Opinion
Docket No. CR-003159-22BX
02-07-2023
The People of the State of New York, v. Darnell Winston, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by Jordyn Fleisher, Esq.) For the Defendant: Welsey Mead, Esq.
Unpublished Opinion
For the People: Darcel D. Clark, District Attorney, Bronx County (by Jordyn Fleisher, Esq.)
For the Defendant: Welsey Mead, Esq.
Hon. Christopher Chin, J.C.C
Upon review and consideration of the submissions, court file and relevant law, defendant's motion which , inter alia, contests the validity of the People's certificate of compliance ("COC") filed on May 27, 2022 pursuant to CPL § 245.50 (4) due to the prosecution's failure to comply with its disclosure obligations under CPL § 245.20 and, seeks to dismiss the misdemeanor complaint for violation of defendant's right to a speedy trial under, inter alia, CPL §§ 30.30 (1)(b) and 30.20 and facial insufficiency is granted in part, and denied in part, as follows: the May 27, 2022 COC is deemed invalid; dismissal under CPL § 30.30 and for facial insufficiency is denied; and hearings are ordered as provided herein. The reasons for the court's decision are explained below.
Procedural Background
On February 25, 2022, defendant Darnell Winston was arrested and charged with Penal Law ("PL") § 240.30 (1)(a) (aggravated harassment in the second degree), § 120.14 (1) (menacing in the second degree), § 265.01 (2) (criminal possession of a weapon in the fourth degree), and § 205.30 (resisting arrest).
On February 26, 2022, he was arraigned and released on his own recognizance. The matter was adjourned to March 10, 2022, for the People to file supporting depositions for the conversion of the complaint to an information, and a certificate of compliance (COC) with their discovery obligations.
At the March 10, 2022 court appearance, the defense requested a hearing pursuant to Matter of Crawford v Ally (197 A.D.3d 27 [1st Dept 2021]) (" Crawford hearing"), which was granted and scheduled for March 17, 2022.
At the March 17, 2022 court appearance, the assigned defense attorney was unable to be present and the Crawford hearing was adjourned to April 14, 2022.
At the April 14, 2022 court appearance, the defense attorney was again unable to be present and the matter was adjourned to May 3, 2022 for a Crawford hearing (see Memorandum of Law in Opposition, Exh. 5, at 4).
At the May 3, 2022 court appearance, the Crawford hearing was adjourned to May 5, 2022 because defendant had a pending matter in Family Court, being held at the same time.
At the May 5, 2022 court appearance, defendant's counsel was relieved and new counsel was assigned. The Crawford hearing was adjourned to May 6, 2022.
At the May 6, 2022 court appearance, the Crawford hearing was held after which this court ruled in favor of continuing the complaining witness Vanessa Goodwin's full order of protection. The matter was adjourned to May 27, 2022 for the filing of a COC.
On May 27, 2022, the People served and filed a COC and statement of readiness. The court directed the parties to confer regarding any discovery disputes and put in writing any remaining discovery objections. The matter was adjourned to June 17, 2022 for a discovery conference.
At the June 17, 2022 court appearance, the defense objected to the discovery on the basis that much of the exchanged Giglio documents were redacted. A motion schedule was set, and the matter was adjourned for decision.
Prior to the final submission of the subject motion, the schedule was extended to accommodate the parties' requests and allow for the submission of the disputed discovery (unredacted) for in camera review.
By notice of omnibus motion dated July 15, 2022, defendant sought an order: (1) dismissing the misdemeanor complaint pursuant to CPL § 170.35 (1) for facial insufficiency; (2) invalidating the COC under CPL § 245.50 (4) and directing full compliance under CPL § 245.20; (3) dismissing the complaint for the violation of defendant's right to a speedy trial under CPL §§ 30.30 (1)(b) and 30.20, the sixth amendment to the United States Constitution and section 12 of the of the New York Civil Rights Law; (4) precluding all evidence not properly and timely noticed including statements and identification pursuant to CPL §710.30 and People v Boyer (6 N.Y.3d 427 [2006]); (5) for protections under People v Sandoval (34 N.Y.2d 371 [1974]); (6) for the suppression of evidence and noticed statement(s) pursuant to CPL §§ 710.20 (1) and 710.60, including hearings pursuant to People v Huntley (15 N.Y.2d 72 [1965]), and Dunaway v State of New York (442 U.S. 200 [1979]); (7) granting relief pursuant to People v Sanders (31 N.Y.2d 463 [1973]), for at least a twenty (20) day interval from the time of the hearings in order to obtain hearing transcripts and prepare for their use at trial; (8) for discovery of pre-hearing and pre-trial materials pursuant to People v Rosario (9 N.Y.2d 286 [1961]); (9) granting leave to submit memoranda of law; and (10) granting leave to submit subsequent motions.
By affirmation dated August 12, 2022, the People opposed the motion. Reply papers were served and filed by the defense on September 22, 2022.
Thereafter, the court directed that the People supply for in camera review, the disputed discovery (Giglio documents) that had been previously disclosed to the defense with redactions, together with a privilege log. The unredacted documents and log were supplied to the court on November 14, 2022. The Defense filed its objections to the People's redactions and log on December 7, 2022.
Discussion
Facial Sufficiency
The portion of defendant's motion which seeks to dismiss the misdemeanor complaint dated "April 29, 2021" (Affirmation in Support of Motion, ¶10), pursuant to CPL §§ 170.35 (1) and 100.40 (1) and (2), and supporting deposition, on the ground that they are facially insufficient to establish violations of the charges against defendant is denied. Significantly, the initial complaint filed in this matter is dated February 25, 2022 (not, April 29, 2021 as alleged), and in any event, was superseded by an information dated March 16, 2022, and supporting depositions of Detective Michael Prilook (dated March 16, 2022), Vanessa Goodwin (dated March 16, 2022) and Tamika Brown (dated March 17, 2022). Defendant was arraigned on the information on April 24, 2022.
Under CPL § 100.50 (1), where, as here, a superseding information replaces an earlier information "charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment of the latter, the count of the first instrument charging such offense must be dismissed." Thus, since the initial complaint was superseded and dismissed by the later instrument, the court finds the defense's facial sufficiency arguments as to the complaint to be moot.
To the extent that the defense argues in its reply that the superseding information has the same defects as the original complaint and is likewise facially insufficient, this court disagrees.
A court reviewing for facial insufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from the allegations in the light most favorable to the People (see People v Alejandro, 70 N.Y.2d 133, 137 [1988]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]). "[T]his prima facie case requirement for facial sufficiency of an information 'is not the same as the burden of proof beyond a reasonable doubt required at trial,' nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 N.Y.3d 1064, 1066 [2015] [citations omitted]).
Applying this standard here, the court finds that the superseding information sufficiently established the charged crimes of Penal Law § 240.30 (1)(a) (aggravated harassment in the second degree), § 120.14 (1) (menacing in the second degree), § 265.01 (2) (criminal possession of a weapon in the fourth degree), and § 205.30 (resisting arrest) and therefore, defendant's motion to dismiss on facial sufficiency grounds is denied.
As noted above, supporting depositions were filed by Detective Prilook, Vanessa Goodwin, and Tamika Brown.
Penal Law § 240.30-Aggravated Harassment in the Second Degree
PL § 240.30 provides, in relevant part, that
a person is guilty of aggravated harassment in the second degree when: (1) [w]ith intent to harass another person, the actor either: (a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family household.
The accusatory instrument here includes the following relevant factual allegations:
Deponents is informed by TAMIKA BROWN, that at the above time and place [on February 1, 2022], defendant stated to informant, via telephone, in sum and substance: OH YOU WANT TO PLAY WITH MY SHIT. I'LL BURN THE PLACE DOWN. FUCK YOU YOU'RE NOT GOING TO HAVE A PLACE TO LIVE OR WORK. WHO IS GOING TO PAY ME FOR MY PROPERTY. Deponent is further informed by informant that, informant recognized the voice on the phone to be that of defendant's because informant has spoken with defendant on prior occasions both in person and over the phone and recognizes defendant's voice.
Deponent is further informed by informant that, as a re[s]ult of defendant's conduct, informant experienced annoyance, alarm, and fear for her physical safety and the safety of her property.
Defendant argues that these allegations fail to include repetitive or persistent conduct over a period of time and therefore are insufficient. However, one telephone call-as alleged here-has been held to be enough to result in criminal liability for aggravated harassment in the second degree (see People v Shack, 86 N.Y.2d 529, 541 [1995] [by its terms, statute defining aggravated harassment in the second degree imposes criminal liability for making a single telephone call]; People v Thomas, 58 A.D.3d 445, 445-46 [1st Dept 2009] [accusatory instrument was facially sufficient where allegations of a single telephone call to the victim containing a death threat that placed the victim in reasonable fear for her safety]).
Penal Law § 120.14 (1)-Menacing in the Second Degree
PL § 120.14 provides, in relevant part, that, "[a] person is guilty of menacing in the second degree when: (1) [h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, [or] dangerous instrument..."
The accusatory instrument includes the following relevant factual allegations:
Deponent is informed by VANESSA GOODWIN, that at the above time and place [on September 17, 2021], defendant walked towards informant and stated in sum and substance: WHY ARE YOU SPREADING RUMORS ABOUT ME BEING A PEDOPHILE. Deponent is further informed by informant that, defendant then pulled a machete out of the dufflebag [sic] he was carrying, continued to walk towards informant, and stated in sum and substance BITCH I'M GOING TO CUT YOU.
Deponent is further informed by informant that, as a result of defendant's conduct, informant experienced annoyance, alarm and fear for her physical safety.
Defendant argues that the singular act against Vanessa Goodwin did not suffice as menacing under the statute because there was no repetitive conduct over a period of time alleged. However, unlike menacing in the second degree under subsection two (2)-which was not charged against defendant-menacing in the second degree under subsection one does not require a course of conduct, but rather a display of a deadly weapon dangerous instrument, as sufficiently alleged here (see People v Bartko, 96 N.Y.2d 770 [2001] ["menacing [under PL § 120.14 (1)] simply requires an intent to place another person in 'reasonable fear of physical injury' by 'displaying' a weapon or dangerous instrument"]; [People v Britt, 62 Misc.3d 320, 323 [Crim Ct, New York County 2018] [information facially sufficient as to PL § 120.14 (1) charge where allegations included that defendant displayed a dangerous instrument]).
Under PL § 120.14 (2) a person is guilty of menacing in the second degree when "he or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time i ntentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death" (emphasis supplied). Under that subsection, a "course of conduct" is an element of the crime requiring a showing of "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose" (People v Payton, 161 Misc.2d 170, 174 (Crim Ct, Kings County 1994]).
Penal Law § 265.01 (2)-Criminal Possession of a Weapon in the fourth Degree
PL § 265.01 provides, in relevant part, that "[a] person is guilty of criminal possession of a weapon in the fourth degree when: (2) [h]e or she possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, undetectable knife or any other danger or deadly instrument or weapon with intent to use the same unlawfully against another."
The accusatory instrument includes the following relevant factual allegations:
Deponent [Det. Brigette Medina] is informed by informant [Vanessa Goodwin] that defendant pulled a machete out of the dufflebag [sic] he was carrying, continued to walk towards informant, and stated in sum and substance, BITCH I'M GOING TO CUT YOU.
Defendant argues there is no is no description of the object that defendant was allegedly holding to classify it as a machete, nor is there an allegation that a machete was recovered by the Police, and a machete is not illegal per se. However, an allegation that defendant possessed one of the enumerated weapons - here a machete - is sufficient to state a charge of criminal possession of a weapon in the fourth degree (see People v Nwogu, 22 Misc.3d 201 [Crim Ct, Queens County 2008 2008]). Further, the factual allegation that defendant pulled the machete out of the duffle bag he was carrying and stated "bitch I'm going to cut you," while walking towards the informant, is sufficient to establish the intent element of the statute (see People v Laureno, 163 Misc.2d 873, 875 [Crim Ct, Kings County 1995]).
Penal Law § 205.30-Resisting Arrest
PL § 205.30 provides, in relevant part, that "[a] person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person."
The accusatory instrument includes the following factual allegations:
Deponent is informed by Det. Michael Prilook that at the above time and place, PO Prilook, while dressed in his official police uniform and performing his official police duties attempted to execute an arrest of defendant Deponent is further informed by PO Prilook that, defendant pulled his arms away from detective [P]rilook and shoved them under his body in an attempt to avoid being handcuffed.
Defendant argues that Detective Medina did not allege that Detective Prilook ever announced himself as a police officer or informed defendant of his authority as a police officer and the reason for any arrest of defendant in accordance with CPL § 140.15 (2), and therefore the allegations of resisting arrest charge were insufficient. "[T]o be facially sufficient... [however], an accusatory instrument charging resisting arrest must allege... that the arrest was authorized, by setting forth facts establishing that the arresting officer had probable cause to believe that the defendant committed an offense in his presence" (People v Canjura, 46 Misc.3d 66 [App Term, 2d Dept, 9th and 10th Judicial Districts 2014]. Since the court found that the accusatory instrument was facially sufficient with respect to the other offenses charged, it follows that the allegations were sufficient to show defendant's arrest was authorized, a key element of the resisting arrest charge (see People v. Jensen, 86 N.Y.2d 248, 253, [1995]). Any failure to comply with the CPL § 140.15 (2), referred to by the defense, does not render the resisting arrest charge facially insufficient as the requirements contained therein are not elements of the offense.
CPL § 140.15 (2) provides that when arresting a person without a warrant, "[t]he arresting police officer must inform such person of his [or her] authority and purpose and of the reason for such arrest unless he [or she] encounters physical resistence, flight or other factors rendering such procedure impractical."
Validity of Certificate of Compliance
Defendant challenged the validity of the People's May 27, 2022 COC based upon redactions made to the exchanged disciplinary records of the police officers involved in defendant's arrest, that are expected to testify at defendant's trial.
The redactions at issue are contained in the People's discovery packet at pages 271-76 (Memorandum in Opposition, Exh. 12), as to Police Officer Brigette Medina; pages 282-317 (Memorandum in Opposition, Exh. 13), as to Detective Vincent A. Trozzi; pages 320-359 (Memorandum in Opposition, Exh. 14), as to Police officer Michael Prilook; pages 369-388 (Memorandum in Opposition, Exh. 15), as to Police Officer Christopher Chin.
Under the "initial discovery" provision of CPL § 245.20 (1), soon after the commencement of an action, "[t]he 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" a non-exhaustive list of materials. The prosecution is to make a diligent and good faith effort to ascertain the existence of the discovery materials and make them available to the defense, even if the information is not in the prosecution's physical possession, except for lost or destroyed material, and materials subject to a protective order (see CPL §§ 245.20 [2]; 245.70 [1]; 245.80 [1][b]). For CPL §245.20 (1) purposes, "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 in the possession of the prosecution" (CPL § 245.20 [2]). "CPL 245.55 mandates a 'flow of information' between the prosecution and law enforcement 'sufficient to place within [the prosecution's] possession or control all material and information pertinent to the defendant and the offense or offenses charged '" (People v Audino, 75 Misc.3d 969, 975 (Crim Ct, New York County 2022).
Unless the court has made "an individualized finding of special circumstances... the prosecution shall not be deemed ready for trial for purposes of section 30.30 until it has [fulfilled its discovery obligations under CPL §§ 245.20 (1) and] filed a proper certificate [of compliance]" (CPL § 245.50 [3]; see also People v Aquino, 72 Misc.3d 518, 520 [Crim Ct, Kings County 2021]). Further, under CPL § 245.20 (7), "[t]here shall be a presumption in favor of disclosure" and "openness" when interpreting the disclosure provisions (see also People v Randolph, 69 Misc.3d 770, 772 [Sup Ct, Suffolk County 2020]).
CPL § 245.50 (1) sets for the requirements for a COC as follows:
[t]he 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 (emphasis supplied).
The statute further states that where "additional discovery is subsequently provided prior to trial pursuant to section 245.60 [under the prosecution's continuing duty to disclose material discovered after the initial discovery has been exchanged and a COC filed], a supplemental certificate shall be served... identifying the additional material and information provided" (CPL § 245.50 [1]). The last sentence of CPL § 245.50 (1) states: "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."
To interpret CPL §§ 245.50(1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the Court first examines the People's "actual readiness" (CPL § 30.30 [5]); that is, whether the prosecution has "done all that is required of them to bring the case to a point where it may be tried," including filing a valid COC (People v England, 84 N.Y.2d at 4). In order to find the COC to be valid, the Court must be satisfied that it was filed in "good faith and reasonable under the circumstances" (CPL§ 245.50 [1]). If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged (see People v Pierna, 74 Misc.3d 1072, 1088 [Crim Ct, Bronx County 2021]). They must detail the reasonable inquiries made to obtain these discoverable materials (see id.; CPL§ 245.50 [1]). If after review of the details provided by the prosecution, the court is satisfied that the COC was filed in good faith despite the discovery that was not exchanged, it may consider appropriate sanctions pursuant to CPL § 245.80, the severity of which may depend on the prejudice suffered by the defendant as a result of the discovery that was not exchanged prior to the filing of the COC (see CPL § 245.50 [1]).
However, if the court finds that the COC was not filed in good faith or was not reasonable under the circumstances, the COC shall be deemed invalid and there is no need to consider the sanctions under CPL § 245.80, or to consider if the defendant was prejudiced (People v. Perez, 75 Misc.3d 1205 [A], *3 [Crim Ct, Bronx County 2022]; see also People v Georgiopoulos, 71 Misc.3d 1215 [A], *3 [Sup Ct, Queens County 2021]; People v Adrovic, 69 Misc.3d at 574).
Thus, "discovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith nor an absence of bad faith, standing alone, can exempt the People from these requirements" (People v Aquino, 72 Misc.3d at 5; People v Georgiopoulos, 71 Misc.3d 1215 [A], *3 ["good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated"]). Rather, "[w]hen the People submit documentation to the court certifying their compliance with their statutory obligation, they must do more than merely mouth the words" (People v Adrovic, 69 Misc.3d at 574-75).
Here the court finds that the People failed to meet their discovery obligations when the May 27, 2022 COC was filed and therefore, it is deemed invalid (see People v Rodriguez, - Misc.3d -, 2022 NY Slip Op 22393 [App Term 1st Dept, December 29, 2022] [COC invalid where people failed to provide discovery to the defense and did not establish they exercised due diligence]; People v. Perez, 75 Misc.3d at 1205 [A], *4 [COC invalidated where People failed to provide known discovery and no showing of diligence]; People v Aquino, 72 Misc.3d at 523-24 [same]; People v Georgiopoulos, 71 Misc.3d 1215 [A], *6 [CPL § 245.50 [1] [given the deficiencies in both the COC and People's explanation, the court found no showing of due diligence and certificate deemed invalid]).
The Court notes that the People filed additional discovery and supplemental COCs and statements of readiness on June 2, 2022, June 16, 2022, July 5, 2022, July 19, 2022, August 1, 2022, September 1, 2022, and December 31, 2022.
CPL § 245.20 (1)(k) requires that the People disclose, as relevant here, "[a]ll 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... (iv) impeach the credibility of a testifying prosecution witness."
The People have a duty to disclose "whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits this information" (CPL § 245.20 [1][k]; see also William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL§ 245.10 [items enumerated in CPL § 245.20 (1)(k)(iv) must be disclosed regardless of whether they are considered "material" or "credible"]).
Moreover, "all evidence and information that tends to impeach the credibility of a testifying prosecution witness... whether or not in tangible form" includes allegations, as well as records and other underlying materials, as to complaints against police officers that have been determined by the IAB to be substantiated and/or unsubstantiated and are therefore required to be disclosed before a valid COC can be filed (see Matter of Jayson, 200 A.D.3d 447, [2d Dept 2021] [CPL § 245.10 (1)(k)(iv), broadly requires disclosure of all impeachment evidence and a mere summary of allegations is insufficient]; People v Randolph, 69 Misc.3d 770, 773 [Sup Ct, Suffolk County 2020][the People are required to disclose IAB records and materials of substantiated and unsubstantiated allegations for compliance with discovery obligations]; [ People v Porter, 71 Misc.3d 187, 190 [Crim Ct, Bronx County 2020] [disciplinary records of substantiated allegations must be disclosed]). In People v Rodriguez (- Misc.3d -, 2022 NY Slip Op 22393 [App Term, 1st Dept, December 29, 2022]), the Appellate Term, First Department specifically held that underlying impeachment materials are required to be disclosed pursuant to CPL § 245.10 (1)(k) and affirmed the invalidation of the People's COC for their failure to disclose those documents prior to filing of the COC.
Additionally, as of June 12, 2020, Civil Rights Law § 50-a (the law that shielded law enforcement from disclosing underlying disciplinary documents) was repealed, and the legislative intent was to make law enforcement disciplinary records available (see People v Randolph, 69 Misc.3d at 772; People v Porter, 71 Misc.3d at 190). "Permitting the prosecutor to be the arbiter of essential information is antithetical to that principle" (People v Barralaga, 73 Misc.3d 510, 519 [Crim Ct, NY County 2021] [quotations omitted]). "[I]t is not for the People to determine whether a particular item might be admissible or might serve as impeachment material" (People v Soto, 72 Misc.3d 1153, 1160 [Crim Ct, NY County 2021]).
It is noted that, CPL § 245.20 (6) permits either party to the redact from disclosure, social security numbers and tax numbers.
Here, it is undisputed that prior to filing their COC, the People disclosed to the defense disciplinary records of the four (4) police officers involved in defendant's arrest and expected to testify at trial (Detectives Medina, Trozzi, and Prilook and Police Officer Chin), which contained multiple redactions pertaining to, inter alia, the names of potential witnesses (both civilian and police) to the testifying police officers' alleged prior misconduct, as well as portions of allegations and other investigatory material.
The redactions were contained in approximately 100 pages of disciplinary records pertaining to the testifying officers.
After in camera review of the redacted documents, the court finds that the defense was entitled to much of the redacted information which the People failed to disclose. For example given that the charges against defendant include resisting arrest, the People should have disclosed allegations against Detective Trozzi as to his excessive force during prior arrests, including the names of eye witnesses and other police officers that may have observed Detective Trozzi's alleged conduct. Such information would tend to impeach the credibility of the testifying police witness and deprived the defense of potential trial witnesses who may have first-hand knowledge of the officers' alleged prior bad conduct.
The People's argument to support many of the redactions-that the redactions were made for, inter alia, "confidentiality and safety of witness(es), attorney and non-subject officer(s)" (People's Redaction Log)-is not supported by the law. Additionally, the People's redactions go beyond those under NY Public Officers Law § 89 2-b (requiring redactions to law enforcement disciplinary records prior to disclosure as to items involving the officer's medical history, home address, personal telephone and cell phone numbers, and personal email address) and section 2-c (permitting redactions to law enforcement disciplinary records for technical infractions).
Moreover, the People failed describe any diligent or good faith efforts to supply the documents in an unredacted form. Notably, as explained above, under CPL § 245.20 (7), there is a presumption in favor of disclosure and openness.
The People also did not request a protective order, additional time to comply with their discovery obligations upon a showing of good cause pursuant to CPL § 245.70 (1) and (2), nor seek "an individualized finding of special circumstances" from the court, as permitted by CPL § 245.50 [3]).
Further, the People's "obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant" (People v Adrovic, 69 Misc.3d at 574; see also People v Diaz, 75 Misc.3d 314, 320 [Crim Ct, Bronx County 2022] [prejudice analysis not to be considered when assessing validity of a certificate of discovery compliance]).
"The issue of prejudice should only be considered when determining whether the People should be sanctioned or a remedy imposed under CPL § 245.80 for late disclosure or non-disclosure, after a finding that a proper certificate of compliance had been filed" (People v Perez, 75 Misc.3d 1205 [A], *5 [citations omitted]).
As such, the court orders that, within 7 days of the date of this order, the People disclose to the defense the following previously supplied Giglio documents, unredacted except as to redactions permitted under CPL § 245.20 (6), NY Pub Off Law § 89 2-b and 2-c: (1) as to Detective Trozzi; (2) Detective Prilook; and (3) Police Officer Chin.
After in camera review of the unredacted documents pertaining to Detective Medina (pages 271-76), the court determines that they contain no impeachment information and need not be further disclosed. However, the better practice would have been to disclose the documents in unredacted form, except as provided in CPL § 245.20 (6) (as to social security numbers and tax numbers), NY Pub Off Law § 89 2-b and 2-c, or move for a protective order.
Dismissal on Speedy Trial Grounds
Since the COC has been deemed invalid, the People's statement of readiness filed on May 27, 2022 failed to stop the speedy trial clock under CPL § 30.30 (see CPL § 245.50 [3]; People v England, 84 N.Y.2d at 4 ["A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock"]; People v Rodrgiuez, 2022 NY Slip Op 22393, *1 - 2 [the invalid COC did not stop the speedy trial clock]). The court finds a total of 40 days are chargeable to the prosecution for the time period from arraignment (February 26, 2022), through May 27, 2022 (the date the court directed the parties to confer about the discovery issues). Since the 90-day period for the prosecution to be ready for trial has not lapsed, dismissal based on CPL § 30.30 grounds is denied.
The court's calculation is as follows:
February 26, 2022 to March 10, 2022 (12 days charged) - On February 26, 2022, the accusatory instrument was filed, and defendant was arraigned. The People were not ready for trial and the matter was adjourned to March 10, 2022. March 10, 2022 to March 17, 2022 (7 days charged) - On March 10, 2022, the People were not ready for trial and the case was adjourned to March 17, 2022, for a Crawford hearing. March 17, 2022 to April 14, 2022 (0 days charged) - On March 17, 2022, the defense counsel was unable to appear and the Crawford hearing did not go forward. The matter was adjourned to April 14, 2022, for a Crawford hearing. This time period is excludable under CPL § 30.30 (4)(b) (see People v Delacruz, 241 A.D.2d 328, 328-29 [1st Dept 1997] ["[t]he CPL 30.30 (4)(b) exclusion for 'the period of delay resulting from a continuance granted at the request, of, or with the consent of, the defendant or his counsel" is free standing and applies irrespective of whether the People previously or on the date of request, answered ready"]). April 14, 2022 to May 3, 2022 (0 days charged) - On April 14, 2022, the defense stated that the Crawford hearing could not be held because the assigned defense attorney was unavailable since she was assigned to a hearing in an unrelated matter (see Memorandum of Law in Opposition, Exh. 5, at 4). The matter was adjourned to May 3, 2033. This time period is excludable under CPL § 30.30 (4)(b) (see People v Delacruz, 241 A.D.2d at 328-29). May 3, 2022 to May 5, 2022 (0 days charged) - On May 3, 2022, the Crawford hearing could not be held because defendant had a Family Court proceeding at the same time (see Memorandum of Law in Opposition, Exh. 22, at 2). The matter was adjourned to May 5, 2022 for a Crawford hearing. This time period is excludable under CPL § 30.30 (4)(a) ("other proceedings concerning the defendant"). May 5, 2022 to May 6, 2022 (0 days charged) - On May 5, 2022, defendant's counsel was relieved and new counsel was assigned. The matter was adjourned to May 6, 2022, for a Crawford hearing. This time period is excludable under CPL § 30.30 (4)(f) ("period during which the defendant is without counsel through no fault of the court"). May 6, 2022 to May 27, 2022 (21 days charged) - On May 6, 2022, the Crawford hearing was held. The People were not ready for trial and the matter was adjourned to May 27, 2022 for the filing of a COC. May 27, 2022 to date (0 days charged) - On May 27, 2022, the People filed (off calendar) a COC which, as indicated above, the court deemed invalid and therefore, the statement of readiness also filed on that day, failed to stop the speedy trial clock. At the appearance on May 27, 2022, the court directed that the parties confer about the discovery issues and the matter was adjourned to June 17, 2022, for a conference. On June 17, 2022, a motion schedule was set and the matter adjourned to for decision. The court deems the period from May 27, 2022, to date, attributable to motion practice, and excludable under CPL § 30.30 (4)(a) (see People v Aquino, 74 Misc.3d 1147, 1154-55 [Sup Ct, New York County 2022]).
Sandoval/Ventimiglia
Defendant's request to determine the admissibility of his prior criminal history and bad acts (Sandoval/Molineux/Ventimiglia) is referred to the trial court.
Preclusion of Evidence Not Properly and Timely Noticed Including Statements and Identification Pursuant to CPL §710.30, or in the Alternative, Suppression of Evidence and Noticed Statements as Involuntary Pursuant to CPL §§ 710.20 (1) and 710.60
That portion of defendant's motion which seeks to preclude evidence not properly and timely noticed, including statements and identification pursuant to CPL § 710.30 is denied at this time. Determination to preclude any unnoticed CPL § 710.30 evidence is referred to the trial court.
To the extent that defendant seeks suppression of evidence and noticed statements or identifications, hearings are ordered to be conducted prior to trial in accordance with People v Huntley (15 N.Y.2d 72 [1965]), People v Rodriguez, 79 N.Y.2d 445 [1992]/ US v Wade (388 U.S. 218 [1967]), and Dunaway v State of New York (442 U.S. 200 [1979]). The court notes that the People argued that the complainants may identify defendant during trial based on their knowledge of each other and notice would therefore not have been required (see People v Rodriguez, 79 N.Y.2d 445, 450 [1992]).
Sanders Relief
Defendant's request pursuant to Sander s for at least a twenty (20) day interval from the time of hearings to obtain the hearing transcripts and prepare for their use at trial is hereby referred to the trial court.
Rosario/Brady/Giglio Material
The People are reminded to provide all Rosario, Brady, and/or Giglio materials.
Memorandum of Law
Defendant's request to submit a memorandum of law is referred to the trial court with respect to any hearings and/or trial.
Subsequent Motions
Defendant's application for leave to file additional motions is denied at this time, subject to rights under CPL §255.20(3), to move for further leave, upon good cause shown.
Conclusion
The defense's motion to deem the COC invalid is granted; dismissal on facial sufficiency and speedy trial grounds is denied; pre-trial hearings are ordered as follows: Huntley/Rodriguez/Wade/Dunaway; the portions of the motion seeking relief pursuant to Sandoval/Molineux/Ventimiglia and to submit a memorandum of law are referred to the trial court; and, within 7 days of the date of this order, the People shall disclose to the defense the unredacted Giglio documents as to Detective Trozzi; (2) Detective Prilook; and (3) Police Officer Chin.