Criminal Court of the City of New York, Bronx County, February 25, 2020

Darcel D. Clark, District Attorney, Bronx (Megan Horton of counsel), for plaintiff.

The Bronx Defenders, Bronx (Christopher Smith of counsel), for defendant.

Based upon the "plain meaning" of the new discovery statute under article 245 of the Criminal Procedure Law and the "legislative intent and spirit" behind its enactment, the People are required to provide to defense counsel the actual video recordings of a defendant's statements no later than 48 hours before a defendant is to testify in the grand jury.

On January 13, 2020, defendant was arraigned on a felony complaint charging him with the crime of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and related charges. At the arraignment, the People served upon defense counsel and filed with the court written notice of defendant's statements to law enforcement officials pursuant to CPL 710.30 (1) (a). The People further served CPL 190.50 notice of their intent to present the case to the grand jury and defense counsel served cross CPL 190.50 notice to testify in the grand jury. The arraignment court set bail in the amount of $5,000 insurance company bond, $2,500 cash, $2,500 credit card and $3,000 partially secured bond at 10%.

On January 17, 2020, in Part FA, the CPL 180.80 date, the People indicated that the case was being presented to the "C" grand jury panel. When the People inquired as to whether defendant intended to testify before the grand jury panel, defense counsel responded that it was "premature" to make that decision (Carswell tr at 2, line 15). Defense counsel elaborated that since the People failed to provide him with the actual video recording of defendant's statements made to law enforcement officials, he could not properly advise his client whether to testify in the grand jury.

The People asserted that although the video recording of defendant's statements was in their possession since the time of his arraignment, they were not statutorily obligated to disclose it to defense counsel within 48 hours of his scheduled grand jury testimony. Instead, the People claimed that they satisfied their discovery obligation by providing defense counsel with the "sum and substance" of the video recorded statements.

{**67 Misc 3d at 446}The narrow issue presented to this court was whether the People were required to provide the defense with the actual video recordings of defendant's statements at least 48 hours before he was scheduled to testify in the grand jury so as to be in compliance with the new discovery statute (see CPL 245.10 [1] [c]; 245.20 [1] [a]).^[FN*]

Effective January 1, 2020, the New York State Legislature expanded the disclosure requirements of the People by repealing CPL article 240 and enacting CPL article 245.

CPL 245.10 (1) (c), Timing of discovery, sets forth, in pertinent part, that

"[t]he prosecution shall disclose statements of the defendant as described in paragraph (a) of subdivision one of section 245.20 of this article to any defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding, no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding."

CPL 245.20 (1) (a), Automatic discovery, sets forth, in pertinent part:

"Initial discovery for the defendant. 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:

". . . All written or recorded statements, and the substance of all oral statements, made by the defendant or a co-defendant to a public servant{**67 Misc 3d at 447} engaged in law enforcement activity or to a person then acting under his or her direction or in cooperation with him or her."

"It is fundamental that, [w]hen presented with a question of statutory interpretation, [a court's] primary consideration is to ascertain and give effect to the intention of the Legislature" (People v Burman, 173 AD3d 1727, 1727 [2019] [internal quotation marks omitted], citing People v Andujar, 30 NY3d 160 [2017]; People v Roberts, 31 NY3d 406 [2018]). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (People v Burman at 1727, quoting People v Golo, 26 NY3d 358 [2015]). Where the language of the statute is clear, it is presumed that the intent is reflected in the words chosen by the legislature and the plain meaning they express (see A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574 [1996]). Thus, where the language of a statute is unambiguous, a court must give effect to its plain meaning (see People v Williams, 19 NY3d 100 [2012]; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98 [1997]). Further, the New York 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]). Hence, it is well-settled that a statute should not be construed "in such a manner [which] would be tantamount to adding words to it . . . [A] court cannot amend a statute by adding words that are not there" (Matter of DaimlerChrysler Corp. v Spitzer, 26 AD3d 88, 91 [2005] [internal quotation marks omitted], citing American Tr. Ins. Co. v Sartor, 3 NY3d 71 [2004]).

Here, with respect to the issue presented, CPL 245.10 (1) (c) must be read in conjunction with the language contained in CPL 245.20 (1) (a). CPL 245.10 (1) (c) sets forth that the prosecution shall disclose statements of a defendant as described in CPL 245.20 (1) (a), specifically, "written or recorded statements" and the "substance" of all "oral" statements. Significantly, CPL 245.20 (1) (a) makes a distinction between "written or recorded" statements and "oral" statements. With respect to "written or recorded" statements the statute unambiguously {**67 Misc 3d at 448}requires that the prosecution turn over such items. However, with respect to "oral" statements, the legislature specifically placed the word "substance" immediately before it. The reason for this differentiation is self-evident inasmuch as the "substance" of an oral statement is actually the only disclosure that can be provided. Thus, logic dictates that if the legislature had intended to limit discovery of written or recorded statements to only their "substance" they would have placed such limiting language before the words "written or recorded" statements. Whereas, the legislature did not do so, contrary to the People's contention, the plain meaning of the statute requires that the People turn over to defendant the actual recordings of his statements within 48 hours of his scheduled grand jury testimony.

Moreover, the court is cognizant of CPL 245.10 (1) (a) which directs a prosecutor to disclose pertinent information to defense counsel "as soon as practicable." Here, with respect to the instant matter, inasmuch as the People conceded that they were in possession of the video of defendant's recorded statements at his arraignment, there is no practical reason why they could not have turned it over to the defense at that time, or at the very least, within 48 hours before he was to testify in the grand jury as required by CPL 245.10 (1) (c).

In general, when construing a statute, the " 'inquiry must be made of the spirit and [*2]purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history' " (People v Burman at 1728, quoting People v Wallace, 31 NY3d 503, 507 [2018]).

The new discovery statute was enacted to "eliminate the unfairness and inefficiencies of current discovery practice, and facilitate the prompt and accurate disposition of cases" (Committee Report, 2019 NY Assembly Bill A01431). Prior to the passage of New York's new discovery statute, "defendants routinely received limited information, which was turned over so late that it became virtually impossible for the defense to properly investigate, obtain any potentially exculpatory evidence, fairly weigh a guilty plea offer, or develop an effective trial strategy" (Christian Nolan, New York Removes the Blindfold, New York State Bar Association Journal, May 2019, available{**67 Misc 3d at 449} at https://nysba.org/NYSBA/Publications/Bar%20Journal/PastIssues2000present/2019/NYSBA_Journal_MAY19_WEB.pdf [last accessed Feb. 14, 2020]; see also New York Civil Liberties Union, Legislative Memo: Discovery Reform, available at https://www.nyclu.org/en/legislation/legislative-memo-discovery-reform [last accessed Feb. 13, 2020]; The Innocence Project, Breakthrough Discovery Law Passes, Repealing State's "Blindfold Law" Leading to Greater Transparency and Fewer Wrongful Convictions [Apr. 1, 2019], available at https://www.innocenceproject.org/breakthrough-discovery-law-passes-repealing-states-blindfold-law-leading-to-greater-transparency-and-fewer-wrongful-convictions/).

Thus, the overarching goal of the legislature was "to modernize and make more fair" New York State's discovery practice and provide for the "free exchange of information between the defense and the prosecution" Committee Report, 2019 NY Assembly Bill A01431). With early and broadened discovery, the defense can better understand the strength of the government's case as to formulate a proper and meaningful strategy prior to material stages of the case (see id.).

It is axiomatic that a defendant's right to testify in the grand jury is "significant" and " 'must be scrupulously protected' " (People v Hogan, 26 NY3d 779, 786 [2016], quoting People v Brumfield, 24 NY3d 1126, 1128 [2015]; see also People v Smith, 87 NY2d 715 [1996]). Indeed, a defendant's testimony in the grand jury could result in a dismissal of some or all of the charges. Conversely, it could have the opposite effect and contribute to the issuance of an indictment. Further, beyond an indictment, a defendant's grand jury testimony could be a determinative factor in deciding whether or not a defendant should testify at trial. Specifically, " '[the decision] involves weighing the possibility of a dismissal, which, in counsel's judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses' " (People v Hogan at 786). As such, the decision to testify in the grand jury has far-reaching ramifications. Thus, before a defense attorney makes such a critical decision, counsel should have the opportunity to view the actual video recording of a defendant's statements in its entirety—including the circumstances and context surrounding the statements—such that he or she can provide informed and meaningful advice to the client.{**67 Misc 3d at 450}

Here, based on the foregoing, the People's contention that their disclosure of the "substance" of the video recorded statement was sufficient to satisfy their obligation pursuant to CPL 245.10 (1) (c) is rejected inasmuch as it is clearly contrary to the "spirit and intent" of the legislature when they enacted comprehensive discovery reform. Thus, the discovery rights of defendant were violated when the People, who possessed the video of defendant's recorded statements at his arraignment, failed to provide it to defense counsel within the mandated 48 hour time period before he was to testify in the grand jury pursuant to CPL [*3]245.10 (1) (c).