Criminal Court of the City of New York, Bronx County, August 1, 2022

The Bronx Defenders (Rachna Agarwal of counsel) for defendant.

Darcel D. Clark, District Attorney (Allyson White of counsel), for plaintiff.

The defense moves to deem the People's statements of readiness invalid, arguing those statements were not predicated upon a proper certificate of discovery compliance (COC). They claim that when the People filed their COC, the People had not{**76 Misc 3d at 706} actually produced all the material listed on it. Specifically, they allege that the People did not actually produce body-worn camera footage, the Intoxicated Driver Testing Unit (IDTU) video, and impeachment information about a police witness, Officer Johan Hernandez.

The People respond that they did actually produce the body-worn camera footage and IDTU video. However, they concede that they "inadvertently failed to place" some impeachment information about Officer Hernandez into the digital folder they sent to the defense. They also concede that they did not produce underlying documents relating to an Internal Affairs Bureau (IAB) allegation against Officer Hernandez.

For the following reasons, the defense's motion is granted.^[FN1]

i. The IDTU Video and Body-Worn Camera Footage

[1] The court concludes, with reservations, that the People actually produced the IDTU and body-worn camera videos. Controlling on this court,^[FN2] the Appellate Division has held that the [*2]filing of a COC "[can]not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant [is] actually produced to the defendant." (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021] [emphasis added]; see People v Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U], *2-3 [Crim Ct, Bronx County 2022] [analyzing Ferro].)

The defense submits various internal emails from the Bronx Defenders between attorneys and "the Bronx Defenders discovery hub" indicating that they cannot find these videos. (See generally defendant reply 1-3; id. exhibits A-G.) From these emails, the defense concludes that "the Bronx Defenders office never received this footage." (Defendant reply at 4.) However, these emails do not establish that. They establish only that the defense attorney and the manager for the Bronx{**76 Misc 3d at 707} Defenders "discovery hub" do not recollect seeing and cannot find the missing files. (See id. exhibits A-G.)

But the question of whether the defense has seen or can find discovery is not necessarily the same as whether the People "actually produced" it. To "produce" means "to offer to view." (Merriam-Webster Online Dictionary, produce [https://www.merriam-webster.com/dictionary/produce].) Similarly, to "disclose"—which is the word the discovery statute uses—means "to expose to view." (Merriam-Webster Online Dictionary, disclose [https://www.merriam-webster.com/dictionary/disclose].) There are myriad situations in which the People could have produced discovery, but the defense may nonetheless be unable to find it in their files. For instance, the defense may inadvertently delete it. Or the defense's management system may be defective. Or the defense may look in the wrong place. To be sure, a defense attorney's affirmation that they have not seen or cannot find some discovery suggests that the People never produced it. But it is not dispositive.

Here, the People provide seven Axon "Evidence Audit Trails" indicating that they actually produced the body-worn camera and IDTU videos to the defense. (See prosecution response exhibit 1.) Each audit trail is associated with one video. (See id.) The audit trails detail when each video file was "converted," "added" to a "case," and copied from the police to the People. (See id.) Each also notes when a person was "granted" "access" to the video, when and with whom it was "shared," and the "permissions" given to each of those persons. (See id.) These audit trails establish that the People produced the videos to Bronx Defenders email addresses on April 22, 2022, and May 10, 2022, before the People filed their COC. (See id.)^[FN3]

In this case, the court accepts the People's Evidence Audit Trail data as dispositive, but it does so with reservations. Criminal Procedure Law § 245.20 (1) requires that the People "disclose" automatic discovery "and permit" the defense to "copy, photograph and test" the items (emphasis added). In other words, simply allowing the defense to view a discoverable file does not fulfill the statute—the People must also grant the defense sufficient control over the file to "copy, photograph and test" it. Here, the Axon Evidence Audit Trails report that the People gave the Bronx Defenders "permissions to View" the {**76 Misc 3d at 708}files on April 22, 2022, and May 10, 2022, but did not give the Bronx Defenders "permissions to View and Download" them until May 23, 2022. (See prosecution response exhibit 1 [emphasis added].)^[FN4] It may be that only allowing the defense to "view" but not "view and download" a discoverable file does not meet the statutory command that the defense be allowed to "copy, photograph and test" disclosed items. However, neither party has identified this discrepancy as an issue or explained what the Axon permissions mean. The court cannot decode these technical terms on its own. As a result, on the existing record, the court reservedly concludes that the People actually produced these videos to the defense, as the statute requires.

ii. Impeachment Information for the People's Police Witness

[2] The issue of the missing impeachment information is more straightforward. The People have an automatic discovery obligation to disclose information "that tends to . . . impeach the credibility" of their witnesses. (CPL 245.20 [1] [k] [iv].) That includes information that is in their possession and information that is "known to police." (Id.) On their COC, the People listed a "Disclosure Letter" and "Lawsuit Information" regarding misconduct by one of their police witnesses, Officer Johan Hernandez. (Defendant reply exhibit B.) The People concede that they "inadvertently failed to place" that Disclosure Letter and Lawsuit Information "in the OneDrive" they sent to the defense. (Prosecution response at 6-7.) The People note that their failure to disclose was "a complete accident and in advertent [sic] mistake." (Id. at 6.) The People also concede that they did not produce, on purpose, "underlying document[s]" for "IAB Log No. 18-15083," an "unsubstantiated allegation of Fado Discourtesy." (Id. at 7.)

First, the People's COC was not proper because they failed to "actually produce" the "Disclosure Letter" and "Lawsuit Information" identified on their COC. Ferro applies straightforwardly here, and it controls. The People's COC "could not be deemed complete" for speedy-trial purposes until the "material and information identified in the certificate" was "actually produced to the defendant." (Ferro, 197 AD3d at 787-788.)

{**76 Misc 3d at 709}The court rejects the People's argument that "good faith" or "due diligence" may render a COC proper even if they fail to produce automatic discovery. The court has explained in depth why the statute precludes such a claim. (E.g. People v Vargas, 76 Misc 3d 646, 649-650 [Crim Ct, Bronx County 2022]; People v Carrillo, 75 Misc 3d 1227[A], 2022 NY Slip Op 50680[U], *3-4 [Crim Ct, Bronx County 2022].) Criminal Procedure Law § 245.50 (1) and (3) define a "proper" COC, necessary to stop the speedy-trial clock, as one filed "[w]hen the prosecution has provided" automatic discovery. And the adverse-consequence bar does not apply to speedy-trial analyses. (Vargas, 76 Misc 3d at 650 [collecting cases holding the same].) Indeed, earlier this year, the legislature rejected an amendment to the adverse-consequence bar that would have applied it. (Carrillo, 2022 NY Slip Op 50680[U], *4; see also American Airlines v State Commn. for Human Rights, 29 AD2d 178, 181 [1st Dept 1968] ["In addition, the rejection by the Legislature of the amendments . . . sought by the commission . . . is a significant [*3]circumstance against the construction sought by (them)"].)

Moreover, the People's argument otherwise contradicts the Appellate Division's decision in Ferro. The Appellate Division decided that case "[c]ontrary to the People's contention" of good faith and due diligence. (See Ferro, 197 AD3d at 787-788; prosecution brief at 22-23, People ex rel. Ferro v Brann, AD docket No. 2021-05850 [Aug. 18, 2021] [where the People contended the lower court correctly held their COC proper because they exercised good faith and due diligence].)

Second, even setting aside the People's "inadvertent[ ]" error, they also concede that they intentionally failed to disclose underlying documents relating to Officer Hernandez's IAB matter No. 18-15083. (See prosecution response at 7.) They do not explicitly justify this failure—they only note that it relates to an "unsubstantiated allegation of Fado Discourtesy." (Id.) "FADO" is an acronym in police discipline that usually means "Force, Abuse of Authority, Discourtesy, and Offensive Language."^[FN5]

The discovery statute mandates that the People disclose "all" impeachment information relating to their police witnesses {**76 Misc 3d at 710}that is in their possession or "known to police." (CPL 245.20 [1] [k] [iv].) The First Department has held the same. (See Matter of Jayson C., 200 AD3d 447 [1st Dept 2021]; People v Polanco-Chavarria, 74 Misc 3d 1210[A], 2021 NY Slip Op 51297[U], *4 [Rockland County Ct 2021] [analyzing Jayson C.].) This court and many others have explained that the statute's command includes "unsubstantiated" allegations—a technical term that simply means no factual determination was made. (E.g. People v Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *2 [Crim Ct, Bronx County 2022, Licitra, J.]; People v Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U] [Crim Ct, NY County 2022, Rosenthal, J.]; People v Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021, Weiner, J.]; People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021, McDonnell, J.]; People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021, Gaffey, J.]; People v Perez, 71 Misc 3d 1214[A], 2021 NY Slip Op 50374[U] [Crim Ct, Bronx County 2021, Johnson, J.].)

Because the People appear to have intentionally failed to disclose impeachment material since it was an "unsubstantiated allegation of Fado Discourtesy," "good faith" and "due diligence" are again irrelevant. Here, the People's refusal to disclose is "merely an expression of policy and desire." (People v Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U], *5 [Crim Ct, NY County 2022].) But determining what should be discoverable "is not the People's province." (2022 NY Slip Op 50415[U], *5.) "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." (People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U], *5 [Crim Ct, NY County 2021].) That is "not the People's determination to make." (2021 NY Slip Op 50743[U], *5.) Under CPL article 245, "the People's responsibility is solely to disclose 'all material and information' that 'tends to impeach' the officer witness." (Darren, 2022 NY Slip Op 50415[U], *5.) Here, they have not done that.

The court holds that the People's COC was not proper. The People never established any "special circumstances" that would allow them to state ready on an improper COC. (See CPL [*4]245.50 [3].) Therefore, their statements of readiness were not valid. The defense's motion is granted.{**76 Misc 3d at 711}

Accordingly, the CPL 30.30 clock ran from arraignments on February 27, 2022, to when the defense requested this motion schedule on May 25, 2022. (CPL 30.30 [4] [a]; People v South, 29 Misc 3d 92, 95 [App Term, 2d Dept, 9th & 10th Jud Dists 2010].) The People are charged 87 days.

Further, to any extent to which this has not already been done, the People are ordered to disclose:

1. The entirety of their file and the police file for this case, in such a manner that the defense may discover, inspect, copy, photograph, and test each item within it, except for work product or any material under a protective order; and

2. All evidence and information, including any underlying documents, known to the People or the police, that tends to impeach the credibility of any witness against Ms. Alvia, including the underlying documents for Officer Johan Hernandez's IAB matter No. 18-15083.