Criminal Court of the City of New York, New York County, July 30, 2021

The Legal Aid Society (Rebecca Heinsen of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Meral Kerim of counsel), for plaintiff.

Defendant is charged by information with violating Penal Law § 130.52 (1) and (2), forcible touching, and Penal Law § 130.55, sexual abuse in the third degree. Defendant [*2]moves for an order deeming invalid the People's certificate of compliance (COC) for the People's failure to disclose material and information required by Criminal Procedure Law § 245.20 (1) (k) and (p).

Defendant's motion is granted with regard to his request for additional information concerning the complaining witness' record of convictions and the records underlying the police officer witness' substantiated allegations of misconduct. Pursuant to defendant's request, the People's COC is invalidated as is the People's certificate of readiness (COR).

Introduction

The People served discovery material on defendant on May 2, 2021, and served a certificate of compliance, discovery list, and certificate of readiness on May 3, 2021. Also on May 3, the People served an automatic discovery form, which indicated the People's intention to call Police Officer George Xarthoulakos{**72 Misc 3d at 1155} as a law enforcement witness, along with a District Attorney's Office form entitled "Disclosure Advisory" (DAF), listing the date and nature of two allegations against the officer that had been deemed substantiated by the New York City Police Department (NYPD) and providing, in addition, the date and nature of one incident of misconduct found by the New York City Civilian Complaint Review Board (CCRB). The People did not provide any documents, evidence, or other materials or information from which that DAF was compiled.

By notice of motion on June 21, 2021, defendant moved for an order deeming the People's COC to be invalid, and "deferring the defense's COC" until 30 calendar days after the People serve a valid COC. Defendant argues that the People failed to provide sufficient information concerning the complaining witness' conviction history, pursuant to CPL 245.20 (1) (p) and (k), and failed to provide the reports underlying the substantiated allegations set out in the DAF, pursuant to CPL 245.20 (1) (k). The People filed their affirmation and memorandum of law in opposition on July 6, 2021.

Discussion

Effective January 1, 2020, the New York State Legislature significantly broadened the prosecution's discovery obligation, enacting Criminal Procedure Law article 245 and repealing former article 240. In addition to expanding the types of material and information that must be disclosed by the prosecution and establishing an expeditious discovery schedule, article 245 contains an express "presumption of openness," favoring disclosure when interpreting the discovery provisions (CPL 245.20 [7]; see William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 ["the prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance. . . . Thus, a prosecutor who fails to engage in 'open file' discovery (except for 'work product' and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution"]).

Criminal Procedure Law § 245.20 (1) provides a non-exhaustive list of items that the [*3]People must automatically disclose to the defendant. Pursuant to CPL 245.20 (2), the People must make a diligent, good faith effort to ascertain the existence of those items and cause them to be made available{**72 Misc 3d at 1156} for discovery, even if the material is not within their possession, custody or control. In addition, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the People's possession.

When the People have provided the automatic discovery required, they shall serve and file a certificate of compliance, stating that after "exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). The People cannot be deemed ready for trial until a proper COC is filed (CPL 30.30 [5] [statement of trial readiness must be accompanied by a COC]; 245.50 [3] [but for special circumstances, People not ready for trial absent COC]).

At issue in this motion is defendant's assertion that the People have failed to provide sufficient discovery material and information concerning the complaining witness' record of judgments of conviction and concerning a police officer witness' disciplinary history.

Complete Record of the Complaining Witness' Judgments of Conviction

Criminal Procedure Law § 245.20 (1) (p) requires that the People disclose to defendant "[a] complete record of judgments of conviction for . . . all persons designated as potential prosecution witnesses."

[1] Here, the People provided only a statement that the complaining witness was convicted of Florida Statutes § 817.034 on October 20, 2003. The People did not specify which subsection was the basis for the conviction (the statute contains felony and misdemeanor provisions) or the sentence imposed. Nor did the People provide the docket number or even the Florida court or jurisdiction in which the conviction occurred. While CPL 245.20 (1) (p) does not define "complete record of judgments of conviction," the People's disclosure here—devoid even of docket number, jurisdiction, or sentence imposed—is all but meaningless. Such a meager disclosure could not have been the legislature's intent.

Knowledge of a witness' past judgments of conviction is an essential component of any defense case. Convictions—the nature of the crime, the circumstances of the conviction, and the sentence imposed—are critical areas for investigation and {**72 Misc 3d at 1157}preparation, as well as confrontation of adverse witnesses by impeachment at trial (People v Beale, 73 AD2d 547 [1st Dept 1979] [witnesses may be cross-examined concerning any immoral, vicious or criminal act which may affect their character and show them to be unworthy of belief]). The statute under which the complaining witness here was convicted, Florida Statutes § 817.034, is the Florida Communications Fraud Act, concerning "schemes to defraud." A fraud conviction—whether felony or misdemeanor—is so immediately relevant to impeachment that the People's disclosure is mandated not only by CPL 245.20 (1) (p), but also by CPL 245.20 (1) (k) (iv), which requires disclosure of "[a]ll evidence and information" that "tends to . . . impeach the credibility of a testifying prosecution witness."

For these reasons, the People are ordered to provide the docket number of the case in which the witness was convicted, the particular section of the statute that was the basis for the [*4]conviction, the court in which the conviction occurred, the sentence imposed, as well as any other materials concerning that conviction that are in the People's possession, custody or control.^[FN1] How that material may be used remains for the trial court (see People v Smith, 27 NY3d 652 [2016]).

Police Officer's Disciplinary Records

Concerning the police witness' disciplinary records, the prosecution provided its own DAF—a list containing summaries of two allegations against prosecution witness Officer Xarthoulakos that had been substantiated by the NYPD and one finding of misconduct by the CCRB.^[FN2] The People did not provide any documents or disciplinary records related to those findings or from which the DAF list was prepared.

Defendant requests an order directing the People to provide "all underlying reports pertaining to substantiated and {**72 Misc 3d at 1158}unsubstantiated allegations of misconduct for the officer," specifically, "a copy of the underlying NYPD personnel file, NYPD complaints and reports, the CCRB complaint and report, or other documents relied upon to craft the [DAF]." Defendant argues also that the People's COC should be invalidated for their failure to provide those materials.

In opposition, the People argue that they are not required to produce underlying records, "when the allegations do not (1) relate to the subject matter of the case or (2) . . . serve as impeachment material of a prosecution witness." The People argue also that they have "no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witnesses," and that it would be unreasonable to

"require the prosecution to produce every single underlying record related to every single disclosable allegation of law enforcement misconduct, no matter how minor or remote in time the misconduct, no matter how unrelated such misconduct may be to the actual subject matter of the case, and no matter how voluminous the records or intractable the problems of their production."

Defendant's request is overbroad. The statute does not require disclosure of the officer's entire personnel file (see People v Altug, 70 Misc 3d 1218[A], 2021 NY Slip Op 50145[U] [Crim Ct, NY County 2021]; People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]).

[2] The People's disclosure is insufficient, however, and their arguments are unpersuasive.

Criminal Procedure Law § 245.20 (1) (k) (iv) requires the People to provide to the defense:

"[a]ll 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 . . . impeach the credibility of a testifying prosecution witness . . . . Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form."

The plain meaning of "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness . . . whether or not . . . in tangible form" encompasses all allegations, as well as the files, records and other{**72 Misc 3d at 1159} materials "in tangible form" on which substantiated disciplinary findings against the People's officer witness are based (see People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]; People v Perez, 71 Misc 3d 1214[A], 2021 NY Slip Op 50374[U] [Crim Ct, Bronx County 2021]; People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U] [Nassau Dist Ct 2021]; People v Cooper, 71 Misc 3d 559 [Erie County Ct 2021]; People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v Rosario, 70 Misc 3d 753 [Albany County Ct 2020]).^[FN3]

Impeachment evidence and information is that which concerns the credibility of the officer witness—regardless of the subject matter of the charges against the defendant (People v Smith, 27 NY3d 652 [2016] [cross-examination concerning any immoral, vicious or criminal act which may affect witness' character and show unworthiness of belief]; People v Beale [same]; People v Altug). The ability to test—to confront—an adverse witness' credibility through impeachment is a fundamental right. The People's argument that their disclosure [*6]requirement is limited to material and information that is relevant to the subject matter of the case fails to acknowledge the purpose and express language of CPL 245.20 (1) (k) (iv), requiring disclosure of "[a]ll evidence and information" "in tangible form" or otherwise that "tends to . . . impeach" the officer witness. Records of substantiated charges of failure to follow procedures, dishonesty, or other improper conduct are tangible evidence and information that bear directly on an officer's credibility as a witness in any case, regardless of what might be the particular crime charged.{**72 Misc 3d at 1160}

Several courts considering the scope of CPL 245.20 (1) (k) have found that there can be a good faith basis to cross-examine police witnesses about substantiated allegations that are clearly supported by facts—and even as to unsubstantiated allegations when sufficient evidence is available (see People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]; People v Yizar, Crim Ct, Bronx County, 2021, indictment No. 2105/19; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]). Indeed, underlying disciplinary records may well be necessary to establish a good faith basis for cross-examination about specific disciplinary matters. Thus, impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case. Rather, it includes evidence recorded in tangible form and otherwise that "tends to impeach" the officer's credibility and would serve as a basis for confrontation and impeachment of the police witness.^[FN4]

The People's argument that the underlying records here "[do] not serve as impeachment material" is also unavailing. Without question, evidence and information underlying a substantiated disciplinary complaint would "tend to impeach" a witness' credibility. Moreover, it is not for the People to determine whether a particular item might be admissible or might serve as impeachment material. Determinations of admissibility and use at trial are the purview of the trial court (People v Porter, 71 Misc 3d 187, 191 [Crim Ct, Bronx County 2020]). At this juncture, the People's responsibility is solely to disclose "all material and information" that "tends to impeach" the officer witness. Accordingly, the People's assertion that disciplinary records here are not impeachment material has no bearing on the requirement that those records be provided.

The People also argue that CPL article 245 "does not impose a burden on the People to [*7]gather publicly available documents{**72 Misc 3d at 1161} and provide them to the defense when the defense can obtain those materials on their own." In fact, CPL 245.20 (2) provides that "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." This provision does not relieve the People of their disclosure requirement in this case, where the discovery material at issue is within the People's custody and control, without resort to a subpoena.^[FN5]

The People offer other general argument, essentially that, given the size of the NYPD and the number of disciplinary complaints and proceedings conducted therein, either the legislature did not intend for the disclosure of disciplinary records, or the court should not require disclosure. The argument is inapposite in this case, which concerns a lone police officer witness with just three disciplinary findings.

This case, like most cases in courts of criminal jurisdiction, involves a limited number of police witnesses and a small number of disciplinary findings. That the People have not described any difficulty obtaining or disclosing records in this case strongly suggests that the burden (if any) caused by having to disclose the disciplinary records here would be minimal. Thus, general arguments concerning burdens of disclosure are unpersuasive. It bears noting also that in cases in which the volume or complexity of disciplinary records is so great that disclosure may indeed be difficult, the People's compliance with their discovery obligations, including production of those underlying records, is that much more critical.

For these reasons, defendant's request for the testifying police officer's disciplinary files is granted. The People are directed to disclose the underlying NYPD disciplinary records. Concerning the CCRB records, as that agency is not a law enforcement agency acting on the government's behalf in this case, the People are directed to disclose all underlying CCRB records concerning the allegation against the officer that are in the People's possession. The People are not, however, required to obtain CCRB records that are not already in their possession.{**72 Misc 3d at 1162}

Validity of the Certificate of Compliance

In their opposition to the defendant's motion, the People state that they "reviewed the relevant material, including law enforcement witnesses' personnel files," and filed a COC "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery [and] disclosed and made available all known material and information subject to discovery" (quoting CPL 245.50 [1]). Nevertheless, the People did not provide any disciplinary records for their police officer witness. Nor have the People described any efforts made to obtain those records or explained why they were unable to disclose them (CPL 245.20 [1]; 245.50).

The People's reliance on their "good faith" to avoid the invalidation of the COC for their failure to disclose these records is misplaced. "Good faith" and "due diligence" in the context of the discovery statute concern the People's effort to ascertain the existence of discoverable material (as set out in CPL 245.20 [1]) and to make that material available to the defense (CPL 245.50 [1]). The People have not shown efforts in that regard. They have failed to make available to the defendant the disciplinary records that are required by CPL 245.20 (1) (k) (iv). That the People might have applied good faith and due diligence in making their own determination that disciplinary records do not—or should not—fall within the statute is of no moment. That is not the People's determination to make. CPL article 245 relieves the People of having to define what is or is not discoverable. The list of what types of evidence must be disclosed was determined by the legislature. And to the extent necessary, that list may be refined or interpreted by the court. It is for the People to diligently ascertain the existence of and disclose the items on the list—not to determine what categories of evidence should be included on it.

In CPL article 245, the legislature provided numerous opportunities for the People to seek accommodation or relief regarding untenable discovery difficulties in any particular case. For example, CPL 245.10 (1) (a) allows for extension of time to provide initial discovery where materials are exceptionally voluminous. In some circumstances, CPL 245.50 (3) allows for trial readiness when discoverable evidence is unavailable. CPL 245.70 (2) allows for modification of discovery periods for good cause shown. CPL 245.70 (1) allows for protective orders that might deny, restrict, condition, or defer disclosure of any discovery. In addition, CPL 30.30 (4) (g) allows for exclusion of{**72 Misc 3d at 1163} time chargeable to the People for delay caused by unavailability of evidence that the People have diligently attempted to obtain and disclose. Here, however, the People failed to fully disclose the complainant's complete record of judgments of conviction and failed to disclose the officer's disciplinary records, rather than show due diligence or request assistance or relief from the court.

For these reasons set out above, the People cannot be found to have exercised due diligence in discovering and making available discoverable impeachment material. The People's certificate of compliance is therefore invalid, as is their certificate of readiness.^[FN6]

Conclusion

For these reasons, defendant's motion is granted to the extent that:

1. The People are directed to disclose the docket number of all cases in which the complaining witness was convicted, the particular section of all statutes that were the bases for any convictions, the court in which convictions occurred, and the sentences imposed.

2. The People are directed to disclose all information and material about prior judgments of conviction of their witness that is in their possession.

3. The People are directed to disclose the NYPD disciplinary records for their testifying officer in this case.

4. The People are directed to provide all CCRB records and materials concerning their testifying officer that are in the People's possession and control.

The People may redact the officer's Social Security number and tax identifying information, pursuant to CPL 245.20 (6) and Public Officers Law § 89 (2) (b). Permission for any additional redactions must be sought by court order, pursuant to CPL 245.70.{**72 Misc 3d at 1164}

Defendant's motion for disclosure of the testifying officer's entire personnel file is denied.

The People's COC and COR, dated May 3, 2021, are invalid.