Opinion
Docket No. CR-024237-20NY
09-30-2021
The PEOPLE of the State of New York, v. Jordan SOZORANGA-PALACIOS, Defendant
The following papers were considered in reviewing this motion by defendant to strike the People's Certificate of Compliance dated February 1, 2021:
Papers Date Filed
Notice of Motion and annexed Exhibits and Affidavits 4/20/21
Affirmation in Response and annexed Exhibits 5/06/21
Affirmation in Reply 5/11/21
Sur-Reply 6/10/21
Court File
Defendant is charged by Information with two counts of Forcible Touching (PL § 130.52 [1] and [2]), both class A misdemeanors and one count of Sexual Abuse in the Third Degree (PL § 130.55) a class B misdemeanor. The Complaint, subscribed by the arresting officer, Detective Michael Orlando, alleges that on November 20, 2020 at about 8:55AM, Defendant touched the buttocks of the complaining witness on a southbound "4" train.
Defendant's motion, 1) seeks to invalidate the People's Certificate of Compliance ("CoC") dated February 1, 2021 pursuant to CPL §§ 245.20 and 245.50 ; 2) seeks Wade, Huntley and Dunaway hearings; and 3) seeks a Sandoval hearing and Molineux disclosure.
Defendant contends that the CoC filed by the People on February 1, 2021 should be invalidated because the People have failed to provide sufficient automatic initial discovery pursuant to CPL § 245.20. Defendant argues that the People failed to provide, 1) adequate contact information for the complaining witness as required by CPL § 245.20(1)(c) ; 2) law enforcement personnel and disciplinary files for the arresting officer and other officers identified in the automatic discovery form dated February 1, 2021 pursuant to CPL§ 245.20(1)(k)(iv), and 3) other evidence with which the arresting officer and other officers came into contact. The People's response stated that they provided all required disclosure. In Defendant's reply, Defendant alleged additional missing items and argued that the CoC should also be struck based upon a missing recording of a call to the NYPD. The People filed a sur-reply in response.
Specifically, the base motion argues that the CoC is invalid because a Disclosure Advisory Form turned over on January 27, 2021, relating to a substantiated violation of police department rules by Detective Orlando, is not accompanied by the underlying documentation of the Internal Affairs Bureau ("IAB") investigation of the complaint. The Disclosure Advisory Form reveals that sometime on or before December 5, 2011, Detective Orlando posted an inflammatory statement containing foul language in a Facebook group and that such conduct constituted a violation of "Other Department Rules." Defendant argues that the People were obligated to turn over the entire file and that the one-page Disclosure Advisory Form about the substantiated complaint was insufficient.
Also, raised for the first time in Defendant's reply papers is the People's failure to turn over the recording of a call made by an MTA worker to the NYPD, that was referenced in a report of an interview with the complaining witness (see CPL § 245.20(1)(g) ). The People's sur-reply states that the referenced call was made on "6wire", an internal system used by the MTA to contact the NYPD, and that a copy of the recording was immediately turned over after Defendant's reply was filed.
Applicable Law
On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law, expanding discovery in criminal cases. Pursuant to CPL § 245.20(1), prosecutors are required to disclose "all items and information that relate to the subject matter of the case that are in the possession, custody or control of the prosecution or persons under the prosecution's direction and control." The section further provides a non-exhaustive list of materials subject to disclosure under this provision ( CPL § 245.20[1][a]-[u] ).
CPL § 245.20(2) requires that, "[T]he prosecutor shall 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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." The section further provides, "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 new discovery statute is unlike the former [CPL former 240.20] and requires the prosecution to provide expansive automatic disclosure to Defendant. Automatic "means that the defendant is not obliged to "demand" discovery; rather, the People are obligated to provide the "automatic" disclosure of the listed items regardless of a defense "demand," and they must do so normally within a short period after arraignment on an accusatory instrument ... [T]he prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute "open file" discovery, or at least make "open file" discovery the far better course of action to assure compliance.... Thus, a prosecutor who fails to engage in "open file" discovery (except for "work product" and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution." (William C. Donnino, Practice Commentary, McKinney's CPL § 245.10.)
CPL § 245.50(3) establishes that the filing of a proper Certificate of Compliance is a prerequisite to the People being deemed ready for trial for the purposes of CPL § 30.30. CPL § 245.50(1) provides in part that, "no 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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." Read together, these sections allow the reasonable inference that a certificate of compliance is proper within the meaning of CPL § 245.50(3) if it is filed in good faith and is reasonable under the circumstances ( People v Perez , 2021 NY Slip Op 21165 [Sup Ct Queens County 2021] ).
Complaining Witness' Contact Information
CPL § 245.20(1)(c) requires that as part of initial disclosure, the prosecution must provide a defendant with, "the names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto...."
There is no dispute that as part of its initial disclosure on January 27, 2021 the People provided, within its "Addendum to Automatic Discovery Form," the name of the complaining witness, along with an indication that the witness could be contacted through the WitCom system. WitCom is an app-based system that allows defense counsel to contact witnesses through a proxy phone number without the witness' personal phone number being disclosed. Defendant contends that the WitCom system does not satisfy the requirements of CPL § 245.20(1)(c). There are conflicting determinations among trial courts with regard whether the WitCom system satisfies the requirements of CPL § 245.20(1)(c). This Court is persuaded by those cases finding that the WitCom system provides defendants with adequate witness contact information (see People v Perez , 2021 NY Slip Op 21165 [Sup Ct Queens County 2021] ; People v Todd , 67 Misc 3d 566 [Sup Ct Queens County 2020] ; People v Escamilla , 70 Misc 3d 1216 [Sup Ct Kings County 2021] ; People v Jean Baptiste ; 70 Misc 3d 706 [Crim Ct NY County 2020] ). The Court declines to follow People v Feng , NYLJ, Feb. 28, 2020, at 21, col 1, 2020 NYLJ LEXIS 501 [Sup Ct Kings County 2020] in which the court found the WitCom system to be inadequate.
Police Officers' Disciplinary Records and Material Underlying the 2011 Substantiated Complaint against Detective Orlando.
CPL § 245.20(1)(k)(iv) requires the People to turn over to a defendant as part of its initial discovery obligation, "all evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to impeach the credibility of a testifying prosecution witness." Defendant contends that the People's failure to provide the full personnel and disciplinary files for Detective Orlando and the other officers identified in Automatic Disclosure Form violates the requirements of CPL § 245.20(1)(k)(iv), thereby rendering the People's CoC invalid. The People respond that after an extensive search they have disclosed all known information required under CPL § 245.20. The People also state that they have conducted multiple searches to investigate the existence of information responsive to the requirements of CPL § 245.20(1)(k)(iv) and have found no indication that Detective Orlando's personnel records or disciplinary records would reveal any further impeachment information beyond what they have already disclosed. It is the People's position that CPL § 245.20(1)(k)(iv) does not obligate them to turn over the underlying materials of the investigation, nor are they obligated to provide an officer's full disciplinary or personnel file as part of their CPL § 245.20 disclosure. Further, the People contend that the one-page Disclosure Advisory Form informing Defendant about a substantiated complaint satisfies the People's obligation under CPL § 245.20(1)(k)(iv).
The People argue that their disclosure obligation is limited by the language of CPL § 245.20(1) to "items and information that relate to the subject matter of the case," as well as the language of CPL § 245.20(2) limiting information "in the possession of any New York state or local police or law enforcement agency [that] shall be deemed to be in the possession of the prosecution," to information "related to the prosecution of a charge." Some Courts (see e.g. People v Perez , 2021 NY Slip Op 21165 [Sup Ct Queens County 2021] ; People v Knight , 69 Misc 3d 546 [Sup Ct Bx County 2020] ; People v Garcia, 2021 NY Slip Op 50791 [Sup Ct Kings County 2021] ) have agreed with this narrow reading of the People's discovery obligations, holding that a prosecutor's obligation is satisfied by the production of a summary of the charges, without the need to disclose the underlying records of the investigation. These Courts have held that the prosecutor's obligation to provide underlying materials is limited to impeachment items connected to the instant defendant's case.
In People v McKinney , 71 Misc 3d 1221 [Crim Ct Kings County 2021], that Court reasoned that the use of the word "all" in CPL § 245.20(1)(k)(iv) is intended to expand the disclosure obligations with regard to impeachment materials beyond those directly related to the current Court action. (See also People v Altug , 70 Misc 3d 1218 [Crim Ct NY County 2021] [holding that CPL § 245.20(1)(k)(iv) is applicable not just to impeachment material related to the defendant's own case, but to matters of general credibility as well].)
In reaching its conclusion that all impeachment material must be disclosed, the McKinney Court examined whether CPL § 245.20(1)(k)(iv) merely codified the requirements of Brady v Maryland , 373 US 83 (1963), or expanded on them. It concluded that "by [abandoning] the materiality requirement of Brady in favor of broader disclosures encompassing all evidence and information which tends to impeach the credibility of a testifying prosecution witness ... irrespective of whether the prosecutor credits the information," CPL § 245.20(1)(k)(iv) intended to expand on Brady . The McKinney Court further found that CPL § 245.20(1)(k)(iv) expanded the scope of impeachment material to include items known to the prosecution or law enforcement agencies whether or not the conduct was related to the officer's official duties, and that such disclosure should include all evidence and information including underlying materials from internal police department investigations, not just summaries.
A similar conclusion was reached by the Court in People v Randolph , [Sup Ct Suffolk County 2020]. The Randolph Court pointed to the language of CPL § 245.20(7) that, "there shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article," in applying a broad interpretation of the statute.
By limiting impeachment related disclosures only to allegations of officer misconduct related to the subject matter of the current case as advocated in Perez and Knight , or by limiting disclosure of impeachment material to material determined by the prosecutor as discoverable, the People would be placed in a position of inordinate control over what should or should not be disclosed to a defendant with regard to the officer's disciplinary file. Given the broadness of the discovery requirements and the intentional, wholesale expansion of these obligations, the better interpretation is the more expansive one that CPL § 245.20(1)(k)(iv) applies to all disciplinary records tending to implicate the credibility of a law enforcement witness, whether the conduct is related to the charges in defendant's case or not. Further, CPL § 245.20(1)(k)(iv)'s use of the word "all" should be read as bringing impeachment material within the meaning of, "related to the prosecution of the charge." Hence, the full IAB files, which are deemed within the possession of the People, are subject to disclosure to the extent they contain impeachment material. (See also People v Salters, 72 Misc 3d 1219 [Dist Ct Nassau County 2021] ; People v. Williams , 72 Misc 3d 1214 [Crim Ct NY County 2021] ; People v Kelly , 71 Misc 3d 1202 [Crim Ct NY County 2021] ; People v Altug , 70 Misc 3d 1218 [Crim Ct NY County 2021] ).
This is not to say that the People have a blanket requirement to turn over full police personnel records as part of their automatic discovery. Rather, pursuant to CPL § 245.20(1)(k)(iv), the People are obligated to turn over law enforcement records which tend to "impeach the credibility of a testifying prosecution witness," even if they are unrelated to the current charges, and that the People are not the arbiter of whether information, in fact, impeaches the credibility of a testifying prosecution witness. Therefore, in this matter, the People are obligated to turn over to Defendant, the underlying documentation relating to the substantiated charge against Detective Orlando.
Recording of 6Wire Call from MTA to NYPD
The People acknowledge that on November 20, 2020, a communication from the MTA to NYPD was made about this matter via 6Wire. It is not disputed that a copy of the electronic communication was not turned over until May 12, 2021. The People offer no explanation for the failure to provide the recording of the 6wire call with the initial disclosure made on January 27, 2021. CPL § 245.20(1)(g) requires a prosecutor to turn over, "all tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident." When a prosecutor is aware of the existence of discoverable recordings, the failure to obtain and disclose them exemplifies a lack of due diligence, even when, as here, the prosecutor later provides the recording after the omission is brought to their attention by a defendant (see People v Aquino , 72 Misc 3d 518 [Crim Ct Kings County 2021] ). Hence, the recording of the 6wire call made on the date of the incident was not turned over in a timely matter.
The people cite CPL § 245.50(1) and CPL § 245.60 in support of their contention that the failure to turn over the recording of the 6wire call with the initial disclosure should not provide a basis to invalidate the CoC. CPL § 245.60 provides that if either party "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 materials with a supplemental certificate of compliance. CPL § 245.50(1) provides that there should be "no adverse consequence to the prosecution" where the certificate is filed "in good faith" and reasonably under the circumstances. This argument is unavailing as the continuing disclosure obligations in CPL § 245.60 relate specifically to materials previously unknown or unavailable to the People. Here, the People were aware of the existence of the communication between the MTA and NYPD, as reference to said communication was contained in the Interview in Person turned over by the People with the initial automatic discovery (see, People v Aquino , 72 Misc 3d 518 [Crim Ct Kings County 2021] ) and said material was available to the People.
"The filing of the certificate of compliance pursuant to CPL § 30.30 (5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50(1) and (3)" ( People ex rel. Ferro v Brann , 2021 NY Slip Op 04897 [2nd Dept 2021] ). The Court finds that the underlying documentation of the substantiated charge against Detective Orlando is discoverable and was not turned over to Defendant prior to the filing of the CoC. Accordingly, the CoC filed by the People on February 1, 2021 is invalid. Further, given the clear language of CPL § 245.20(7) that "there shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25 ;" and as the People did not avail themselves of the opportunity to seek a protective order afforded to them by CPL § 245.70, the People did not rely in good faith in withholding this material. Similarly, the People's failure to, and lack of any explanation for its delay in, turning over the recording of the 6wire call made on the date of the incident renders the February 1, 2021 CoC invalid.
Accordingly, the branch of defendant's motions seeking to invalidate the People's Certificate of Compliance dated February 1, 2021 is GRANTED .
The People are directed to provide all IAB files, in any form, relating to the material contained in the Disclosure Advisory Form turned over on January 27, 2021 relating to a substantiated claim against Detective Orlando to the Defendant no later than October 15, 2021.
The 2nd and 3rd branches of the motion are granted to the extent that Wade/Huntley/Dunaway hearings are to be held prior to trial. The Defendant's request for a Sandoval hearing is referred to the Trial Court.
This constitutes the opinion, decision, and order of the Court.