Opinion
Docket No. CR-006967-22SU
03-03-2023
The PEOPLE of the State of New York v. Kevin SEYMOUR, Defendant.
Raymond A. Tierney, District Attorney of Suffolk County, Priyanka Seth / Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722, for the People. Frieda Haerter, Esq., Legal Aid Society, Suffolk County, 400 Carleton Avenue, Central Islip, NY 11722, for Defendant
Raymond A. Tierney, District Attorney of Suffolk County, Priyanka Seth / Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722, for the People.
Frieda Haerter, Esq., Legal Aid Society, Suffolk County, 400 Carleton Avenue, Central Islip, NY 11722, for Defendant
Edward J. Hennessey, J.
It is,
ORDERED that this omnibus motion by the defendant is decided as follows: The defendant's motion to strike the CoC/SoR is DENIED. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is DENIED. The defendant's motion to dismiss the accusatory instrument as jurisdictionally defective and facially insufficient is DENIED. The defendant's motion for discovery is GRANTED. The defendant's motion for Sandoval , and Ventimiglia/Molineux hearings is GRANTED.
On March 20, 2022, the defendant was charged under Docket No. CR-006967-22SU with one count of Criminal Trespass in the Second Degree in violation of New York State Penal Law § 140.15(1), a class "A" misdemeanor. He was arraigned on April 8, 2022.
By motion dated September 15, 2022, the defendant now moves this court for an order: (1) striking the People's CoC/SoR as invalid; (2) dismissing the accusatory instruments based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instrument as both jurisdictionally defective and facially insufficient; and (4) for various discovery. Each argument is addressed in turn, below.
A. Motion to Strike the CoC/SoR
CPL 245 requires the People to file a Certificate of Compliance/Statement of Readiness ["CoC" and "SoR"] with the Court prior to announcing readiness under CPL § 30.30 (see CPL § 245.50[3] ). In order for the People to be ready for trial, "the People must: (1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." People v. Ramirez-Correa , 71 Misc. 3d 570, 572, 142 N.Y.S.3d 783, 785 [Crim. Ct., Queens Cnty 2021] ; see also People v. Hall , CR-013437-20SU [Dist. Ct., Suffolk Cnty 2021, Kerr, J.].
The defendant first contends that the People's CoC/SoR, filed on July 5, 2022, is invalid due to the fact that (1) the People failed to comply with their automatic discovery obligations pursuant to CPL § 245.20(1) inasmuch as they failed to disclose (a) names and contact information for purported witnesses, (b) officer memo books; (c) a purported video in police custody, (d) civil lawsuit information for a testifying law enforcement officer; and (e) complete records of convictions for potential witnesses. (See Def's Aff. at Point III.A, B, C, D & E, ¶¶ 55-63).
1. Adequacy and Timeliness of the Defendant's Motion
(a) Adequacy of the Defendant's Motion
This Court first notes that the defendant failed to comply with the requirements of CPL § 245.50(4)(b) prior to filing the instant motion.
CPL 245 was amended in May 2022 in several respects. One amendment requires a defendant to notify the People of alleged deficiencies related to the CoC "as soon as practicable" ( CPL § 245.50(4)(b) ) and to "confer to attempt to reach accommodation as to any dispute concerning discovery." See CPL § 245.35(1).
The defendant has submitted no evidence that he notified the People of the alleged deficiencies related to any of the CoCs prior to filing his motion.
Accordingly, this Court denies the defendant's motion to strike the CoC/SoR for failure to comply with the requirements of CPL § 245.50(4)(b).
(b) Timeliness of the Defendant's Motion to Strike the CoC/SoR
This Court further finds that the instant motion is untimely pursuant to CPL § 245.50(4)(c).
After amendments to CPLR article 245, effective May 9, 2022, the governing statute now provides that "[c]hallenges related to the sufficiency of a certificate of compliance or supplemental certificates of compliance shall be addressed by motion as soon as practicable." CPL § 245.50(4)(c).
Here, the People's CoC/SoR was filed on July 5, 2022, and the instant motion was filed seventy-two (72) days later, on September 15, 2022. This Court is aware of no decisions interpreting CPL § 245.50(4) ’s directive that motions be filed "as soon as practicable." However, this Court finds that the 72-day delay in this case was unreasonable. Thus, the Court denies the defendant's motion as untimely pursuant to CPL § 245.50(4)(c).
2. Merits of the Defendant's Challenges to the CoC/SoR
(a) Names and Contact Information for Purported Witnesses
The defendant first contends that the People failed to provide the names and contact information for purported witnesses. (See Def.’s Aff. at A, ¶¶ 68-71).
CPL § 245(1) (c) requires the People to provide the names and contact information for persons whom the prosecutor knows to have evidence or relevant information. In addition, CPL § 245 sets forth several discovery obligations with respect to individuals deemed testifying witnesses. In their CoC/SoR dated July 5, 2022, the People provided a list of names of civilians and law enforcement personnel with relevant information. However, they did not designate which of those individuals would be testifying witnesses. However, in this case, it is unclear when the People determined which individuals with relevant knowledge would be testifying witnesses. Therefore, it is not clear that the People had failed to comply with their discovery obligations under CPL 245 at the time they filed their initial CoC/SoR. The People designated testifying witnesses in their Supplemental CoC/SoR and Discovery Responses, dated November 2, 2022. Accordingly, this grounds for finding the CoC/SoR invalid is rejected.
(b) Officer Memo Books
Next, the defendant argues that the People failed to disclose memo books for arresting Officer Ryan Johnston, Sergeant Liam Kelly, and Sergeant Brian Nortillo. (See Def.’s Aff. at B, ¶¶ 72-74).
It is undisputed that officer memo books are required to be disclosed pursuant to CPL § 245(1)(e). Here, the People turned over all existing memo books (for Officer Johnson and Sergeant Kelly, as none existed for Sergeant Nortillo) in their Supplemental Disclosures on November 2, 2022. Thus, the defendant has not been prejudiced by any late disclosure.
Accordingly, the defendant's motion to strike the CoC/SoR for failure to disclose the officer memo books as required by CPL § 245 prior to filing their initial CoC/SoR is DENIED.
(c) Video
The defendant next argues that the People failed to disclose video footage from a Ring doorbell camera from the incident location. (See Def.’s Aff. at C, ¶¶ 75-55 ).
The defendant's affirmation skips from paragraph 75 back to paragraph 50 at p. 17/49. This Court follows the numbering as contained in the affirmation.
It is undisputed that such material is automatically disclosable pursuant to CPL § 245(1)(g), if it is in the possession of the prosecution.
Here, it is undisputed that the video footage was in the police department's possession. However, the People contend that they did, in fact, disclose such footage in their initial compliance package on July 5, 2022. (See People's Aff. in Opp. at p. 7/17). In response, the defendant argues that only PDF files were disclosed with the initial CoC/SoR, and the actual video files were not disclosed at all (at least as of the date of the defendant's reply brief on December 21, 2022). (See Reply Br. at p. 12/14).
Although the People apparently turned over PDF files rather than video files in their July 5, 2022 disclosures, this Court cannot conclude that doing so was anything more than an inadvertent error. In addition, this Court notes that the People stated in their Supplemental Disclosures dated November 2, 2022 that they had requested the Ring camera footage CD from the SCPD and would disclose it once they had received it.
Accordingly, this Court finds that the People have satisfied the good faith requirement, and declines to strike the CoC/SoR on this ground.
(d) Civil Lawsuit
The defendant next contends that the People failed to disclose the underlying records in a civilian lawsuit brought against a testifying law enforcement officer in this case. (See Def.’s Aff. at D, ¶¶ 56-60).
Pursuant to CPL § 245.20(1)(k)(iv), the People are required to disclose "all evidence ... known to the police or other law enforcement ... that tends to ... impeach the credibility of a testifying prosecution witness." Pursuant to CPL § 245.20(2), "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." The People are under an obligation 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" [ CPL § 245.55(1) ] and, "upon request by the prosecution, each New York state and local law enforcement agency shall make available to the prosecution a complete copy of complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article" [ CPL § 245.55(2) ]. Consequently, "[r]egardless of whether the People have actual possession of discoverable material and information from law enforcement, such material and information is statutorily deemed to be in the People's possession." People v. Haymon , 71 Misc. 3d 1203(A), 2021 WL 1185047 [Cnty Ct., Albany Cnty 2021]. (Accord , People v. Pennant , Nassau Co. Dkt. No. CR-020126-19NA, Decision and Order at p. 13, 73 Misc.3d 753, 156 N.Y.S.3d 690 [Nassau Cnty, Crim. Ct. 2021] [possession of law enforcement records is imputed to the People]; and People v. Rosario , 70 Misc.3d 753, 765, 139 N.Y.S.3d 498 [Cnty Ct., Albany Cnty 2020] [same]).
It is the opinion of this Court that records pertaining to civil lawsuits, although not generated by state or local law enforcement agencies, are nevertheless disclosable to the extent in the possession of the prosecution or the law enforcement agency. Thus, while the law enforcement agencies (and the People) are not under an obligation to obtain such records from third parties, they must disclose such records to the extent they have such records in their possession. See People v. Francis , 74 Misc.3d 808, 164 N.Y.S.3d 358 [Sup. Ct. Monroe Cnty 2022] [People's disclosure obligation fulfilled where the People referred the defendant to public filings in federal civil lawsuits in which police officer witnesses are named as defendants; holding that "if, in fact the [ ] [p]olice [d]epartment possessed documents relating to such lawsuits, they shall hereafter be provided to the defendant in automatic discovery under CPL 245.20 [ ]."].
This Court notes that the People turned over the name of the relevant civil lawsuit on July 5, 2022 with their initial disclosures, and they have represented that they have no further records in their possession. (See People's Aff. in Opp. at p. 19/77 ("[t]he People have turned over all civil suit information in their possession related to Officer Singh...."). This Court holds that the disclosure of the name of the lawsuit is sufficient under these circumstances.
(e) Complete Records of Convictions for Potential Witnesses
Finally, the defendant contends that the People failed to provide complete records of convictions for potential witnesses. (See Def.’s Aff. at E, ¶¶ 61-63).
It is uncontroverted that the People's initial CoC/SoR attached disclosures that included a statement that civilian witness J.M. had no known convictions. (See July 5, 2022 Disclosures). In addition, it is further undisputed that the People's Supplemental CoC/SoR attached disclosures that included a statement that civilian witness D.M. had no known convictions. (See November 2, 2022 Disclosures).
It is this Court's opinion that the People complied with CPL § 245.20(1)(p), which required them to disclose "[a] complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses...." Since no civilian witness had a judgment of conviction, the People complied with the statute. Contrary to the defendant's contention, the statute does not require the People to disclose the absence of such record.
For these reasons, the defendant's motion to strike the CoC/SoR for failure to comply with the automatic disclosure requirements of CPL § 245 is DENIED.
B. Motion to Dismiss Based Upon a Violation of the Defendant's Speedy Trial Rights
The defendant next moves to dismiss on the grounds that the People have violated his speedy trial rights. (See Def.’s Aff. at Point IV, ¶¶ 64-91).
Pursuant to CPL § 30.30(1)(b), with respect to the class "A" misdemeanor charge, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The within criminal action was commenced on April 8, 2022. The People turned over discovery to the defendant and filed their CoC/SoR on July 5, 2022. In addition, the People filed a Supplemental CoC/SoR on November 2, 2022.
The gravamen of the defendant's speedy trial motion is that the People's initial CoC/SoR is invalid. Thus, the CoC/SoR filed on July 5, 2022 failed to stop the running of the speedy trial clock with respect to the charge; rather the defendant contends that the time elapsed from the date of the defendant's arraignment (April 8, 2022) until the date the motion schedule was set with respect to the instant motion (August 11, 2022), or one-hundred twenty five days (125 days), is chargeable to the People.
To the extent the defendant's motion to dismiss on speedy trial grounds is predicated upon the argument that the People's CoC/SoR is invalid for failure to comply with disclosure requirements, this Court has concluded that the People's initial CoC/SoR is valid for the reasons discussed above.
Accordingly, this Court concludes that there are a maximum of 89 days (from April 8, 2022 until July 5, 2022) chargeable to the People. Thus, the defendant's motion to dismiss based upon a speedy trial violation is DENIED.
C. Legal Sufficiency of the Accusatory Instrument
The defendant next contends that the accusatory instrument is (1) jurisdictionally defective because it does not support each and every element of the charge (see Def.’s Aff., Point I, at ¶¶ 14-35) and (2) facially insufficient because it does not contain non-hearsay allegations. (See Def.’s Aff., Point II, at ¶¶ 36-54).
Pursuant to CPL § 100.40(1), an information is sufficient on its face when, inter alia , "[t]he allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory instrument" and "non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." CPL § 100.40(1)(a)(ii)-(iii).
1. Jurisdictional Sufficiency
The defendant first argues that the accusatory instrument is insufficient because the allegations do not provide reasonable cause to believe that the defendant committed the offense charged. (See Def's Aff., Point I at ¶ 19).
In this case, the defendant is charged with Criminal Trespass in the Second Degree in violation of New York State Penal Law § 140.15(1). To support a charge of Criminal Trespass in the Second Degree, the People must prove that the defendant (1) knowingly, (2) entered or remained, (3) in a dwelling; (4) unlawfully.... Penal Law § 140.15(1).
Here, the accusatory instrument states:
"The defendant ... did enter or remain unlawfully in a dwelling by entering through the unlocked front door at the above location without permission or the authority to do so as described in the attached sworn statement...."
(Court File, Misdemeanor Information).
In addition, the supporting deposition states:
On Friday, February 18, 2022 at approximately 5:10pm I was at my residence ... I heard mumbling coming from downstairs ... I then left my bedroom and walked to the staircase when I then saw my neighbor ... standing on my staircase. I asked him "[ ] are you okay,
do you need any help ... [defendant] did not respond to me at just continued to stand there at which point I became alarmed. I then said ‘[defendant] leave my house now, I'm calling the police.’ [Defendant] then left my house."
(Court File, Supporting Deposition).
Here, the defendant contends that the supporting deposition is insufficient because it fails to allege that the defendant (1) knowingly entered a property he did not have permission to enter, or (2) that the complainant had a possessory interest in the property. (See Def's Aff., Point I, at ¶ 28).
It is this Court's opinion that the supporting deposition is sufficient in this case. The Complainant states that the defendant "entered my residence without permission or authority to do so." This statement ("my residence") is sufficient to claim a possessory interest in the property on the part of the complainant, however temporary. Moreover, the statement is sufficient to allege that the complainant did not give the defendant permission to enter the residence. Insofar as the defendant contends he had permission from another resident, such is an argument for the trier of fact.
2. Facial Sufficiency
The defendant next contends that the accusatory instrument fails to contain non-hearsay allegations that support every element of the offense charged. (See Def's Aff., Point II, at ¶¶ 45-46).
As noted above, the accusatory instrument in this case states:
"The defendant ... did enter or remain unlawfully in a dwelling by entering through the unlocked front door at the above location without permission or the authority to do so as
described in the attached sworn statement...."
(Court File, Misdemeanor Information).
The accusatory instrument is alleged to have been based upon the statement of the complainant. The complainant's statement is based upon personal knowledge.
Accordingly, the accusatory instrument, along with the supporting deposition, sets forth non-hearsay allegations that support every element of the charged crime, and is facially sufficient; to the extent the defendant contends the accusatory instrument is insufficient due to deficiencies in the complainant's supporting deposition addressed above (i.e. , failure to set forth a possessory instrument, and failure to establish the defendant's lack of knowledge), such arguments are denied for the reasons set forth above.
Thus the defendant's motion to dismiss the accusatory instrument on the basis of jurisdictional defective and facial insufficiency is DENIED.
D. Motion for Discovery
Finally, the defendant moves this Court for an order that the People comply with their obligations pursuant to Brady v Maryland, People v. Rosario , People v Sandoval and/or People v Molineux/Ventimiglia. (See Def.’s Aff. at Point V, ¶¶ 92-99, Point VI, ¶¶ 100, Point VII, ¶¶ 101-104, and Point VIII, ¶¶ 105-106).
The defendant's motion for disclosure of Brady materials is GRANTED to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover any exculpatory materials, then the People are required to promptly disclose such exculpatory materials to the defendant to the extent they have not already done so.
The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Rosario and their respective progeny is GRANTED, to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discovery disclosable materials, the People are directed to provide such notice to the defendant no later than fifteen (15) business days prior to the trial date of this action.
The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Sandoval and/or Ventimiglia/Molineux and their respective progeny is GRANTED, to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discovery disclosable materials, the People are directed to provide such notice to the defendant no later than fifteen (15) business days prior to the trial date of this action.
The defendant's motion for Sandoval , and Ventimiglia/Molineux hearings is GRANTED.
Based upon the foregoing, the defendant's motion to strike the CoC/SoR is DENIED. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is DENIED. The defendant's motion to dismiss the accusatory instrument as jurisdictionally defective and facially insufficient is DENIED. The defendant's motion for discovery is GRANTED. The defendant's motion for Sandoval , and Ventimiglia/Molineux hearings is GRANTED.
This shall constitute the decision and Order of the Court.