Opinion
2807/18
03-12-2020
The PEOPLE of the State of New York v. Shameeka TODD, Defendant.
For the Defendant: Janet Sabel, The Legal Aid Society, Queens, New York (David B. Affler, Esq., of counsel) For the People: Melinda Katz, District Attorney of Queens County (Johnnette Traill, Esq., Kew Gardens, Katherine A. Triffon, Esq., Genevieve Gadaleta, Esq., of counsel)
For the Defendant: Janet Sabel, The Legal Aid Society, Queens, New York (David B. Affler, Esq., of counsel)
For the People: Melinda Katz, District Attorney of Queens County (Johnnette Traill, Esq., Kew Gardens, Katherine A. Triffon, Esq., Genevieve Gadaleta, Esq., of counsel)
Joseph A. Zayas, J.
New York's new discovery statute requires the prosecution to disclose to defendant "[t]he 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" ( CPL 245.20 [1] [c] ). Two novel issues are raised by this motion, in which defendant challenges the People's discovery compliance. The first is whether the People satisfy their statutory obligation to disclose to defense counsel "adequate contact information" ( CPL 245.20 [1] [c] ) by utilizing a portal administered by Verizon, which allows counsel to contact witnesses by telephone without requiring disclosure of the witnesses' personal phone numbers. The second issue is whether the People have a duty, under CPL 245.20 (2) — which requires the prosecutor to "make a diligent, good faith effort to ascertain the existence of [discoverable] material or information ... where it exists but is not within the prosecutor's possession, custody or control" ( CPL 245.20 [2] ) — to attempt to ascertain the names of anonymous 911 callers.
Background
Defendant Shameeka Todd is charged with six counts of assault in the first degree, among other related offenses, in connection with an incident that occurred on September 4, 2018, during which she allegedly threw a liquid containing sulfuric acid at three individuals, causing burns to their faces, heads, shoulders, and arms. Three individuals (who were not the victims) called 911 to report the alleged assaults. One of the callers refused to give her name to the 911 operator, stating that she did not "want to be involved in none of this." She hung up before EMS was connected to the call. The second caller gave the 911 operator her phone number and last name (and also spelled it out). The third caller gave the 911 operator her address, including her apartment number, and confirmed her phone number to EMS personnel; she was not asked for her name.
The People provided unredacted recordings of the 911 calls to the Court in connection with this motion. The Court assumes, given the nature of defendant's motion, that certain information, including personal phone numbers and home addresses, was redacted from the recordings provided to the defense.
Beginning on January 14, 2020, the People filed a series of certificates delineating their compliance with their discovery obligations, as required by section 245.50 (1) of the Criminal Procedure Law. This compliance provision is a significant component of the overhaul of New York's criminal discovery laws that took effect on January 1, 2020. Of particular relevance here, in a "Disclosure Addendum" dated January 22, 2020, the People provided the defense with the names and contact information for several non-law enforcement witnesses (see CPL 245.20 [1] [c] ). The People, however, did not provide the 911 callers' names (even though they were designated as potential trial witnesses) — they were simply referred to as callers 1, 2, and 3. And, instead of disclosing the callers' phone numbers (or any other form of contact information), the People provided a unique numeric code assigned to each witness to enable defense counsel to contact them through a Verizon service called the "Witness Communication Program" (referred to in this decision as the "Verizon Portal" or "the Portal"). In order to use the Verizon Portal, defense counsel must first register with the system by providing a phone number and then going through an authentication process. Witness phone numbers are registered with the Portal by the District Attorney's Office (both land line and cellular phones are compatible); each witness is assigned a unique numeric code that is associated with the witness's phone number. Defense counsel initiates a phone call through the Portal by dialing a toll-free number and following a series of prompts. Essentially, counsel enters the witness's code number and then records an "audio note." At that point, several things can happen. If the witness — who will be aware that he or she is receiving a call through the Portal — answers the phone, the audio note will play. The witness then has the option of accepting or rejecting the attorney's phone call. If, on the other hand, the witness does not answer the call and his or her voicemail picks up, the attorney's audio note will be recorded there. According to the People, "as a general policy, [they] are encouraging all witnesses to answer [calls from the Portal] even if [just] to inform [defense] counsel that the witness does not want to speak about the case."
See CPL 245.50 (1) ("When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance 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. It shall also identify the items provided.").
See Verizon Witness Communication Program Instructions, attached to defendant's motion as Exhibit 4; February 13, 2020, Affirmation of Assistant District Attorney Lauren M. Henigman (explaining how one uses the Portal system).
Shortly after receiving the People's January 22, 2020 "Discovery Addendum," defendant contested the People's discovery compliance on two grounds. She argued that the People had an obligation, under CPL 245.20 (1) (c), to attempt to ascertain the names of the three 911 callers and provide that information to the defense. More broadly, she asserted that utilizing the Verizon protocol, instead "of providing contact information that would permit defense counsel to directly contact [the 911 callers], does not satisfy the prosecution's obligation ... to provide ‘adequate contact information’ " for those witnesses. The Court agrees with defendant's first contention but rejects the second.
Discussion
On January 1, 2020, a major overhaul of New York's criminal discovery laws took effect. As mentioned above, CPL 245.20 (1) (c) now requires that the prosecution disclose to the defense "[t]he 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" ( CPL 245.20 [1] [c] ) — and, generally, to do so within 15 days of the defendant's arraignment ( CPL 245.10 [1] [a] ). The statute does not define "adequate contact information." Nor does it give any examples of what methods of communication meet the standard. It does say that the disclosure of "physical addresses" is not required — though a court may order the disclosure of such information upon a showing of "good cause" ( CPL 245.20 [1] [c] ). The People's Duty to Attempt to Ascertain the Names of the Anonymous 911 Callers
Defendant first argues that the People have an obligation to attempt to ascertain the names of the three 911 callers. The People disagree. They assert that they do not know the names of the callers — with the possible exception of one of them, whose last name, they claim, is difficult to discern from the recording of her 911 call. And, in the People's view, "they cannot be compelled to disclose what is not in their possession or under their control."
The new discovery statute, however, refutes that position in this scenario. Section 245.20 (2), entitled "Duties of the [P]rosecution," requires the prosecutor to "make a diligent, good faith effort to ascertain the existence of [discoverable] material or information ... 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] ). The names of witnesses, of course, constitute discoverable information. Thus where, as in this case, the People have the phone numbers of witnesses, but do not know their names, the statute imposes on them an obligation to make a diligent, good faith effort to "cause [that] information to be made available for discovery" (id. ).
CPL 245.20 (2) does not require the prosecutor "to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL 245.20 [2] ). But without the 911 callers' phone numbers or addresses — which the defense does not possess — the Court cannot conceive of how their names could be obtained by subpoena. The statute also does "not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency" (id. [emphasis supplied] ). But the 911 callers unquestionably exist, so this provision does not support the People's position that they have no obligation to attempt to ascertain the callers' names.
This does not mean that the People's efforts to obtain the witnesses' names must be successful. One of the 911 callers refused to provide her name to the operator and ended the call before she could be connected to EMS. So, it seems likely that she will be similarly disinclined to provide her name to the District Attorney's Office. The other two callers, though, were far less reticent. One, as noted, gave her phone number and last name to the 911 operator — and did so quite clearly, contrary to the People's suggestion that the name was difficult to decipher from the recording of the call. The other caller provided her phone number and address, though she was not asked for her name. With respect to these two individuals, then, the People are currently able to provide the defense with one of their last names, and they may, with a reasonable degree of effort, be able to provide full names for both. Again, that may not prove to be the case. But CPL 245.20 (2) requires that the People at least try to obtain this information before affirming that they have "disclosed and made available [to the defense] all known material and information subject to discovery" ( CPL 245.50 [1] ).
During oral argument regarding this motion, the Court expressed to the People its view that they had an obligation to attempt to ascertain the names of the 911 callers. The People thereafter attempted to contact the witnesses and documented the results of their efforts in a Disclosure Addendum, dated March 2, 2020, which was served on defense counsel and filed with the Court.
The Verizon Portal As A Form of Adequate Contact Information
Defendant next argues that, even for named witnesses, the Verizon Portal does not constitute the sort of "adequate contact information" that the statute requires. More specifically, she contends that certain deficiencies she sees with the Portal's functionality should foreclose its use in all cases. The Court disagrees.
Adequate contact information, as noted above, is not defined in article 245 of the Criminal Procedure Law. Nor does the statute provide examples of methods of communication that are sufficient, or, for that matter, list methods that are inadequate. Accordingly, "[the Court's] task — as it is in every case involving statutory interpretation — is to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent" ( People v. Roberts , 31 N.Y.3d 406, 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 [2018] [internal quotation marks omitted] ). "[Since] the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" ( People v. Golo , 26 N.Y.3d 358, 361, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015] [internal quotation marks omitted] ).
For this reason, defendant's reliance on the canon of statutory interpretation that holds that the Legislature's failure to include something within a list of items is strong evidence that the "exclusion was intended" (Defendant's January 30, 2020, Memorandum of Law, at 4, n.3, quoting People v. Tychanski , 78 N.Y.2d 909, 911, 573 N.Y.S.2d 454, 577 N.E.2d 1046 [1991] ), is misplaced. CPL 245.20 (1) (c) does not include a list of acceptable forms of witness contact information; thus, the failure to expressly authorize the use of a portal like this one is meaningless.
The most consequential word in the phrase "adequate contact information" is "adequate." According to Merriam-Webster's online dictionary, adequate means "sufficient for a specific need or requirement." Other definitions include "good enough" and "of a quality that is good or acceptable." Merriam-Webster lists "all right," "decent," "passable," and "serviceable," among other words, as synonyms for adequate (Merriam-Webster Online Dictionary, definition of "adequate," available at https://tinyurl.com/twpjc9w). Adequate, then, does not mean perfect, infallible, or foolproof. Put another way, an adequate method of accomplishing something may be effective in most cases, but might sometimes, for various reasons, work imperfectly. One would not say, for example, that a detergent is inadequate for doing laundry just because it might not remove every conceivable kind of stain, or that a car is inadequate because it does not have automatic windshield wipers.
The most reasonable inference to be drawn from the choice of the word "adequate" — instead of a word with a more exacting connotation — and the decision not to prescribe a particular form (or forms) of contact information that the prosecution must provide to comply with their discovery obligations, is that the Legislature intended to allow for flexibility in this area. After all, some witnesses might be more comfortable being contacted by email, while others might prefer to be reached by phone. And some District Attorney's Offices might have the financial resources to employ a system like the Verizon Portal, while others might not.
Defendant apparently agrees with this position. He notes that "[w]hat is ‘adequate’ to enable a fair opportunity to ‘contact’ a witness will vary from case to case."
Given the statutory language, the Court has little difficulty concluding that the Portal comports with the requirement of disclosing to the defense "adequate" witness contact information. The Portal provides defense counsel with a straightforward, user-friendly way to contact witnesses by phone. If the witness answers the call, he or she will hear an audio message recorded by defense counsel and can then decide whether or not to speak with counsel. If the witness does not pick up the call, the audio note will be recorded on the witness's voicemail. At that point, of course, the witness can choose to call the attorney back. Or the attorney can make follow-up calls to the witness — who, it bears mentioning, will have been encouraged by the prosecutor to communicate with defense counsel.
If the witness wishes to maintain the secrecy of their phone number, they could, of course, use a caller ID blocking service, such as *67 (see Caller ID and Caller ID Blocking FAQs, Verizon Wireless, available at https://www.verizonwireless.com/support/caller-id-block-faqs/).
Using the Portal, then, is effectively the same thing as having the witness's phone number. It is, at least, an adequate substitute for that information. The Court, therefore, rejects defendant's contention that the People's use of the Portal is tantamount to not providing the defense with any contact information at all. True, when the People utilize the Portal, they do not provide the witness's actual phone number. But the statute does not require that. It requires disclosure of "the names and adequate contact information" ( CPL 245.20 [1] [c] ) for witnesses, not their names and personal phone numbers. It seems obvious to this Court that adequate contact information, in this context, simply means providing a reasonably effective method by which defense counsel can attempt to communicate with witnesses. And there is no reason, given the statutory language, that cannot include a new method of communication created specifically for receiving communications related to the criminal case — as opposed to requiring disclosure of a personal phone number, email address, or any other form of contact information that the witness already possesses. At any rate, once the witness's phone number is registered with the Portal, the unique numeric code assigned to the witness is, for all intents and purposes, part of that person's contact information (in much the same way that once an email account is created with a service provider, that email address belongs to the account holder) and therefore satisfies the statutory requirement.
Recently, a New York County judge interpreted the statute the same way (see Transcript of February 27, 2020, proceedings, People v. Bruce Frisko , New York County Ind No 2769/2019 [Sup Ct, NY County, Paek, J.] [holding that a similar application, called WITCOM, "is adequate in terms of providing a means of communication with witnesses"] ).
The Court, moreover, is confident that this conclusion is consistent with the Legislature's motivations in enacting discovery reform. To be sure, as defendant emphasizes, the new statute embodies a "[p]resumption of openness," as well as "a presumption in favor of disclosure" ( CPL 245.20 [7] ). But it also includes a more lenient standard that prosecutors must meet when seeking protective orders allowing them to, among other things, delay the disclosure of discoverable materials or restrict disclosure to defense counsel only (see People v. Phillips , 67 Misc.3d 196, 201, 120 N.Y.S.3d 727, 732, 2020 N.Y. Slip Op. 20033, at *4 [Sup. Ct., Bronx County 2020, Fabrizio, J.] ) — a reasonable compromise given the accelerated discovery deadlines contained in the new statute and the significantly broader array of materials that the prosecution is now required to disclose. This sort of balancing is also reflected in the fact that, although the statute requires the disclosure of adequate witness contact information, generally, physical addresses do not have to be revealed. Use of a system like the Portal likewise strikes an appropriate balance between the benefits that inure from the timely disclosure of information and evidence to the defense — most significantly, the ability to thoroughly investigate the allegations against the defendant — and the legitimate concerns witnesses may have about their personal contact information being shared with defendants who, in some cases, are accused of very serious crimes. Indeed, as the People point out, a savvy Internet researcher can use a personal phone number to learn all sorts of things about a person, including their home address. The Court is disinclined to believe the Legislature would disapprove of a system — like the Portal — that can mitigate the more problematic potential consequences of disclosing personal contact information, while at the same time providing an effective means for defense counsel to communicate with witnesses.
Defendant claims the opposite is true. She says that, during the debates that led to the enactment of the new discovery statute, the Legislature rejected a proposal drafted by the New York County District Attorney's Office that would have allowed for the use of a "secure online portal" as a way for prosecutors to meet their obligations under CPL 245.20 (1) (c). Thus, her argument goes, the Portal being utilized in this case cannot be deemed adequate contact information. But there are several problems with this contention. For one thing, defendant does not explain how the proposed secure online portal — which could mean any number of things — was supposed to work; therefore, the Court has no way of knowing if the system that was supposedly contemplated functioned in a distinguishably different manner from the Verizon Portal being used in this case. And, beyond that deficiency, defendant has failed to prove that such a proposal was considered and then rejected by the Legislature. She has not, for example, cited to any of the debates that took place in the Senate or the Assembly in the lead-up to the passage of the new statute.
The People, for their part, state that the possibility of a witness communication portal was "never discussed during floor debates." But it is not clear to the Court how the People came to this conclusion.
In any event, assuming defendant's account of the online portal proposal is basically correct — in other words, that there was such a proposal, but it did not become law — the fact remains that all the statute requires is the provision of adequate contact information. It does not require the disclosure of any particular kind of contact information; nor does it say that any particular method of communication (including a system like the Portal) is per se inadequate. The Legislature could have easily done either of those things, but it did not. Thus, whatever Legislative back-and-forth regarding a witness communication portal may have occurred, it cannot change the statutory text to say something it does not. "[A]mbiguous legislative history," of course, should not be used "to muddy clear statutory language" ( Milner v. Department of Navy , 562 U.S. 562, 572, 131 S.Ct. 1259, 179 L.Ed.2d 268 [2011] ); see also People v. Graham , 55 N.Y.2d 144, 151, 447 N.Y.S.2d 918, 432 N.E.2d 790 [1982] ["(w)hen the Legislature enacted the statutes and when the Governor signed them into law, they stood for what their words manifested and not the inner thoughts of a draftsman or adviser"] ).
Aside from arguing that the Legislative history forecloses the use of the Portal, defendant also identifies a number of complications that could arise when using it in an attempt to demonstrate its inadequacy. These potential deficiencies, in defendant's view, undermine her right to the effective assistance of counsel, inasmuch as they might impede defense counsel's ability to effectively investigate this matter. At this point, it is appropriate to observe that, during oral argument regarding this motion, defense counsel admitted that he had not tried to contact the 911 callers through the Portal. So, defendant is not in a particularly authoritative position to opine on the Portal's shortcomings. The Court, nevertheless, will address defendant's contentions.
According to defendant, the Portal is flawed in several respects. For example, she suggests that, when using the Portal, "the defense [will] never know[ ] whether the lack of any response from the witness" indicates an unwillingness to speak. Along the same lines, she asserts that there is no way of knowing whether the person who answers a call through the Portal is "the actual witness," as opposed to someone else who just happened to pick up the phone. Defendant further contends that use of the Portal could be ineffective in certain scenarios. She expresses concern, for instance, about contacting non-English speaking witnesses as well as unnamed witnesses — such as anonymous 911 callers — because initiating a telephone conversation with a stranger whose name defense counsel does not know is less than ideal. Defendant also points out the possibility that a witness may have used a different person's phone to call 911, in which case the owner of the phone might be thoroughly confused by a Portal call from a criminal defense attorney.
This possibility, defendant contends, could lead to difficulties impeaching a witness at trial with statements he or she made during a Portal-enabled phone call, since the witness could easily deny having ever had the conversation. But this is an exceedingly speculative concern in this case, since, as mentioned, defense counsel has not attempted to speak with any of the three witnesses for whom the People have provided the Portal as contact information, and thus has not obtained any conceivable material for impeachment. Moreover, the likelihood of any of the three witnesses being called by the People to testify seems slim — notwithstanding their designation as potential trial witnesses — given the People's apparent disinterest in learning the witnesses' names. The reality of impeaching these individuals, then, does not appear to be substantial.
There are several responses to these potential difficulties. First, as the Court has already explained, an adequate method of accomplishing something may not, in all cases, work seamlessly. Therefore, the fact that defendant has identified several scenarios (which seem to be, if not highly unusual, at least outside of the norm) in which use of the Portal might be ineffective, is not enough to render the system inadequate as a general matter.
Perhaps more to the point, the various shortcomings defendant has offered as proof of the Portal's insufficiency are not unique to the Portal. For example, even if defendant had a witness's personal phone number, counsel's attempts to contact the witness could be ignored and defendant would have no way of knowing for sure whether there was a communication glitch or whether the witness was simply disinclined to speak about the case. With respect to defendant's assertion that attempting to contact an anonymous 911 caller through the Portal might be challenging, the Court cannot see how having the caller's personal number would make this outreach appreciably easier — since anonymous callers, by their very nature, presumably wish to remain that way. And, in the event that a witness has called 911 from someone else's phone, there will likely be difficulties reaching that person regardless of whether defense counsel calls directly the phone that was used to call 911 or uses the Portal to call that number. Lastly, the Portal includes translation services, which should alleviate defendant's concerns regarding contacting non-English speakers.
There is another reason, though, that potential problems with the Portal that might occur in particular cases do not justify holding that it is inherently inadequate, as defendant is asking the Court to do. The statute, as mentioned, authorizes the court to order the People to disclose to the defendant a witness's "physical address" if the defense can show "good cause" ( CPL 245.20 [1] [c] ). And, in cases in which the defense can establish the importance of communicating with a particular witness, and an inability to reach that witness through the Portal, a judge may very well order disclosure of the witness's address (at which point the People might offer to provide the witness's personal phone number). The possibility of resorting to this alternative means of facilitating defense communication with witnesses supports the Court's conclusion about the Portal's overall adequacy.
Beyond these logistical qualms, defendant also asserts that use of the Portal will diminish the likelihood of defense counsel/witness communication by sending an implicit message to witnesses that direct contact with defense counsel is somehow "danger[ous]" and, therefore, "there needs to be some kind of buffer between a defense attorney and the witness." Along the same lines, defendant suggests that witnesses might mistakenly believe that the prosecutor "is surveilling whether they or did not speak with the defense," not understanding that the Portal is administered by a third-party and the prosecution has no ability to monitor it use.
The Court is not persuaded that these speculative concerns render the Portal inadequate. In fact, in the Court's opinion, the Portal is likely to increase witnesses' communication with defense counsel, since they can do so in a way that shields their private contact information (cf People v. Feng , NYLJ, Feb. 28, 2020, at 21, col. 1, 2020 NYLJ LEXIS 501, at *5 [Sup. Ct., Kings County 2020, Sciarrino, J.] [observing that "witness[es] may feel more comfortable in using an anonymized number, and may respond, when they may otherwise have ignored and/or blocked the call"] ). The Court is also of the view that witnesses will appreciate the measure of privacy the Portal provides without drawing the inference that the rationale for using it is that there is some element of danger inherent in communicating with an agent of the defendant.
Nor does the Court believe that a substantial number of witnesses will suspect that the prosecution is surveilling Portal communications. But to the extent that were a legitimate concern, clarification from the prosecutor to the effect that the Portal is not controlled by the District Attorney's Office, and that the Office, in fact, has no ability to monitor its use, should suffice to dispel it.
Given these conclusions regarding the Portal's overall efficacy, and that its use should not deter witnesses from speaking with defense counsel, the Court rejects defendant's contention that using the Portal infringes on her right to the effective assistance of counsel by impeding her attorney's ability to conduct a thorough investigation of the case.
Defendant further claims that two cases, People v. He , 34 N.Y.3d 956, 112 N.Y.S.3d 1, 135 N.E.3d 1081 (2019), and People v. Feng , People v. Feng , NYLJ, Feb. 28, 2020, at 21, col 1, 2020 NYLJ LEXIS 501 (Sup Ct, Kings County 2020), compel the conclusion that the Portal does not provide adequate witness contact information. The Court will address each case in turn.
In He , the People refused defendant's pre-trial request for the contact information of two witnesses who possessed information that was indisputably favorable to the defense ( He , 34 N.Y.3d at 958, 112 N.Y.S.3d 1, 135 N.E.3d 1081 ). Instead, the People "offered to provide the witnesses with defense counsel's information" — apparently so the witnesses could reach out to counsel, if they were so inclined ( id. ). The People insisted on this indirect method of communication, even though they raised no concerns about risks to the witnesses' safety ( id. ). The Court of Appeals reversed defendant's conviction, holding that the manner in which the People proposed facilitating contact between defense counsel and the witnesses was inadequate to permit investigation of those witnesses' accounts, and that there was a reasonable possibility that, if the defense had meaningful access to the witnesses, the result of the trial would have been different ( id. at 958—59, 112 N.Y.S.3d 1, 135 N.E.3d 1081 ).
Defendant argues that by using the Portal, the People in this case are doing exactly what the People did in He — that is, failing to provide the defense with a fair opportunity to contact witnesses. The Court disagrees.
Initially, it is worth noting that He involved witnesses who possessed Brady material. No similar claim is being made here. In fact, during oral argument on this motion, defense counsel expressly stated that, to his knowledge, the 911 callers do not have information that is favorable to the defense. The Court, having listened to the calls, agrees with that assessment.
But beyond that distinction, there is an obvious difference between the People giving witnesses a defense attorney's phone number and informing the witnesses that counsel would like to speak with them, on the one hand, and providing counsel with a means (like the Portal) to contact the witnesses themselves, on the other. In the former scenario, counsel has no way of reaching out to the witnesses; he can only sit idly by and hope for a phone call. The People, in effect, serve as gatekeepers for the witnesses and any information that they may have. In the latter scenario, though, counsel can be proactive. He can attempt to contact the witnesses through the Portal — which, as emphasized, the People do not control — and leave messages if his calls are not answered. And, as discussed above, if that fails, he might be able to later convince a judge to order the People to disclose the witness's physical address, which may, in turn, result in a compromise by the People to provide the witness's actual phone number or email address. In short, the Court sees nothing but the most superficial connection between how the People attempted (or didn't attempt) to facilitate communication between witnesses and defense counsel in He and how the People have addressed that issue in this case.
Turning to the court's recent decision in People v. Feng , holding that WitCom — a smartphone application that facilitates communication (by text message or voice call) between defense attorneys and witnesses without revealing either party's phone number — does not satisfy the "adequate contact information" requirement, the Court declines to follow that decision, as the Court believes that its analysis is flawed in several respects. In rejecting the use of WitCom, the court in Feng accepted the argument that there is no meaningful distinction between a prosecutor "simply giv[ing] the defense attorney's contact information to [witnesses]," which the Court of Appeals disapproved of in He , and using an app like WitCom, which, like the Portal, allows defense counsel to contact witnesses by phone. The court also found that WitCom "short-circuits the adversarial process by inserting the prosecutor (or their app) as an intermediary between defense counsel and [the] witness" — even though, just a paragraph earlier, the court acknowledged that "[i]n some situations," an app like WitCom might "encourage communications between ... witness[es] and defense counsel," because witnesses "may feel more comfortable ... using an anonymized [phone] number" (Feng , 2020 Lexis NYLJ 501, at *5—6).
There are, as the People point out, differences between the ways in which WitCom and the Portal operate. Perhaps most significantly, defense counsel must download the WitCom app onto their smartphone, a step that is not required to use the Portal (though the Portal does require registration). But any such distinctions between the two services are not particularly significant for purposes of resolving this motion, since the Feng court's reasons for concluding that WitCom does not provide adequate witness contact information are, for the most part, equally applicable to the Portal.
The Feng court, moreover, apparently accepted the position, advanced by the defense in this case, that creating a new form of contact information to enable witness communication with defense counsel is no better than providing the defendant with no witness contact information at all. The court wrote that "WitCom — although a novel approach to witness communications — [amounts to] a lack of information" (id. at *6). "In today's day and age," the court continued, the only forms of contact information that can satisfy the statute are "an active and verified cell phone number or email address, no more and no less" (id. ). Underlying all of this, it seems, was the court's belief that defense attorneys are, "by necessity and their nature, ... distrustful of the government," so it would just not be fair to make them download an app that had been paid for by a District Attorney's Office (id. at *7).
As should be apparent from the Court's analysis of the Portal's adequacy, it does not find this reasoning persuasive. This Court has already thoroughly explained why it rejects the assertion, which was embraced in Feng , that asking a defense attorney to contact a witness through a service or app that shields the witness's personal phone number is no different from simply passing the attorney's phone number on to the witness (see pages 504 –07, supra ). There is no need for the Court to reiterate that explanation here.
The Court also disagrees with the Feng court's characterization of WitCom as effectively "inserting the prosecutor ... as an intermediary between defense counsel and witness." As far as the Court can tell from the Feng decision, WitCom, like the Verizon Portal, does not allow for the prosecution to monitor defense counsel's communications with witnesses. And, even if the Feng court is correct in its belief that the fact that the app has been paid for by a District Attorney's Office might make some defense attorneys squeamish, that, of course, has no bearing on whether the app provides an adequate means of contacting witnesses.
The biggest problem with the Feng decision, though, is that it effectively rewrites the statute by substituting the phrase "active and verified cell phone number or email address" for "adequate contact information." What the decision does, in other words, is transform a flexible standard into a rigid one. And that is not statutory interpretation; it is statutory redrafting. At the risk of being repetitive, if the Legislature wanted cell phone numbers or email addresses to be the exclusive forms of acceptable witness contact information, that would have been an easy enough thing to accomplish. But the Legislature chose not to do that, opting instead for flexible statutory language mandating the provision of "adequate contact information." This Court, accordingly, declines to follow Feng .
Finally, defendant's assertion that the Supreme Court's decision in Wardius v. Oregon , 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), requires perfect equivalence between reciprocal discovery obligations imposed on the defense and the initial discovery obligations borne by the prosecution — and thus does not allow the prosecution to utilize a Portal because the defense is required to disclose the physical addresses of individuals it intends to call as trial witnesses (see CPL 245.20 [4] [a] [b] ) — is unavailing.
Wardius involved a challenge to an Oregon notice-of-alibi rule that did not provide for any reciprocal discovery to the defense ( id. at 471—72, 93 S.Ct. 2208 ). In fact, at the time, criminal defendants in Oregon had "no discovery rights" ( id. at 475, 93 S.Ct. 2208 ). In reversing Wardius's conviction, the Court observed that "[i]t is fundamentally unfair to require a defendant to divulge the details of his own case while at the same subjecting him to the hazard of surprise concerning refutation of the very piece of evidence which he disclosed to the State" ( id. at 476, 93 S.Ct. 2208 ). "Read narrowly, Wardius held merely that a state alibi notice statute violates due process if it fails to provide for any reciprocal discovery.... Read very broadly, however, Wardius held that where a defendant is required to provide alibi-related discovery, due process requires a trial court to prevent unfair, irremediable surprise by the prosecution" ( Vasquez v. Strack , 228 F.3d 143, 149 [2d Cir. 2000] ).
New York's notice-of-alibi statute — which predates CPL 245.20 and which was not revised by the new discovery statute — requires that, for witnesses that the People intend to call to rebut an alibi defense, they must provide "the defendant or his counsel" with those witnesses' "residential addresses, the[ir] places of employment and the addresses thereof" ( CPL 250.20 [2] ). Thus, with respect to this particular type of witness, the People are not currently permitted to use a system like the Portal. Clearly, then, there is no reason for the Court to decide whether a hypothetical statute that required the provision of "adequate contact information" for such witnesses, instead of physical addresses, would run afoul of Wardius .
To the extent defendant is arguing that any asymmetry between the prosecution's and the defense's discovery obligations contravenes Wardius , the Court disagrees. Wardius "did not establish a constitutional rule that a defendant and the state must be treated identically in all [discovery-related] respects" (State v. Upton , 339 Or. 673, 125 P.3d 713, 721 [2005] ).
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In sum, the People are directed to attempt to contact the three 911 callers for the purpose of ascertaining their names and thereafter to report the results of these efforts to the Court and defense counsel. The People, however, are not required to disclose the phone numbers of those three witnesses to the defense, since the Portal provides an adequate means of contacting them.
This constitutes the decision and order of the Court.