Opinion
Docket No. CR-025563-21NY
02-06-2024
The People of the State of New York v. Anthony Viafara, Defendant.
ROBERT ROSENTHAL, J.
By motion of November 8, 2023, defendant moves for an order deeming invalid the People's certificate of compliance (COC) and dismissing the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) (b). The People responded on December 8, 2023. On January 11, 2024, after a review of the motion papers, exhibits, and the court file, the court issued an oral decision, on the record, granting defendant's motion to dismiss. This Decision and Order provides the court's reasoning.
On January 4, 2024, defendant filed a supplemental speedy trial motion challenging the COC for failure to disclose the knife (the alleged weapon in this case), as well as a photograph of the knife. The court's decision on the instant motion renders the supplemental motion moot.
Relevant Facts and Procedural History
On October 31, 2021, defendant was arraigned on an accusatory instrument charging him with Menacing in the Second Degree (Penal Law § 120.14 [1]), a class A misdemeanor, and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]). The case was adjourned 43 days to December 13, 2021, for conversion. The People filed a superseding information off-calendar, adding a harassment charge, which was filed on EDDS on December 13, 2021.
On the court date of December 13, 2021, the People were not ready, and the defendant did not appear. The case was adjourned to December 16, 2021, for the defendant to appear. On December 16, 2021, the defendant did not appear, and a bench warrant was ordered.
On March 11, 2022, defendant was arrested on a new charge and was returned to court, where the warrant in this case was vacated. The case was adjourned 39 days to April 19, 2022, for trial.
On April 19, 2022, the People were not ready and defendant did not appear. The case was adjourned to April 22, 2022, to the warrant calendar, for defendant to appear. When defendant did not appear on that date, a warrant was ordered.
The case was back on the calendar on August 3, 2023, when defendant was again arrested on a new charge and returned on the warrant in this case. The matter was adjourned to August 8, 2023, to join defendant's other cases.
On August 8, 2023, the People filed and served a certificate of compliance (COC), certificate of readiness (COR), and an automatic discovery form (ADF), off-calendar. The discovery list included an ICAD report, which is a written record of a 911 call. The District Attorney's form ADF has a section for "Lost or Destroyed Documents." The box next to this section is not checked off, and there is no mention in the ADF or COC of the destruction of the 911 call.
The People's affirmation of service states that the COC, COR, and ADF, were served on defense counsel on August 4, 2023, however, defense counsel and EDDS indicate that they were filed on August 8, 2023. The People note that they shared discovery with the defense on both August 4 and August 8. Since the speedy trial clock was not running during this four-day period because the case was not adjourned for trial, the discrepancy is immaterial.
On the court date of August 8, 2023, the case was adjourned to September 20, 2023, for trial.
On August 18, 2023, defense counsel sent an email to the assigned assistant district attorney (ADA) notifying him that she had not received any discovery material except for two NYPD property vouchers. The People responded that they had previously sent all material but forwarded it again.
This discrepancy does not affect the speedy trial period and need not be addressed.
On September 13, 2023, defense counsel sent another email to the ADA requesting the 911 call and any police radio transmissions made in connection with the arrest. The ADA responded that the retention period for 911 calls is 365 days, and since the case was more than 365 days old, it would not have been retained. The People contacted the NYPD Tapes and Records Department to request the 911 records. The People were informed by NYPD that 911 recordings and radio transmissions are automatically deleted on day 365, and since both items were beyond the 365-day retention period, they were no longer available.
On September 15, 2023, defendant filed an omnibus motion off-calendar.
On the court date of September 20, 2023, the People announced ready for trial. The case was adjourned to October 11, 2023, for response and decision on defendant's omnibus motion. On that date, the case was adjourned again to November 13, 2023, for the court's decision.
On November 8, 2023, defendant filed the instant motion off-calendar.
On the court date of November 13, 2023, a Mapp/Wade/Dunaway hearing was ordered. The court set a motion schedule for the instant motion. Defendant argues that the original COC was invalid because the People had not timely disclosed the 911 call recording and radio run.
Law
Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b] and [4]). Computation for speedy trial purposes begins on the day after the commencement of the criminal action (see CPL 30.30 [1] [b]; People v Stiles, 70 N.Y.2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 N.Y.2d 859 [1986]; People v Berkowitz, 50 N.Y.2d 333 [1980]).
Pursuant to CPL 245.20 (1), the People must automatically disclose to defendant "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." "[A]ll 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" (CPL 245.20 [2]). CPL 245.20 (2) further directs the People to make a diligent, good faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control, provided that the prosecutor shall not be required to obtain by subpoena duces tecum material which the defendant may thereby obtain.
Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and 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]). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery... was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 A.D.3d 787, 787 [2d Dept 2021], citing People v Aquino, 72 Misc.3d 518, 523 [Crim Ct, NY County 2021]).
The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense (CPL 30.30 [5]). Additionally, pursuant to CPL 245.50 (3), "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."
Discussion
The 911 and radio transmission are discoverable under CPL 245.20 (1)(e) and (g). CPL 245.55 (3)(a) further provides that whenever a 911 call is made, the police must "expeditiously notify the prosecution in writing upon the filing of an accusatory instrument of the existence of all such known recordings." Further, "[t]he prosecution shall expeditiously take whatever reasonable steps are necessary to ensure that all known electronic recordings of 911 telephone calls [and] police radio transmissions... made or available in connection with the case are preserved" (CPL 245.55 [3][a]).
Defendant alleges that the People failed to exercise due diligence prior to the filing of their COC, as they did not request the 911 recording or radio transmission until September 13, 2023, more than a month after filing their purported COC. In response, the People argue that, though they knew of the NYPD one-year retention period for 911 recordings, they were "under no obligation to pursue discovery" while the defendant was in warrant status, that the defendant should not "be rewarded for being a fugitive by having his case dismissed," and that "[t]he destruction of the recording is legally ascribable to the defendant" (People's Affirmation in Response at 6). The People also note that a COC may be filed when discovery items have been lost or destroyed, and that the appropriate remedy would be a sanction under CPL 245.80, not CPL 30.30 dismissal. In the particular circumstances of this case, the People's arguments fail.
When a defendant is not in custody, as was the case here, the People are to perform their initial discovery obligations within 35-days of arraignment (CPL 245.10][1][a][ii]). While there is no statutory penalty for the People's failure to comply with that temporal requirement, practical penalties may result where the People delay compliance.
Here, 43 days elapsed between the date of defendant's arraignment and his failure to appear. The People did not request the 911 recording or make efforts to preserve it during that time. Defendant's day-43 failure to appear has no bearing on the People's discovery obligation during that period. Further, even if the People might have deemed defendant's failure to appear a respite from their discovery obligations, defendant's warrant was vacated when he was returned to court on March 11, 2023. Yet again, the People did not request the 911 recording upon defendant's return. And while 39 days later the defendant failed to appear, that failure had no bearing on the People's discovery obligations that were in effect upon his return. Even if the People might be relieved of their discovery obligations while a bench warrant is in effect, in this case, there were 82 days within the 365-day recording retention period in which defendant's case was in active status. The People had no basis not to comply with their discovery obligations during that time. Had they done so, the 911 recording would have been preserved and disclosed as required by article 245.
In some instances, the People may properly certify compliance where material has been lost or destroyed (see CPL 245.50 [1]; CPL 245.80 [1][b]). In People v Cabrera (74 Misc.3d 597, 603 [Sup Ct, Kings County 2022, Konviser, J]), the court declined to invalidate a COC for the failure to disclose 911 calls that were erased before the People requested them. That case arose, however, and the 911 calls were destroyed, prior to the effective date of article 245. Further, prior to filing their COC, the People in Cabrera acknowledged that the 911 calls and radio runs had been erased (see also People v Smith (73 Misc.3d 1212 [A], 2021 NY Slip Op 511008 [U], *3-4 [City Ct, Albany County 2021] [CPL 245.80 sanctions appropriate where the People failed to obtain 911 recordings "because the People informed defendant of the destroyed evidence" prior to or with the filing of their COC]).
There is also no indication in this case that the People failed to diligently request a 911 recording within a standard retention period.
Conversely, from the outset of the instant case, the People were aware of (it was referenced in their arraignment datasheet), and were obliged to request, preserve, and disclose the 911 call recording. They made no effort to do so. Nor did they acknowledge in their ADF that the 911 recording and radio transmission had been destroyed. Indeed, even in their papers, the People do not cite any efforts made to request the 911 recording or radio transmission prior to their destruction and prior to filing their COC. In People v Ryklin (72 Misc.3d 1208 [A], 2021 NY Slip Op 50678 [U], *2 [Sup Ct, Kings County 2021, Konviser, J]), the court held that the People did not exercise due diligence where they contended they were unaware of a 911 call that was in fact referenced in paperwork prepared at the onset of the case. This case too is about due diligence, not the loss or destruction of material.
That article 245 contains a provision that permits the filing of a COC where material has been lost or destroyed does not absolve the People from their obligation to exercise due diligence prior to the filing of their COC. The Court of Appeals recently considered an article 245 COC challenge in People v Bay (- N.E.3d -, 2023 NY Slip Op 06407 [2023]) . In that case, the Court considered whether the People exercised due diligence prior to filing their COC, despite their failure to disclose a 911 recording, a police report, and a Domestic Incident Report (id.). Among other factors, the court considered "how obvious any missing material would likely have been to a prosecutor exercising due diligence," and "the explanation for any discovery lapse" (id. at *6). They further noted that it is the People's burden to establish that they exercised due diligence prior to filing their original COC (id. at *7). Finally, the Court affirmed that CPL 30.30 dismissal is required when the People fail to file a valid COC within the speedy trial period, and that these provisions are not qualified by CPL 245.85 sanctions or prejudice (id.; see also People v Gaskin, 214 A.D.3d 1353, 1355 [4th Dept 2023], citing People v Adrovic, 69 Misc.3d 563, 574 [Crim Ct, Kings County 2020]). The Bay court concluded that the People's failure to disclose routine items without any mention of their efforts to ascertain their existence did not constitute due diligence, and that their failure to file a valid COC within the speedy trial period requires dismissal (id. at 8; see also People v Barralaga, 73 Misc.3d 510 [Crim Ct, New York County 2021] [holding that discovery statute "does not demand that every scrap of discoverable information be turned over before the People may file a [COC]," however, due diligence would require the disclosure of "fundamental" discovery]).
In this case, the missing 911 recording and radio transmission were obvious pieces of discovery. The People's explanation for failing to request, preserve, and disclose them is unavailing. The People did not describe any efforts to obtain the items prior to the filing of their COC. Pursuant to article 245, due diligence here would have required efforts to preserve or obtain a 911 recording and radio transmission "expeditiously" after arraignment (as required by CPL 245.55 [3][a]), or within 35 days after arraignment (as required by CPL 245.10 [1][a][ii]), or within the one-year retention period, and certainly prior to the filing of their COC. The People do not allege any efforts to obtain the 911 and radio transmission during any of these periods. The People's failure to do so was not attributable to the defendant. Accordingly, the COC was invalid, and the COR, illusory.
Speedy Trial Calculation
October 31, 2021, through December 13, 2021
Defendant was arraigned on October 31, 2021, and the matter was adjourned to December 13, 2021, for conversion. The People did not file a COC or COR during this period, and therefore, the entire period is chargeable (see CPL 245.50). (41 days charged).
December 13, 2021, through March 11, 2022
Defendant failed to appear on December 13, 2021, and a bench warrant was ordered on December 16, 2021. Defendant was in warrant status until March 11, 2022. This period is excludable (see CPL 245.20 [4][c][ii]). (0 days charged; 82 days total).
March 11, 2022, through April 19, 2022
On March 11, 2022, defendant was returned on the warrant, and the case was adjourned to April 19, 2022, for trial. The People did not file their COC or COR during this period. (39 days charged; 82 days total).
April 19, 2022, through August 3, 2023
Defendant failed to appear on April 19, 2022, and a bench warrant was ordered on April 22, 2022. Defendant was in warrant status until August 3, 2023. This period is excludable (see CPL 245.20 [4][c][ii]). (0 days charged; 82 days total).
August 3, 2023, through August 8, 2023
On August 3, 2023, defendant was returned on the warrant. The case was adjourned to August 8, 2023, to join defendant's other open matters. This period is excludable (see CPL 30.30 [4][b]). (0 days charged; 82 days total).
August 8, 2023, through September 15, 2023
Either on August 4 or August 8 (see n. 2 supra), the People filed a COC and COR. As detailed above, the COR did not stop the speedy trial clock. It was not until September 13, 2023, that the People made efforts to ascertain the existence of the 911 call and affirmed that it had been lost or destroyed. The People are therefore charged from August 8, 2023, through September 13, 2023. (36 days charged; 118 days total).
The People did not file a supplemental COC on this date, and it is unclear when the People notified the defense that the subject discovery had been destroyed. It is not necessary to evaluate whether the People should be charged from September 13, 2023, through September 15, 2023, since the speedy trial period was already exceeded.
September 15, 2023, through January 11, 2024
On September 15, 2023, defendant filed an omnibus motion, and the clock has remained stopped for the instant motion and the court's decision (CPL 30.30 [4][a]).
Conclusion
Defendant's motion to invalidate the COC is granted. As the People are charged with a minimum of 118 days, in excess of the 90-day speedy trial period, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is also granted.
The foregoing constitutes the opinion, decision, and order of the court.