People v Baptiste (2020 NY Slip Op 20331)

Cyrus R. Vance, Jr., District Attorney (Katherine Sullivan of counsel), for plaintiff.

In a notice of motion, affirmation in support and memorandum of law, defendant has moved for an order directing the People to disclose contact information for all known witnesses in this matter.

Background

The defendant is charged with two counts of assault in the third degree (Penal Law § 120.00 [1], [2]) and one count each of endangering the welfare of a child (Penal Law § 260.10 [1]), aggravated harassment in the second degree (Penal Law § 240.30 [4]), unlawful possession of marijuana (Penal Law § 221.05) and harassment in the second degree (Penal Law § 240.26 [1]). On January 8, 2020, the People filed and served an automatic disclosure form, in which the People indicated that the witness for this case could be contacted at a proxy phone number via the WitCom software application. That same day, when the case was before this court in Part D, defense counsel objected to the use of WitCom as a way to contact the witness, and argued that counsel would not use the program, as well as that a third-party application was not sufficient under the newly enacted discovery statute. This court denied defense counsel's application and held that the information the People turned over, which allowed defense to contact the witness through WitCom, sufficiently complied with Criminal Procedure Law § 245.20 (1) (c).

In the instant motion, defendant argues that under CPL 245.20 (1) (c), the People are required to provide the defendant with contact information for the witnesses associated with the case and that a third-party application, such as WitCom, does not satisfy the People's obligation. Specifically, defense counsel argues that: (1) the legislature rejected the use of a portal when enacting article 245 of the Criminal Procedure Law and therefore a portal does not constitute "adequate contact information"; (2) WitCom does not satisfy the People's disclosure requirements under People v Rong He (34 NY3d 956 [2019]); (3) WitCom does not comply with State and Federal Constitutions{**70 Misc 3d at 708} and violates due process requirements; and (4) the use of WitCom will result in evidentiary issues at trial.

In response, the People argue that: (1) the court has already denied the defendant's [*2]application and defendant should not be afforded a second bite at the proverbial apple; (2) WitCom satisfies the "adequate contact information" requirement of CPL 245.20 (1) (c); (3) the legislature did not specifically reject WitCom; and (4) the remainder of defense counsel's arguments are not applicable.

At the onset, defense counsel's motion will be classified as a motion to reargue. In the body of her moving papers, defense counsel acknowledges that "defense made an oral application before the court as to why such disclosure did not comply with the statutory requirements and . . . [t]he court denied defense counsel's motion" (see defense affirmation ¶ 14). Accordingly, the standards for evaluating a motion to reargue are applicable here.

Civil Practice Law and Rules § 2221 sets forth the procedure under which a motion to renew or reargue must be made. However, this section is applicable to civil cases and "the CPLR has no application to criminal actions and proceedings" except where expressly referenced (People v Silva, 122 AD2d 750, 750 [1st Dept 1986]).

Nevertheless, in a criminal case "a trial court's inherent power to correct its own mistakes includes the power to grant leave to reargue, where appropriate." (People v Defreitas, 48 Misc 3d 569, 576 [Crim Ct, NY County 2015]; see also People v Williams, 87 NY2d 1014 [1996] [a court has the power to correct an illegal sentence]; People v Schuler, 23 Misc 3d 1137[A], 2009 NY Slip Op 51176[U] [Crim Ct, Kings County 2009] [court has the authority to correct its own mistakes in reconsidering its prior ruling]; People v Smith, 23 Misc 3d 1140[A], 2009 NY Slip Op 51210[U] [Crim Ct, NY County 2009] [a court has the inherent power to correct its records in order to conform with the truth].) However, it should only be granted "upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law." (People v Oceanside Institutional Indus., Inc., 15 Misc 3d 22, 25 [App Term, 2d Dept, 9th & 10th Jud Dists 2007] [citations omitted].) The right to reargue "is not designed to permit an unsuccessful party to argue once again the issues previously decided" (id.).

{**70 Misc 3d at 709}Here, at the time the court issued its decision on the issue of whether WitCom constituted "adequate contact information" under CPL 245.20 (1) (c), the court was aware of all facts relevant to the issue at hand. In fact, in the instant motion, defense counsel does not assert that the court overlooked or misapprehended relevant facts pertaining to the issue before the court. Nor does counsel allege that the court has misapplied any controlling principles of law. Therefore, defendant has not established a basis under which reargument would be permissible. Accordingly, the defendant's motion is denied.

Alternatively, if this court were to grant the defendant leave to reargue his motion to compel the People for contact information for the witness in this case, the defendant's motion would be denied, as providing a means by which counsel can contact a witness through WitCom satisfies the People's obligations under CPL 245.20 (1) (c).

CPL 245.20 (1) (c) requires that "[t]he prosecution shall disclose to the defendant . . . [t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto." The statute further states that "[n]othing in this paragraph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address."

The People have utilized WitCom in this case to provide defense counsel with a means to contact the witness. WitCom is a third-party software application which allows defense counsel to call or text witnesses through the use of proxy phone numbers, meaning that the personal phone numbers of each party are not disclosed to the other (People's affirmation ¶ 13). When an attorney contacts a witness through WitCom, the witness is given counsel's name and a digital contact card (id.). If the witness does not answer when the attorney calls, the witness will receive a notification that they have missed a call from defense counsel (id. ¶ 14). Counsel will then be notified that the call was placed successfully but that there was no answer (id.). Translation services can be added to a call as needed (id.). WitCom keeps a record of the calls and text messages between the witness and counsel, and these records are only accessible by those two parties (id. ¶ 15). The People do {**70 Misc 3d at 710}not monitor the application and the records of communication between witnesses and defense counsel are not available to the People (id.; see also People v Todd, 67 Misc 3d 566, 581 [Sup Ct, Queens County 2020]). Additionally, messages between the parties are stored by WitCom for up to 24 hours and the server clears it once a day (People's affirmation ¶ 14).

The term "adequate contact information" within CPL 245.20 (1) (c) is not defined. Additionally, the statute does not provide examples of what would constitute adequate contact information. Therefore, this court must look at "the language itself, giving effect to the plain meaning thereof." (People v Golo, 26 NY3d 358, 361 [2015] [citation omitted].) It is the court's role "to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent." (People v Roberts, 31 NY3d 406, 418 [2018] [citation omitted].)

"Adequate" is defined as "sufficient for a specific need or requirement" or "good enough" (Merriam-Webster Online Dictionary, adequate [https://www.merriam-webster.com/dictionary/adequate (last accessed Dec. 10, 2020)]). "Adequate . . . does not mean perfect, infallible, or foolproof. Put another way, an adequate method of accomplishing something may be effective in most cases, but might sometimes, for various reasons, work imperfectly." (Todd at 572.)

Although defense argues that the legislature rejected the use of a portal during its enactment of CPL article 245, defense has not shown that WitCom was specifically rejected by the legislature. There is no evidence that this specific type of portal was ever included in any draft of CPL article 245 nor that the WitCom portal was specifically considered and rejected by the legislature. Moreover, when ascertaining the intent of the New York State Legislature, this court is disinclined to believe that the legislature would disapprove of technology which allows defense an effective means to contact witnesses, while resolving the potentially very serious issues, including safety, that come with disclosing personal contact information of witnesses, without resorting to the use of a protective order.

While defense counsel further argues that article 245 has a "presumption of openness" and "a presumption in favor of disclosure," CPL article 245 also provides a more lenient standard for evaluating protective orders and delaying disclosure of discoverable materials. Therefore, it is clear the legislature intended for there to be a balancing act with regard to{**70 Misc 3d at 711} discovery, which must be applied when considering the disclosure of contact information to defense. An application such as WitCom

CPL 245.20 (1) (c), while requiring the People to disclose the names and adequate contact information of witnesses, does not require the People to disclose the personal phone numbers and addresses of the witnesses. The logic of the legislature's wording of the statute makes sense, even without factoring in the use of WitCom. Given the availability of technology today, anyone can set up numerous email accounts, as well as use proxy phone numbers, such as a Google Voice number.^[FN*] It is completely plausible that even without the People utilizing WitCom, witnesses may, on their own, set up a proxy phone number or a separate email address, solely for the purpose of attorneys contacting them about the case. "It seems obvious to this court that adequate contact information, in this context, simply means providing a reasonably effective method by which defense counsel can attempt to communicate with witnesses." (Todd at 573.) To that extent, WitCom accomplishes this goal, and therefore constitutes adequate contact information under the meaning of CPL 245.20 (1) (c).

Defense counsel's argument that WitCom runs afoul of the Court of Appeals' decision in People v Rong He (34 NY3d 956 [2019]) is misguided. In Rong He, the People gave defense counsel's contact information directly to the witness, instead of providing contact information to defense counsel. There is a distinct difference between the People providing a witness with a defense attorney's contact information, where the defense attorney must wait for the witness to contact them, and the use{**70 Misc 3d at 712} of WitCom, where defense counsel may take affirmative steps to reach out and contact the witness, albeit via a proxy phone number. Moreover, Rong He pertained to the disclosure of contact information for a witness who possessed Brady material. No such allegation has been made with regard to the witness in this case. Accordingly, Rong He has no bearing on the court's decision here.

Defendant argues that the use of WitCom denies him the right to effective assistance of counsel, which would include adequate investigation by counsel. Specifically, defendant argues that use of WitCom as the only means to contact a witness "impeded defense counsel's ability to conduct thorough and complete investigations." (Defense counsel's mem of law at 13.) Defendant also argues that using WitCom does not allow defense to know whether a lack of response from a witness should be interpreted as an unwillingness to speak to counsel, and even if there is a response, there is no way to confirm the actual identity of the individual on the call.

[*5]Moreover, defense counsel has refused to even attempt to use the portal (see minutes from Jan. 8, 2020 appearance, annexed to the People's response as exhibit 1) and therefore, cannot state firsthand whether WitCom provided any specific impediment in this case, including an impediment to conduct a thorough investigation.

Regarding the defendant's arguments that using WitCom does not allow defense to know if the witness is refusing to speak with counsel, the same holds true if defense had the witness's personal phone number. "Even if defendant had a witness's personal phone number, counsel's attempts to contact the witness could be ignored and defendant would have no way{**70 Misc 3d at 713} of knowing for sure whether there was a communication glitch or whether the witness was simply disinclined to speak about the case." (Todd at 576.) Furthermore, the issues defense raises about ascertaining the identity of the person on the call would remain even if the People had disclosed the personal phone number of the witness.

Additionally, WitCom does not run afoul of Wardius v Oregon (412 US 470 [1973]). In Wardius, criminal defendants in Oregon had to provide notice of an alibi, without having any reciprocal rights. Accordingly, the Court ruled "[i]t is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State" (Wardius at 476). Here, not only does the defendant have the benefit of disclosure under CPL article 245, but CPL 250.20 remains in effect, requiring the People to disclose the names, addresses and place of employment of any rebuttal alibi witness.

Finally, defense counsel argues that WitCom is not an appropriate forum for counsel to contact a witness because

This argument by defense lobs an accusation of serious ethical misconduct on the part of the police and the District Attorney's office, without any evidence to support the accusation. Additionally, any allegations of misconduct, as raised by counsel, would apply equally whether defense contacts the witness directly or via the use of WitCom. While the idea of WitCom may "make some defense attorneys squeamish, that, of course, has no bearing on whether the app provides an adequate means of contacting witnesses." (Todd at 581.)

Accordingly, WitCom does not deny the defendant access to effective assistance of counsel.

Defense counsel's argument that use of WitCom will result in evidentiary issues at trial is equally without merit. Although{**70 Misc 3d at 714} the defense raises issues regarding authenticating communications from witnesses at a hearing or trial, these same evidentiary issues apply whether counsel communicates with the witness through the use of a proxy phone number or if counsel communicates with the witness via their personal phone number. Therefore, WitCom does not raise any additional impediment on this issue.

For the foregoing reasons, the People's disclosure of the witness's contact information to defense counsel via the use of WitCom satisfies the provisions of Criminal Procedure Law article 245. Accordingly, the defendant's motion to reargue and to compel the People to disclose alternative contact information for the witness is denied.

The defendant's motion for leave to reargue is denied. In the alternative, if the court were to grant the defendant leave to reargue, the defendant's motion to compel disclosure of contact information for the People's witnesses is denied.