Opinion
No. CR-001814-23NY
06-15-2023
The People of the State of New York v. Dean Silva, Defendant.
The Legal Aid Society (Seann Patrick Riley, Esq. of Counsel), for defendant Alvin Bragg, District Attorney (Kirstyn Watson, Esq. of Counsel), for the people
Unpublished Opinion
The Legal Aid Society (Seann Patrick Riley, Esq. of Counsel), for defendant
Alvin Bragg, District Attorney (Kirstyn Watson, Esq. of Counsel), for the people
Lumarie Maldonado-Cruz, J.
Defendant Dean Silva, charged with one count of Operating a Motor Vehicle while Impaired by Drugs [VTL 1192(4)], moves, by notice of motion dated May 3, 2023, for an order: 1) deeming the prosecution's certificate of compliances filed on April 5, 2023 and April 13, 2023 invalid; 2) dismissing the accusatory instrument pursuant to CPL 30.30 and 210.20(1)(g); and 3) granting such other relief as this Court may deem proper.
For reasons that follow, Mr. Silva's motion to invalidate the People's certificate of compliance dated April 5, 2023, is GRANTED. Mr. Silva's motion to invalidate the People's certificate of compliance dated April 13, 2023, is DENIED as the court deems it valid. The Defendant's motion to dismiss pursuant to CPL 30.30 and 210.20(1)(g) is also DENIED.
Background and Procedural History
Mr. Silva was arrested on January 14, 2023, after being observed operating a motor vehicle while having slurred speech, being in and out of consciousness, being unsteady on his feet and stating in sum and substance, "I take 80mg of Metadol a day and mixed that with Vicodin but I don't know at what time or how much." Mr. Silva was arraigned on January 15, 2023. The case was then adjourned for conversion to March 1, 2023.
See, Peo. Info. p. 1.
On March 1, 2023, the complaint was deemed an information and the case was adjourned for trial to April 14, 2023.
On April 5, 2023, off-calendar, the People filed and served an automatic disclosure form (ADF), a certificate of compliance (COC) and a certificate of readiness (COR).
On April 13, 2023, off-calendar, the People filed and served a supplemental ADF, supplemental certificate of compliance (SCOC), and COR.
On April 14, 2023, the People were deemed ready. Defense challenged the statement of readiness arguing that there was still outstanding discovery. The case was adjourned for trial to May 3, 2023.
On May 3, 2023, Defendant filed the instant motion. The court then set a motion schedule and the case was adjourned for decision to.
On May 22, 2023, off-calendar, the People filed their response to Defense counsel's motion to dismiss.
On May 28, 2023, off calendar, Defendant filed and served their reply to the People's motion response.
Discussion
Pursuant to CPL 245.20(1), the "prosecution shall disclose to the defendant and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control...." CPL 245.20(1). The statute also requires the prosecutor 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). When the people have provided such discovery, they "shall serve upon the defendant and file with the court a certificate of compliance" which "shall state 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." CPL 245.50(1).
Mr. Silva challenges the validity of the People's COCs dated April 5, 2023, and SCOC dated April 13, 2023, asserting that the People failed to disclose certain discoverable materials pursuant to CPL 245.20(1) prior to issuing the initial COC, namely: 1) Dean Silva Evaluation; 2) Dean Silva narrative; 3) Rasmussen email; 4) Caleco email; 5) text messages; 6) Intoxilyzer Calibration Reports; 7) Intoxilyzer Certification Reports; 8) Intoxilyzer Inspection Reports; 9) Intoxilyzer Maintenance Reports; 10) Body Worn Camera Videos for Police Officers Arnedos and Rasmussen, and 11) Police Accident Report MV104AN. See, Def. mot. challenging certificate of compliance, p. 8, ¶ 17-18. Mr. Silva acknowledges that items 1-5 were turned over prior to the filing of the People's SCOC dated April 13, 2023, and the instant motion. See, Def. mot. challenging certificate of compliance, p. 8, ¶ 17.
The People respond that once Defense counsel alerted the People to potentially discoverable outstanding items, the People contacted the arresting officer, PO Caleco, and the Highway Unit officer, PO Rasmussen, to inquire further. Subsequently, on April 13, 2023, the People shared the discovery previously listed as missing (items 1-5) with Defense Counsel and filed a SCOC, within the People's statutorily prescribed 90 day period. Of note, the People do concede that these items should have been turned over prior to filing their initial COC on April 5, 2023. See, Peo. mot. resp, p. 4.
Pursuant to CPL 30.30(b), the People must be ready for trial within 90 days where Defendant is charged with a "misdemeanor punishable by a sentence of more than three months and none is a felony."
Intoxilyzer Documents
Here, Defendant contends that he is entitled to documents, including calibration, certification, inspection, and maintenance reports, relating to the intoxlizlyer machine that he blew a breath sample into on January 14, 2023. Although the breath test results for the aforementioned blow were filed with the court and served to Defense counsel during Defendant's arraignment on January 15, 2023 , the People argue that Defendant is not entitled to this documentation as these items, based on the Defendant's charges and do not "relate to the subject matter of the case. " Although decisional law on this issue is unsettled, and the Court acknowledges no appellate authority on this issue, this Court finds that the intoxilyzer documents for the breath test administered in this case must be turned over pursuant to CPL 245.20(1)(s).
See, Def. Reply, p. 4, ¶ 3
Here the Defendant is charged with violation of Vehicle and Traffic Law §1992(4), driving while ability impaired by drugs. See, Peo. Motion Resp. p
CPL 245.20(1)(s), provides in part, that in any prosecution where the Defendant is charged with violating the Vehicle and Traffic Law, the People must disclose, as automatic discovery,
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.... (emphasis added).
Accordingly, the People cannot circumvent the plain language of the statute and ignore the existence of breath test results and their accompanying documentation by arguing that they are not relevant to the prosecution of the instant matter.
As previously held, the People are not the final arbiters of what is discoverable. See People v. Abdul Salaam, CR-019124-21NY, (Crim. Ct, NY Co. April 19, 2022) (Maldonado-Cruz, J.); People v. Baly, CR-008684-22NY, (Crim. Ct. NY Co. November 29, 2022) (Maldonado-Cruz, J.); People v. Guzman, 77 Misc.3d 1223 (A) (Crim. Ct NY Co., January 6, 2023) People v. Sanders, 2023 NY Slip Op 50190 [U] (Crim. Ct. NY Co. 2023); People v. Eleazer, 78 Misc.3d 1222 [A] [Crim. Ct., NY County 2023]). Rather, the People are required to automatically disclose evidence and information and where there is uncertainty, there is a presumption in favor of disclosure. In the alternative, the People may move for a protective order or otherwise seek a court ruling following a court's in camera review of any materials for which they believe there exists good cause to redact or withhold. However, the People, again, did not avail themselves of the tools provided by statute.
CPL 245.20(7) mandates that there "shall be a presumption in favor of disclosure when interpreting sections 245.10, 245.25, and subdivision one of 245.20, of this article." CPL 245.20(7).
See. People v. Abdul Salaam, CR-019124-21NY, (Crim. Ct, NY Co. April 19, 2022) (Maldonado-Cruz, J.); People v. Baly, CR-008684-22NY, (Crim. Ct. NY Co. November 29, 2022) (Maldonado-Cruz, J.); People v. Guzman, 77 Misc.3d 1223 (A) (Crim. Ct NY Co., January 6, 2023) People v. Sanders, 2023 NY Slip Op 50190 [U] (Crim. Ct. NY Co. 2023); People v. Eleazer, 78 Misc.3d 1222 [A] [Crim. Ct., NY County 2023]).
Although the People are free to take a position as to what they believe they are required to disclose, a decision on their part to withhold or redact potentially discoverable materials is made at their peril, and is not without potential consequences, including dismissal. See, People v. Best, 76 Misc.3d 1210(A) at *7 (Crim Ct. Queens Co. September 13, 2022).
The question here then is whether the People acted in good faith and with due diligence when they filed their SCOC on April 13, 2023, without the disclosure of the intoxilyzer documentation. Since this court deems that the People's SCOC dated April 13, 2023, was filed in good faith, with due diligence, and in a manner that was not meant to be "intentionally deceptive" , it finds no reason to invalidate the People's SCOC for any purported failure to disclose the intoxilyzer documentation. Defense has not presented the court with any indication that the People attempted to deceive, trick or otherwise intentionally withhold the documents. In fact, neither the People, nor the Defendant question the existence of this documentation. Rather, the People have shown that they consciously considered whether these items would be discoverable based on the charges brought against the Defendant, and erroneously decided these intoxilyzer documents were not subject to disclosure. Despite, the People's mistaken belief that these items were not discoverable, given the little governing authority on the matter, the People's SCOC was filed in good faith and reasonable under the circumstances. As such, no adverse consequence should result from the People's failure to disclose said items. See People v. Gaskin, 214 A.D.3d 1353, 1354, (4th Dept. 2023). Nevertheless, the People are hereby instructed pursuant to their "continuing duty to disclose" to turn over the intoxilyzer documentation for the Defendant's breath test in the instant matter within two weeks of receipt of this decision.
See People v. LaClair, 2023 WL 3445537 at *2.
The People routinely request intoxilyzer documentation for cases in which a defendant is alleged to have driven following the consumption of alcohol. The People should be easily and expeditiously able to obtain the intoxilyzer documentation for breath test in the instant matter.
Body Worn Camera for PO Arnedos and PO Rasmussem and Accident Report
CPL 245 requires the disclosure of certain discoverable items only when the items do in fact exist. After being alerted to the potentially missing body worn camera videos for PO Arnedos and PO Rasmussen and accident report, the People spoke directly to PO Calcero, the Defendant's arresting officer, and PO Rasmussen, to learn whether these items exist. See, Peo. mot. resp, p. 5. The officers assured the People that these items do not exist for this case and the People reiterated the same in their motion response. Id. As officers of the court, prosecutors have a duty to make honest representations to the court . People v. Hameed, 88 N.Y.2d 232 (1996). Accordingly, this Court must rely on the People's assertion, diligent, and good faith efforts that these items do not exist and finds that the People's SCOC was filed in good and faith and was reasonable under the circumstances.
This Court is relying on these Officers' and the People's representation that the body worn camera videos for PO Rasmussen and PO Arnedos and accident report do not exist, however should these items later be found to be in existence, these items will be precluded as evidence.
Giglio Materials for PO Rasmussen
This Court finds no reason to invalidate the People's SCOC for any purported failure to disclose Giglio materials for PO Rasmussen. Defense has not alleged that the People intentionally withheld the documents at issue nor that they failed to exercise due diligence in failing to turn them over sooner. In fact, the People have shown that they consciously considered which officers to call as potential witnesses and whether Giglio materials for this officer existed. Namely, the People immediately, within their statutorily prescribed CPL 30.30 time, requested PO Rasmussen's Giglio materials upon learning of his involvement in the case and the documents he created for the instant matter. See, Peo. mot. resp, p. 5. Here, by requesting PO Rasmussen's Giglio martials in a timely fashion after determining he may be a potential witness, the People have met their "continuing duty to disclose" pursuant to CPL 245.60.
CPL 245.60 provides that "[i]f either the prosecution or 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, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article."
Accordingly, the People are hereby instructed pursuant to their "continuing duty to disclose" to turn over PO Rasmussen's previously requested Giglio materials within two weeks of receipt of this decision.
For these reasons, Mr. Silva's motion to invalidate the People's SCOC dated April 13, 2023, is Denied.
The Court makes the following speedy trial calculations with respect to each adjournment:
January 15, 2023 - March 1, 2023
The case was arraigned and adjourned for the People to provide a supporting deposition. This period is chargeable to the People. 45 days are charged.
March 1, 2023 - April 14, 2023
On April 5, 2023, off-calendar, the People filed with the Court and served on the defense a COC and COR, but later discovered that relevant discoverable items had yet to be turned over. The People concede that these items should have been turned over prior to filing a COC. Accordingly, as explained herein, the COC and COR dated April 5, 2023, did not toll the speedy trial clock and this time is chargeable. After turning over the discoverable items located after April 5, 2023, the People, off-calendar, filed a valid SCOC and COR on April 13, 2023. 43 days are charged.
April 14, 2023 - May 3, 2023
On April 14, 2023, the People were deemed ready for trial. 0 days are charged.
May 3, 2023
On May 3, 2023, the Defendant filed the instant motion with the Court, and the Court provided a motion schedule. The case was adjourned for decision . 0 days are charged.
By the Court's calculation, the total includable speedy trial time amounts to 88 days, within the 90-days permitted for a class A misdemeanor.
Conclusion
For the reasons stated therein, Mr. Silva's motion to invalidate the People's COC dated April 5, 2023, is GRANTED. Mr. Silva's motion to invalidate the People's SCOC dated April 13, 2023, is DENIED. Mr. Silva's motion to dismiss pursuant to CPL 30.30 is DENIED. The People are HEREBY ORDERED to turn over the intoxilyzer documentation and any outstanding Giglio materials, for PO Rasmussen, within two weeks of receipt of this decision. Defense is ordered to provide reciprocal discovery within 30 days from the date of this order and to file a certificate of compliance pursuant to CPL 245.50(2).
This opinion constitutes the decision and Order of the Court.