Opinion
No. CR-030346-22QN
09-13-2023
The People of the State of New York v. Zurita, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Jacob Saks) For Ms. Zurita: The Legal Aid Society (by Sade Stephenson)
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Jacob Saks)
For Ms. Zurita: The Legal Aid Society (by Sade Stephenson)
Wanda L. Licitra, J.
On the 90th day after arraignments, the People here filed and served a certificate of automatic discovery compliance and a statement of readiness. The defense alleges that this statement of readiness was illusory. They claim that despite the People's certificate claiming otherwise, the People failed to produce the second page of their "LEOW letter" listing a testifying officer's CCRB matters. The People respond that they believe they produced both pages of their LEOW letter.
"A 'LEOW letter' is the Queens nomenclature for a letter, authored by the People, summarizing a police officer's disciplinary matters." (People v. Jawad, 78 Misc.3d 1217 [A], at *1 [Crim. Ct., Queens County 2023]).
"[A]bsent an individualized finding of special circumstances," a proper, good-faith certificate of automatic discovery compliance is a "prerequisite to the People being ready for trial." (People v. Hamizane, 2023 NY Slip Op. 23233, at *2 [App. Term, 2d Dep't 2023] [citing C.P.L. §§ 30.30[5], 245.20[1], 245.50[3]]). "Consequently," a statement of readiness "is invalid if it is accompanied or preceded by" a certificate of compliance "that is later determined to be improper, where no special circumstances exist." (Id.). If the defense alleges that the People improperly certified compliance with discovery, the People must establish that they have met their burden. (See id. at *3 [none of the "People's submissions" established the certificate was proper]).
Appellate law is clear. The People's filing of a certificate cannot "be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant [is] actually produced to the defendant." (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021]; see also People v. Carter, 80 Misc.3d 127[A], at *1-*2 [App. Term, 2d Dep't 2023] [noting the same]). Until the People file such a complete certificate, the People cannot be "deemed ready." (Carter, 80 Misc.3d 127[A], at *2).
In People ex rel. Ferro v. Brann, the People thought they had produced all the discovery listed on their certificate; but they were wrong, they had not. (See People v. Francis, 75 Misc.3d 1224[A], at *2 [Crim. Ct., Bronx County 2022] [explaining Ferro ]; see also Pr. Br. at 7-23, People ex rel. Ferro v. Brann, A.D. Docket No. 2021-05850 [Aug. 18, 2021]). The Appellate Division, Second Department, concluded, over the People's protestations of "good faith," that the certificate of compliance "could not be deemed complete" until "all" of the material identified in the certificate was "actually produced to the defendant." (Ferro, 197 A.D.3d at 788; see also Francis, 75 Misc.3d 1224[A], at *2).
Similarly, in People v. Carter, the People again thought they had turned over all the discovery listed on their certificate; again, they were wrong, they had not. (Carter, 80 Misc.3d 127[A], at *1). The People argued their "mistake" was a "possible technological error in uploading [the missing] documents to the discovery portal." (Id. [internal quotation marks omitted]). They "contend[ed] that the [certificate] was nonetheless valid" because they filed it in "good faith." (Id.). Just like the Appellate Division in Ferro, the Second Department's Appellate Term rejected the argument. (Id. at *2). They wrote:
Though the People attributed their failure to turn over the 911 calls, radio run, and I/NetDispatcher materials until January 15th to "a possible technological error in uploading those documents to the discovery portal," we would find that "a possible technological error" does not amount to "special circumstances" pursuant to CPL 245.50 (3) (see People v Guzman, 75 Misc.3d 132 [A], *5 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Thus, the People's "filing of the certificate of compliance pursuant to CPL 30.30 (5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 A.D.3d 787, 788 [2021]; see also CPL 245.50 [1]). As the People had not "filed a proper certificate" of compliance with their discovery obligations by December 30, 2020, they could not be "deemed ready" as of that date (CPL 245.50 [3]).(Id.).
A court "must grant" a C.P.L. § 30.30 motion "without conducting a hearing" if: (a) the moving papers allege a ground constituting legal basis for the motion; (b) such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations of all facts essential to support the motion; and (c) the sworn allegations of fact are either conceded by the People or are "conclusively substantiated by unquestionable documentary proof." (C.P.L. § 210.45[4]; see also People v. Allard, 28 N.Y.3d 41, 46 [2016]).
While two lower courts have opined otherwise, (see People v. Nichols, 79 Misc.3d 1211 [A], at *8 [Crim. Ct., Bronx County 2023]; People v. Howard, 78 Misc.3d 1103, 1120 [Crim. Ct., Bronx County 2023]), appellate authority clearly confirms that the procedures in C.P.L. § 210.45 and People v. Allard, 28 N.Y.3d 41 [2016], apply to proceedings on an information in criminal court. (See, e.g., People v. Bethune, 58 Misc.3d 133 [A], at *1 [App. Term, 1st Dep't 2017] [citing Allard and remanding for a hearing on a C.P.L. § 30.30 motion]; People v. Wigfall, 58 Misc.3d 126 [A] [App. Term, 1st Dep't 2017] [applying Allard ]). The criminal procedure law itself indicates the same. (C.P.L. § 170.45 ["The procedural rules prescribed in section 210.45 with respect to the making, consideration and disposition of a motion to dismiss an indictment are also applicable to a motion to dismiss an information."]).
Such is the case here. The defense alleges that the People failed to actually produce discoverable material listed on their certificate of compliance. Specifically, they allege that the People only produced the first page of a testifying officer's "LEOW letter." That first page says "For CCRB disciplinary information see this officer's separately provided CCRB document." (Def. Mot. Ex. A). However, the defense alleges, no such separate document was included. The People respond that they did produce this information, and that it was contained on the second page of the same PDF. Both sides agree that that PDF in question is entitled "Miscellaneous_File_334537.pdf." (Def. Reply Ex. A at 2; Pr. Resp. Ex. 2 at 4).
The missing list of the officer's CCRB matters is automatically discoverable information. (See generally Hamizane, 2023 NY Slip Op. 23233 [holding the People must produce all evidence in their actual or constructive possession about their police witnesses' misconduct matters]; C.P.L. § 245.20[1][k]). And the defense's claim is conclusively substantiated by unquestionable documentary proof. They have submitted a screenshot of the digital properties of the PDF in question. (Def. Reply Ex. A at 2). That screenshot clearly shows that the PDF only contained, as the defense alleges, a single page. (Id.). Therefore, the court concludes that the People failed to "actually produce[]" the list of the officer's known CCRB matters alongside their purported certificate of compliance. (See Ferro, 197 A.D.3d at 788).
If the People know CCRB matters exist, they also have a duty to make a "diligent good faith effort" to "ascertain the existence" of the underlying material and disclose it. (See C.P.L. § 245.20[2], People v. Robinson, 193 N.Y.S.3d 883, 891 [Crim. Ct., Kings County 2023]; see also Jawad, 78 Misc.3d 1217[A], at *5 ["On the spectrum of what constitutes due diligence to ascertain the existence of favorable material, reviewing official police misconduct records is never the borderline case."]). However, because the defense did not specify this as an issue, the People's burden to establish that effort in their response was not triggered.
The People point to no special circumstances. "Thus, the People's 'filing of the certificate of compliance pursuant to CPL 30.30 (5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3).'" (Carter, 80 Misc.3d 127[A], at *2 [quoting Ferro, 197 A.D.3d at 788]). As the People had not "filed a proper certificate" of compliance by March 6, 2023, they could not be "deemed ready" as of that date. (Id. [internal quotation marks omitted]).
The People had ninety days after arraignments to validly state ready for trial. (C.P.L. § 30.30[1][b]). As the People's first statement of readiness-made on the 90th day after arraignments-was illusory, the People have exhausted the entire C.P.L. § 30.30 time. They point to no C.P.L. § 30.30[4] exclusions that would apply, as is their burden to do.
It is important to understand what happened in this case. The result of this motion comes from the People's risky choice to delay discovery compliance until the very last day of the speedy-trial deadline. To be clear, the discovery statute sets the People's compliance deadline well within the speedy-trial timeframe; in this case, it was 35 days after arraignments. (C.P.L. § 245.10[1][a][ii]). But here, the People disregarded this deadline and remained silent until the last day of the case, leaving themselves a razor-thin margin for error. The statute does not envision that the People make this sort of gamble. Instead, it asks the People to comply with discovery timely, and if there are any obstacles to that, to proactively request relief from the court. (See, e.g., C.P.L. §§ 245.70[2] [authorizing courts to modify discovery periods for "good cause"]; 245.50[3] [authorizing courts to allow a prosecutor to state ready without full discovery compliance in "special circumstances"]). Should the People instead opt to remain silent for ninety days and then file a last-minute certificate, they will necessarily be left with the statutory consequences that flow from any errors.
The motion is granted, the case is dismissed. (See C.P.L. § 30.30[1][b]).
The foregoing constitutes the decision and order of the court.