenshot images before filing the COC on November 11, 2023. The People do not claim to have made any inquiries about the screenshot images, until April 9, 2024, when the People were preparing Detective Varghese for his testimony. The text messages predate the indictment by 15 months. The People served CPL 710.30 (1) (b) notice of the identification procedure. Both Detective Varghese and Detective Inoa are listed as witnesses for the People. Yet, the People do not explain why the screenshot images were not provided prior to the filing of a COC or what reasonable affirmative steps the People took to get the screenshot images from Detective Varghese before April 9, 2024. The DD5 follow-up #29 states that Detective Varghese forwarded the defendant's photograph via a text message to Officer Inoa for the identification. Therefore, the existence of the text messages should have been obvious to the People.
The People argue that the screenshot images are duplicative of DD5 follow-up# 29 and that the photographs within the text messages are stills taken from video surveillance, and the video surveillance was shared with the Defense in July 2023. There is nothing in CPL 245.20 to suggest that the People can circumvent their duty to disclose because the People believe that certain discovery items are duplicative. Moreover, the People do not get to decide that two different discovery items are duplicative. In any event, this Court does not find that DD5 follow-up #29 and the screenshot images of the text messages are duplicative. DD5 follow-up #29 is authored by Detective Varghese, stating that he conferred with Detective Inoa about the identification. The text messages contain statements that Detective Varghese and Detective Inoa both made to each other on March 2, 2022, and further detail the circumstances under which the defendant was identified. There is no dispute that Detective Varghese had the screenshot images in his possession. "[A]ll items and information related to the prosecution of a charge in the possession of any New York state or local police, or law enforcement agency shall be deemed to be in the possession of the prosecution" (CPL 245.20 [2]). The People's supplemental COC does not explain why the screenshot images were not provided prior to the filing of the November 21, 2023, COC. "Post-filing disclosure and supplemental COCs cannot compensate for a failure to exercise diligence before the initial COC is filed" (Bay at 212). The People have failed to articulate any valid reason why the screenshot images were not disclosed. As such, the People's failure to disclose the screenshot images of the text messages renders the November 21, 2023, COC invalid, and SOR illusory.
Electronic Recordings
CPL 245.20 (1) (g) requires the People to disclose "all tapes or other electronic recordings"... "made or received in connection with the alleged criminal incident..." On June 3, 2024, the People filed a supplemental COC containing an extended video file of the front door of the defendant's apartment, in the period leading up to the January 25, 2022, incident. Detective Varghese downloaded the video file on February 17, 2022. The People claim that the video file was not uploaded into the Detective's DD5s even though other cameras from the same location were uploaded. The People claim to have realized that the video file was missing while the People were creating a video compilation in anticipation of trial. The People claim that the video file is 2 hours and 44 minutes, but argue that the relevant portion, approximately 11 seconds, is the most pertinent, and that portion was disclosed to the Defense on July 11, 2023, in the form of a video compilation. The video file was obtained by Detective Varghese during his investigation. The People do not get to decide what is relevant to the Defense. CPL 245.20 directs disclosure of the items listed in CPL 245.20 (1) (a - u), not the disclosure of items that the People deem to be "relevant." Furthermore, on September 6, 2023, Detective Varghese emailed the People that he was "trying to upload the videos and not all the videos are showing in the DD5s" and that he was "having this issue with them showing up in the attachments." The People do not claim to have communicated with Detective Varghese further about whether the video file had been uploaded to the DD5s. Nor do the People claim to have checked the DD5s to ensure that the video file was attached to the DD5 before filing the COCs. The People's explanation that they realized that the video file was missing from the discovery after reviewing all the files to create a video compilation for trial demonstrates that the People did not exercise due diligence in the first instance and took no efforts to ascertain that they had received all the videos from Detective Varghese before filing the COCs. Had the People exercised the same due diligence before filing the COCs, as they did when creating the video compilation in preparation for trial, the People would have determined then that the video file was missing, and that it had not been uploaded to Detective Varghese's DD5s. Given the nature of the discovery and the People's lack of efforts in ensuring that all videos had been attached to the DD5s, it cannot be said that the People exercised due diligence in obtaining the video file from Detective Varghese before filing the COC and the supplemental COC. Therefore, the SOR filed on April 9, 2024, is deemed illusory.
See People's Exhibit 6.
On July 17, 2024, the People filed a supplemental COC and disclosed four MTA videos, which had been requested from the MTA on January 27, 2022. The People also disclosed handwritten notes from Detective Varghese relating to the MTA videos. The People claim that while preparing Detective Varghese for trial on July 14, 2024, Detective Varghese re-affirmed that no videos were returned by MTA, but stated he would search again for the videos. At this point, Detective Varghese shared MTA videos from two MTA buses in the vicinity that depict portions of the incident along with the handwritten notes. Pointing to the email from Detective Varghese on September 6, 2023, the People claim correspondences with Detective Varghese affirmed that there were no other outstanding videos. However, on September 6, 2023, Detective Varghese emailed the People that not "all the videos are showing in the DD5s" and that he was "having this issue with them showing up in the attachments." The People's failure to timely disclose the videos was not an inadvertent error. The People do not state when Detective Varghese received the videos, but the People admit that they were aware of the MTA request for videos as referenced in Detective Varghese's DD5 follow-up #5. The People were also on notice that Detective Varghese was having difficulty attaching videos to the DD5s. Yet, the People filed their COCs knowing that videos depicting portions of the incident might have been outstanding. The People also claim that the handwritten notes were previously requested from Detective Varghese and that the notes only contain contact information for NYPD personnel, locations of cameras, and information duplicative of that contained in Detective Varghese's DD5s. "The plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence" (Bay, 41 N.Y.3d at 212). The handwritten notes also appear to contain information regarding witnesses that Detective Varghese spoke to, and the actions of the complaining witness. Even if the handwritten notes are duplicative to the DD5s, the People had an obligation to disclose them, and the People do not detail any efforts that they made to obtain the notes from Detective Varghese.
In sum, the People were aware that Detective Varghese had obtained videos from the front door of the defendant's apartment, in the period leading up to the shooting. The People were aware of the request to the MTA for videos. By the People's admissions, they waited until trial preparation to ascertain that the videos had not been obtained from Detective Varghese and were not disclosed pursuant to their discovery obligations. Given the nature of the discovery, the People's lack of effort in obtaining the videos from Detective Varghese, and the People's explanation for the belated discovery, it cannot be said that the People exercised due diligence in filing the COCs before the disclosure of the videos and handwritten notes. Therefore, the November 21, 2023, April 9, 2024, and June 3, 2024, COCs are invalid, and the SORs illusory.
CPL245.35(1) calls for the parties to confer regarding discovery issues. However, the statute requires the People to ascertain the discovery items, exercise due diligence, and make reasonable inquiries before filing COCs in the first instance. The People are not relieved of their discovery obligations, in the absence of the parties conferring. Viewing the record as a whole, the Court finds that People's initial failure to comply with their discovery obligations, their lack of due diligence, and the lack of reasonable inquiries made under the circumstances presented in this case cannot be excused, despite the Defense's delay in bringing this motion.
The Court is also troubled by the actions of the People in delaying the case at the outset, and in failing to take any actions on the January 25, 2022, incident for over 16 months, and only doing so when the People received an unfavorable ruling, which suppressed the firearm, and made the ballistics comparison and conclusions from the unlawful seizure and recovery of the firearm on February 6, 2022, fruit of the poisonous tree.
Additional Belated Disclosures
Since this Court has ruled that the COCs and SORs filed prior to July 17, 2024, are invalid and SORs illusory, the Defense's arguments to invalidate the COCS based on other belated disclosures are rendered moot. However, the record demonstrates that the People have been deficient in complying with their discovery obligations during the pendency of this case. On April 15, 2024, during the suppression hearing, the People called Detective Inoa as a witness. Detective Inoa generated numerous paperwork related to his apprehension of the defendant, and observations and interactions with the defendant on February 6, 2022. Detective Inoa was also wearing a body-worn camera. The People argue that this material was not related to the subject matter of this case and that they were unable to share the discovery, without an unsealing order from the court. On April 15, 2024, the Hon. John Hecht unsealed the indictment, and instructed the People to turn over the discovery items. The January 25, 2022, and February 6, 2022, incidents are intertwined. Detective Inoa identified the defendant based on his interactions and the arrest of the defendant on February 6, 2022. Additionally, Detective Inoa recovered the firearm that was allegedly used in the shooting by the defendant on January 25, 2022. Although the People argue that the Defense never formally requested the discovery, it is not up to the Defense to inform the People of their discovery obligations. The People must comply with CPL 245.20, without a demand (see People ex rel. Ferro v Brann, 197 A.D.3d 7872 [2d Dept 2021]). The People do not claim to have made any efforts to request an unsealing order to comply with their discovery obligations before filing multiple COCs.
Not every belated disclosure requires the invalidation of a COC. Nor does the statute stand for the "uncompromising proposition" that the People may never file a COC without providing every single piece of discovery item under CPL 245.20 (1) (see People V Erby, 68 Misc.3d 625, 630 [Sup. Ct, Bronx County 2020]). The People admit to having mistakenly shared Officer Rios's memobook for the date of the defendant's arrest, rather than the incident date. On May 22, 2024, the People filed a supplemental COC and disclosed the correct memobook. The People filed supplemental COCs and disclosed Giglio materials for Officer Rios and Officer Roche. The People also disclosed that Officer Roche was a newly determined witness. Moreover, the People filed a supplemental COC and disclosed an updated LIMS report, a ballistics report, and gave expert witness notice. The People have a continuing duty to disclose (see CPL 245.20). Some of these items did not exist at the time of the original COC, and in any event, by themselves, do not invalidate a COC.
Chargeable Time
Where a defendant is charged with a felony, a motion to dismiss must be granted if the People are not ready for trial within six months of the commencement of the criminal action (CPL 30.30 [1][a]). "Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" (People v Cortes, 80 N.Y.2d 201, 208 [1992]). The Defense has the initial burden of showing through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. Once the Defense has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (see People v Santos, 68 N.Y.2d 859, 861 [1986]; People v Berkowitz, 50 N.Y.2d 333,349 [1980]).
This action commenced on June 7, 2023, when the defendant was arraigned in criminal court on a felony complaint. The case was calendared to July 5, 2023, for the defendant's supreme court arraignment. The People did not file a COC or declare readiness for trial during this period. Therefore, the People are charged 28 days.
On July 5, 2023, the defendant was arraigned on the indictment. The Defense moved for an inspection of the grand jury minutes. The case was adjourned to September 1, 2023, for the court's decision upon a review of the grand jury minutes. This period is excludable under CPL 30.30 (4)(a). 0 days charged. Total 28 days charged.
On September 1, 2023, the court had not yet completed a review of the grand jury minutes. The Defense had also filed a motion to suppress evidence, and the People had filed a response on September 4, 2023. The case was adjourned to September 22, 2023, for a decision on the grand jury minutes and on the motion to suppress. In a decision dated September 18, 2023, the court rendered a decision, finding that the grand jury minutes were legally insufficient. On September 22, 2023, the court adjourned the case to November 6, 2023, for grand jury action. The period between September 1, 2023, and September 22, 2023, is excludable as motion practice. Periods of post-readiness delay between the dismissal of the original indictment and the filing of a second indictment are chargeable to the People (see People v Lucas, 209 A.D.2d 546, 546 [2d Dept 1994]). Therefore, the People are charged between September 22, 2023, and November 6, 2023. 45 days charged. Total 73 days charged.
On November 6, 2023, the Defense moved for an inspection of the grand jury minutes, and the case was adjourned to December 20, 2023, for a decision. This period is excludable. 0 days charged. Total 73 days charged.
On December 20, 2023, the case was adjourned to February 2, 2024, for pre-trial conference and for the Defense to file a COC. The Defense also indicated that they would file a PPI. Since this Court determined that the November 11, 2023, COC was improper and SOR illusory, their filing did not stop the running of the speedy trial clock. The Defense did not expressly consent to this adjournment or waive CPL 30.30 time for the purpose of filing a PPI (see People v Liotta, 79 N.Y.2d 841, 843 [1992] [a consent to an adjournment "must be clearly expressed"... "to relieve the People of the responsibility for that portion of the delay"]). The filing of the Defense's COC and the PPI did not prevent the People from complying with their discovery obligations under CPL 245.20 and being ready. Therefore, the People are charged for this period. 44 days charged. Total 117 days charged.
On February 2, 2024, the Defense requested a motion schedule to suppress evidence. The case was adjourned to March 1, 2024, for a decision. This period is excludable under CPL 30.30 (4)(a). 0 days charged. Total 117 days charged.
On March 1, 2024, the Court denied the motion to suppress, and the case was adjourned to April 15, 2024, for hearings. Since the People's April 9, 2024, supplemental COC is invalid and SOR illusory, their filing did not stop the speedy trial clock. The People have not identified any other excludable time. Therefore, the People are charged for this period. 45 days charged. Total 162 days.
On April 15, 2024, a suppression hearing was held. On April 19, 2024, this Court held a plea conference. The Defense requested time to consider the Court's offer, and the case was adjourned to May 3, 2024. Since the Defense requested the adjournment for plea purposes, this period is excludable under CPL 30.30 (4)(b). 0 days charged. Total 162 days.
On May 3, 2024, the case was adjourned to June 20, 2024, for trial. This Court has determined that the People's COCs filed during this period are invalid, and the SORs illusory. The People have not identified any other excludable time and are therefore charged for this period. 48 days charged. Total 210 days.
On June 20, 2024, the People announced not ready for trial due to unavailable witnesses. The People requested July 29, 2024, to begin trial. The People concede that this period is chargeable. 39 days charged. Total 249 days.
On July 25, 2024, the Defense filed the instant motion herein. On July 29, 2024, the Court adjourned the case to, for a decision. 0 days charged. Total 249 days.
The People are charged with 249 days of speedy-trial time, and as such, the motion to dismiss the indictment is GRANTED.
The foregoing constitutes the Decision and Order of the Court.