Opinion
No. 2024-50757 Indictment No. 74689/2023
06-18-2024
The People of the State of New York v. Michael Villota, Defendant.
ADA Marina D. Shew (Queens County District Attorney) for the People. Dorothy Hughes, Esq. (Queens Defenders) for the Defendant.
Unpublished Opinion
MOTION DECISION
ADA Marina D. Shew (Queens County District Attorney) for the People.
Dorothy Hughes, Esq. (Queens Defenders) for the Defendant.
MICHAEL J. YAVINSKY, A.J.S.C.
The Defendant, Michael Villota, has submitted an omnibus motion, dated April 30, 2024, seeking: invalidation of the People's certificate of compliance and dismissal of the indictment; inspection of the Grand Jury minutes and reduction or dismissal of the indictment; a Bill of Particulars; the preservation and production of recordings; any and all Brady material; and the reservation of rights to make further motion. The People's response, dated May 28, 2024, provides a Bill of Particulars but otherwise opposes the relief sought. The Court decides the motion as follows:
The Defendant's Motion to Invalidate the People's Certificate of Compliance
The Defendant has moved to invalidate the People's certificate of compliance because he argues that there are four categories of discovery which have not been disclosed and are therefore in dispute:
1) police disciplinary records and other impeachment material; 2) DIRs and Orders of Protection; 3) Police Officer Daly's handwritten notes; and 4) Police Officer Greenaway's body-worn camera video from an interview of the complainant. In their response, the People affirm that the discovery disclosure made in connection with their original certificate of compliance was comprised of 169 sets of files which contained hundreds of pages of material and hundreds of attachments including hours of body-worn camera footage, multiple sets of DD5s, and materials related to at least six home visits conducted after the incident. The Court will now address each category in dispute:
1) Police Disciplinary Records and Other Impeachment Material
The Defendant argues that the People's certificate of compliance was not valid because the People did not disclose an unredacted personnel index report, unredacted impeachment information from the Queens County District Attorney's Office's own internal misconduct database, unredacted disciplinary decisions from the NYPD's Department Advocate's Office database, and unredacted Command Discipline System Entries. In their response, the People state that they provided Law Enforcement Officer Witness (LEOW) letters for nine police officers who were identified as potential witnesses at trial. The People argue that they were not required to disclose any underlying records not in their possession and that their redactions were appropriate. Finally, the People argue that they need only disclose disciplinary records which are "related to the subject matter of the case".
The People have complied with their discovery obligations regarding law enforcement disciplinary records, and their failure to disclose the additional material requested by the Defendant does not invalidate the People's certificate of compliance. As there is no appellate authority from either the New York Court of Appeals or the Appellate Division, Second Department on this issue, this Court has considered relevant statutes and appellate decisions from other departments. Criminal Procedure Law §245.20(1) provides:
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, including but not limited to... [21 categories of discovery]
Furthermore, CPL §245.20[1][k][iv] requires the People to provide "all evidence and information that tends to... impeach the credibility of a testifying prosecution witness."
In People v Johnson, the Appellate Division, Fourth Department, held that the "defendant was not automatically entitled to the entirety of a police officer's personnel file as impeaching material under CPL 245.20(1)(k)(iv), but rather only to the extent that the information 'related to the subject matter of the case'" (218 A.D.3d 1347 [4th Dept 2023], quoting CPL §245.20[1]). Therefore, the Fourth Department did not require the prosecution to disclose any disciplinary records from unrelated matters in order for their certificate of compliance and statement of readiness to be valid.
Additionally, in People v McCarty, the Appellate Division, Third Department, found that a defense argument that the prosecution must disclose the entire disciplinary record for each and every law enforcement officer involved with a case was "belied by a plain reading of the automatic disclosure statute, which requires the People to disclose 'all items and information that relate to the subject matter of the case" (221 A.D.3d 1360, 1362 [3rd Dept 2023]). The Third Department noted that their decision was "consistent with the balancing of interests espoused by the Court of Appeals in People v Garrett, 23 N.Y.3d 878, 888-91 (2014)" (id.). Although decided before Criminal Procedure Law article 245 was enacted, in Garrett, the Court of Appeals held that "the People have no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witness... This would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefit defendants would enjoy from the information ultimately disclosed on account of the People's efforts" (Garrett at 890).
The Court is aware that other trial courts have opined that this view ofCPL § 245.20(1)(k)(iv) is too restrictive a view and could not possibly fit the Legislature's intent when initially passing this discovery reform. However, because there is no authority from the New York Court of Appeals or the Second Department on this issue, this Court must accept the precedents set by the Third and Fourth Departments. Indeed, in Mountain View Coach Lines, Inc. v Storms, the Appellate Division, Second Department held "[t]he Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule" (102 A.D.2d 663 [1984]). Accordingly, this Court finds that the People have satisfied their obligations underCPL §245.20(1) by providing LEOW letters for law enforcement witnesses whom they expect to call as witnesses at trial.
The Court notes that "this ruling does not diminish a defendant's other rights of access to misconduct evidence for potential impeachment of a witness at a hearing or trial. The District Attorney remains obligated, as a matter of due process, to disclose favorable evidence that 'may affect only the credibility of a government witness'" (People v Lewis, 78 Misc.3d 877 [Sup Ct, Kings Cty 2023], quoting People v Steadman, 82 N.Y.2d 1 [1993]). The Defendant "may use the subpoena process to seek records underlying police misconduct" (id.).
In addition, the Court has reviewed the redactions made by the People and it seems that the redacted information is almost entirely personal identifying information such as cell phone numbers, e-mail addresses, and tax registration numbers. The Court finds that the People's redactions were appropriate, unless and until the Defendant can point the Court to a specific area of redacted information which is related to the subject matter of the case.
As the People have complied with their discovery obligations regarding law enforcement disciplinary records in this case, their failure to disclose the additional material requested by the Defendant does not invalidate the People's certificate of compliance.
2) Prior Domestic Incident Reports (DIRs) and Orders of Protection
The Defendant further argues that the People's certificate of compliance should be invalidated because they did not disclose prior DIRs and orders of protection between the Defendant and Complainant. In their response, the People affirm that they conducted searches for DIRs and for Orders of Protection between the complainant and Defendant in their MIDAS database and that there was no record of any previous DIRs or Orders of Protection.
3) Police Officer Daly's Handwritten
The Defendant argues that the People's certificate of compliance should be invalidated because the People failed to disclose the handwritten notes of Police Officer Daly. According to the submissions of both parties, Officer Daly can be seen making notes on his body-worn camera video during a home visit he made with the complainant. In their response, the People affirm that they communicated with Officer Daly about these notes, and he responded: "[h]i sorry but I do not have those notes and were most likely taken and then transcribed (not word for word) into the home visit from that day." In a separate communication, Officer Daly also wrote: "[h]I yes 100% they are lost. I looked everywhere. Sorry."
A "home visit" is a term used regularly in the context of a domestic violence case, and it refers to a visit by a member of the NYPD to the residence of a complaining witness following a domestic violence arrest. It does not occur on or about the time of the incident that resulted in the arrest and prosecution.
4) Body-worn Camera Video of Police Officer Greenaway
The Defendant argues that the People's certificate of compliance should be invalidated because the People failed to disclose Police Officer Greenaway's body-worn camera video of an interview she conducted of the complainant. In their response, the People affirm that Officer Greenaway is assigned to the Family Justice Center, which is the same building which the Domestic Violence Bureau of the Queens County District Attorney's Office is located in. The People affirm that they conferred with Officer Greenaway and the Officer confirmed that she does not wear a body camera because she is assigned to the Family Justice Center.
CPL §245.20(1) requires the People to disclose to the 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". The People must disclose this initial automatic discovery within thirty-five calendar days of the Defendant's arraignment where the defendant is not in custody (CPL §245.10[1][a][ii]) unless the discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution," in which case an extension may be granted pursuant to CPL §245.70 (CPL §245.10[1][b]). Furthermore, pursuant to CPL §245.60, both the People and the Defendant have a continuing duty to disclose "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". "[W]hether the People made reasonable efforts to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented" (People v Bay, 41 N.Y.3d 200 [2023]). "Although the statute nowhere defines 'due diligence,' it is a familiar and flexible standard that requires the People 'to make reasonable efforts' to comply with statutory directives (id. quoting People v Bolden, 81 N.Y.2d 146, 155 [1993]).... Although the relevant factors for assessing due diligence may vary from case to case, the courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material might have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of missing discovery" (Bay at 212 ).
The Court has considered the factors that the Court of Appeals listed in Bay and finds that the People have exercised due diligence in providing discovery for this case. First, considerable efforts have been made by the People to generate the discovery they are obligated to turned over in this and every case. For example, the Queens County District Attorney's Office has established a Discovery Compliance Unit to coordinate with law enforcement agencies in an effort to streamline interagency communication and exchange of discoverable information. Additionally, the Queens County District Attorney's Office has also established a Law Enforcement Officer Witness Unit to obtain disciplinary information for their witnesses as well as a Forensic Science Unit to obtain scientific and forensic evidence that may exist in any case. Finally, the Queens County District Attorney's Office has also embedded paralegal discovery liaisons in many of its bureaus, whose duties and responsibilities include interacting with a variety of law enforcement agencies in an effort to oversee discovery compliance and to troubleshoot any outstanding discovery issues. The creation of these additional units and allocation of resources to generally address their discovery obligations under CPL Article 245 support a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.
Second, in comparing the amount of discovery turned over to the amount of discovery outstanding, it is clear that the People have exercised due diligence. It is not in dispute that the People have turned over voluminous discovery, including 169 sets of files, which contained hundreds of pages of material and hundreds of attachments including hours of body-worn camera footage, multiple sets of DD5s, and materials related to at least six home visits conducted after the incident. In contrast, the outstanding discovery consists of Police Officer Daly's handwritten notes from a home visit. What is actually being requested is what appears to be contemporaneous notes by a member of law enforcement containing details of a conversation that is being completely memorialized (with both video and audio) on Officer Daly's body-worn camera video. It is self-evident that the comparison of the discovery turned over to the discovery outstanding supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.
It is bewildering to this Court that there is even a discussion about this particular issue. Prior to the existence of body-worn camera video, there were legitimate arguments about handwritten or "scratch notes" that were taken by law enforcement officers during the interview of a witness. The turning over of those scratch notes were validly argued as relevant because they provided a contemporaneous check on what the witness said when compared to what the law enforcement officer subsequently wrote in a police report. There is no such argument to be made here, however, where the entire witness interview is videotaped on body-worn camera video and disclosed.
Third, in analyzing the complexity of this case, all indications provided to this Court is that the instant case is not a particularly complex case.
Fourth, it does not appear to this Court that the People missed any discoverable material in this case. There do not appear to be any police disciplinary records related to the subject matter of this case. There do not appear to be any prior DIRs or Orders of Protection that exist between the Defendant and the complaining witness. Police Officer Daly's notes - albeit not relevant enough to be discoverable in this case and containing statements that are completely recorded in a body-worn camera video - do not exist. Finally, the body-worn camera video for Police Officer Greenaway does not exist. The fact that the People did not miss any discoverable material supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.
Fifth, there is no explanation for any error regarding discoverable materials because there does not appear to have been any error. As such, it also supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.
Finally, the response by the People when they learned of the missing discovery (Officer Daly's notes) further indicates an exercise of due diligence. The People immediately corresponded with Officer Daly when they became aware of the creation of the notes. The People timely pursued all discovery corrections in this case, and that also supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligations in this case.
In total, the People have exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their certificate of compliance in this case. Further, they filed that certificate of compliance, as well as their supplemental certificate of compliance, in good faith. Accordingly, the Defendant's motion to invalidate the People's certificate of compliance, deem their statement of readiness illusory, and to dismiss the indictment due to a violation of his right to a speedy trial is denied.
The Defendant's Omnibus Motion
The branches of the motion seeking to inspect the Grand Jury minutes and dismiss or reduce the indictment are granted only to the extent that the Court has inspected the minutes of the Grand Jury. "To dismiss [or reduce] an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury" (People v Gaworecki, 37 N.Y.3d 225 [2021], quoting People v Grant, 17 N.Y.3d 613, 616 [2011]). The Court must determine if the evidence adduced before the Grand Jury was legally sufficient, meaning "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL §70.10[1]; People v Castro, 202 A.D.3d 815 [2d Dept 2022]). The evidence must provide prima facie proof of each offense, rather than proof beyond a reasonable doubt (People v Hulsen, 150 A.D.3d 1261, 1262 [2d Dept 2017]; see also People v Jessup, 90 A.D.3d 782, 783 [2d Dept 2011]). The reviewing court's inquiry is limited to "whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference" (Gaworecki, supra, quoting Grant, supra).
The Court finds that the evidence adduced before the Grand Jury was legally sufficient to support all counts of the indictment. The People "maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (People v Thompson, 22 N.Y.3d 687 [2014]; People v Mitchell, 82 N.Y.2d 509, 515 [1993], citing People v Lancaster, 69 N.Y.2d 20, 25 [1986]).
Moreover, the District Attorney properly instructed the Grand Jury on the relevant law (People v Tunit, 149 A.D.3d 1110 [2d Dept 2017], citing People v Calbud, Inc., 49 N.Y.2d 389 [1980]). To the extent that the Defendant alleges defects in the presentation of the case to the Grand Jury, the Court finds that the presentation was not defective as a matter of law. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time that the District Attorney instructed the Grand Jury on the law. No unauthorized person within the meaning of CPL §190.25 was present at any time during the proceedings (see People v Sayavong, 83 N.Y.2d 702 [1994]). Also, no irregularity that would impair the integrity of the Grand Jury occurred (see People v Adessa, 89 N.Y.2d 677 [1997]; People v Huston, 88 N.Y.2d 400 [1996]). The release of additional Grand Jury minutes beyond what has been turned over by the People pursuant to the discovery provisions of Article 245 of the Criminal Procedure Law is denied since defense counsel has failed to demonstrate any compelling need for such action and the Court is able to determine the motion without assistance (see CPL §210.30[3]).
The branch of the motion seeking a Bill of Particulars and demand for discovery is granted to the extent provided by the People pursuant to CPL § 200.95 and CPL § 245.20.
The People are directed to make every effort to preserve Rosario material as well as all 911 calls, radio runs, sprint reports, surveillance footage, and any other recordings that are relevant to this case and make them available to the Defendant at the appropriate time as prescribed by CPL § 245.10 and CPL § 245.20(1)(g) (see People v Rosario, 9 N.Y.2d 286 [1961]; People v Consolazio, 30 N.Y.2d 446 [1976]).
The branch of the motion seeking all Brady material is granted to the extent that the Court reminds the People of their obligations under Brady v Maryland, 373 U.S. 83 (1963).
The branch of the motion reserving the right to make further motions is granted to the extent permitted by CPL §255.20.
This constitutes the decision and order of the Court.