Opinion
No. CR-016562-23BX
03-07-2024
The People of the State of New York, v. Robert Rondon, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: ADA Alfonso Nazzaro) For Defendant Robert Rondon: The Bronx Defenders (by: Weronika Bzura, Esq.)
Unpublished Opinion
For the People:
Darcel D. Clark, District Attorney, Bronx County (by: ADA Alfonso Nazzaro)
For Defendant Robert Rondon:
The Bronx Defenders (by: Weronika Bzura, Esq.)
Yadhira González-Taylor, J.
By omnibus motion dated January 9, 2024, defendant Robert Rondon moves for an order deeming the People's Certificate of Compliance ("CoC") invalid due the prosecution's purported failure to comply with their discovery obligations pursuant to Criminal Procedure Law ("CPL") § 245.20 and dismissing the accusatory instrument pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e).
Defendant further moves for an order: suppressing evidence related to his chemical breath test or, alternatively, requests a pre-trial hearing pursuant to Ingle/Johnson/Atkins/Mapp/Dunaway; suppressing identification evidence, including body-worn camera footage or, alternatively, requests pre-trial hearings pursuant to Mapp/Dunaway/Ingle; suppressing statement evidence or, alternatively, requesting pre-trial hearings pursuant to Huntley/Dunaway; compelling disclosure of evidence pursuant to Brady v Maryland; precluding evidence of prior convictions or bad acts pursuant to Sandoval/Ventimiglia/Molineux; and for such additional relief as the Court deems appropriate.
On February 6, 2024, the prosecution opposed the motion to dismiss in its entirety, consented to defendant's request for pre-trial hearings and further moved for reciprocal discovery from defendant. Although defense counsel's time to reply was extended to February 13, 2024, after the motion schedule was amended, no reply was filed. Accordingly, defendant's request for an opportunity to file a reply is rendered moot.
Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People's CoCs and Statements of Readiness ("SoRs"), filed October 27, 2023 and February 24, 2024, respectively, were VALID, and further:
DENIES defendant's motion for dismissal pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e); and
DENIES defendant's request for a hearing on the underlying facts and conclusions of law ; and
REFERS defendant's request for an order of preclusion pursuant to Sandoval/Ventimiglia/Molineux to the trial court; and
GRANTS defendant's request for Ingle/Johnson/Atkins/Mapp/Dunaway, Mapp/Dunaway/Ingle and Huntley/Dunaway pre-trial hearings; and
DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures; and
DIRECTS defense counsel to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).
RELEVANT PROCEDURAL BACKGROUND
On July 29, 2023, defendant was arrested and charged with violating Vehicle and Traffic Law ("VTL") §§ 1192 (2), 1192 (3), both misdemeanors, and 1192 (1), a violation (operating a motor vehicle while under the influence of alcohol or drugs), and 511 (1) (a) (aggravated unlicensed operation of a motor vehicle in the third degree), a misdemeanor, and 509 (1), a violation (unlicensed operation of a motor vehicle). Defendant was arraigned on July 30, 2023, and released on his own recognizance. At the November 2, 2023 court conference, the People advised the court that they had filed their CoC and SoR on October 27, 2023, which provided, in pertinent part, that "The people have not been able to obtain IAB Logs - 21-13815 and 19-3880 for P.O. Anthony Pace (965388). Also, IAB logs- 22-10647 and 22-7451 - Pending for Peter Murphy (968029). Also, Activity Logs for Leung (929440) and Marquez (960876). Lastly the Roll call and entity summary report."
At the December 7, 2023 discovery conference, defense counsel advised the court that she had reached out to the assigned to discuss discovery discrepancies and she asked for a motion schedule to challenge the validity of the CoC.
DISCUSSION
I. Applicable Standard for CoC Challenge
Where defendant moves to dismiss the accusatory instrument by challenging the People's CoC because they have purportedly failed to comply with their disclosure obligations pursuant to CPL § 245.20, the prosecution must demonstrate that they have met their burden by detailing their efforts to obtain discoverable information (see People v Hernandez, 81 Misc.3d 1201 [A], 2023 NY Slip Op 51201[U], *6 [Crim Ct, Bronx County 2023] citing People v Adrovic, 69 Misc.3d 563, 572 [Crim Ct, Kings County 2020]; CPL § 245.50 [3]).
While there is no one-size fits all blueprint for determining discovery compliance, the Court of Appeals has now provided guidance concerning how trial courts should evaluate prosecutorial due diligence in People v Bay, - NE3d -, 2023 NY Slip Op 06407 [2023]. The Bay court found that the "key question in determining if a proper certificate of compliance has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery," a case-specific inquiry of the record at bar (see Bay, 2023 NY Slip Op 06407, *15-16 [emphasis added]; CPL §§ 245.20 [1], 245.50 [1]).
However, if the record does not establish that the People have detailed their efforts to discharge their obligation such that a court cannot determine their due diligence, the CoC must be deemed invalid (see Hernandez, 2023 NY Slip Op 51201[U], *7 citing People v Perez, 75 Misc.3d 1205[A], 2022 NY Slip Op 50387[U], *3 [Crim Ct, Bronx County 2022]; People v Georgiopoulous, 71 Misc.3d 1215[A], 2021 NY Slip Op 50380[U], *6 [Sup Ct, Queens County 2021]; People v Valdez, 80 Misc.3d 544, 547 [Crim Ct, Kings County 2023]).
I. The Parties' Arguments
Counsel avers that the People cannot certify their compliance with CPL § 245.20 if there are materials in the possession of law enforcement which the prosecution has not yet obtained and disclosed (memorandum in support of defendant's motion at 10). Specifically, defense counsel asserts that the People's CoC filing was invalid because certain IAB logs, a Roll Call, Entity Summary Report and 911 folder were not yet disclosed and, as such, their attempt to certify compliance was merely illusory (memorandum in support of defendant's motion at 11). Defendant contends that the docket must be dismissed because 130 days are chargeable to the prosecution, from the time of arraignment to when the instant motion schedule was set (memorandum in support of defendant's motion at 12).
Defendant seeks suppression of his chemical breath test or, alternatively, pre-trial hearings pursuant to Ingle/Johnson/Atkins/Mapp/Dunaway; suppression of identification evidence, including body-worn camera footage or, alternatively, pre-trial hearings pursuant to Mapp/Dunaway/Ingle; suppression of statement evidence or, alternatively, pre-trial hearings pursuant to Huntley/Dunaway; disclosure of exculpatory evidence pursuant to Brady v Maryland; and preclusion of evidence of prior convictions or bad acts pursuant to Sandoval/Ventimiglia/Molineux (memorandum in support of defendant's motion at 12-17). Lastly, defense counsel reserves the right to file supplemental motions (memorandum in support of defendant's motion at 17).
Initially, the People argue that this Court cannot impose an appropriate remedy for belated disclosures unless defendant can demonstrate prejudice (affirmation in support of People's opposition at 5). The People posit that their due diligence was manifested through their repeated and documented inquiries of the arresting officer and the discovery liaisons at the 44th and 45th Precincts for outstanding discoverable materials (affirmation in support of People's opposition at 9-10). Next, the prosecution avers that when defense counsel advised that she did not have either the Giglio or the 911 folder, several weeks after the CoC filing, they immediately followed-up and provided screenshots of the relevant discovery folders which had previously been shared (affirmation in support of People's opposition at 11).
While the People argue that they are not obliged to disclosed IAB records pertaining to allegations which do not relate to the subject matter of the instant case, referencing People v Johnson, 218 A.D.3d 1347 [4th Dep't 2023], they maintain that they have nonetheless complied with CPL § 245.20 (1) (k) because they provided a Giglio letter and the underlying IAB logs (affirmation in support of People's opposition at 14, 16). Additionally, the prosecution states that despite their numerous entreaties to the arresting officer and the discovery liaisons at the 44th and 45th Precincts, no Roll Call or Summary Entity Report was provided, and they have no knowledge that this material exists (affirmation in support of People's opposition at 21). The People assert that they validly declared their readiness for trial on the 88th day following arraignment, consent to defendant's request for pre-trial hearings and request defendant's reciprocal disclosures pursuant to CPL § 245.20 (1) (f), (g), (h), (j), (l) and (o) (affirmation in support of People's opposition at 25, 4, 25-26).
II. The Court's Analysis
CoC Challenge: Belated/Missing Disclosures
As a threshold matter, contrary to defense counsel's assertion that a CoC cannot be deemed as validly filed until the People have obtained and disclosed outstanding material to the defense, the Court of Appeals rejected a standard of strict compliance to gauge the prosecution's discharge of their CPL § 245.20 mandate, and instead emphasized several factors that courts should consider to determine whether the prosecution exercised due diligence to discharge their mandated disclosures, including "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" (see Bay, 2023 NY Slip Op 06407, *16 [emphasis added]; see also CPL § 245.60).
A review of the record indicates that defense counsel did not follow-up with the People concerning purported disclosure deficiencies until the morning of their December 7, 2023 discovery conference, several weeks after the CoC filing on October 27, 2023. This is hardly the conferral contemplated by CPL § 245.40 (4) (b) which provides, in pertinent part, that "[t]o the extent that the party is aware of a potential defect of deficiency related to a certificate of compliance or supplemental certificate of compliance, the party entitled to disclosure shall notify or alert the opposition party as soon as practicable" (see CPL § 245.40 [4][b]; see also, People v Henriquez, 80 Misc.3d 1220 [A], 2023 NY Slip Op 51044 [U], *3 [Crim Ct, Bronx County 2023]["(d)efense counsel cannot strategically delay their CoC challenge in the hope that the People's speedy trial time will exhaust before their disclosures are supplemented, as such a course would undoubtedly contravene the Legislative intent which animates CPL § 245.40 [4][b]").
Here, the record supports the People's contention that they responded immediately to counsel's December 7, 2023 missive concerning the supposedly missing Giglio and 911 folders and advised- one month before the instant motion was filed- that both folders had already been provided. To the extent that the People's CoC indicated that they were unable to obtain further IAB Logs, their supplemental CoC, filed February 2, 2024, provides that "The people were able to obtain the two missing activity logs for 1. LEUNG, KAIYUEN (929440) 2. MARQUEZ, JOHNNY (960876), after many requests by the people[.] The people were able to obtain the missing IAB Logs - 21-13815 and 19-3880 for P.O. Anthony Pace (965388). Also, IAB logs - 22-10647 and 22-7451 - pending for Peter Murphy (968029), after many requests by the people."
Indeed, the prosecution has annexed to the opposition brief email trails to both the arresting officer and the discovery liaisons at two NYPD precincts documenting their efforts to obtain outstanding Giglio discovery prior to and after their initial certification. Similarly, the People have documented their efforts to obtain the Roll Call and Summary Entity Report, to no avail, because neither the arresting officer nor the discovery liaisons at the 44th and 45th precincts had either document.
This Court is guided by CPL § 245.50 (1) that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances" and further, in light of the Bay decision, we are persuaded by the People's documented recurrent efforts to summon outstanding Giglio materials and inquire after the Roll Call and Summary Entity Report that the prosecution exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery (see Bay, 2023 NY Slip Op 06407, *15-16; CPL § 245.50 [1]).
Additionally, although the prosecution belatedly disclosed Giglio material, including two IAB logs pertaining to the arresting officer, the record at bar is bereft of any demonstrable harm to the defense resulting from the belated disclosures, nor has counsel advanced any persuasive argument, assuming that the Roll Call or Summary Entity Report was lost or destroyed, concerning "the potential ways in which the lost or destroyed material reasonably could have been helpful" for this Court to impose an appropriate remedy or sanction (see CPL §§ 245.80 [1][a], [b]).
III. The CPL § 30.30 Calculation
In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), the defendant has the initial burden to demonstrate that the prosecution failed to declare trial readiness within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]); People v Luperon, 85 N.Y.2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon, 85 N.Y.2d at 78).
In the case at bar, the People's 30.30 calculation commenced on July 30, 2023, the day after defendant's arraignment. When the People filed a valid CoC on October 27, 2023, they declared their readiness for trial and stopped their speedy-trial clock. Hence, the People were ready for trial 89 days after arraignment, within their statutorily allotted time (see CPL § 30.30 [1] [b]).
V. Defendant's Request for an Order Granting Other Relief
The Court denies defendant's application to make further motions subject to the rights provided by CPL § 255.20 (3) and defense counsel is directed to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2). Additionally, the Court denies defendant's request for a hearing on the underlying facts and conclusions of law if his motion to dismiss is denied but grants his request for Ingle/Johnson/Atkins/Mapp/Dunaway, Mapp/Dunaway/Ingle and Huntley/Dunaway pre-trial hearings. Lastly, the Court directs the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures, and respectfully refers defendant's request for an order of preclusion pursuant to Sandoval/Ventimiglia/Molineux to the trial court.
CONCLUSION
Based upon the foregoing, the Court finds that the People's CoCs and SoRs, filed October 27, 2023 and February 24, 2024, respectively, were VALID, and further:
DENIES defendant's motion for dismissal pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e); and
DENIES defendant's request for a hearing on the underlying facts and conclusions of law ; and
REFERS defendant's request for an order of preclusion pursuant to Sandoval/Ventimiglia/Molineux to the trial court; and
GRANTS defendant's request for Ingle/Johnson/Atkins/Mapp/Dunaway, Mapp/Dunaway/Ingle and Huntley/Dunaway pre-trial hearings; and
DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures; and
DIRECTS defense counsel to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).