Supreme Court, Queens County, February 7, 2020

Queens Defenders (Christopher Van Zele of counsel) for defendant.

Melinda Katz, District Attorney (Rachel Buchter and Lauren Reilly of counsel), for plaintiff.

The court, on its own motion, rescinds the prior decision and order dated February 6, 2020, and replaces it with this decision and order in its place and stead.

In an indictment filed July 8, 2019, the defendant, Jaquan Adams, is charged with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]), criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), and menacing in the second degree (Penal Law § 120.14 [1]). The defendant now challenges the People's certificate of compliance and statement of readiness dated January 24, 2020, on the grounds that the People's disclosure was insufficient and not proper. Upon oral argument, and a review of the relevant documents/items in dispute, email exchanges between the parties, and the People's written response to the defendant's demands, for the following reasons and with the additional discovery ordered as set forth in the following decision, the People's certificate of compliance and statement of readiness, dated January 24, 2020, are deemed valid.

The Parties' Duty to Diligently Confer with Each Other

Pursuant to CPL 245.35, the parties are ordered to diligently confer with each other to reach an accommodation as to any dispute prior to seeking a ruling from the court. To that end, prior to the oral argument held on January 30, 2020, the parties were required to discuss any discovery disputes in order to resolve any outstanding issues. Going forward, the parties are reminded of their obligation to confer with each other to reach a resolution prior to seeking [*2]judicial intervention.

Contact Information Properly Disclosed

Pursuant to CPL 245.20 (1) (c), the People are required to turn over the names and "adequate contact information" for the witnesses they intend to call at trial. The People, as part of their automatic disclosure, have provided the names and personal email addresses of said witnesses to the defendant.^[FN1] The defendant alleges, despite not having attempted to reach{**66 Misc 3d at 921} any witnesses in this case, that such information is insufficient and demands telephone numbers and/or better contact information.

[1] The court finds that the People have properly met their burden in providing adequate contact information for the witnesses they intend to call at trial. In the year 2020, where electronic communication is widely used and available, email addresses for the witnesses provide an appropriate balance between the defendant's rights to meaningful discovery in order to defend against the crimes for which he/she is accused, and the privacy rights of victims and witnesses to crimes. Moreover, it cannot be reasonably inferred that the legislature intended the statute to require that the People provide such personal information (i.e., home, cellular or work telephone numbers) for all civilian witnesses.

Electronic Audio Recordings

Pursuant to CPL 245.20 (1) (g), the People are required to disclose, within 15 days of a defendant's arraignment, any tapes or electronic recordings in their possession that they intend to use at trial. In the instant case, the People have provided, among other forms of electronic communications, approximately 200 electronic recordings of calls made by the defendant while housed at a facility operated by the New York City Department of Correction (Rikers calls), with a general statement that, at this stage of the case, they intend to seek to introduce all recordings, subject to admissibility issues. The People have further asserted that due to the voluminous nature of said calls, it would not be possible or reasonable in the time restraints of CPL 245.10 (1) (a) for them to be able to narrow down the exact calls, if any, they intend to use at trial. The defendant argues that this is insufficient under the statute.

[2] While not expressly stated on the record it appears that the People are seeking a modification pursuant to CPL 245.70 (2), which allows the court to alter the time periods for discovery imposed upon a showing of good cause. In the instant case, such good cause has been met. Here, there are close to 200 Rikers calls provided and it would be next to impossible for them to be reviewed in order to determine which they would actually seek to introduce at trial within the time restraints required by the statute. As such, the time period in which to{**66 Misc 3d at 922} identify which of these approximately 200 Rikers calls they will seek to introduce at trial is modified and the People are ordered to provide a list of specific Rikers calls they will seek to introduce, if any, at least 30 days prior to the first scheduled trial date.^[FN2] It is further ordered that this delay in disclosure does not affect the People's certificate of compliance and statement of readiness dated [*3]January 24, 2020.

Notes on the Envelope Containing the "Cigarette Butt" Vouchered as Evidence

During the compliance conference, the defendant alleged that the People failed to turn over, as part of their automatic discovery, a copy of the envelope used to store evidence recovered in this case, which purportedly contains markings or notes from the officer who vouchered the evidence. In response, the People state that they have provided a copy of an inventory sheet which details the markings, but not the note itself, as no copy was readily available and the property was vouchered and placed in the evidence locker.

[3] Since the new law favors disclosure of evidence, and without seeing the actual envelope or a copy thereof, there is no way of knowing what is exactly written on the envelope, disclosure of the envelope is required. Accordingly, the People are ordered to either provide a copy of the envelope, or allow the defendant, through counsel, to inspect the actual envelope at the next court date or at a mutually convenient time to be agreed to by the parties. However, while this document needs to be provided to the defense, since there is no evidence that the People acted in bad faith and have provided an inventory sheet detailing the markings, which appear to only be voucher and/or case numbers, such failure does not warrant a finding that the People's certificate of compliance was illusory.

"LIMS" Bench Notes, Computer System and Audit Trail

During the compliance conference, the defendant alleged that the People failed to turn over, as part of their automatic discovery, a copy of the laboratory information management system (LIMS) audit trail from the New York City Office of Chief Medical Examiner's (OCME) LIMS computer system regarding the DNA evidence which the People intend to introduce at trial, as well as any "bench notes" not previously {**66 Misc 3d at 923}turned over. The People counter that OCME is not under their "control" for purposes of automatic discovery and, in any event, do not have, nor are they aware, whether such documentation exists. Since the last court date, the defendant has clarified his request and has now asked for a copy of the entire LIMS computer system, as well as the bench notes and audit trail. (See emails attached to People's reply to instant motion.)

As a preliminary matter, because the OCME performed DNA analysis in this case at the request of either the New York City Police Department or the Queens County District Attorney's Office, and not because they were under some statutory duty to do so, the data requested by the defense pertaining to this DNA analysis is discoverable pursuant to CPL 245.20 (1) (j). (People v Gills, 52 Misc 3d 903, 907 [Sup Ct, Queens County 2016, Koenderman, J.].)^[FN3]

[4] With respect to the "bench notes" the People affirm that, to the best of their knowledge, the source of which is the General Counsel of OCME, all requested "bench notes" have previously been provided to the defense and that no additional materials exist. Thus, the People have satisfied their discovery requirements under the statute as to the "bench notes."

With respect to the request for the entire LIMS computer system, such request is denied as overbroad, as the entire LIMS computer system would provide the defendant information far greater than information pertaining to his individual case, and no good cause has been shown as for the reason for the request. Moreover, it cannot be reasonably inferred that the legislature, in creating CPL 245.20 (1) (j), meant to give the defendant the entire LIMS computer system, and not just the relevant information pertaining to their individual case.

With respect to the LIMS audit trail contained in the LIMS system, the court finds that such audit trail would be considered{**66 Misc 3d at 924} a "record" for purposes of the new statute and therefore is discoverable and must be provided to the defense. (CPL 245.20 [1] [j].) However, because such records do not actually exist and cannot be provided by the OCME without imposing an undue burden on it, the discovery requirements of CPL 245.20 (1) (j) can be met by requiring the OCME to make the LIMS system/audit trail as it pertains to the evidence in this case available for review and inspection by counsel for the defendant and/or any expert which the defendant designates. Such review and inspection should be done without unnecessary delay at a mutually convenient time between the parties and OCME, but in no event later than at least 30 days prior to the first scheduled trial date.

Conclusion

Upon the filing of the additional discovery, the People are ordered to supplement their certificate of compliance consistent with CPL 245.50 (1). Although the court is ordering additional discovery not previously provided by the People, this order does not invalidate the People's certificate of compliance or statement of readiness dated January 24, 2020. (See CPL 245.50 [1].) The court finds that the People acted in good faith and there is no evidence that either the certificate of compliance or statement of readiness was illusory.