Opinion
Docket No. CR-015730-22SU
08-01-2023
PEOPLE of the State of New York v. Ryan SHERMAN, Defendant
Raymond A. Tierney, Esq., District Attorney of Suffolk County, Raymond Buitenkant / Of Counsel, District Court Bureau, Attorneys for the People, 400 Carleton Avenue, Central Islip, NY 11722, (631) 853-7965 Cory H. Morris, Esq., Attorney for Defendant, 135 Pinelawn Rd, Suite 250S, Melville, NY 11747, (631) 450-2515
Raymond A. Tierney, Esq., District Attorney of Suffolk County, Raymond Buitenkant / Of Counsel, District Court Bureau, Attorneys for the People, 400 Carleton Avenue, Central Islip, NY 11722, (631) 853-7965
Cory H. Morris, Esq., Attorney for Defendant, 135 Pinelawn Rd, Suite 250S, Melville, NY 11747, (631) 450-2515
Eric Sachs, J.
It is,
ORDERED that this second omnibus motion by the defendant is decided as follows: The defendant's motion to stay these proceedings pending a determination by an appellate court on his interim application for relief is DENIED. The defendant's motion to stay these proceedings so that defendant may attend other court appearances is DENIED as moot. The defendant's motion to dismiss/compel/strike the People's Certificate of Compliance and/or Statement of Readiness pursuant to CPL § 245.20 and § 245.50(1) based on an alleged failure to comply with automatic disclosure requirements is DENIED. The defendant's motion to deem the prosecution not ready for trial is DENIED. The defendant's motion to deem the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation) is DENIED. The defendant's motion to strike the People's Supplemental CoC and dismissing the case due to the People's failure to certify readiness on the record is DENIED. The defendant's motion to compel disclosure of discovery pursuant to CPL § 245.30 is DENIED. The defendant's motion to sanction the People for failure to respond to the defendant's written Demand for Discovery and Inspection is DENIED. The defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is DENIED. The defendant's motion to suppress any statements by the defendant pursuant to CPL § 710.20 is DENIED. The defendant's motion to file additional motions is GRANTED, to the extent indicated herein.
On May 23, 2022, the defendant was charged under Docket No. CR-015730-22SU with one count of Driving While Intoxicated in violation of New York State Vehicle & Traffic ("VTL") Law § 1192.3, an unclassified misdemeanor, and one count of Driving While Intoxicated Per Se in violation of VTL § 1192.2, an unclassified misdemeanor. He was arraigned on June 20, 2022.
By motion dated June 6, 2023, the defendant filed this second omnibus motion seeking an order (1) staying these proceedings pending a determination by an appellate court on an interim application for relief; (2) staying these proceedings so that defendant may attend other court appearances; (3) dismissing/compelling discovery/striking the People's Certificate of Compliance and/or Statement of Readiness pursuant to CPL § 245.20 and § 245.50(1) based on an alleged failure to comply with automatic disclosure requirements; (4) deeming the prosecution not ready for trial; (5) deeming the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation); (6) striking the People's Supplemental CoC and dismissing the case due to the People's failure to certify readiness on the record; (7) compelling disclosure of discovery pursuant to CPL § 245.30 ; (8) sanctioning the People for failure to respond to the defendant's written Demand for Discovery and Inspection; (9) permitting an adverse inference on each element of the charged crime due to the People's discovery violations; (10) suppressing any statements by the defendant pursuant to CPL § 710.20 ; and (11) permitting counsel to file additional pre-trial motions. The People oppose the motion.
This Court addresses each motion, in turn, below.
A. First Omnibus Motion
On January 26, 2023, defendant filed his first omnibus motion to dismiss in which he moved this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instruments for the People's failure to provide discovery; (4) granting an adverse inference instruction based upon the People's failure to comply with discovery demands; and (5) allowing defendant to file additional motions.
Prior to his January 26, 2023 omnibus motion, the defendant had twice moved to dismiss. On September 6, 2022, the defendant moved to dismiss for failure to comply with the discovery requirements of CPL article 245, which the People opposed on October 7, 2022. In an order dated November 18, 2022, the court denied the defendant's motion to dismiss and granted the defendant's request for Mapp/Dunaway and Huntley hearings. See People v. Sherman , CR-15730-22SU [Dist Ct, Suffolk Cnty Nov. 18, 2022] [Orlando, J.]. On January 24, 2023, this Court held a combined Mapp/Dunaway and Huntley hearing, which hearing continued on January 25 and January 26, 2023. During the hearing, the defendant made an oral motion to dismiss pursuant to CPL § 30.30(5), on the ground that he had not received all of the impeachment material to which he was entitled. In addition, the People made an oral motion in limine to preclude cross-examination regarding disciplinary files. In an oral decision read on the record on January 24, 2023, this Court denied the defendant's oral motion to dismiss based on failure to comply with the disclosure requirements of CPL article 245, and based on an alleged speedy trial violation.
The gravamen of the defendant's first omnibus motion was that the People had failed to comply with their disclosure requirements pursuant to CPL § 245.20 because they did not turn over full records of impeachment materials with respect to law enforcement witnesses.
On March 22, 2023, in a written decision, this Court (1) denied the defendant's motion to strike the CoC/SoR; (2) denied the defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory and constitutional speedy trial; (3) denied the defendant's motion to dismiss the accusatory instruments for the People's failure to provide discovery; (4) denied the defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands; and (5) granted the defendant's motion to file additional motions.
In so holding, this Court concluded that the People were required to, and did, turn over impeachment materials containing all categories of findings (substantiated, unsubstantiated, unfounded, exonerated). (See Order dated March 22, 2023). This Court further held that the People were not required to turn over the entire underlying files, but so long as the People disclosed "sufficiently detailed information such that defendants could understand the nature and degree of the alleged misconduct and determine its relevance to a particular defense," the information disclosed complies with the statutory requirement. (Id. at p. 7). Thus, this Court concluded that the People's disclosures of detailed case reports were sufficient, and the People did not have to disclose the entirety of the underlying files in the first instance. (Id. at pp. 8-9). If the defendant believed he needed the underlying files, he could make a motion for such upon a showing of necessity.
In addition, this Court held that the redaction of personally-identifying information, such as tax identification numbers and social security numbers from the IAB files was permissible. (See 3/22/2023 Order at p. 10). However, the redaction of other information would require the People to apply for a protective order. (Id. ) The People were ordered either to disclose unredacted versions of the previously-redacted files (except for personally-identifying information), or to move for a protective order within fifteen (15) days of this Court's order. (Id. )
The People did not move for a protective order, nor was one granted or denied.
B. Pending Motion [Second Omnibus Motion]
By motion dated June 6, 2023, the defendant filed this second omnibus motion seeking an order (1) staying these proceedings pending a determination by an appellate court on an interim application for relief; (2) staying these proceedings so that defendant may attend other court appearances; (3) dismissing/compelling discovery/striking the People's Certificate of Compliance and/or Statement of Readiness pursuant to CPL § 245.20 and § 245.50(1) based on an alleged failure to comply with automatic disclosure requirements; (4) deeming the prosecution not ready for trial; (5) deeming the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation); (6) striking the People's Supplemental CoC and dismissing the case due to the People's failure to certify readiness on the record; (7) compelling disclosure of discovery pursuant to CPL § 245.30 ; (8) sanctioning the People for failure to respond to the defendant's written Demand for Discovery and Inspection; (9) permitting an adverse inference on each element of the charged crime due to the People's discovery violations; (10) suppressing any statements by the defendant pursuant to CPL § 710.20 ; and (11) permitting counsel to file additional pre-trial motions. The People oppose the motion.
1. Motion to Stay Proceedings Pending a Determination on Defendant's Application for Interim Relief
The defendant first moves to stay proceedings in this case pending a determination on the defendant's application for interim relief before the appellate court. (See Def.'s Notice of Motion at ¶ 1 & Exhibit D). Specifically, the defendant notes that he filed an Order to Show Cause in the Appellate Term, Second Department on or about March 24, 2023. (Id. ) The defendant's application to the Appellate Term cites CPL § 245.70 as a basis for expedited appellate review.
In general, a defendant in a criminal case may file an interlocutory appeal of a trial court order in statutorily-defined circumstances. See CPL § 450.20. None of those circumstances is applicable here.
Pursuant to CPL § 245.70, a defendant may seek expedited appellate review of an adverse ruling by a trial court pertaining to a protective order (relating to the name, address and contact information or statements of a person). See CPL § 245.70(6). While seeking such expedited appellate review, the defendant is entitled to a stay of the Court's order pending appeal. See CPL § 245.70(6)(b).
Here, however, the defendant's original motion neither sought nor opposed a protective order. Nor did the People seek or oppose a protective order; nor was a protective order granted or denied by this Court. Therefore, the expedited review provision is inapplicable to the defendant's interim application. See CPL § 245.70(6)(b).
In its decision dated March 22, 2023, this Court held that the People could either (1) disclose unredacted versions of the previously-redacted IAB files (except for personally-identifying information), or (2) move for a protective order within fifteen (15) days of the court's order. The People did not move for a protective order; the defendant did not oppose any such motion. Nor did the Court grant or deny a protective order. (See 3/22/2023 Order at p. 10).
Finally, this Court notes that the defendant's application for interim relief to the appellate court does not appear to have complied with the rules of the Appellate Term for seeking expedited review of an adverse ruling regarding a protective order. See 22 NYCRR § 731.15 (requiring the application to be made within two business days of the adverse ruling). It is therefore unclear whether the defendant's application was accepted by the Appellate Term, and/or whether the application will be given expedited review by the Appellate Term. This Court notes that the defendant's application has currently been pending for four months.
On March 24, 2023, the defendant's counsel filed an application to the Appellate Division, Second Department, which motion was rejected for lack of jurisdiction. The defendant's application to the Appellate Term, Second Judicial Department, was apparently filed on or after March 27, 2023.
Therefore, the defendant's motion for a stay of proceedings in this case pending a determination on the defendant's application for interim relief before the appellate court is DENIED. 2. Motion to Stay Proceedings Due to Defense Counsel's Scheduling Conflict
The defendant next moves to stay proceedings in this case so that defendant may attend other scheduled court appearances in June 2023. (See Def.'s Notice of Motion at ¶ 2).
Since the conflicting court appearance dates have now passed, the defendant's motion is DENIED as moot.
3. Motion to Compel/Strike/Dismiss Pursuant to CPL § 245.20 and § 245.50(1)
As noted above, the defendant was charged on May 23, 2022 and he was arraigned on June 20, 2022. The People served their initial Discovery Disclosures and CoC/SoR on July 5, 2022, and then filed Supplemental CoCs/SoRs on November 18, 2022, February 6, 2023, June 1, 2023 and July 19, 2023.
The defendant moves to compel discovery, to dismiss, and to strike the People's initial CoC/SoR, filed on July 5, 2022, as well as the People's Supplemental CoC/SoRs as invalid because the People failed to comply with their automatic discovery obligations in a timely manner pursuant to CPL § 245.20(1). (See Def.'s Aff. at ¶¶ 23-56). In particular, the defendant contends that the People failed to provide (1) discovery regarding the simulator solution contained in the Intoxilyzer 9000 used during the field sobriety test of the defendant (see Def.'s Aff. at ¶¶ 33-36); and (2) full records of impeachment materials, including "exhibits to internal affairs reports." (See Def.'s Aff. at ¶¶ 75-82). The defendant contends that he requested records relating to the Intoxilyzer in June 2022, but the records were not disclosed until June 1, 2023. (See Def.'s Aff. at ¶¶ 41-43). The defendant further contends that he requested the impeachment records in June 2022, but the People have still not fully complied with his request. (See Def.'s Aff. at ¶ 81).
In their opposition, the People aver that they disclosed breath test records (including calibration, certification, inspection, repair and maintenance records) listed in their Discovery Disclosures electronically and physically on July 5, 2022. (See People's Mem. of Law in Opp. at Point I, p. 1). The People also state that their Discovery Disclosures dated July 5, 2022 contained an electronic link to discovery, but the defendant's counsel "rejected" the provision of electronic discovery due to an alleged risk of cyberhacking (see People's Mem. of Law in Opp. at Point I, p. 1). The People further contend that they disclosed breath testing records (including calibration, certification, inspection, repair and maintenance records) listed in their Discovery Disclosures physically on July 5, 2022 by uploading the discovery onto a USB thumb drive, and mailing the thumb drive to the defendant on July 5, 2022 (see People's Mem. of Law in Opp. at Point I, pp. 1-2 & Ex. F).
In addition, in their opposition, the People contend that with respect to the defendant's specific request for gas chromatography records, such records do not exist because the Intoxilyzer 9000 device used by the Suffolk County Police Department does not have chromatograms testing or simulator solutions; instead, it uses a reference gas cylinder which was tested by the Suffolk County Medical Examiner's Officer. (See People's Mem. of Law in Opp. at Point I, p. 2).
Consequently, the People aver in their opposition that they disclosed the Suffolk County Medical Examiner's test results of the analysis of the reference gas cylinder used in the Intoxilyzer 9000 (in the Minden Attestations dated September 13, 2021 and July 5, 2022) electronically with their CoC on July 5, 2022, as well as producing a physical copy (by mailing a USB thumb drive to the defendant with a copy of the record). (See People's Mem. of Law in Opp. at Point I, p. 1). In addition, in a supplemental filing, the People state that they provided physical copies of the underlying analysis (or "batch worksheets") they received from the Suffolk County Medical Examiner's Office with their Supplemental Discovery Disclosures and Supplemental CoC/SoR on July 19, 2023. (See People's Aff. in Response to the Court's Order, dated July 21, 2023 (hereinafter, "Supplemental Aff."), at ¶ 4).
In reply, the defendant contends that (1) the electronic disclosure of the initial Discovery Disclosures and CoC/SoR on July 5, 2022 was insufficient due to the risk of the electronic files being corrupted (see Def.'s Aff. at ¶ 8), and (2) he received a physical copy of the USB drive (which contained 128GB of data), but the USB drive did not contain gas chromatography records regarding the Intoxilyzer 9000. (See Def.'s Aff. at ¶ 7).
The defendant also raises in reply several additional alleged deficiencies: (1) that the People failed to provide the MVA 104 report (report of motor vehicle accident) until November 18, 2022 (see Reply at ¶¶ 5, 16); (2) that the People failed to identify Medical Examiner Edward Minden and Suffolk County Police Officer Peter Mandleur as witnesses, and failed to provide their CVs, until June 1, 2023 (see Reply at ¶¶ 9, 23); (3) that the People failed to identify Suffolk County Police Department technical supervisor PO Weinerman, and failed to provide his CV, until February 8, 2023 (see Reply at ¶¶ 9, 23). a. Discovery Regarding Intoxilyzer
Pursuant to CPL § 245.20(1)(s), a defendant in a DWI case is entitled to "all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument." CPL § 245.20(1)(s).
In addition, courts have held that "calibration" records referenced in CPL § 245.20(1)(s) include gas chromatography test records and underlying data. See People v. Vincenzo Torre , 48 Misc.3d 745, 11 N.Y.S.3d 445 [Dist. Ct., Nassau Cnty 2015] [defendant is entitled to gas chromatography test results and "backup documentation related thereto"]. See also Matter of Singas v. Engel , 155 A.D.3d 877, 63 N.Y.S.3d 695 [2d Dep't 2017] [trial court "did not act without jurisdiction or in excess of his authority" when it ordered the People to provide headspace gas chromatography data to the defendant in a VTL § 1192 prosecution]. In addition, the defendant is entitled to discovery regarding simulator solutions used to calibrate the breath test instruments. See People v. Stancu , CR-020401-21QN [Crim Ct, Queens Cnty April 3, 2023] [Novillo, J.] [defendant is entitled to discovery regarding the chemical composition of all simulator solutions used to calibrate the breath test instruments].
i. Calibration, Certification, Inspection, Repair and Maintenance Records
The People contend that they provided calibration, certification, inspection, repair and maintenance records listed in their initial Discovery Disclosures, both electronically and physically (by mail) on July 5, 2022. In support of their contention, the People have submitted as exhibits to their opposition papers filed herein an affidavit of service with respect to the mailing of the thumb drive, as well as a copy of the disclosures containing the discovery link. (See People's Mem. of Law, Ex. A). This Court credits the People's affidavit of service as proof the USB drive and the initial CoC/SoR was mailed to the defendant on July 5, 2022. With respect to the electronic discovery, this Court rejects defense counsel's contention that there was a significant risk that the link to electronic discovery provided by the People was corrupted. It is undisputed that there was a county-wide cyber-attack that resulted in the shutdown of the Suffolk County District Attorney's Office's computers from approximately September 8, 2022 until December 2, 2022. See https://suffolkcountyny.gov/Identity-Protection-Service (last visited July 25, 2023). However, the defendant nevertheless had access to the electronic discovery from July 5, 2022 until September 8, 2022. To the extent that the defendant's counsel attempted to access the link from September 8, 2022 until December 2, 2022, but feared that the link was corrupted, counsel could have related his concern to the People and requested hard copies of any discovery materials. The record is devoid of defendant's counsel's efforts to do so between September 2, 2022 and December 2, 2022.
Based on the evidence submitted by the People in their moving papers, this Court concludes that the People made a good faith effort to provide calibration, certification, inspection, repair and maintenance records listed in their initial Discovery Disclosures, both electronically and physically (by mail) on July 5, 2022.
ii. Gas Chromatogram Records
As noted above, the People are also required to disclose gas chromatography records pursuant to CPL § 245.20(1)(s). However, in this case, the People have represented that the Intoxilyzer 9000 device used by the Suffolk County Police Department does not have chromatograms testing or simulator solutions; instead, it uses a reference gas cylinder which was tested by the Suffolk County Medical Examiner's Officer.
The question, then, is what obligation the People had to obtain, and then disclose, records relating to the reference gas cylinder tested by the Suffolk County Medical Examiner's Officer.
CPL § 245.20(1)(g) requires the People to turn over "[a]ll tapes or other recordings ... made or received in connection with the alleged criminal incident...." In addition, CPL § 245.20(2) requires the People to "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." CPL § 245.20(2). However, the statute further provides that "that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." Id.
This Court is aware of no caselaw expressly holding that the People must disclose data regarding the Suffolk County Medical Examiner's testing of a reference gas cylinder on an Intoxilyzer 9000. However, it is the opinion of this Court that the caselaw firmly establishes that the defendant is entitled to the test results and underlying data regarding calibration of the Intoxilyzer 9000. See Torre , Stancu , and Matter of Singas , supra . Records of the reference gas cylinder test, like gas chromatography records, may provide evidence that the Intoxilyzer 9000 was calibrated correctly (or not). Both records are necessary to the People's case. The mere fact that the Intoxilyzer 9000 uses different calibration technology does not negate the statutory requirement that records of calibration be disclosed. Therefore, where, as here, an Intoxilyzer uses a reference gas cylinder rather than gas chromatography, the test results and underlying data pertaining to the reference gas cylinder data must be disclosed, if in the possession of the People, as part of "calibration" records pursuant to CPL § 245.20(1)(s).
Here, however, the People correctly point out that the reference gas cylinder analysis is created by the Suffolk County Medical Examiner's Officer, which is not an arm of the District Attorney's Office; thus, the records are not in the "possession" of the People. Moreover, the relevant statute does not require the People to subpoena information that the defendant may separately subpoena. See People's Supplemental Aff. at ¶ 4 (citing See CPL § 245.20(2) ); see also People v. Washington , 86 N.Y.2d 189, 192, 630 N.Y.S.2d 693, 695, 654 N.E.2d 967 [1995] [the Office of Chief Medical Examiner is not a law enforcement agency].
There is no such issue with respect to the gas chromatography records, which are created by the New York State Police. Such records are, therefore, deemed to be in the possession of the prosecution. See CPL § 245.20(2) ("[f]or 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.").
Pursuant to CPL § 245.20(2), the People must "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."
It is the opinion of this Court that CPL § 245.20(2) requires the People to request the reference gas cylinder records (test results and underlying data) from the Suffolk County Medical Examiner's Office as part of their "diligent, good faith effort to ... cause such material or information to be made available for discovery." In the event the People are unable to obtain such records with a simple request, the People are under no obligation to subpoena such records if the defendant himself or herself may subpoena such records. However, the People may choose to do so if such records are necessary to the prosecution of the case. It is this Court's understanding that the records are obtainable from the Suffolk County Medical Examiner's Office by either party's so-ordered subpoena. See also CPL § 245.20(1)(j).
In this case, the People were in possession of the test results for the reference gas cylinder in July 2022, and disclosed it in July 2022. The People did not request the underlying data until July 2023, and disclosed it in July 2023. See People's Supplemental Aff. at ¶ 4.
This Court finds that the People's disclosure of the test results for the reference gas cylinder (contained in the Minden Attestations disclosed on July 5, 2022) electronically and by USB thumbdrive was sufficient to satisfy the People's burden with respect to calibration records in this case. While the People did not disclose the underlying data for the test of the reference gas cylinder until July 19, 2023, the failure to do so is not fatal in light of the lack of case authority expressly so requiring.
However, the People are now on notice that they have an obligation under CPL § 245.20(2) to at least request from the Suffolk County Medical Examiner's Office the test results and underlying data with respect to the Intoxilyzer 9000's reference gas cylinder, and, if received, to disclose such records to the defendant pursuant to CPL article 245. Failure to do so in the future may not be deemed good faith or diligent.
b. Discovery Regarding Impeachment Materials
As noted above, the defendant contends that the People have failed to disclose all impeachment material to which the defendant is entitled pursuant to CPL article 245. (See Def.'s Aff. at ¶¶ 74-82). Apart from noting that "Brady material" and "exhibits to internal affairs reports" have not been provided, the defendant fails to detail the discovery pertaining to impeachment materials that has not been disclosed. (See Def.'s Aff. at ¶¶ 75-82).
Pursuant to this Court's 3/22/2023 Order, the defendant is not entitled to "exhibits to internal affairs reports." (3/22/2023 Order at p. 7). Rather, this Court held that, with respect to IAB files, so long as the People disclosed "sufficiently detailed information such that defendants could understand the nature and degree of the alleged misconduct and determine its relevance to a particular defense," the information disclosed complies with the statutory requirement. (Id. ) Thus, this Court concluded that the People's disclosures of detailed case reports were sufficient, and the People did not have to disclose the entirety of the underlying files in the first instance. (Id. at pp. 8-9). If the defendant believed he needed the underlying files, he could make a motion for such upon a showing of necessity.
No such showing of necessity has been made in this case.
The defendant has cited the recent decision by the Appellate Term in People v. Hamizane , Docket No. 2022-254 N CR, 80 Misc.3d 7, 194 N.Y.S.3d 666 [App. Term, 9th and 10th Jud. Dist. July 13, 2023] in support of his argument that he is entitled to underlying documents in this case. In Hamizane , the Appellate Term affirmed the trial court's grant of a motion to invalidate the People's CoC/SoRs and to dismiss the accusatory instrument on the ground that the defendant's speedy trial rights had been violated. In so holding, the court held that CPL § 245.20(1)(k) requires all evidence and information to be disclosed, and "is not limited to that which is related to the subject matter of the underlying case." Hamizan at 3. Insofar as the Appellate Term held that all categories of impeachment material (substantiated, unsubstantiated, unfounded, exonerated) must be disclosed, this court agrees, and previously so held in its 3/23/2023 Order in this case. The court in Hamizane does not appear to have expressly held that where records must be disclosed, the People must disclose the entire underlying files. To the extent the Hamizane court could be deemed to have so held, that court relies on Matter of Jayson C. , and People v Rodriguez ; this Court does not believe those cases are controlling for the reasons discussed in its 3/23/2023 Order.
At the very least, the Jayson C. decision is a Family Court case that assumed, rather than decided, that the entire underlying files are required to be disclosed. The court in Rodriguez cited to Jayson C. for the same proposition. In addition, these two appellate-level decisions were decided in the First Department, not the Second; consequently, they are non-binding.
In sum, this Court does not interpret Hamizane to require that the entire underlying files be disclosed where impeachment materials are required to be disclosed pursuant to CPL § 245.20.
c. Additional Discovery
Finally, the defendant contends that the People failed to disclose the MVA 104 report (report of motor vehicle accident) until November 18, 2022 (see Reply at ¶ 16); (2) that the People failed to identify Medical Examiner Edward Minden and Suffolk County Police Officer Peter Mandleur as witnesses, and failed to provide their CVs, until June 1, 2023 (see Reply at ¶¶ 9, 23); and (3) that the People failed to identify Suffolk County Police Department technical supervisor PO Weinerman, and failed to provide his CV, until February 8, 2023 (see Reply at ¶¶ 9, 23).
This Court rejects the defendant's arguments, which were raised for the first time in his reply brief. This Court further rejects such arguments on the merits; the Court credits the People's contention that they previously disclosed a draft of the MVA-104 report. (See People's Aff. at ¶ 14). The Court further credits the People's contention that they identified the names of Minden, Mandleur, and Weinerman as witnesses and disclosed their CVs once the People determined that those individuals would be testifying prosecution witnesses. (See People's Mem. of Law at p. 5). In addition, the defendant was aware of Mr. Minden's name and role on July 5, 2022, as his name was listed on the reference gas cylinder test results, produced by the People on July 5, 2022. (Id. ) The People had no obligation to disclose the employment history of the witnesses until the People determined they would be testifying witnesses, which they did on June 1, 2023.
Accordingly, the defendant's motion to compel/dismiss/strike based upon a violation of the People's discovery obligations pursuant to CPL article 245 is DENIED.
4. Motion to Dismiss Based on Speedy Trial Violation
The defendant further contends that the People have exceeded their statutory speedy trial time limitations pursuant to CPL § 30.30, as well as constitutional speedy trial limitation. (See Def.'s Aff. at ¶¶ 57-73).
Pursuant to CPL § 30.30(1)(b), with respect to the 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 action, taking into account all statutorily-excludable time periods. The within criminal action was commenced on June 20, 2022. The People filed their initial CoC/SoR fifteen (15) days later, on July 5, 2022.
To the extent the defendant's motion to dismiss on speedy trial grounds is predicated upon the argument that the People's initial CoC/SoR and/or Supplemental CoC/SoR is invalid for failure to comply with disclosure requirements, this Court has rejected that argument for the reasons discussed above.
Accordingly, the defendant's motion to dismiss based upon a statutory and constitutional speedy trial violations is DENIED.
5. Motion to Deem People Not Ready For Trial
The defendant further requests that this Court deem the People not "ready for trial" due to discovery deficiencies. (See Def.'s Notice of Motion at ¶ 4).
Since this Court has determined that the People are in compliance with their statutory discovery obligations pursuant to CPL article 245, the defendant's motion for this Court to deem the People not ready for trial based upon the People's failure to comply with discovery demands is DENIED.
6. Motion to Strike Supplemental CoC/SoR
The defendant further moves to strike the People's Supplemental CoC and dismissing the case due to the People's "failure to certify readiness on the record, statutory and constitutional speedy trial violations." (See Def.'s Notice of Motion at ¶ 6).
Since this Court has determined that the People are in compliance with their statutory discovery obligations pursuant to CPL article 245, the defendant's motion to strike the Supplemental CoC/SoR is DENIED.
7. Motion to Compel Disclosure of Discovery
The defendant moves to compel discovery. (See Def.'s Aff. at ¶¶ 31-56).
This motion is denied for the reasons discussed in Section B.3, supra. 8. Motion for Sanctions
The defendant further contends that the People should be sanctioned for failure to comply with discovery requirements. (See Def.'s Aff. at ¶¶ 83-88, 102).
Since this Court has determined that the People are in compliance with their statutory discovery obligations pursuant to CPL article 245, the defendant's motion for sanctions based upon the People's failure to comply with discovery demands is DENIED.
9. Motion for an Adverse Inference
The defendant has also moved for an adverse inference instruction on each element of the particular crime charged to the defendant based upon the People's failure to comply with discovery demands. (See Def.'s Notice of Motion, ¶ 5).
Since this Court has determined that the People are in compliance with their statutory obligations pursuant to CPL article 245, the defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is DENIED.
10. Motion to Suppress Statements
Pursuant to CPL § 710.20(3), the defendant has moved to suppress any statements given by the defendant obtained in violation of the defendant's Fifth Amendment rights and/or for a Huntley hearing. (See Def.'s Aff. at ¶¶ 103-109). In their opposition papers, the People noted that they previously consented to the defendant's request for a Huntley hearing, and such hearing was held on January 26, 2023. (See People's Mem. of Law at Point III, p. 7).
Accordingly, the defendant's motion to suppress any statements given by the defendant, and for a Huntley hearing is DENIED.
11. Motion for Leave to File Additional Motions
Finally, the defendant's request to file additional motions is GRANTED, but only to the extent permitted by CPL § 255.20(3). (See Def.'s Aff. ¶¶ 130-132).
By reason of the foregoing, the defendant's motion to stay these proceedings pending a determination by an appellate court on his interim application for relief is DENIED. The defendant's motion to stay these proceedings so that defendant may attend other court appearances is DENIED as moot. The defendant's motion to dismiss/compel/strike the People's Certificate of Compliance and/or Statement of Readiness pursuant to CPL § 245.20 and § 245.50(1) based on an alleged failure to comply with automatic disclosure requirements is DENIED. The defendant's motion to deem the prosecution not ready for trial is DENIED. The defendant's motion to deem the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation) is DENIED. The defendant's motion to strike the People's Supplemental CoC and dismissing the case due to the People's failure to certify readiness on the record is DENIED. The defendant's motion to compel disclosure of discovery pursuant to CPL § 245.30 is DENIED. The defendant's motion to sanction the People for failure to respond to the defendant's written Demand for Discovery and Inspection is DENIED. The defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is DENIED. The defendant's motion to suppress any statements by the defendant pursuant to CPL § 710.20 is DENIED. The defendant's motion to file additional motions is GRANTED, to the extent indicated herein.
This shall constitute the decision and Order of the Court.