Opinion
Docket No. CR-013005-22QN
01-09-2023
The PEOPLE of the State of New York v. ROC, Defendant.
By C.P.L. § 30.30 motion, the defense alleges that the People's statement of readiness and certificate of discovery compliance—filed on the 81st day after arraignments—were illusory. They argue that the People filed these documents prematurely, at a time at which the People had not yet discharged their discovery obligations. In support of this claim, they point to an email that the People sent alongside their certificate of compliance. In that email, the People admitted they were filing the certificate even though they had not yet produced a police officer's notes about the case.
The People respond that their certificate of discovery compliance was proper. They admit they certified compliance 81 days after arraignments without disclosing this officer's notes. And they admit they only disclosed those notes 94 days after arraignments. However, they argue that the defense cannot show prejudice from their failure to disclose the officer's notes before the speedy-trial period expired. They also state that this officer "was out on a medical leave when the People filed" their certificate. But the People do not provide any information about their efforts prior to certifying compliance or about the officer's medical leave. They provide no information about when they first contacted the officer, when and how many times they followed up, when the officer went on medical leave, what the medical leave was for, or when the officer was expected to return.
As explained below, the motion is granted. The case is dismissed.
LEGAL ANALYSIS
I. The discovery statute's legal standards
The discovery statute requires that the People "actually produce[ ]" automatic discovery to the defense before stating ready for trial. ( People ex rel. Ferro v. Brann , 197 AD3d 787, 787-88 [2d Dep't 2021] ; C.P.L. §§ 245.20[1], 245.20[2] ). Automatic discovery includes "all" items and information in the People's possession that "relate to the subject matter of the case." ( C.P.L. § 245.20[1] ). The law deems the People's possession to include "the possession of any New York state or local police or law enforcement agency." ( C.P.L. § 245.20[2] ). And relevant here, automatic discovery explicitly includes "notes of police and other investigators" about the case. ( C.P.L. § 245.20[1][e] ).
Once the People produce automatic discovery, they must certify it in a certificate of discovery compliance before they may validly state ready for trial. ( C.P.L. §§ 245.50[1], [3] ). That certificate must certify that the People exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." (Id. ). It must also certify that the People then "made available all known material and information subject to discovery." (Id. ). A "proper" certificate—one that truthfully certifies these facts—is one filed "[w]hen the prosecution has provided" automatic discovery. ( C.P.L. §§ 245.50[3], [1] ).
Nonetheless, the law is not absolute. When "special circumstances" exist, a court may allow the People to state ready for trial even though they have not yet complied with automatic discovery. ( C.P.L. § 245.50[3] ). An officer's medical leave may qualify as such a "special circumstance." (See People v. Lewis , 72 Misc 3d 686, 540-41 [Crim. Ct., Kings County 2021] ). However, the People must provide information sufficient for a court to find such circumstances, like when and how many times they requested the missing discovery; the date they learned the officer was on medical leave; or some information about the nature or length of that medical leave. (See id. ).
Upon a challenge, it is incumbent upon the People to come forward and establish that they discharged their discovery obligations before certifying so. If evidence is missing from the police file, it is also the People's burden to establish special circumstances. That is because the People are the party who best know about what efforts they made and the circumstances surrounding any missing police documents. After all, the discovery statute deems the police's possession to be the same as the People's, ( C.P.L. § 245.20[2] ); requires the People to "ensure that a flow of information is maintained" between their office and the police, ( C.P.L. § 245.55[1] ); and mandates by law that the police "make available" to the People a "complete copy of its complete records and files" related to the case, ( C.P.L. § 245.55[2] ).
Efficiency and general principles of law teach 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] ; see also Campbell v. United States , 365 U.S. 85, 86 [1961] ["[T]he ordinary rule ... does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."]; National Communications Ass'n v. AT & T Corp. , 238 F.3d 124, 130 [2d Cir. 2001] ["[A]ll else being equal, the burden is better placed on the party with easier access to relevant information."]; 9 J. Wigmore, Evidence § 2486 [J. Chadbourn rev. ed. 1981] ["[T]he burden of proving a fact is said to be put on the party who presumably has a peculiar means of knowledge."]).
II. The certificate of compliance
The People make two arguments in support of their certificate of compliance here, but the court finds neither availing. First, the People argue that their failure to produce the officer's missing notes before the speedy-trial period expired did not "prejudice" the defense under C.P.L. § 245.80. And second, they argue that the certificate was proper because the officer was "out on medical leave" and they exercised due diligence. The court takes each in turn.
First, as this court and other courts have explained, the People's insistence on a "prejudice" analysis and reliance on C.P.L. § 245.80 is wrong. That provision is for situations where the People only violate the 20- or 35-day discovery deadlines, not where they fail to validly state ready within the entire 90-day speedy trial timeframe. ( People v. Adrovic , 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] ; 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] ). "[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."]).
Indeed, no appellate court has ever applied a "prejudice" or C.P.L. § 245.80 analysis to a C.P.L. § 30.30 motion challenging a certificate of compliance. (See People v. Rodriguez , 2022 NY Slip Op. 22393 [App. Term, 1st Dep't 2022] [affirming that a certificate was invalid without discussing prejudice or C.P.L. § 245.80 ]; People v. Guzman , 75 Misc 3d 132[A] [App. Term, 2d Dep't 2022] [same]; People ex rel. Ferro v. Brann , 197 AD3d 787 [2d Dep't 2021] [reversing a lower court and finding that a certificate was invalid without discussing prejudice or C.P.L. § 245.80 ]; see also People v. Elmore , 2022 NY Slip Op. 07345 [4th Dep't 2022] [discussing C.P.L. § 245.80 sanctions and "prejudice" separately from C.P.L. § 30.30 readiness]).
Second, the People fail to articulate any information about the officer's medical leave in this case. Instead, they simply state they "have made diligent efforts to obtain" the officer's notes by producing them thirteen days after filing their certificate of compliance. (Pr. Resp. at 4, 7-8). In so doing, the People fail to grasp the correct legal framework. A certificate of compliance must "genuinely certify compliance." ( People v. Vargas , 76 Misc 3d 646, 647 [Crim. Ct., Bronx County 2022] ). It cannot be a "simple placeholder that the People file while they continue to disclose discovery files" that are in their or the police's possession "beyond the speedy-trial deadline." (Id. ). That improper strategy prematurely stops the speedy-trial clock with an illusory statement of readiness.
That does not mean the People are without recourse if an officer goes on medical leave. An officer's medical leave could establish "special circumstances" for this court to allow the People to state ready despite not yet producing the officer's notes. (See C.P.L. § 245.50[3] ). Here, however, the People provide no information on which to analyze whether this officer's medical leave could qualify as special circumstances. The People filed their certificate of discovery compliance on the 81st day after arraignments. They state that the officer was on medical leave on that day. (Suppl. Cert. of Compl. at 1). But they do not provide any information about whether the officer was on medical leave for the entire 81 days beforehand. They provide no information about the nature of the medical leave, when it began, or how long it was estimated to last. They also provide no information about when they first contacted the officer, when and how many times they followed up, or when they first learned the officer was on medical leave. Critically, they also do not provide any information about whether the officer was on medical leave within the first 35 days from arraignments—the period during which the People were supposed to comply with discovery. (See C.P.L. § 245.10 ).
Contrast this with the People's efforts in People v. Lewis , 72 Misc 3d 686 [Crim. Ct., Kings County 2021]. There, an officer had gone on medical leave. (Id. at *540-41). As a result, "[w]hen the People filed their certificate of compliance, the People requested a two-week extension of time" from a court for discovery. (Id. ). At the same time, they alternatively sought a proactive "tolling of the speedy trial clock." (Id. ). Later, in response to a C.P.L. § 30.30 motion challenging the certificate, the People "detailed multiple requests" for the missing discovery, identified to whom their requests were sent, and described when and what they learned about the nature of the officer's medical leave. (Id. ). This court agrees with the Lewis court—in such a situation, the People have validly stated ready for trial. But that is not what occurred here, where the People proactively requested nothing from any court before filing their certificate of compliance, and where the People now fail to provide any information about their efforts before filing their certificate or about the officer's medical leave.
Even if the court simply analyzed whether the People made diligent efforts to obtain the missing notes—as the People seem to propose—it still would be left without a sufficient record. "Courts have held that assessing good faith and due diligence requires the People to demonstrate how due diligence was exercised." ( People v. Critten , 2022 NY Slip Op. 51315[U], at *3 [Crim. Ct., NY County 2022] [internal quotation marks omitted]). This requires the People to show a "factual basis" for a court to find "due diligence." ( People v. McKinney , 71 Misc 3d 1221[A], at *7 [Crim. Ct., Kings County 2021] ; see also People v. Carrillo , 75 Misc 3d 1227[A] [Crim. Ct., Bronx County 2022] [same]; Vargas , 76 Misc 3d at 652 [same]; People v. Higgins , 75 Misc 3d 1232[A], at *3 [City Ct., City of Yonkers 2022] [same]). Of course, what matters is the People's diligence "prior to certifying compliance." ( McKinney , 71 Misc 3d 1221[A], at *7 ).
Here, however, the People do not provide any information whatsoever about their efforts to obtain the missing notes before filing their certificate. Instead, they refer only to their eventual disclosure of the notes after filing their certificate. Without "the necessary factual basis" to analyze the People's diligence before they filed their certificate, the court cannot conclude that the People exercised any level of diligence, either. (See id. ).
III. The 30.30 calculation
The People had 90 days from commencing this case to validly state ready for trial. ( C.P.L. § 30.30[1][b] ). They commenced this case on May 30, 2022. The People's statement of readiness on August 19, 2022, was not valid, as it was not preceded by a proper certificate of discovery compliance. ( C.P.L. §§ 245.50[3], 30.30[5] ).
It is the People's burden to prove that any time "should be excluded" and to provide the necessary factual or documentary evidence to substantiate their claims. (E.g. , People v. Wearen , 98 AD3d 535, 537 [2d Dep't 2012] ; People v. Elm , 25 Misc 3d 141[A] [App. Term, 2d Dep't 2009] ). Other than arguing that their statements of readiness were valid, the People point to no exclusions. (See generally Pr. Resp.).
Nonetheless, it is plain from the defense's moving papers that they filed the instant motion on October 20, 2022. This tolled the speedy trial clock. ( C.P.L. § 30.30[4][a] ). On the next court date, the court ordered the People to respond by November 14, 2022. The People failed to abide by the court deadline, filing their response nine days late without permission or justification. Accordingly, nine days of delay are also attributable to them there. (See, e.g. , Ferro , 197 AD3d at 788 ["Thus, the People are chargeable with the time between the court-imposed deadline to respond to the omnibus motion and the date on which the People actually filed a response."]).
Therefore, time accrued from May 30, 2022, to October 20, 2022. That is 145 days. Time again accrued from the court-imposed deadline of November 14, 2022, to the date on which the People actually filed a response, November 23, 2022. That is nine days. In total, the People caused 154 days of delay in this matter. That is more than the 90 days that the People are allowed. (See C.P.L. § 30.30[1][b] ). As a result, the case must be dismissed.
The foregoing constitutes the order and decision of the court.