Criminal Court of the City of New York, New York County, July 19, 2022

Neighborhood Defender Service of Harlem (Meghna Philip of counsel) for defendant.

Alvin Bragg, District Attorney (Daniel Mirabelli of counsel), for the People.

Motion, styled as seeking relief from prior orders through renewal and reargument, is denied.

In two decisions and orders dated June 3, 2022, this court denied defendant's omnibus motion and motion to dismiss. Defendant now moves pursuant to CPLR 2221 (d) and (e) to renew and reargue the omnibus motion and, upon renewal or reargument, for an order granting the motion. Defendant also moves in the alternative pursuant to CPL 255.20 (3) for an order deciding the omnibus motion on the merits in the interest of justice and for good cause shown. In addition, defendant moves pursuant to CPLR 2221 (d) to reargue the motion to dismiss and, upon reargument, for an order granting the motion.

Omnibus Motion

Defendant affirms in the moving papers that the defense filed its omnibus motion four days late off calendar on April 8, 2022 (defendant's affirmation in support at 4-5 ¶¶ 5 and n 1, 8). Defendant further affirms that the defense also filed the motion to dismiss on April 8, 2022 (id. at 4-5 ¶ 13). Defendant further affirms that the next court date was May 6, 2022 (id. at 5 ¶ 14).

Defendant argues, in sum and substance, that the court, by setting a briefing schedule for the motions at the May 6 appearance and adjourning the case to June 3 for decision, "implicitly extended" or was "implicitly fixing additional time" for defendant's untimely motion (id. at 7 ¶¶ 11-12). Defendant argues that "[i]n filing its motions forty-nine days after conversion {**76 Misc 3d at 451}. . . defense counsel was petitioning the court to consider the substance of those motions four days beyond the forty-five day timeline enumerated in CPL 255.20 (1)" (id. at 6-7 ¶ 8). Defendant further argues that the court "accepted the motions as filed" where it could have summarily denied the late omnibus motion, and that allowing full briefing where "the timeline for filing those substantive motions was not being implicitly extended . . . would not make sense and would be a waste of judicial resources" (id. at 7 ¶ 11).

Defendant further argues that the prosecution did not claim that the omnibus motion was untimely and that this reflects an understanding that the court had permitted additional time pursuant to CPL 255.20 (1) (id. at 5 ¶ 15; 7 ¶ 10). Defendant further maintains that there was no prejudice to the prosecution or bad faith on the part of the defense (id. at 7 ¶ 9).

Defendant affirms that its original motion papers "contain[ed] neither an affirmation as to [their] own timeliness nor an application for additional time" and argues that

"had defense counsel been on notice that the court was not implicitly fixing additional time by accepting the motion and setting a motion schedule, certainly, counsel would have filed a reply with such an affirmation, including the fact that counsel's family members were ill with COVID during the week preceding the forty-five day deadline for filing the motion" (id. at 7 ¶ 12).

Defendant affirms that "[d]uring the week of March 28 into the week of April 4, . . . defense counsel was managing obligations in numerous cases and litigation matters, in addition to caretaking obligations at home" (id. at 4 ¶ 12). Defendant then argues that, as neither the prosecution nor the court remarked on whether the omnibus motion was untimely prior to the court's June 3, 2022 decision and order, "counsel was not on notice that timeliness of the motion was even at issue past the May 6, 2022 court date" (id. at 7 ¶ 12). Defendant then argues for discretionary relief pursuant to CPL 255.20 (3), requesting that the court consider the motion on the merits in the interest of justice and for good cause shown.

The prosecution argues in opposition, as is relevant here, that defendant's motion to reargue should be denied because it includes new facts that were not in the original motion, such as that counsel's family was ill with COVID-19. The prosecution further argues that it is "nonsensical" and a "novel {**76 Misc 3d at 452}concept" to argue that a court may not summarily deny a motion where it has set a combined schedule for two motions filed off calendar and where no previous motion schedule has been set (the prosecution's affirmation in opp at 3). The prosecution further argues that defendant's ignorance of the requirements of CPL 255.20 (1) and (3) is not an excuse.

Defendant argues in reply, as is relevant here, that the only new facts presented in the instant motion relate to "counsel's personal situation at the time of the filing of the earlier motions" but that they had not been included "because neither the prosecution nor the court indicated that the motion was being opposed or considered as untimely" (defendant's reply affirmation at 4-5 ¶ 8).

[1] Although the CPL does not provide for renewal or reargument, criminal courts frequently adopt the procedures outlined in CPLR 2221, and the Appellate Division, First Department has held that criminal courts have the discretion to entertain motions for renewal (People v Godbold, 117 AD3d 565, 566 [1st Dept 2014], lv denied 27 NY3d 997 [2016]). As such, the court will consider the instant motion as a motion for leave to renew and reargue.

Based on the papers submitted, the branch of the motion seeking reargument of this court's denial of defendant's omnibus motion as untimely is denied to the extent that leave to reargue is denied. CPLR 2221 (d) (2) provides that "[a] motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Here, defendant admits that the instant motion includes new facts regarding counsel's circumstances in the approximately two weeks prior to the filing of the omnibus motion. As such, defendant has failed to establish entitlement to an order granting leave to reargue.

As to the branch of the motion seeking renewal of the omnibus motion, that is denied to the extent that leave to renew is denied. CPLR 2221 (e) (2) and (3) provide, in pertinent part, that "[a] motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior{**76 Misc 3d at 453} motion." Here, defendant filed the subject motion, and a motion to dismiss, on April 8, 2022. The court set a briefing schedule on the motions at the following appearance, on May 6, 2022, noting in the docket, "[defendant]—served 2 motions," "[prosecution]—response 5/20," "[defendant]—[reply] 5/27," "[decision] 6/3." The court had before it on May 6 a combined total of 123 pages of moving papers, consisting of a 35-page omnibus motion and an 88-page motion to dismiss, inclusive of exhibits. Exclusive of exhibits, each motion was approximately 18 pages long.

Defendant's argument in the instant motion is, in effect, that the court was required to have read the moving papers at or before the May 6 appearance and have determined, prior to setting a briefing schedule on the motions, whether defendant's motion was timely, or included an application for additional time, or fell within some exception to the statute that would otherwise render it timely, or something similar. And if, upon the reading, the court determined that, as here, no such application was in the papers, and that, as here, no affirmation at all was made as to the timeliness of the motion, and that, as here, no exception applied on its face, the court would be required to apprise defendant of the deficiencies in the moving papers prior to setting a briefing schedule in order to afford defendant, in effect, a second bite at the apple to address that which should have been addressed in the first instance.

Defendant's fanciful arguments contemplate an ongoing review by courts of submitted motion papers prior to their full submission, else otherwise late motions be deemed timely by virtue of the court's establishing a briefing schedule for the orderly submission of further papers with the goal of deciding the motion. Contrary to the assertions by defendant in the moving papers, mandating an ongoing review of submitted papers on a rolling basis is itself a highly inefficient allocation of judicial resources. Courts routinely review motion papers when the motion is fully submitted, meaning all papers have been submitted on the motion. This serves numerous purposes, the most salient of which is perhaps avoiding prejudice by an initial reading of one-sided moving papers, only, to be followed weeks or months later by opposition papers.

While this may be the practice of some judges who obtain papers prior to a motion's full submission, it is by no means required, and in fact, in many New York courts, judges do not even receive, let alone review, moving papers until the motion{**76 Misc 3d at 454} has been fully submitted. Moreover, cases routinely end in a resolution, mooting motions under consideration that have not yet been fully submitted or decided. Having read papers on motions that are ultimately withdrawn or mooted is academic at best and an utter waste of time at worst.

It is the practice of this court to read motion papers once the motion has been fully submitted. As such, on May 6, all that was before the court was the knowledge that two motions had been filed off calendar and were not fully submitted, and so a briefing schedule and decision date needed to be set. It is not for the court to apprise a movant of the potential that the motion could be denied as untimely. Defendant is advised to refer to the court's guidance in its prior order denying the omnibus motion, where the court noted, "[t]he motion contains neither an affirmation as to its own timeliness nor an application for additional time." Had movant undertaken in the first instance an analysis, as is movant's burden, as to whether the moving papers were timely, perhaps it would have been discovered that the motion was being filed late, and movant might have included an application for additional time or established that the motion should be considered in the interest of justice and for good cause shown.

Even if the court had read the moving papers prior to the May 6 appearance, there is no obligation, and indeed, it could be improper, depending on the circumstances, for the court to reject summarily a motion on timeliness grounds where a full briefing has not been completed. Tipping a movant off as to potential issues with its motion is effectively the court placing its hand on the scale, where the expectation is that the parties before the court will fully brief all relevant issues. That defendant failed to consider the timeliness of its motion as an issue in the moving and reply papers, and that the prosecution did not raise timeliness as an issue in the opposition papers, is of no moment.

[2] CPL 255.20 (1) provides, in relevant part, that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." Here, the motion was filed 49 days after arraignment on the information, and defendant's off-calendar filing of a late motion coupled with the court's setting of a briefing schedule in response does not constitute an "application of the defendant" for additional {**76 Misc 3d at 455}time within the meaning of CPL 255.20 (1). Neither the court nor the prosecution is required to put a defendant on notice as to defendant's statutory obligations regarding timeliness. As such, defendant's arguments as presented are unavailing.

For the foregoing reason, defendant's application in the alternative for an order pursuant to CPL 255.20 (3) considering, in the interest of justice and for good cause shown, the omnibus motion on the merits is denied. The facts presented in support of such an application should have been made within the untimely omnibus motion. Defendant has not shown that such an application is not subject to the restrictions of CPLR 2221 (e) regarding renewal, and allowing such an application now independently of the renewal statute is tantamount to allowing a second motion on the same issue.

Nevertheless, the court has separately considered this application and all facts presented in the moving papers and adheres to its original, discretionary determination not to consider the motion on the merits in the interest of justice and for good cause shown. Here, defendant argues, in effect, that any late omnibus motion should be considered in the interest of justice where it is [*5]the first such motion and it does not seek to delay trial, because the motion seeks to preserve defendant's "fundamental federal and state constitutional rights" (defendant's affirmation in support at 8-9 ¶ 16). Defendant further argues that there was good cause for the delay due to defendant's personal obligations relating to COVID-19, work on other cases, other work on this case in formulating the motion to dismiss the certificate of compliance, and alleged delay brought about by the prosecution's untimely discovery disclosures which precipitated the convergence of work in the weeks prior to the filing deadline for the omnibus motion. Defendant does not argue in the application that this court "must" consider the omnibus motion pursuant to CPL 255.20 (3), but that the court should exercise its discretionary authority (id. at 8 ¶ 15).

The court finds based on the papers submitted that defendant's arguments regarding good cause amount to law office failure, which generally does not constitute good cause for a delay in filing a motion under well-established New York jurisprudence (see People v Augustine, 235 AD2d 915, 916-917 [3d Dept 1997], appeal dismissed 89 NY2d 1072 [1997], lv denied 89 NY2d 1088 [1997]; see also Brill v City of New York, 2 NY3d 648, 652 [2004]; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 102, 105 [2001]; Maschi v City of New York, 110 AD3d 460,{**76 Misc 3d at 456}460[1st Dept 2013]). As such, the court finds that defendant has failed to demonstrate entitlement to relief pursuant to CPL 255.20 (3) in the instant motion.

Accordingly, the branch of the motion seeking reargument and renewal, or, in the alternative, consideration pursuant to CPL 255.20 (3) under the court's discretionary authority, of the prior omnibus motion on the merits is denied.

Motion to Dismiss

Defendant argues, in sum and substance, that the court overlooked that the prosecution redacted portions of certain Civilian Complaint Review Board (hereinafter CCRB) summaries, and the certificate of compliance should be deemed improper due to such unilateral redaction without a protective order. The papers do not indicate whether defendant has received new unredacted or lesser redacted copies subsequent to this court's June 3, 2022 decision and order directing the disclosure of all discoverable material in any underlying records, a defined term in the decision and order which included the CCRB summaries.

The prosecution argues in opposition, as is relevant here, that the court did not overlook or misapprehend any matters of fact or law in its prior order. The prosecution argues that "the court's response included a directive to the People to provide [defendant] with underlying records in relation to CCRB summaries" (the prosecution's affirmation in opp at 4).

Defendant argues in reply, as is relevant here, that the court overlooked that the prosecution heavily redacted certain CCRB investigation summaries without a protective order. Defendant further argues that "the court did not appear to take into consideration the CCRB summaries which the prosecution clearly did believe to be discoverable, but which the prosecution unilaterally redacted" heavily without a protective order (defendant's reply affirmation at 7 ¶ 16).

[3] The court held in its June 3, 2022 decision and order on the motion to dismiss that certain items were discoverable which the prosecution had asserted were not discoverable. Specifically, in that decision and order, the court directed that the prosecution

"produce all underlying records within its actual or {**76 Misc 3d at 457}constructive possession that may contain CPL 245.20 (1) (k) (iv) impeachment material, which includes that relating to any known allegations against any testifying officers and includes, but is not limited to, material or information compiled or held by NYPD or IAB, CCRB records in the possession of the prosecution, or indeed in any database, misconduct or otherwise, of the prosecution or other investigative personnel within the meaning of CPL 245.55 (1), and items, evidence and information within the meaning of CPL 245.20."

The court had previously defined "underlying records" as "certain discoverable items" required to be produced pursuant to CPL 245.20 (1) (k) (iv) that "include[d] files relating to certain [CCRB] and NYPD investigations, including those where allegations were found to be unsubstantiated, of seven officers." This was later limited to three officers in the reply papers.

The court's directive applies to discoverable material previously concealed behind redactions by the prosecution. Contrary to the defendant's contentions, the prosecution is not required to seek a protective order where it redacts information in a document that is not discoverable. The issue of whether certain materials were or were not discoverable was addressed in the prior motion. While defendant argues in the instant reply papers that the prosecution "clearly did believe" the redacted materials were discoverable, this position is belied by the prosecution's opposition papers in the motion to dismiss. In those papers, the prosecution affirmed that it had "turned over all discoverable material in [its] physical possession" (the prosecution's opp to the mot to dismiss at 29).

The court takes this opportunity to clarify that previously redacted material that this court has held is discoverable in its prior decision and order must be produced to defendant in unredacted form if this has not already been done. This includes the CCRB summaries and includes, but is not limited to, the redacted documents in exhibits C and D of defendant's moving papers on the motion to dismiss, to the extent they apply to the three officers at issue or some other newly disclosed witness.

As such, the branch of the motion seeking reargument of this court's denial of the motion to dismiss is denied to the extent that leave to reargue is denied.{**76 Misc 3d at 458}

Accordingly, it is ordered that the motion by defendant Daniel Roberts Jr. for relief from this court's prior orders of June 3, 2022, is denied in its entirety.