Opinion
Docket No. CR-002377-22QN
04-17-2023
The People of the State of New York v. Nisanov, Defendant.
For the People: Melinda Katz, District Attorney (by Kristina Colon & Denise Tirino) For Mr. Nisanov: Queens Defenders (by Daniel Santos)
Unpublished Opinion
For the People: Melinda Katz, District Attorney (by Kristina Colon & Denise Tirino)
For Mr. Nisanov: Queens Defenders (by Daniel Santos)
Wanda L. Licitra, J.
The discovery statute has clear rules. The People must automatically disclose "[a]ll evidence and information, including that which is known to police... that tends to... impeach the credibility of a testifying prosecution witness." (C.P.L. § 245.20[1][k][iv]). That includes police witnesses' underlying disciplinary records that are in the possession of the People or the police department. (See id.; C.P.L. § 245.20[2] [deeming materials in the police's possession to be in the People's possession]). Summary letters authored by the People are not sufficient to discharge this obligation.
Many courts-including the appellate courts-have repeatedly affirmed these rules. (E.g., People v. Rodriguez, 77 Misc.3d 23 [App. Term, 1st Dep't 2022]; Matter of Jayson C., 200 A.D.3d 447, 448-49 [1st Dep't 2021]; People v. Eleazer, 2023 NY Slip Op. 50316[U] [Crim. Ct., NY County 2023] [Maldonado-Cruz, J.]; People v. Payne, 2023 NY Slip Op. 23101 [Crim. Ct., Bronx County 2023] [Bowen, J.]; People v. Toussaint, 78 Misc.3d 504 [Crim. Ct., Queens County 2023] [Licitra, J.]; People v. Rugerio-Rivera, 77 Misc.3d 1230 [A] [Crim. Ct., Queens County 2023] [Gershuny, J.]; People v. Goggins, 76 Misc.3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Martinez, 75 Misc.3d 1212 [A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People v. Edwards, 74 Misc.3d 433 [Crim. Ct., NY County 2021] [Weiner, J.]; People v. McKinney, 71 Misc.3d 1221 [A] [Crim. Ct., Kings County 2021] [Kitsis, J.]; People v. Rodriguez, CR-002613-20BX [Crim. Ct., Bronx County May 20, 2021] [Johnson, J.]; People v. Cooper, 71 Misc.3d 559 [County Ct., Erie County 2021] [Eagen, J.]).
Nonetheless, the People here did not follow the discovery statute's commands. Instead, they unilaterally decided, incorrectly, that their police witnesses' misconduct records could not constitute impeachment material and so did not fall within the discovery statute. They developed this opinion even though they knew that the statute mandates that they always err on the side of disclosure. (C.P.L. § 245.20[7]; see Pr. Resp. Exs. 5, 6 [explicitly recognizing the presumption of disclosure]). To this day, the People have not disclosed their police witnesses' misconduct records.
Before the People could state ready for trial, the law required them to fulfill their automatic discovery duties. (C.P.L. §§ 245.50[3], 30.30[5]). Because they failed to fulfill those duties, their certificate of discovery compliance was improper, and their statement of readiness illusory. The People failed to comply with their discovery obligations for over 90 days after commencing this case. As a result, the defense has filed a C.P.L. § 30.30 motion, the motion must be granted, and the case must be dismissed.
LEGAL ANALYSIS
A "proper" certificate of discovery compliance is necessary to stop the speedy-trial clock. (C.P.L. § 245.50[3]). The statute defines a "proper" certificate in "subdivision one" of C.P.L. § 245.50. (Id.). It requires that the People certify, in good faith, two things. First, that the People exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of "material and information subject to discovery." (C.P.L. § 245.50[1]). And second, that "after" doing so, "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.; see also People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021] [holding that a certificate was not complete until the People "actually produced" automatic discovery to the defense]). These are two separate statements that the People must certify, in good faith, to each be true. (See C.P.L. § 30.30[5]). If the People do not file such a proper certificate, their statement of readiness is invalid and ineffective to stop the speedy-trial clock. (C.P.L. §§ 245.50[3], [1], 30.30[5]; Ferro, 197 A.D.3d at 788; People v. Guzman, 75 Misc.3d 132 [A], at *3 [App. Term, 2d Dep't 2022]; People v. Rodriguez, 77 Misc.3d 23 [App. Term, 1st Dep't 2022]). The only exception is for "special circumstances." (C.P.L. § 245.50[3]; see also Guzman, 75 Misc.3d 132[A], at *3).
There may be some difference between the standards employed by appellate courts in the Second Department and the Fourth Department. The Second Department has found that a certificate was not proper where discovery was not "actually produced to the defendant." (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 788 [2d Dep't 2021]; see also People v. Francis, 75 Misc.3d 1224 [A], at *2-*3 [Crim. Ct., Bronx County 2022] [analyzing the facts in Ferro and contextualizing the decision]). The Second Department has also found that a certificate was not proper where the People had not certified compliance in good faith. (See People v. Guzman, 75 Misc.3d 132 [A], at *3 [App. Term, 2d Dep't 2022]). There, the People's certification was not in good faith because they had, in fact, failed to exercise due diligence and make reasonable inquiries to obtain a dashcam video. (Id.). Thus, the Second Department has treated whether the People exercised due diligence to ascertain the existence of discoverable material, whether they disclosed all known material, and whether they certified those facts in good faith as each necessary to a proper certificate. (See People v. Vargas, 76 Misc.3d 646, 650 [Crim. Ct., Bronx County 2022] [explaining that the statute requires each of these]). The Fourth Department, in contrast, has applied a different clause-the "adverse consequence" clause-when analyzing whether a certificate is proper. (See People v. Gaskin, 2023 NY Slip Op. 01415, at *2 [4th Dep't 2023]). As a result, it believes a certificate "is proper where its filing is in good faith and reasonable under the circumstances." (Id. [internal quotation marks omitted]). This suggests it views those factors, together, as sufficient to constitute a proper certificate. The Second Department has never mentioned or applied the adverse-consequence clause. (See generally Ferro, 197 A.D.3d at 787-88; Guzman, 75 Misc.3d 132[A], at *1-*4). However, if there is any space between the appellate courts, it is academic in this case, as the People's efforts met none of these standards.
Contrary to the People's contention, C.P.L. § 245.80, "prejudice," and "sanctions" are all irrelevant to a C.P.L. § 30.30 motion. (E.g., People v. Gaskin, 2023 NY Slip Op. 01415 [4th Dep't 2023]). Such analyses are for situations where the People only violate the 20-day or 35-day discovery deadlines, not where they also fail to state ready for trial within the entire 90-day speedy trial timeframe. (People v. Darren, 75 Misc.3d 1208 [A], at *5 [Crim. Ct., NY County 2022]; People v. Diaz, 75 Misc.3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc.3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; People v. Quinlan, 71 Misc.3d 266, 272 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020]). "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Adrovic, 69 Misc.3d at 574). "Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).
The statute defines automatic discovery to include, amongst other things, "[a]ll evidence and information, including that which is known to police... that tends to... impeach the credibility of a testifying prosecution witness." (C.P.L. § 245.20[1][k][iv]). It also provides special instruction regarding that category of material. It mandates that "[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form." (C.P.L. § 245.20[1][k]). It mandates that it "shall be disclosed... irrespective of whether the prosecutor credits the information." (Id.). And it mandates that the People "shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier" than the normal statutory "time period for disclosure." (Id.).
Here, before filing their certificate of discovery compliance, the People disclosed only summary letters about their police witnesses' disciplinary matters. Those letters simply stated: "This officer was the subject of allegations that were found to be, 'unsubstantiated' following an investigation." (Pr. Resp. Exs. 5, 6). Before filing their certificate, the People disclosed no other information about any of these allegations. Six months later, they disclosed "updated" letters that listed each allegation, but with little detail. (See Pr. Resp. Exs. 8, 9). Here is an example:
DATE: 7/13/2011
SERIAL NUMBER: M11-1606
I/ANo.11-31841 JULY 13, 2011 ALLEG: DRV-MOS/MOS ALTERCATION ASSIGN UNIT: PBQS I/U DISPO: UNSUBSTANTIATED CASE CLOSED: 01/20/2012.(Pr. Resp. Ex. 9). Clearly, these disclosures are not "[a]ll evidence and information" that the police and prosecutors have about these incidents. (See C.P.L. § 245.20[1][k][iv] [requiring disclosure of "[a]ll evidence and information" that tends to impeach a witness]; Matter of Jayson C., 200 A.D.3d 447, 448-49 [1st Dep't 2021] [holding that summary letters authored by the government do not fulfill C.P.L. § 245.20[1][k][iv]]; People v. Toussaint, 78 Misc.3d 504 [Crim. Ct., Queens County 2023] [explaining the holdings of Jayson C. ]).
In their defense, the People argue that "unsubstantiated" police disciplinary matters do not fall within the discovery statute at all. They claim this is so because "unsubstantiated" matters "by their very nature, are not matters that would 'tend' to impeach the credibility of a police witness." (Pr. Resp. at 8-9). "[S]ince the allegations lack evidentiary support, they cannot be relied upon in good faith as a basis for cross examination." (Id. at 9). "Thus, these documents are not impeachment material." (Id. at 9-10).
The People's articulation of what provides a good-faith basis to cross-examine a witness is incorrect. In NYPD discipline, "unsubstantiated" is a term of art-it only means there is an "absence of evidence [that] precludes resolution of the allegation one way or the other." (People v. Edwards, 74 Misc.3d 433, 442 [Crim. Ct., NY County 2021] [Weiner, J.]). And it is black-letter law that such allegations may provide a good-faith basis for cross-examination. In People v. Smith, defense attorneys had sought to cross-examine police officers on allegations from civil complaints that had never been proved in court. (27 N.Y.3d 652 [2016]). The Court of Appeals held that "[s]pecific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct." (Id. at 667). Reversing the lower courts that held otherwise, the Court of Appeals explained that "there is no prohibition against cross-examining a witness about bad acts that have never been formally proved" in another forum. (Id. at 661; cf. Pr. Resp. at 9 [stating the opposite]).
The People's argument also contradicts the discovery statute. The statute mandates that the People disclose impeachment material "irrespective of whether the prosecutor credits the information." (C.P.L. § 245.20[1][k]). It is therefore irrelevant that the People believe that an allegation "lack[s] evidentiary support." "That is not the People's determination to make." (People v. Williams, 72 Misc.3d 1214 [A], at *5 [Crim. Ct., NY County 2021]). In any event, if the People ever possess any doubt as to whether anything should be disclosed, the statute mandates they presume they should disclose it. (C.P.L. § 245.20[7]). The People may never err on the side of withholding information unless specifically authorized by statute.
The People also state that their policy is to withhold "minor or technical violations," even if the NYPD substantiates them. (Pr. Resp. at 8). While the People do not appear to have withheld anything in this case for that reason, that position also violates the discovery statute. "[T]he People's evidentiary opinions have absolutely no import in an Article 245 discovery analysis." (People v. Payne, 2023 NY Slip Op. 23101, at * 2 [Crim. Ct., Bronx County 2023]). "As the Court of Appeals has long recognized, the best judge of the impeachment value of evidence is the 'single-minded counsel for the accused.'" (People v. Edwards, 74 Misc.3d 433, 443 [Crim. Ct., NY County 2021] [Weiner, J.] [quoting People v. Rosario, 9 N.Y.2d 286, 290 [1961]]). The discovery statute also "abandons the requirement that only 'materially' exculpatory information need be disclosed." (NY State Assembly, Memorandum in Support of Legislation, A4360A; see also People v. Best, 76 Misc.3d 1210 [A], at *5 [Crim. Ct., Queens County 2022] [noting that the statute "jettisons the 'materiality' requirement"]). As a result, "it is not for the People to determine whether a particular item might... serve as impeachment material." (People v. Soto, 72 Misc.3d 1153, 1160 [Crim. Ct., NY County 2021]). "Pursuant to article 245, the People's responsibility is solely to disclose 'all material and information' that 'tends to impeach' the officer witness." (People v. Darren, 75 Misc.3d 1208 [A], at *6 [Crim. Ct., NY County 2022]).
Given these clear principles, it is unsurprising that the People's argument also defies the weight of case authority. (See, e.g., People v. Javier Rodriguez, CR-002613-20BX [Crim. Ct., Bronx County May 20, 2021] [Johnson, J.] [finding that the People must disclose the underlying documents for both substantiated and unsubstantiated misconduct allegations], aff'd, People v. Rodriguez, 77 Misc.3d 23 [App. Term, 1st Dep't 2022]; People v. Eleazer, 2023 NY Slip Op. 50316[U] [Crim. Ct., NY County 2023] [Maldonado-Cruz, J.]; People v. Payne, 2023 NY Slip Op. 23101 [Crim. Ct., Bronx County 2023] [Bowen, J.]; Toussaint, 78 Misc.3d 504 [Licitra, J.]; People v. Rugerio-Rivera, 77 Misc.3d 1230 [A] [Crim. Ct., Queens County 2023] [Gershuny, J.]; People v. Goggins, 76 Misc.3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Martinez, 75 Misc.3d 1212 [A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; Edwards, 74 Misc.3d 433 [Weiner, J.]; People v. McKinney, 71 Misc.3d 1221 [A] [Crim. Ct., Kings County 2021] [Kitsis, J.]; People v. Cooper, 71 Misc.3d 559 [County Ct., Erie County 2021] [Eagen, J.]).
If, despite the law's mandates, the People nonetheless seek to withhold any material, the statute provides a court "process" for them to "follow." (People v. Best, 76 Misc.3d 1210 [A], at *7 [Crim. Ct., Queens County 2022]; see also C.P.L. § 245.10[1] ["Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70."]; C.P.L. § 245.70 [providing for motions for protective orders]). A reasonable prosecutor would pursue that process-file a C.P.L. § 245.70 motion for a protective order and obtain a ruling before certifying compliance. In fact, that is part of the compliance that the People must certify: that "the prosecutor has disclosed and made available all known material and information subject to discovery" except for discovery that is lost, destroyed, or "the subject of an order pursuant to section 245.70 of this article." (C.P.L. § 245.50[1] [defining a proper certificate of compliance]).
Here, the People did not follow that process at all, let alone do so before filing their certificate. Indeed, there is nothing reasonable about what the People did here, all of which directly contravened the statute. There is nothing reasonable about disregarding the presumption of disclosure to deem documents undiscoverable. (See C.P.L. § 245.20[7] ["There shall be a presumption in favor of disclosure."]). There is nothing reasonable about withholding documents because the People do not credit the information, (see C.P.L. § 245.20[1][k][iv] [requiring disclosure "irrespective of whether the prosecutor credits the information"]), or think it is of little materiality, (see Best, 76 Misc.3d 1210[A], at *5 [noting that the statute "jettisons the 'materiality' requirement]; NY State Assembly, Memorandum in Support of Legislation, A4360A [noting that the then-proposed statute's language "abandons the requirement that only 'materially' exculpatory information need be disclosed"]). And there is nothing reasonable about unilaterally deeming documents non-discoverable and evading court process, something which the statute authorizes only in specific situations. (See C.P.L. § 245.10[1] [requiring the People to move for protective orders to withhold material they think is not discoverable]; see, e.g., C.P.L. § 245.20[1][c] [allowing the People to withhold physical addresses and the identities of 911 callers and confidential informants "without need for a motion"]; C.P.L. § 245.20[1][d] [same for materials relating to undercover personnel]). None of this is good-faith compliance; it is mere gambling on a motions court that is unwilling to apply the discovery statute.
Accordingly, the court turns to the C.P.L. § 30.30 calculation. On January 26, 2022, the People commenced this case. The People's March 24, 2022, and later statements of readiness were illusory. Instead of disclosing any documents about their police witnesses' NYPD disciplinary records, the People simply sent summary letters. As a result, the People's certification that they had disclosed "all" known discoverable material was false, not in good faith, and unreasonable. On October 31, 2022, the defense asked for a motion schedule. To this day, the People have never disclosed any of these records.
It is the People's burden to prove that any pre-readiness time between January 26, 2022, and October 31, 2022, "should be excluded" and to provide the necessary factual or documentary evidence to substantiate their claims. (See, 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 claim no C.P.L. § 30.30[4] exclusions. Instead, they simply copy and paste, five times, that on each court date "the People announced ready on the calendar call. At this point, zero (0) days are chargeable to the People." (Pr. Resp. at 18-19). Therefore, the court finds no C.P.L. § 30.30[4] exclusions up to the point where the defense requested a motion schedule. From that point on, the defense concedes the C.P.L. § 30.30 clock was tolled. (Def. Mot. at 21; see C.P.L. § 30.30[4][a]). That is 278 days, far beyond the 90 days the law allows the People to delay this case. (See C.P.L. § 30.30[1][b]).
It is important to be clear about what happened here. This dismissal did not result from the People missing 20-day or 35-day discovery deadlines because they were too overwhelmed with paperwork. Such dismissals do not exist. The statute as written counsels against dismissals simply for missing those timeframes, (see C.P.L. § 245.80[2]); presumptively extends those timeframes if discovery is "exceptionally voluminous" or only with the police, (C.P.L. § 245.10[1[a]); and permits the People to ask a court to extend those timeframes, (C.P.L. § 245.10[1][a][iv]). In over two and a half years since discovery reform was enacted, there has not been a single published decision where a court dismissed a case simply because the People missed the 20-day or 35-day discovery deadlines.
Instead, this is yet another case where the People intentionally decided, as policy, not to comply with automatic discovery and disclose police misconduct records. They did so in blatant disregard of the plain text of C.P.L. § 245.20[1][k][iv] and the statute's mandatory presumption of disclosure. They decided this unilaterally, failing to seek a protective order from a court first. Then, despite intentionally failing to comply with automatic discovery, the People filed a "certificate" of "compliance" that claimed otherwise. As the speedy-trial clock ticked against them, the People remained steadfast in their refusal to produce any police disciplinary records. Finally, 90 days after the People commenced this misdemeanor case, the speedy-trial clock expired. That is why the defense's motion must be granted, and why this case must be dismissed.
The defense's remaining arguments and motions are moot.
The foregoing constitutes the order and decision of the court.