Criminal Court of the City of New York, Bronx County, February 20, 2020

The Bronx Defenders (Elli Marcus of counsel) for defendant.

Darcel D. Clark, District Attorney (Samantha Miller of counsel), for plaintiff.

Defendant, who filed notice under CPL 190.50 (5) (a) to testify in the grand jury, but has not done so because of his claim that the People have not complied with their discovery obligations under CPL 245.10 (1) (c) and therefore have not met their obligation under CPL 180.80, is not entitled to be released from custody under CPL 180.80. For the following reasons, the court finds that remedies under CPL 180.80 and 245.10 (1) (c) are mutually exclusive, and denies defendant's application for release under section 180.80.

Defendant was arrested on February 6, 2020, and charged with the "D" violent felony of assault in the second degree, criminal possession of a weapon in the fourth degree and related charges. The felony complaint alleges that defendant swung a knife at the complainant's face causing a laceration to complainant's temple which required three staples to close.

At arraignment, Hon. Frances Wang of this court set bail at $75,000 cash or $50,000 bond or partially secured bond. The case was adjourned to Part FA on February 11, 2020, for grand jury action. Defendant served cross grand jury notice under CPL 190.50 (5) (a), indicating his intention to testify before the grand jury. Defendant remained in custody.

On Tuesday, February 11, 2020, in Part FA, the People indicated that they were poised to vote a felony in the grand jury that day but were waiting for defendant to decide whether he [*2]intended to testify. Defense counsel stated that defendant was deprived of his opportunity to make an adequate, meaningful, informed decision about testifying because, although he had received the DVD of defendant's interview with the police, the People had not turned over the "body cam" footage, relating {**66 Misc 3d at 787}to his arrest, more than 48 hours prior to his scheduled time to testify, as required under CPL 245.10 (1) (c). Therefore, counsel argued, the People did not meet their section 180.80 burden to dispose of the felony complaint within the time required under CPL 180.80, and that therefore, defendant must be released.

The People opposed the release application, saying that CPL 245.10 (1) discovery was separate from the People's obligation under CPL 180.80. The prosecutor represented that despite her efforts, the "body cam" footage had not yet been uploaded to the District Attorney's office server. She had, however, disclosed to defense counsel that upon her repeated inquiries regarding the contents of the body cam, the assigned detective told her there was "mainly pedigree information" on the video and nothing else relevant to the case, "or that would be served in this matter." (Tr at 7.)

It belabors the obvious to note that as of January 1, 2020, the New York State Legislature imposed on the courts a sea change in criminal justice procedures, in the recognition that former CPL article 240 was unduly restrictive. The legislature determined that the comprehensive discovery changes imposed under CPL article 245 are essential to a fair and just criminal justice system, and will promote better and more efficient outcomes of cases. (See People v DeMilio, 66 Misc 3d 759 [Dutchess County Ct, Jan. 7, 2020], citing Senate Introducer's Mem in Support, L 2019, ch 59, § 1, part LLL, § 2 [2019 NY Senate Bill S1716; 2019 NY Assembly Bill A1431].)

The courts' primary consideration in interpreting statutes is to ascertain and give effect to the legislative intent. (McKinney's Cons Laws of NY, Book 1, Statutes § 92, cited in People v De Jesus, 148 Misc 2d 198, 201 [Crim Ct, NY County 1990].) The statutory text is the clearest indicator of legislative intent, and courts should construe unambiguous language in a statute to give effect to its plain meaning. (Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 [2019]; Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 172 [2019].) Courts must interpret new laws as part of a symmetrical and coherent regulatory scheme; if possible, both old and new parts must be fit into a harmonious whole, rendering them internally compatible. (Yatauro v Mangano, 17 NY3d 420 [2011]; Matter of Talisman Energy USA, Inc. v New York State Dept. of Envtl.{**66 Misc 3d at 788}Conservation, 113 AD3d 902 [3d Dept 2014].) Nonetheless, a court cannot, by implication, inject into a statute a provision which the legislature intentionally omitted. The failure of the legislature to include a matter within the scope of an act is an indication that it was intentionally excluded. (McKinney's Cons Laws of NY, Book 1, Statutes § 74.)

Courts are accustomed to follow the legal doctrine of stare decisis, which directs courts to abide by previous judicial precedent on a question of law. This encourages judicial restraint and reassures the public that court decisions arise from a continuum of legal principles of an institution, rather than the personal caprice of its members. (People v Peque, 22 NY3d 168 [2013].) "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." (Janus v State, County, and Municipal Employees, 585 US &mdash, &mdash, 138 S Ct 2448, 2478 [2018]; see also People v Octavio, 34 Misc 3d 790, 793 [Crim Ct, Richmond County 2011].)

The long-awaited revolution of criminal justice reform now upon us requires courts to apply the new discovery statute largely in the absence of prior judicial guidance. In this situation, courts must be guided by common sense and the "chief essentials" of "reason and the power to advance justice," in order to create new precedents which are "drawn from a consideration of the nature and object of law itself." (People v Hobson, 39 NY2d 479, 488 [1976], citing von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409, 414 [1924].)

A written decision setting forth the court's reasoning is important because this issue, upon [*3]which there is no case law, will surely arise regularly in this Part, which is the repository for all felony cases in the Criminal Court that are adjourned out of the Arraignment Parts.

When a defendant has filed notice under CPL 190.50 (5) (a) intending to testify in the grand jury, CPL 245.10 (1) (c) requires the prosecution to turn over the content of all statements he made to law enforcement at least 48 hours prior to his scheduled testimony. The section does not address the custody status of defendants; thus it applies whether a defendant is in custody or out on recognizance, bail or supervised{**66 Misc 3d at 789} release. The content of "[a]ll . . . statements" (CPL 245.20 [1] [a]) certainly includes the "body cam" footage at issue here (which may contain some statements defendant made), as it is "electronically created or stored information . . . obtained by . . . law enforcement from . . . (B) a source other than the defendant which relates to the subject matter of the case." (CPL 245.20 [1] [u] [i].)

This new disclosure rule affords defendant the opportunity to review his statements, and to prepare his grand jury testimony and defense in accord therewith if he chooses. Its purpose appears to be to prevent the prosecution from using the statements to impeach defendant in the grand jury, by surprise or ambush.

Clearly cognizant that compliance with the section 245.10 (1) time periods may not always be realistic, the legislature inserted provisions for automatic stay of the section 245.10 (1) time periods if, despite the prosecution's exercise of reasonable diligence, certain items are not available within the required time. (See e.g. § 245.20 [1] [f] [expert opinion materials], [o] [prosecution's determination of which tangible property will be used as evidence at trial], [u] [electronic recordings].) Further, the new statute permits either party to move for a modification of the mandated disclosure time periods upon a showing of good cause. (CPL 245.70 [2].)

Significantly, none of the above provisions permitting automatic extension of the section 245.10 (1) compliance periods specifically exclude the 48-hour time prior to a defendant's grand jury testimony in subdivision (1) (c). Had the legislature intended the automatic stay and time-modification provisions to exclude the 48-hour grand jury period, it would expressly have done so. The Court of Appeals has "firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended." (People v Finnegan, 85 NY2d 53, 58 [1995]; Pajak v Pajak, 56 NY2d 394, 397 [1982].)

There is additional evidence of the legislative intent, in balancing the goals of fairness and efficiency against the time frame for gathering evidence in pending criminal cases, that all section 245.10 (1) time periods are equally subject only to the stay, modification and sanction provisions of article 245. Sections 245.20 (5); 245.50 (1) and 245.55 (3) (b) expressly state that violations of the disclosure rules are subject specifically to a "remedy or sanction pursuant to section 245.80." In {**66 Misc 3d at 790}other words, CPL 245.80 is the only source of remedies or sanctions throughout the article.

CPL 245.80 sets forth the standard of proof to be met before sanctions may be imposed, and goes on to specify approved sanctions. A court may impose "an appropriate remedy or sanction" only if defendant can show that he was prejudiced by any delayed disclosure, or if he shows that any discovery lost or destroyed "may have contained some information relevant to a contested issue." (§ 245.80 [1] [a], [b].) Further clarifying the range of courts' discretion in this regard, an appropriate remedy or sanction is defined as one which is "proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful." (§ 245.80 [1] [b].)^[FN1]

Nowhere is the extreme remedy of a defendant's release from custody under section 180.80 contemplated for delayed disclosure of defendant's statements when he has filed cross grand jury notice to testify; that extreme remedy is conspicuously absent from the broad range of remedies [*4]and sanctions expressly permitted in article 245. On the contrary, the new statutory scheme appears to discourage such extreme sanctions, and expressly prohibits them during other phases of the pendency of the case. For example, instead of the court ordering a new hearing, or setting aside or vacating a conviction if the defendant has not shown prejudice, the court is permitted to reopen pretrial hearings for delayed disclosure of Rosario material. (§ 245.80 [3].)

In this case, though defendant wanted to view the body cam footage before deciding whether to testify in the grand jury, the court finds that it was unavailable despite the exercise of diligent efforts by the People to have it uploaded and turned over. Additionally, the prosecutor disclosed on the record that there appeared to be no substantive statements by defendant on the body cam, aside from pedigree information.^[FN2] Based on these circumstances, it defies logic for defendant to suggest that the extreme sanction of his section 180.80 release from custody is justified under the statute.

Article 245 is an exhaustive, self-referenced statutory scheme, setting forth expansive provisions for automatic stays of the required disclosure time periods; a high burden of proof{**66 Misc 3d at 791} which parties must meet before the court may impose remedies or sanctions for delayed or lost discovery; and a broad array of specified remedies and sanctions available in that event. The silence regarding any interplay between article 245 and CPL 180.80 evinces the legislative intent to maintain those two statutes as mutually exclusive, making clear that the extreme remedy of section 180.80 release of a defendant from custody is not appropriate for discovery violations such as those at bar.

Instead, the court finds that the appropriate remedy here was to require defendant's consent to extend the section 180.80 deadline to give him more time to consider whether to testify in the grand jury without the missing body cam, or to give the People a short time to procure it so that defendant can have time to review it prior to testifying.^[FN3] If defendant chose not to waive the section 180.80 deadline, he could testify without having seen the body cam, or decide to withdraw his section 190.50 (5) (a) notice.

Based on the court's careful review of the new discovery provisions, the court finds that article 245 was intended to operate independently, with prescribed remedies which are mutually exclusive of those in CPL 180.80. Defendant's application for section 180.80 release from custody due to his claim of the People's incomplete compliance with their obligations under CPL 245.10 (1) (c) is hereby denied.