Opinion
CR-020126-19NA
10-15-2021
The PEOPLE of the State of New York, v. Gerald PENNANT, Defendant.
Joyce A. Smith, Acting District Attorney, for plaintiff. Courtney Smith for defendant.
Joyce A. Smith, Acting District Attorney, for plaintiff.
Courtney Smith for defendant.
Andrew M. Engel, J. On August 4, 2019, the Defendant was arraigned on the charges of driving while intoxicated, refusing to submit to a breath test, driving at an unreasonable and imprudent speed, disobeying a traffic control device, moving from lane unsafely, failing to use a designated lane, driving on the shoulder, stopping standing or parking on a highway, and driving in a matter interfering with other vehicles, in violation of VTL §§ 1192(3), 1194(1)(b), 1180(a), 1110(a), 1128(a), 1128(c), 1131, 1201(a), and Parkway/Thruway Regulations § 3781(l), respectively. The matter was adjourned to Part 8 for August 13, 2019.
On July 6, 2020 the People filed a form entitled "Automatic Discovery Form and 710.30 Notices" dated July 2, 2020, which contained a Certificate of Compliance ("COC") and was accompanied by a Certificate of Readiness ("COC") dated July 1, 2020. The Defendant acknowledges receipt of the "Automatic Discovery Form and 710.30 Notices," which contained an unsigned COC, on July 1, 2020, although the copy he received did not contain the People's COR.
Eleven months later, on June 2, 2021 the People provided the Defendant with three letters of censure involving two troopers involved in the Defendant's arrest. These letters of censure were dated January 18, 2019, October 30, 2019 and September 25, 2020 and involved incidents dated December 3, 2018, September 5, 2019 and July 9, 2020, respectively. On June 3, 2021 the People served and filed a supplemental COC and a new COR.
The Defendant now moves for an order deeming the People's COCs to be invalid. The Defendant's motion is based, in part, upon the fact that at the time they filed their COC and COR, on July 6, 2020, the People had not made available to the Defendant any disciplinary "evidence and information" as mandated by CPL § 245.20(1)(k)(iv). The Defendant's motion is further based upon the fact that when the People provided the Defendant with the aforesaid letters of censure and a supplemental COC, they failed to provide any other documentation or records regarding the alleged events underlying the letters of censure.
The People argue that on July 6, 2020, when they filed their COC and COR, they had "disclosed and turned over to the defendant all documents and information that the People were aware of both with respect to CPL 245.20(1)(k) as well as the other subdivisions of CPL 245.20." (Kavanagh Affirmation , 8/20/21, ¶ 24) The People assert that by July 6, 2020, when they filed their COC, they had "disclosed all evidence that existed[.]" The People further argue that their original COC should be found valid, since they eventually provided the Defendant with the letters of censure and then filed a supplemental COC. The People also take the position that they are only obligated to make available to the Defendant items and information related to the subject matter of the case in their possession, custody or control, and seek to blame the New York State Police for any CPL § 245.20(1)(k)(iv) discovery deficiencies, decrying the "lack of cooperation from police agencies statewide[.]" (Kavanagh Affirmation , 8/20/21, ¶ 57)
We know this is erroneous, given the fact that two of the letters of censure are dated well before July 6, 2020. One is dated January 18, 2019 and the other is dated October 30, 2019. Only the one dated September 25, 2020 did not exist when the People filed their COC.
On January 1, 2020 the newly enacted CPL Article 245 became effective and CPL Article 240 was simultaneously repealed. The new discovery statute significantly expanded the People's discovery obligations. "[T]he prosecution's obligation to provide discovery under the current statute is so broad as to virtually constitute ‘open file’ discovery, or at least make open file discovery the far better course of action to assure compliance." [William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 245.10 ] Defendants no longer need to demand discovery, as CPL Article 245 places the affirmative obligation on the People to comply with their automatic discovery obligations, as set forth in CPL §§ 245.10 and 245.20(1)(a-u). See : People v. Villamar , 69 Misc. 3d 842, 132 N.Y.S.3d 593, (Crim. Ct. N.Y. Co. 2020) ; People v. DeMilio , 66 Misc. 3d 759, 117 N.Y.S.3d 830 (County Ct. Dutchess Co. 2020) ; People v. Lobato , 66 Misc. 3d 1230(A), 122 N.Y.S.3d 492 (Crim. Ct. Kings Co. 2020)
CPL § 245.20(1) provides a non-exhaustive list of the items the People must disclose. This list is not to be interpreted narrowly, as CPL § 245.20(7) mandates, "There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article." See : People v. Porter , 71 Misc. 3d 187, 142 N.Y.S.3d 703 (Crim. Ct. Bronx Co. 2020) ; People v. Georgiopoulos , 71 Misc. 3d 1215(A), 144 N.Y.S.3d 334 (Sup. Ct. Queens Co. 2021)
Among the items the People are mandated to disclose are, "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: impeach the credibility of a testifying prosecution witness." CPL § 245.20(1)(k)(iv) Contrary to the People's argument, this obligation is not merely a codification of their Brady and Giglio obligations, as they existed prior to the enactment of Article 245. This is evident by New York State's adoption and ultimate abandonment of Brady's "materiality" requirement.
Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)
In People v. Vilardi , 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 521, 555 N.E.2d 915 (1990), addressing Brady's materiality requirement, the Court of Appeals adopted the "two-tiered framework for determining whether favorable evidence was ‘material’ " as set forth in United States v. Agurs , 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Where a defendant made a specific discovery request of the People, that the defendant considered material, "a showing of a ‘reasonable possibility’ that the failure to disclose the exculpatory report contributed to the verdict remain[ed] the appropriate standard to measure materiality[.]" People v. Vilardi, supra. at 77, 556 N.Y.S.2d 518, 523, 555 N.E.2d 915 (1990) Where a defendant made a general request of the People, or made no request at all, "evidence [would] not be considered material unless it was so obviously supportive of a claim of innocence that elementary fairness suggests it should have been disclosed." People v. Vilardi, supra. at 79, 556 N.Y.S.2d 518, 524, 555 N.E.2d 915 (1990) [Simons, J. concurring] See also : People v. McGhee , 36 N.Y.3d 1063, 142 N.Y.S.3d 863, 166 N.E.3d 1041 (2021) ; People v. Rong He , 34 N.Y.3d 956, 112 N.Y.S.3d 1, 135 N.E.3d 1081 (2019) ; People v. Ulett , 33 N.Y.3d 512, 105 N.Y.S.3d 371, 129 N.E.3d 909 (2019) ; People v. Garrett , 23 N.Y.3d 878, 994 N.Y.S.2d 22, 18 N.E.3d 722 (2014) and People v. Hunter , 11 N.Y.3d 1, 862 N.Y.S.2d 301, 892 N.E.2d 365 (2008)
The court in United States v. Agurs , supra at 107, 96 S.Ct. 2392, 2399 (1976) made clear that it was:
not considering the scope of discovery authorized by the Federal Rules of Criminal procedure, or the wisdom of amending those Rules to enlarge the defendant's discovery rights. We are dealing with the defendant's right to a fair trial mandated by the Due Process Clause of the Fifth Amendment of the Constitution.
Likewise, the court in People v. Vilardi, supra at 77, 556 N.Y.S.2d 518, 523, 555 N.E.2d 915 (1990) found this two-pronged definition of materiality preferable "as a matter of State constitutional law[.]"
Thereafter, pursuant to the Report on Attorney Responsibility in Criminal Cases , issued by the New York State Judicial Task Force in February 2017, New York State expanded the People's Brady and Giglio obligations. Pursuant to 22 N.Y.C.R.R. §§ 200.16 and 200.27 a model order was promulgated "requiring criminal trial judges to issue Brady orders to prosecutors, i.e., orders to timely disclose exculpatory evidence favorable to the accused." People v. Portillo , 73 Misc.3d 216, 153 N.Y.S.3d 758 (S.C. Suffolk Co. 2021) That order provides, inter alia :
The District Attorney and the Assistant responsible for the case have a duty to
learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies’ files directly related to the prosecution or investigation of this case.
Favorable information could include, but is not limited to: a) Information that impeaches the credibility of a testifying prosecution witness.
Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.
Noticeably absent from the model order is any reference to the two tiered analysis in People v. Vilardi, supra . and to the "materiality" requirement of Brady itself. This is due, at least in part, to the Report on Attorney Responsibility in Criminal Cases, which, in referring to the model order, explicitly provided, "The order should not contain any reference to materiality."
Thereafter, as we now know, adopting much of the language from the Rule 200.16 and 200.27 model order, either verbatim or in sum and substance, the New York State Legislature further broadened the People's discovery obligation beyond these constitutional and administrative requirements. CPL § 245.20(1)(k)(iv) now mandates that the People make available to a defendant "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf, that tends to impeach the credibility of a testifying prosecution witness[.]"
In so doing, the Legislature omitted the "materiality" requirement of Brady and replaced it with the far lesser standard of "tends to impeach," which has appropriately been defined, in these circumstances, as " ‘that which tends to demonstrate an untruthful bent or significantly reveals a willingness to place the advancement of his individual self-interest ahead of principle or of the interest of society,’ or proof that the person is ‘guilty of prior immoral, vicious or criminal conduct bearing on credibility.’ " People v. Portillo , supra .
In this same vein, as appropriately noted in People v. McKinney , 71 Misc. 3d 1221(A), 145 N.Y.S.3d 328 (Crim. Ct. Kings Co. 2021) :
While the list of items for which disclosure is required may have been partially drawn from Brady , see e.g. William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY C.P.L. § 245.10, the People's specific discovery obligations under C.P.L. § 245.20(1)(k) go beyond the Supreme Court's mandate in Brady v. Maryland , 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963). Importantly, the statute abandons the ‘materiality’ requirement of Brady , see 373 U.S. at 87 , in favor of broader disclosures, encompassing ‘all evidence and information’ which ‘tends to impeach the credibility of a testifying prosecution witness ... irrespective of whether the prosecutor credits the information.’ C.P.L. § 245.20(1)(k). More expansive than Brady , C.P.L. § 245.20(1) also requires the disclosure of ‘all evidence and information’ (emphasis added), without regard for whether such evidence and information is already known to the defendant, or was previously disclosed in a different form. Compare People v. LaValle , 3 N.Y.3d 88 [783 N.Y.S.2d 485, 817 N.E.2d 341] (2004).
See also : People v. Castellanos , 72 Misc. 3d 371, 148 N.Y.S.3d 652 (Sup. Ct. Bronx Co. 2021) ; People v. Rosario , 70 Misc. 3d 753, 139 N.Y.S.3d 498 (Co. Ct. Albany Co. 2020) Similarly, "impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case." People v. Williams , 72 Misc. 3d 1214(A), 2021 N.Y. Slip Op. 50743(U), 2021 WL 3356381 (Crim. Ct. N.Y. Co. 2021) ; See also : People v. Altug , 70 Misc. 3d 1218(A), 139 N.Y.S.3d 791 (Crim. Ct. N.Y. Co. 2021) This is consistent with the well established principle that "law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination." People v. Smith , 27 N.Y.3d 652, 661-662, 36 N.Y.S.3d 861, 867, 57 N.E.3d 53 (2016) ; See also : People v. Rouse , 34 N.Y.3d 269, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019) ; People v. Watson , 163 A.D.3d 855, 81 N.Y.S.3d 449 (2nd Dept. 2018)
Consistent therewith, as noted in People v. Soto , 72 Misc. 3d 1153, 152 N.Y.S.3d 274 (Crim. Ct. N.Y. Co. 2021)
Impeachment evidence and information is that which concerns the credibility of the officer witness — regardless of the subject matter of the charges against the defendant ( People v. Smith , 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] [cross-examination concerning any immoral, vicious or criminal act which may affect witness’ character and show unworthiness of belief]; People v. Beal , supra [73 A.D.2d 547, 423 N.Y.S.2d 6 (1979)]. (same); People v. Altug, supra . ).
As the court pointed out in People v. Edwards , 2021 N.Y. Slip Op. 50944(U), 2021 WL 4697690 (Crim. Ct. N.Y. Co. 2021), to ignore this and:
[t]o hold that impeachment material arising from incidents unrelated to the defendant's case can be withheld runs counter to the plain language of the statute. Such a narrow reading would mean that, in a wholly new discovery article that in all other respects expanded the People's disclosure obligations from the prior law, the Legislature narrowed the disclosure requirements with respect to impeachment material.
Indeed, it would be an absurd interpretation of CPL § 245.20(1)(k) to limit a defendant's right to confront a police witness to impeachable conduct relating directly to the charge pending before the court, while turning a blind eye to any impeachable conduct which preceded the pending matter, as the People suggest. To accept that interpretation would allow a police witness to escape scrutiny for prior immoral, vicious or criminal acts he or she may have committed which may affect his or her character and show unworthiness of belief. Moreover, as pointed out in People v. Portillo , supra . , such an interpretation is in direct conflict with the Court of Appeals’ recent decision in People v. Rouse , 34 N.Y.3d 269, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019), "which addressed issues striking similar to those presented to this court." As the court in Portillo , id. recounted:
In Rouse , the People's witness was a police officer who had misled a federal prosecutor in an unrelated ticket-fixing scheme. The trial court ‘questioned whether that dishonesty was a bad act, concluding, among other things that the elicitation of that officer's ‘lack of specificity’ to the federal prosecutor would be ‘quite damaging’ and that, absent proof that officer was either ‘administratively sanctioned’ with respect to his dealings with that prosecutor or ‘federally charged,’ there was no ‘good faith basis for’ exploring that question.’ People v. Rouse , 34 N.Y.3d 269, 277, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019). The New York Court of Appeals found the trial court in error:
Consistent with these principles, particularly in light of the repeal of Civil Rights Law § 50-a, as this court has previously detailed in People v. Herrera , 71 Misc. 3d 1205(A), 142 N.Y.S.3d 791 (District Ct. Nassau Co. 2021), the People's discovery obligation pursuant to CPL § 245.20(1)(k), includes " ‘any record created in furtherance of a law enforcement disciplinary proceeding’ ( Public Officers Law 86[6], see also, Buffalo Police Benevolent Association, Inc. v. Brown, 69 Misc. 3d 998, 134 N.Y.S.3d 150 [Sup. Ct., Erie County 2020] )." People v. Cooper , 71 Misc. 3d 559, 143 N.Y.S.3d 805 (Co. Ct. Erie Co. 2021) ; See also : People v. Perez , 71 Misc. 3d 1214(A), 144 N.Y.S.3d 332 (Crim. Ct. Bronx Co. 2021) This is also consistent with the plain language of CPL § 245.20(1)(k)(iv), which mandates the disclosure of "All evidence and information that tends to impeach the credibility of a testifying prosecution witness[.]" (emphasis added) This cannot simply mean summaries of disciplinary records, letters of censure or officers’ self-reporting questionnaires. See : People v. Williams, supra . , People v. Cooper, supra . , People v. McKinney , 71 Misc. 3d 1221(A), 145 N.Y.S.3d 328 (Crim. Ct. Kings Co. 2021) "All" must mean "all," See : People v. Castellanos, supra ., and "evidence" must include the actual documents, not just "information." To reject this interpretation, as the People suggest we should, would render the words "evidence and," as contained in CPL § 245.20(1)(k)(iv), superfluous, in violation of the fundamental principles of statutory construction providing, "Whenever possible, statutory language should be harmonized, giving effect to each component and avoiding a construction that treats a word or phrase as superfluous (see Matter of Mestecky v. City of New York , 30 N.Y.3d 239, 243, 66 N.Y.S.3d 207, 88 N.E.3d 365 [2017] )." Lemma v. Nassau County Police Indemnification Board , 31 N.Y.3d 523, 528, 80 N.Y.S.3d 669, 673, 105 N.E.3d 1250 (2018) It is not for the People to decide, in the first instance, if a particular item from a disciplinary record might be admissible or might impeach a witness. The clear scope of the statute removes that discretion from the People. People v. Williams, supra . , People v. Soto, supra . , People v. Porter, supra . These records must be disclosed "regardless of whether the prosecutor finds the information to be ‘material’ or ‘credible.’ " CPL § 245.20(1)(k) ; People v. Suprenant , 69 Misc. 3d 685, 130 N.Y.S.3d 633 (City Ct. Glens Falls 2020) ; See also : People v. Cooper, supra . Moreover, if after reviewing a disciplinary record the People believe that certain records are not subject to disclosure, they may seek a protective order for such records pursuant to CPL § 245.70.
To hold otherwise conflates discovery with admissibility at hearing or trial. It has long been recognized "that the best judge of the value of evidence to a defendant's case is ‘the single-minded devotion of counsel for the accused ( People v. Baghai—Kermani , 84 N.Y.2d 525, 531, 620 N.Y.S.2d 313, 644 N.E.2d 1004 [(1994)] ; People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [(1994)] ; People v. Banch , 80 N.Y.2d 610, 615, 593 N.Y.S.2d 491, 608 N.E.2d 1069 [(1992)] ; People v. Young , 79 N.Y.2d 365, 371, 582 N.Y.S.2d 977, 591 N.E.2d 1163 [(1992)] )." People v. DaGata , 86 N.Y.2d 40, 45, 629 N.Y.S.2d 186, 189, 652 N.E.2d 932 (1995) Of course, the admissibility of any evidence or information defense counsel may believe useful at hearing or trial will ultimately be determined by the court upon a motion in limine. See : People v. Randolph , 69 Misc. 3d 770, 132 N.Y.S.3d 726 (Sup. Ct. Suffolk Co. 2020), People v. Cooper, supra ., People v. Castellanos, supra ., People v. Williams, supra . To facilitate the People's compliance with their discovery obligations, CPL 245.20(2) mandates that:
The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; For purposes of subdivision one of this section, all 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.
Further, CPL § 245.55 obligates "[t]he district attorney and the assistant responsible for the case " (emphasis added) to:
endeavor to ensure that a flow of information is maintained between the police and other investigative
personnel and his or her office sufficient to place within his or her possession or control all material information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article.
See : People v. McKinney, supra . ; People v. Georgiopoulos, supra .
Only after the People have provided all of their automatic discovery, except for lost or destroyed items, or items subject to a protective order issued pursuant to CPL § 245.70, may the People serve their COC. At that time, the People 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." See : CPL § 245.50(1) ; People v. Haymon , 71 Misc. 3d 1203(A), 142 N.Y.S.3d 790 (Co. Ct. Albany Co. 2021) ; People v. Johnson , 70 Misc. 3d 1205(A), 135 N.Y.S.3d 811 (Co. Ct. Albany Co. 2021)
Such a Certificate of Compliance "is a necessary prerequisite to a valid statement of readiness under C.P.L. § 30.30." People v. Barnett , 68 Misc. 3d 1000, 129 N.Y.S.3d 293 (Sup. Ct. N.Y. Co. 2020) ; See also : People v. Piasecki , 66 Misc. 3d 1231(A), 125 N.Y.S.3d 537 (Crim. Ct. Kings Co. 2020) ; People v. Freeman , 67 Misc. 3d 1205(A), 125 N.Y.S.3d 842 (Crim. Ct. Bronx Co. 2020) In this regard, CPL § 30.30(5) explicitly provides, "Any statement of readiness must be accompanied or preceded by a certificate of good faith compliance with the disclosure requirements of section 245.20 of this chapter" Likewise, CPL § 245.50(3) provides, "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate of compliance pursuant to subdivision one of this section."
Against this backdrop, the question herein becomes, did the People file a "proper" COC on July 6, 2020. A finding that they did not would render that COC and its accompanying COR illusory and subject to being stricken. See : People v. Barnett, supra . , People v. Georgiopoulos, supra . , People v. Williams, supra . While Article 245 does not define what constitutes a "proper" COC, the court in People v. Georgiopoulos, supra . astutely recognized:
Given that the statute specified that ‘[n]o adverse consequences’ shall adhere to the People based on the filing of a
certificate that is filed ‘in good faith and reasonable under the circumstances,’ ( CPL § 245.50[1] ), the most reasonable inference is that such a certificate is ‘proper’ within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.
This "good faith and reasonableness under the circumstances" must be measured against the requirement mandated by CPL § 245.50(1), that the People exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery before filing their COC. Thus, the court finds that a "proper" COC is one which is filed in good faith, reasonable under the circumstance, after the exercise of due diligence and reasonable inquiries to ascertain the existence material and information subject to discovery.
The People acknowledge that at the time they filed their COC they had not provided or made available to the Defendant a single item of disciplinary evidence or information. Three letters of censure, two of which existed before the COC was filed, were provided eleven months after the People filed their COC and one month before they filed their supplemental COC. To date, the complete disciplinary files relating to these letters of censure have neither been turned over nor made available to the Defendant.
Notwithstanding the People's failure to provide the disciplinary records for the Troopers in question, "[i]f the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid." People v. Georgiopoulos, supra .; See also : People v. Bruni, 71 Misc. 3d 913, 144 N.Y.S.3d 544 (Co. Ct. Albany Co. 2021) The People in the matter sub judice , however, fail to make such a demonstration.
The People seek to excuse their failure to comply with CPL § 245.20(1)(k), before they filed their COC on July 2, 2020, by representing that they had provided everything of which they were aware. The People fail, however, to indicate what diligent efforts and reasonable inquiry they made to learn of disciplinary records that clearly existed and explain become aware of same prior to filing their COC. In so doing, the People clearly overlook their statutory obligations to seek out discoverable evidence and information in their possession and/or in the possession of the State Police, and to make such evidence and information available to the Defendant before filing their COC.
In this regard, CPL § 245.20(1)(k) explicitly provides that the People must make available to the Defendant, as part of their mandated automatic discovery, all evidence and information "which is known to police or other law enforcement agencies acting on the government's behalf in the case." In turn, CPL § 245.20(1)(k)(2) imputes this knowledge to the People by providing, "For purposes of subdivision one of this section, all 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 § 245.55(1) then puts the onus on the "District Attorney and the assistant responsible for the case" to:
endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not
limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article. (emphasis added)
The People attempt to demonstrate their due diligence and reasonable inquiry by asserting that their office maintains "a spreadsheet, updated daily, that lists all police witnesses for cases in Nassau County. This list is evolving and is edited from several different sources." (Kavanagh Affirmation , 8/20/21, ¶ 78) The People further explain that, "the People keep seeking out any additional information and have the police fill out a questionnaire every time they appear in court." (Kavanagh Affirmation , 8/20/21, ¶ 78) That is the extent of the People's explanation of due diligence and reasonable inquiry.
The deficiency in the People's efforts is, in fact, revealed in their own papers. The People report that they reviewed the aforesaid spreadsheet and "found each officer involved had no listed disclosures" (Kavanagh Affirmation , 8/20/21, ¶ 80) and that upon inquiry, the officers, "each informed the People that they were unaware of any disciplinary actions against them." (Kavanagh Affirmation , 8/20/21, ¶ 80) The People make these representations despite the fact that two of the letters of censure, and the alleged underlying conduct, pre-date the filing of the People's COC.
Other than consulting a clearly inaccurate spreadsheet and officers who were, at best, mistaken, the People completely fail to explain anything with regard to the compilation of this spreadsheet or the efforts made by the assigned assistant to ascertain the actual existence and contents of the disciplinary records which clearly existed. Absent from the People's conclusory statements is any information concerning who compiled the spreadsheet, from where the information in the spreadsheet was obtained, who, on behalf of the District Attorney's Office consulted the spreadsheet, what inquiries were made by the assigned assistant or anyone else in the District Attorney's office to ascertain the accuracy of the information in the spreadsheet and the veracity of the self-reporting officers. Likewise, the People fail to indicate what efforts were made to review the disciplinary files of the troopers the People intend to call as witnesses, what inquiries were made, when they were made, to whom they were made, and what responses were received. It is one thing to provide a full throated explanation as to why you were unaware of existing disciplinary records; it is another thing to be willfully or negligently ignorant. The empty and erroneous explanation provided by the People does not support a claim of diligent good faith and reasonable inquiry. See : People v. Georgiopoulos, supra . , People v. Williams, supra . , People v. McKinney, supra . ; Compare : People v. Bruni, supra .
The same is true of the People's efforts to blame their failure to comply with their discovery obligations on the "lack of cooperation from police agencies statewide[.]" (Kavanagh Affirmation , 8/20/21, ¶ 57) As indicated hereinabove, not only are the People deemed to be in possession of the records in question, [ CPL § 245.20(1)(k)(2) ], but CPL § 245.55(1) places the responsibility squarely on the shoulders of the district attorney and the assistant assigned to the case to ensure that all material and information, including information that tends to impeach the credibility of a witness, "is place[d] within his or her possession or control." The People cannot claim that they were unaware of the existence of the disciplinary records herein, when they have not demonstrated that they ever made any effort to comply with their obligations pursuant to CPL § 245.55(1). This is not the result of the lack of cooperation from the State Police, but a failure by the District Attorney's office and the assigned assistant to exercise due diligence and make reasonable inquiry and comply with their obligations pursuant to 245.55(1).
Additionally, the People cannot point to their eventual disclosure of the letters of censure and claim that they have fully complied with their CPL § 245.20(1)(k). "The People cannot claim simultaneously 1) that the investigative report contains all Brady material found in the underlying records, and 2) that they have not reviewed the underlying records to ascertain whether the investigative report contains all Brady material." People v. Portillo , supra .
Contrary to the People's argument, neither CPL § 245.50 nor CPL § 245.60 permit the People to file a COC before they have fully complied with their initial discovery obligations, provided they file a supplemental COC when they finally do comply. While CPL § 245.50(1) calls for the filing and service of a supplemental COC where "additional discovery is subsequently provided prior to trial pursuant to section 245.60 [,]" this latter section only applies to situations where "either the prosecution or the defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order." See : People v. Rosario , 70 Misc. 3d 753, 139 N.Y.S.3d 498 (Co. Ct. Albany Co. 2020) ; People v. Aquino , 72 Misc. 3d 518, 146 N.Y.S.3d 906 (Crim Ct. Kings Co. 2021) ; People v. Johnson , 70 Misc. 3d 1205(A), 135 N.Y.S.3d 811 (Co. Ct. Albany Co. 2021)
Within the context of the broad, open and expeditious discovery contemplated in CPL Article 245, section 245.60 cannot be read to mean that the People may mete out discovery in a piecemeal fashion and file repetitive COCs, where they have failed to make a diligent effort and made reasonable inquiry to know of existing discoverable evidence and information. To permit the People to proceed in the manner they suggest would allow them to file a COC and COR, stopping the speedy trial clock, before they have fully complied with their discovery obligations, as long as they subsequently provide the missing items and file a supplemental COC. Such a procedure would make a mockery of the clear intent of CPL Article 245 and reinstate the slow drip of discovery which had occurred under the former CPL Article 240.
In further recognition of the People's lack of due diligence and good faith in filing their COC, the court would note the following observation in People v. Williams, supra . :
In CPL Article 245, the Legislature provided numerous opportunities for the People to seek accommodation or relief regarding untenable discovery difficulties in any particular case. For example, CPL 245.10 (1)(a) allows for extension of time to provide initial discovery where materials are exceptionally voluminous. In some circumstances, CPL 245.50 (3) allows for trial readiness when discoverable evidence is unavailable. CPL 245.70 (2) allows for modification of discovery periods for good cause shown. CPL 245.70 (1) allows for protective orders that might deny, restrict, condition, or defer disclosure of any discovery. In addition, CPL 30.30 (4)(g) allows for exclusion of time chargeable to the People for delay caused by unavailability of evidence that the People have diligently attempted to obtain and disclose.
"By following the prescribed procedure and upon the granting of the motion the People would get additional time to disclose these hard-to-obtain items without penalty." People v. Adrovic , 69 Misc. 3d 563, 130 N.Y.S.3d 614 (Crim. Ct. Kings Co. 2020)
While the People could have availed themselves of any or all of the foregoing opportunities, in a truly diligent and good faith effort to fulfill their discovery obligations prior to filing their COC, they, instead, chose to do "[w]hat the People may not do [-] file a Certificate of Compliance in which they claim to have exercised due diligence and turned over ‘all known material and information,’ C.P.L. § 245.50(1), while at the same time not actually turning over all known material and information, without express permission of the court." People v. Adrovic, supra . "As succinctly stated by Judge Egan, ‘[t]he People may not withhold known material and information subject to automatic discovery and expect the court to accept a certificate of compliance and statement of trial readiness’ ( People v. Cooper , supra . 7)." People v. Haymon, supra . Accordingly, the court finds the People's COC and COR, filed on July 2, 2020, and their supplemental COC and second COR, filed June 3, 2021 illusory and invalid.
Based upon the foregoing, the Defendant's motion is granted; and it is
ORDERED , that the People's Certificate of Compliance and Certificate of Readiness, filed on July 6, 2020, are hereby vacated; and, it is further
ORDERED , that the People's supplemental Certificate of Compliance and Certificate of Readiness, filed on July 3, 2021, are hereby vacated; and, it is further
ORDERED , that in accordance with CPL § 245.35(3), any future Certificate of Compliance the People may file shall "state[ ] that the prosecutor and/or an appropriate named agent has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article, including such evidence or information that was not reduced to writing or otherwise memorialized or preserved as evidence, and has disclosed any such information to the defendant[.]"
This constitutes the decision and order of the court.