County Court, Albany County, March 30, 2021

Stephen W. Herrick, Public Defender, Albany (Patricia Wilson of counsel), for defendant.

P. David Soares, District Attorney, Albany (Marissa C. Olsen of counsel), for plaintiff.

On August 12, 2019, the defendant was charged by indictment with four counts of burglary in the third degree (Penal Law § 140.20) and one count of criminal mischief in the third degree (Penal Law § 145.05 [2]). On September 8, 2020, the People filed a discovery disclosure, certificate of compliance, and statement of readiness. On October 27, 2020, a compliance inquiry was conducted on the record. At that time, the People indicated that they had [*2]made inquiries to all of the law enforcement officers involved in the case, all of the questionnaires and other available impeachment material had been disclosed, and the People had exercised due diligence by requesting the personnel files of the law enforcement witnesses. However, some of the officers declined to answer questions about any existing impeachment materials.

Consequently, by omnibus motion, the defendant moved to invalidate the People's certificate of compliance alleging that police personnel files and internal investigations had not been disclosed to the defendant at the time that the initial certificate of compliance was filed. In their answering affirmation, the People noted that they made in-depth impeachment inquiries into each police officer witness known to have relevant information about the present case and turned over all police personnel records in their possession. The People additionally noted that three of the law enforcement witnesses refused to answer the impeachment questionnaires. By letter order dated November 13, 2020, the parties were ordered, pursuant to CPL 245.35 (1), to diligently confer in order to resolve the discovery dispute.

By letter dated November 17, 2020, the defendant advised this court that Assistant District Attorney Marissa Olsen (hereinafter ADA Olsen) "provided me with police records that she {**71 Misc 3d at 915}recently received and is aware of the police records that I do not have and is currently working on getting those records." On December 7, 2020, the People filed a supplemental certificate of compliance, indicating that the personnel files for the three officers had been provided to the defendant. On December 18, 2020, the court conducted another compliance inquiry to address the People's supplemental certificate of compliance. On January 11, 2021, this court issued a decision and order denying the defendant's motion to invalidate the People's certificate of compliance.

The defendant now moves this court for leave to reargue and renew by notice of motion and affirmation dated February 10, 2021. The People have filed a memorandum of law, affirmation of due diligence, and certificate of compliance, all dated March 3, 2021. The defendant filed a reply affirmation dated March 5, 2021.

Defendant moves for leave to reargue, contending that the court misinterpreted the new discovery provisions of CPL article 245 and failed to impose an appropriate remedy for noncompliance under CPL 30.30 (5). The defendant also appears confused as to whether the court mistakenly considered sanctions under CPL 245.80, as opposed to invalidation under CPL 30.30 (5). Pursuant to CPLR 2221 (d) (2), a motion to reargue shall not be based upon matters of fact not offered on the prior motion, yet the defendant's motion to reargue contains an excessive amount of new facts and arguments that were not raised in his original motion. Therefore, the motion to reargue should be and is hereby denied. Although the motion to reargue is denied, the legal rationale supporting the prior decision and order must be explained, yet again, in order to properly address the defendant's motion for leave to renew.

The defendant's motion for leave to renew is solely based on a Brady letter provided by the People on January 19, 2021. The Brady letter states that the People learned that the City of Albany Police lost digital data contained within their internal affairs database from the year 2018, but that hard copies of the lost data remained. The defendant now moves to invalidate that People's certificate of compliance because there may have been impeachment materials [*3]contained within the destroyed electronic records. The defendant asserts that the People acted in bad faith, pointing to the Brady letter as proof{**71 Misc 3d at 916} that the existence of destroyed impeachment material/information was not disclosed to the defendant prior to the People filing their certificate of compliance.

Upon the enactment of CPL article 245, New York courts have addressed various questions that frequently arise in the context of discovery disputes. The primary issue before this court is whether the People may file a valid certificate of compliance when outstanding discovery materials remain. After considering the plain language of CPL article 245, intertwined with that of CPL 30.30 (5), it is clear that in certain scenarios the People may file a valid certificate of compliance, even when limited discovery materials are outstanding.

The new statutory rules and regulations set forth in CPL article 245 require this court to ensure that the People are actually ready for trial. In other words, the People must do all that is required of them to bring the case to a point where it may be tried. Article 245 of the Criminal Procedure Law not only sets the time frames by which the People are to provide discovery materials, but the statute is intertwined with a CPL 30.30 speedy trial provision.

CPL 245.10 (1) (a) instructs the prosecution to perform its initial discovery obligations, as laid forth in CPL 245.20, within 20 calendar days after an incarcerated defendant's arraignment on the indictment, and 35 calendar days after an out of custody defendant's arraignment on the indictment. CPL 245.20 (1) calls for the automatic disclosure of certain discovery materials, which the People must turn over to the defense within the previously stated time frame. This section includes "evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . . . (iv) impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k]). CPL 245.50 (1) requires that once the People comply with these initial discovery obligations, a certificate of compliance shall be filed.

By filing a certificate of compliance, the People are indicating their readiness for trial. Once this occurs, "the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people{**71 Misc 3d at 917} are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section" (CPL 30.30 [5]). Therefore, the speedy trial clock is now directly linked to the People's duties and deadlines under CPL 245.20 (1).

Nowhere within CPL article 245, nor within CPL 30.30 (5), is there a requirement that the People disclose every discovery item under CPL 245.20 (1) prior to the valid filing of a certificate of compliance. On the contrary, CPL article 245 and CPL 30.30 (5) both present a theme emphasizing the importance of good faith efforts by the People, and reasonableness under the circumstances, as it relates to discovery compliance.

Regarding the People's initial discovery obligations under CPL 245.20 (1), CPL 245.20 (2) states:

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (emphasis added).

The importance of good faith efforts made by the prosecutor is emphasized, not the prosecutor's success in actually obtaining and disclosing discovery material. This section indicates that the People do not necessarily need to physically obtain discovery material. Rather, the People must establish the existence of such discovery material and make it available for the defense to acquire. Recently, the court in People v Suprenant made a similar finding as it pertains to police officer disciplinary files: "the People's discovery obligation is satisfied where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the material or information to be made available to defense counsel" (69 Misc 3d 685, 693 [Glens Falls City Ct 2020]).

When the prosecution has provided the discovery required by CPL 245.20 (1), except for discovery that is "lost or destroyed"and any items or information that are subject to a protective order, it shall serve upon the defendant and file with the court a certificate of compliance (CPL 245.50 [1] [emphasis added]). The certificate of compliance "shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the{**71 Misc 3d at 918} prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1] [emphasis added]).

CPL 245.50 (1) similarly includes a "good faith" requirement, stating in relevant part: "No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article" (emphasis added). Effective May 3, 2020, CPL 245.50 (1) was amended to include the phrase "reasonable under the circumstances," signifying that discovery disputes must be thoroughly examined to determine the appropriate outcome on a case-by-case basis. This language shows that a court should not strictly consider whether every possible discovery item under CPL 245.20 (1) has been turned over at the filing of the certificate of compliance. A court must determine (1) whether the prosecutor has filed a certificate of compliance in good faith and (2) whether the filing of the certificate of compliance was reasonable given all of the circumstances of that particular case. When a certificate of compliance is filed in good faith and is reasonable, no adverse consequence shall result—in other words, the certificate of compliance shall not be invalidated under CPL 30.30 (5).

In fact, the language in CPL 245.50 and CPL 245.20 (2) precisely echoes the requirements described under the speedy trial statute. CPL 30.30 (5) reads, in pertinent part, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter" (emphasis added). Again, the [*5]issue to be decided by a court is whether the People made honest efforts to comply with CPL 245.20 (1) prior to the filing of a certificate of compliance and statement of readiness.

When considering whether the People have made "good faith" efforts as it pertains to impeachment materials under CPL 245.20 (1) (k), guidance lies directly within CPL 245.35. In order to streamline discovery disputes between the parties, the court may issue an order

"[r]equiring the prosecution to file an additional certificate of compliance that states that the prosecutor and/or an appropriate named agent has made reasonable inquiries of all police officers and{**71 Misc 3d at 919} other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article" (CPL 245.35 [3] [emphasis added]).

CPL 245.35 once more highlights the importance of the actual efforts made by the People, without necessitating them to physically turn over all material, in order to act in good faith. Requiring the People make "reasonable inquiries" stands for the proposition that the assigned prosecutor is not required to review the personnel file of a law enforcement witness. Rather, the People have a duty to inquire.

In Matter of Certain Police Officers, the court found that self-reported questionnaires given to police officer witnesses, similar to the questionnaires in the present case, were wholly appropriate and relevant:

"Given the potential impeachment material being sought by the . . . questions, together with the requirement for a free flow of information between the prosecutor and the police, and the duty upon the prosecutor to make a diligent, good faith effort to obtain the required impeachment material . . . the court finds that the practice of asking the police witnesses to answer the . . . questionnaire and the questions contained therein are appropriate and in accord with the underlying philosophy and purpose of CPL article 245" (67 Misc 3d 458, 468 [Westchester County Ct 2020]).

In sum and substance, the People have a duty to make good faith efforts to ascertain the existence of impeachment material by making reasonable inquiries into the existence of such evidence or information. This obligation is true even when such impeachment material is physically in the hands of a law enforcement witness or law enforcement agency. Where the People do not comply with the requirements of CPL article 245, sanctions are available: first, under CPL 30.30 (5) when the People have not acted in good faith, and secondly, under CPL 245.80, as discussed below.

The defendant believes that all discovery materials under CPL 245.20 (1), specifically impeachment materials of law enforcement witnesses, must be turned over prior to the filing{**71 Misc 3d at 920} of a certificate of compliance and, if not, then the only remedy is for a court to invalidate the certificate of compliance. This argument disregards CPL 245.80, which provides alternative sanctions when the People's initial discovery obligations have not been completely accomplished. Although CPL 30.30 (5) provides one possible sanction for noncompliance, namely the invalidation of a certificate of compliance, it is certainly the most exceptional and drastic remedy available to the courts (see People v Nelson, 67 Misc 3d 313 [Franklin County Ct 2020]; People v Santiago, Albany County Ct, 2020, McDonough, J.).

CPL 245.80 (1) similarly offers sanctions when material or information is discoverable under CPL article 245 but (1) is disclosed belatedly, (2) is missing, or (3) has been destroyed. When material or information is discoverable under CPL article 245, but is disclosed belatedly, "the court [*6]shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material" (CPL 245.80 [1] [a]). When material is discoverable but is lost or destroyed,

"the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue. The appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure" (CPL 245.80 [1] [b]).

Several permissible sanctions/remedies exist under CPL 245.80 for delayed, missing, or destroyed discovery material. The court has the ability to

"make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, [or] order the dismissal of all or some of the charges" (CPL 245.80 [2]).

Moreover, the court may make "such other order as it deems just under the circumstances," verifying once more that each discovery dispute must be determined after considering the totality of the circumstances (see CPL 245.80 [2]).{**71 Misc 3d at 921}

Although no adverse consequence to the People shall result from the filing of a certificate of compliance in good faith and when it is reasonable under the circumstances, the court may still "grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article" (CPL 245.50 [1]). CPL 245.80 was evidently created to give judges other options, beyond invalidation of a certificate of compliance, when addressing delayed, destroyed, or missing discovery materials. Some of the sanctions listed above even anticipate that delayed, missing, or destroyed discovery scenarios may occur in the midst of a trial, which, in nearly all instances, would take place far beyond the deadlines imposed for initial discovery disclosures under CPL 245.10 (1) (a) (i) and (ii).

Invalidating a certificate of compliance can have devastating speedy trial consequences to the existence of a pending case. Therefore, it makes sense that the People are held accountable when they act in bad faith in their discovery obligations through the invalidation of a certificate of compliance. However, where a prosecutor makes good faith efforts and makes reasonable inquiries into the existence of materials, it will not be an appropriate remedy to invalidate a certificate of compliance. Where, for example, law enforcement witnesses or agencies do not comply with timing or other requirements of CPL 245.20 (1) (k), after the People have proved their due diligence, other sanctions may be better suited to address the discovery violation depending on the specific case. More appropriate sanctions include giving an adverse inference charge regarding the noncompliance or precluding a law enforcement witness from testifying. These potential sanctions cannot be classified as minimal and are perfectly suited to the scenario of where there are delayed/missing/destroyed impeachment materials of police officers and the People have made good faith efforts in trying to make them available to the defense.

This perspective on CPL article 245 was succinctly outlined by the Honorable Teresa K. Corrigan:

"If physical possession was required . . . there would be no need for the statute to delineate varying time frames for discovery, or to discuss continuing discovery, or to state that no sanction should arise from the filing of subsequent certificates of compliance or to allow for filings of certificates of compliance in 'good faith.' Moreover, there would be no need for a sanctions section and no need for a{**71 Misc 3d at 922} 'prejudice' evaluation as detailed in CPL 245.80. The [*7]legislature simply needed to state that until and unless the People have every document that exists in a case in their possession, they should not file a certificate of compliance and should not announce readiness for trial. Such a position is not reasonable and clearly not what the legislature intended" (People v Askin, 68 Misc 3d 372, 379 [Nassau County Ct 2020]).

A review of CPL article 245, intertwined with CPL 30.30 (5), makes it clear that there is not a rigid, bright-line rule for the courts to follow with the various discovery disputes that often arise. Instead, the determination must be made, depending on the unique case at hand, as to whether the People have reasonably and substantially adhered to their discovery obligations and acted in good faith doing so. Once the court determines that there is outstanding, delayed, missing, or destroyed discovery material, then a finding must be made as to whether a sanction shall be imposed, and if so, what the appropriate sanction in that particular case is.

This court finds that the People have substantially complied with their discovery obligations and made good faith efforts in obtaining and providing discovery materials under CPL 245.20 (1) to the defendant. The People's certificate of compliance and supplemental certificate of compliances were not illusory, and the court declines to invalidate any of the certificate of compliances.

When determining whether the filing of a certificate of compliance is reasonable under the circumstances, this court finds it important and relevant to consider whether the People substantially complied with their discovery obligations. In this case, the People disclosed the vast majority of discovery materials to the defendant prior to, and along with, the initial certificate of compliance (see certificate of compliance, Sept. 8, 2020; Olsen affirmation). The minimal amount of discovery materials that remained outstanding were not due to a lack of good faith effort on the part of the People.

This court credits the fact that the People did not attempt, at any point, to conceal the fact that there may be outstanding impeachment materials subject to disclosure. One of the purposes of CPL article 245's enactment was to end the "hide-{**71 Misc 3d at 923}and-seek" game of the prior discovery statute where the People could withhold discovery with little ramifications and to the detriment of a defendant. That is not the case here: the People advised the defendant that potential impeachment materials of law enforcement witnesses were outstanding at the time the original certificate of compliance was filed.

ADA Olsen's affirmation of due diligence specifically details the continuous efforts the People have made in this case (see Olsen affirmation). On September 8, 2020, ADA Olsen filed the initial certificate of compliance and "provided links to defense counsel with the People's entire file as it was on that date" (see Olsen affirmation). On that date, the People disclosed all of the impeachment material in their actual possession, including questionnaires and excerpts from police personnel files (see compliance inquiry minutes: Oct. 27, 2020; People's exhibits 7, 8; Olsen affirmation, dated Mar. 3, 2021). On October 16, 2020, ADA Olsen sent an email to defense counsel that contained police questionnaires and relevant excerpts from personnel files related to 16 law enforcement witnesses, some of which had already been provided to the defendant on September 8, 2020 (see Olsen affirmation).

During both compliance inquiries conducted by this court, it was evident that the People had filed in good faith and had substantially complied with their CPL 245.20 (1) obligations (see [*8]compliance inquiry minutes: Oct. 27, 2020; compliance inquiry minutes: Dec. 18, 2020). At the initial compliance inquiry on October 27, 2020, ADA Olsen advised this court that the three law enforcement witnesses had refused to answer questionnaires, and she had since requested a copy of their personnel files. She subsequently provided the personnel files of the three officers to the defendant on November 16, 2020, and properly filed a supplemental certificate of compliance (see Olsen affirmation).

The People have demonstrated how, in general, their office has made good faith efforts to comply with the new discovery statute. David M. Rossi, Chief Assistant District Attorney, drafted a standing affirmation of due diligence under CPL article 245, which explains the procedures, changes, meetings, and other steps their office has made with the sole purpose of complying with CPL article 245 (see People's exhibit 1). Regarding police witness impeachment and personnel records, the People have made it clear to each police department that it is incumbent upon them to provide the People with their entire{**71 Misc 3d at 924} case file in each and every case, including any impeachment information related thereto (see People's exhibit 1 § 31). The People have set up an infrastructure to enable the police to quickly share files digitally and held a series of meetings with each police department to educate them on CPL article 245 and their obligations, amongst many other good faith efforts.

The defendant now submits exhibits consisting of emails from the People after the certificate of compliance was filed (see defendant's exhibits B, G). The emails provided the defendant with additional discovery material and updated information about outstanding discovery. The defendant insinuates that these emails somehow reflect bad faith and noncompliance with the discovery statute. This court disagrees. These emails have actually provided the court with further evidence that the People made significant efforts in continuing to provide discovery materials to the defendant and adhere to their "continuing duty to disclose" under CPL 245.60. To hold these ongoing efforts against the People would be placing them in a catch-22: if they provide supplementary discovery material and status updates to defense counsel, then they will be accused of filing an invalid certificate of compliance; and if they do not, then they will be accused of attempting to conceal discovery material.

The defendant appears to recognize the importance of the "good faith" language incorporated within CPL 30.30 (5) and CPL article 245, as defense counsel accuses the Albany District Attorney's Office of acting in "bad faith" (see affirmation of Bartosik at 18, 24-25). However, this accusation stands in stark contrast to Assistant Public Defender Patricia Wilson's previous statements to the court, including a statement made during the compliance inquiry on December 18, 2020:

"Your honor, I will speak to the compliance aspect. We have been working on hammering out all the details. We have one more officer's record that she's waiting on. One of the officers declined to answer, so she reached out to try to get us some personnel records. It's Police Officer Oliver. It's my understanding she already requested, and it hasn't come in yet and she's usually really good about getting things to me as soon as they come in."

The statement made by Assistant Public Defender Patricia Wilson signified to this court that the parties were diligently working together, as should be the general practice, and that{**71 Misc 3d at 925} the People had been making good faith efforts to ascertain what materials were missing and to disclose the [*9]materials immediately upon receipt.

In contrast, the defendant accuses the People of belatedly disclosing certain items that, in fact, were timely provided. For example, the defendant affirmed that in-store video and the accompanying affidavit were disclosed on October 26, 2020, a date after the certificate of compliance was filed (see Bartosik affirmation at 4). This statement is, at the very least, extremely misleading. These discovery items were sent to the defendant on August 4, 2020, August 5, 2020, and September 8, 2020, prior to the certificate of compliance being filed. This court stresses the importance of attorneys diligently conferring prior to seeking court intervention, as most discovery disputes can be resolved when the attorneys communicate. Further, defense counsel minimized the factual recitation of the charged crimes to such a degree as to make them seem like misdemeanor charges (see Bartosik affirmation at 3-4). The defendant was not charged with petit larcenies, as defense counsel should know. The defendant was charged with four class D felonies and one class E felony. Mischaracterizations in affirmations or other submissions are recognized by this court and wholly inappropriate.

The present case reflects the struggles that the People have faced where, despite making reasonable inquiries of each law enforcement witness, they are unable to receive responses or physically obtain impeachment materials. The court acknowledges the importance of disclosing the existence of impeachment materials/information, while also recognizing the current problem the People face, by no fault of their own, in turning over the entire disciplinary history of every law enforcement witness within short deadlines. Regarding impeachment material of law enforcement witnesses, the People must either (1) rely on the law enforcement witnesses themselves to answer self-reported questionnaires, or (2) wait until the law enforcement agencies respond to the People's requests for the personnel file or other material. As noted, there are sanctions under CPL 245.80 that are tailored to fit this situation.

The January 19, 2021 Brady letter, the sole basis of defendant's motion to renew, states that impeachment materials possessed by the Albany Police Department had been destroyed due to a ransomware attack. However, the Brady letter indicated that only the electronic copy of material had been{**71 Misc 3d at 926} destroyed—not the hard copy file. In response to the destruction, the physical files affiliated with the ransomware attack were pulled in order to rebuild the database. Any discovery material that may have been affected by the ransomware attack has since been disclosed to the defendant (see Olsen affirmation). Significantly, the People have provided the defendant with police witness personnel files in their entirety, including the hard copy material that was affected by the electronic ransomware attack (see Olsen affirmation). The People properly filed a supplemental certificate of compliance (see Olsen affirmation; certificate of compliance, Mar. 3, 2021).

In this case, a sanction under CPL 245.80 would have been a far more appropriate remedy for the defendant to seek. However, as the defense counsel acknowledges, he did not make a motion for sanctions pursuant to CPL 245.80 (see affirmation of Bartosik at 9). As the defendant has not stated how the destroyed material may have contained information related to a contested issue, or how he has been prejudiced by delayed disclosures, the court declines to impose any sanction but will give a "reasonable time to prepare and respond" to any delayed material provided (see CPL 245.80 [1] [a]).

Accordingly, this court holds and determines that the defendant's motion to reargue is hereby denied. Upon granting the defendant's motion for leave to renew, this court holds and determines that the defendant's motion to invalidate the People's certificate of compliances should be and is hereby denied in all respects.