Criminal Court of the City of New York, Bronx County, September 7, 2022

The Bronx Defenders (William John of counsel) for defendant.

Darcel D. Clark, District Attorney (Marline Paul of counsel), for plaintiff.

{**76 Misc 3d at 890}The defense's CPL 30.30 motion alleges that the People did not discharge their discovery duties before stating ready for trial. First, the defense argues that the People did nothing regarding documents held by the Fire Department of the City of New York (FDNY). The People respond that they have no duty to discover FDNY records because the discovery statute does not deem those records to be in their possession. Second, the defense argues that the People did nothing regarding "Giglio material"—or records about extrinsic prior misconduct—for all except two of the police witnesses in this case. The People respond that they have no discovery duty regarding misconduct records for these officers because they do not intend to call them to testify.

[1, 2] On both counts, the court disagrees with the People. First, when information is not in the People's possession, the discovery statute does not ask them to do nothing. Instead, the statute requires them to make "diligent, good faith effort[s]" to ascertain the existence of such information and make it available. (CPL 245.20 [2].) Where the People fail to establish any such efforts, they fail to adequately defend their COC (certificate of compliance). Second, the discovery statute requires that the People disclose information favorable to the defense in their possession or in the possession of law enforcement. (See CPL 245.20 [1] [k].) That includes information tending to "negate the defendant's guilt" and "support a potential defense." (Id.) Prior misconduct by officers involved in this case—regardless of whether the People call them to testify—is such favorable information. Accordingly, the People cannot categorically refuse to do anything regarding an officer's prior misconduct simply because they have decided not to call them to testify.

For each reason, the People's certificates of compliance and statements of readiness were illusory. Nonetheless, the defense requested a motion schedule before the CPL 30.30 clock had expired. As a result, the court finds that 90 days are charged, and so the defense's motion to dismiss must be denied.^[FN1]{**76 Misc 3d at 891}

The People's specific discovery burden depends on whether information is in their possession. If discoverable material is in their possession, they must "actually produce[ ]" it to the defense. (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021]; CPL 245.20 [1].) By law, the People's "possession" includes "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." (CPL 245.20 [2].) For information that is not within the People's possession, the discovery statute requires them to make "diligent, good faith effort[s]" to do two things. (Id.) First, they must make a "diligent, good faith effort" to "ascertain the existence" of discoverable material. (Id.) Second, they must make a "diligent, good faith effort" to "cause" that material to "be made available for discovery." (Id.)

Once the People complete these steps, CPL article 245 directs them to certify it in a certificate of discovery compliance (COC). (CPL 245.50 [1].) Tracking the steps above, that COC must certify that the People exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." (CPL 245.50 [1].) It must also certify that the People then "made available all known material and information subject to discovery." (Id.)

A proper COC is one that truthfully certifies these facts and is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20." (CPL 245.50 [1].) Such a proper COC is a prerequisite to a valid statement of readiness. (CPL 245.50 [3].) As many courts have made clear, the People's repeated belief that the statute's "adverse-consequence" clause applies to this trial readiness determination is incorrect. (See People v Vargas, 76 Misc 3d 646, 650 [Crim Ct, Bronx County 2022]; People v Darren, 75 Misc 3d{**76 Misc 3d at 892} 1208[A], 2022 NY Slip Op 50415[U], *5 [Crim Ct, NY County 2022]; People v Aquino, 72 Misc 3d 518, 526-527 [Crim Ct, Kings County 2021]; People v Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021].) Indeed, earlier this year, the legislature rejected an amendment to the adverse-consequence clause that would have applied it to trial readiness determinations. (See People v Carrillo, 75 Misc 3d 1227[A], 2022 NY Slip Op 50680[U], *3 [Crim Ct, Bronx County 2022]; see also American Airlines v State Commn. for Human Rights, 29 AD2d 178, 181 [1st Dept 1968] ["In [*3]addition, the rejection by the Legislature of the amendments . . . sought by the commission . . . is a significant circumstance against the construction sought by (them)"].)

When the defense alleges that the People's COC was not proper, it is incumbent on the People to come forward and establish that they met the relevant statutory burden. (See People v Payne, 75 Misc 3d 1224[A], 2022 NY Slip Op 50656[U], *2 [Crim Ct, Bronx County 2022] [People established they disclosed "any and all" documents held by the New York City Law Department]; People v Alvia, 76 Misc 3d 704, 706-708 [Crim Ct, Bronx County 2022] [People established they disclosed body-worn camera videos].) That is because the People are the only party who know about the efforts they made. Efficiency and general principles of law suggest that "[t]he party in possession of information should bear the burden of producing it." (See People v Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *5 [Crim Ct, Bronx County 2022].)

The discovery statute is not impracticable. Should the People face any difficulties in ascertaining the existence of discovery or actually producing it, the statute provides the People numerous opportunities to petition a court for relief. For instance, the People may ask a court to modify the discovery periods for "good cause." (CPL 245.70 [2].) Or they may ask a court for permission to state ready on an improper COC because of "special circumstances." (CPL 245.50 [3].) Or they may ask for a protective order to withhold some materials entirely. (CPL 245.70.)

II. FDNY Records

According to the People, this case concerns an alleged DWI in which police arrested Mr. Figueroa at the scene of a "damage[d]" vehicle "in the middle of the road," the FDNY was then "called to the scene," and Mr. Figueroa was afterwards taken to the hospital. (Prosecution's response at 15-16.) As a result,{**76 Misc 3d at 893} from the beginning of this case, it was plain to the People that the FDNY was substantively involved. Indeed, the People's recitation of events suggests that the NYPD may have been the ones who called the FDNY in the first place.

Despite these circumstances, the People present no information about any efforts they made to ascertain the existence of or disclose discoverable material from the FDNY. (See id. at 6-8.) Instead, the People only state that because "FDNY reports are not in the People's possession" or "in the possession of law enforcement," they "are not required to gather it in order to file a valid COC." (Id. at 8.)

[1] The People misapprehend their discovery duties. Under CPL 245.20 (2)—entitled "[d]uties of the prosecution"—where discoverable material exists "but is not within the prosecutor's possession, custody or control," the People must make "a diligent, good faith effort to ascertain [its] existence" and "cause [it] to be made available for discovery." Thereafter, in their COC, the People must certify that they took these steps. (See CPL 245.50 [1].) "Upon a challenge, it is incumbent on the People to articulate what efforts they made to ascertain the existence of the challenged discoverable material and to make it available for discovery." (People v Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U], *5 [Crim Ct, Bronx County 2022].)

Here, the People fail to articulate any efforts whatsoever to ascertain the existence of FDNY reports and make them available for discovery. "Instead, the People only claim, incorrectly, that they have no obligations regarding this material at all, simply because it was not in their control" or with a law enforcement agency. (Id.) But here, "[i]t is of no moment that the agency that responded was not a law enforcement agency." (People v Rahman, 74 Misc 3d 1214[A], 2022 NY Slip Op 50120[U], *2 [Sup Ct, Queens County 2022].) Failure to do anything regarding FDNY records [*4]when that agency responded to an arrest involving an allegedly intoxicated person, who was thereafter transported to the hospital, "falls far short of the due diligence the statute requires of the People in this context." (See id.)

Where FDNY records related to a case are reasonably likely to exist, the People must make a "diligent, good faith effort" to ascertain their existence and "cause" them to be made available for discovery before filing their COC. (CPL 245.20 [2]; 245.50 [1]; Rahman, 74 Misc 3d 1214[A], 2022 NY Slip Op 50120[U], *2; Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op{**76 Misc 3d at 894} 50655[U], *5; People v Ajunwa, 75 Misc 3d 1220[A], 2022 NY Slip Op 50626[U], *3 [Crim Ct, Bronx County 2022].) Here, they failed to establish any such efforts. Therefore, their COC was not proper and ineffective to support a valid statement of readiness.

III. "Giglio Material" for Police Witnesses Whom the People Do Not Intend to Call to Testify

[2] The next question is whether the People must disclose evidence about prior misconduct by police witnesses whom the People choose not to call to testify. Under the discovery statute—and under New York's ethical rules—the People have a duty to disclose favorable evidence to the accused. (CPL 245.20 [1] [k]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.8.) This mandate is "broader" than the constitutional Brady/Giglio duty to disclose materially favorable evidence because it "abandons the requirement that only 'materially' exculpatory information need be disclosed." (Assembly Mem in Support of 2017 NY Assembly Bill A4360A; see also NY City Bar Assn Comm on Prof Ethics Formal Op 2016-3: Prosecutors' Ethical Obligations to Disclose Information Favorable to the Defense [2016] ["Rule 3.8 on its face is not subject to the same materiality limitation (as Brady/Giglio)"].)

Colloquially, lawyers and courts in New York refer to information about police witnesses' prior misconduct as "Giglio material." This is founded upon the theory that instances of prior misconduct may be used to impeach a witness's credibility through cross-examination on the stand. (Giglio v United States, 405 US 150 [1972] [the government's Brady obligation extends to evidence that could be used to impeach government witnesses]; People v Smith, 27 NY3d 652, 661 [2016] ["(A)llegations of misconduct . . . (by) a law enforcement agent (are) favorable to defendant as impeachment evidence" (internal quotation marks omitted)].)

But this form of Giglio is a subset of Brady. While an officer's prior misconduct could tend to "impeach the credibility of a testifying prosecution witness" on the stand (CPL 245.20 [1] [k] [iv]), it could also be favorable in other ways. For instance, it could tend to "negate the defendant's guilt" or "support a potential defense." (See CPL 245.20 [1] [k] [i], [iii].) In the constitutional context, New York's federal courts agree. (See e.g. United States v Jackson, 345 F3d 59, 70-73 [2d Cir 2003].) "The fact that [an informant] did not testify at the defendants' trial presents no obstacle to application of Brady and its progeny." {**76 Misc 3d at 895}(Id. at 70.) "A contrary conclusion would permit the government to avoid disclosure of exculpatory or impeachment material simply by not calling the relevant witness to testify." (Id. at 71.)

This case presents a clear example of why disclosure of prior misconduct is not limited to witnesses whom the People choose to call to testify. Officer Mena was one of two responding officers who allegedly first observed the charged offense. (Prosecution's response at 15.) The People are not calling him to testify. (Id. at 5-6.) Officer Rodriguez arrived later, was "debriefed by the first responding officers," and then made the arrest. (Id. at 15.) The People will call Officer Rodriguez to testify. (See id. at 6.) [*5]

Undermining the credibility of Officer Mena would tend to be favorable to the defense, even if the People do not call him to testify. It would, for instance, tend to "negate the defendant's guilt" and "support a potential defense" (CPL 245.20 [1] [k] [i], [iii]), as it would undermine the credibility of an informant "in the investigation that led to [the instant] arrest[ ]" (Jackson, 345 F3d at 73; see also Kyles v Whitley, 514 US 419, 442 n 13 [1995] [recognizing that a non-testifying informant's suspected role in unrelated crimes could be favorable to the defense as a "reason( ) for (him) to ingratiate himself with" and lie to the police]).

Moreover, at suppression hearings in the Bronx, it is often the case that the People elicit hearsay statements by non-testifying responding officers. (See CPL 710.60 [4] [permitting admission of hearsay at suppression hearings].) In New York, the rule requiring disclosure of favorable information applies to suppression hearings by statute (CPL 245.20 [1] [k] [vi]), and if material, by constitutional rule (People v Williams, 7 NY3d 15 [2006]). Information undermining the credibility of a non-testifying hearsay declarant would be favorable to the defense—and likely admissible—to impeach the declarant's credibility. After all, "New York has traditionally allowed for impeachment of hearsay declarants." (Robert A. Barker & Vincent C. Alexander, Evidence in New York State & Federal Courts § 8:96 [West's NY Prac Series Nov. 2021 update] [collecting cases]; Jerome Prince, Richardson on Evidence § 8-111 [Farrell 11th ed 1995, 2008 Supp] [noting the same]; accord Fed Rules Evid rule 806 [permitting impeachment of hearsay declarants who do not testify].)

In sum, this court joins the reasoning of the federal courts in New York. Favorable information includes all evidence and information{**76 Misc 3d at 896} about a police witness's prior misconduct, regardless of whether the People intend to call that officer to testify. Just because prior misconduct could "impeach the credibility of a testifying prosecution witness" does not mean that it could not be favorable to the defense in other ways, like to "support a potential defense" or "negate the defendant's guilt." (See CPL 245.20 [1] [k].) Where an officer is involved in a case, that officer's credibility "relate[s]" to the case. (See CPL 245.20 [1].) As a result, the People cannot do what they have done here. They cannot categorically refuse to do anything regarding officers' prior misconduct simply because they will not call them to testify in court. Therefore, the COC was not proper and ineffective to support a valid statement of readiness.

Bronx Criminal Court arraigned Mr. Figueroa on December 12, 2021. The highest charge against him was an unclassified misdemeanor punishable by 364 days in jail. Therefore, the People had 90 days from arraignments to validly state ready for trial. (CPL 30.30 [1] [b].)

As discussed above, the court finds that the People's COCs and statements of readiness were ineffective to stop the speedy-trial clock.^[FN2] Ninety days after December 12, 2021, was [*6]March 12, 2021. However, because that day was a Saturday, the 90th day fell on the following Monday. (People v Powell, 179 Misc 2d 1047, 1048 [App Term, 2d Dept 1999]; People v Mandela, 142 AD3d 81, 85-86 [3d Dept 2016].) On that Monday, the defense requested a motion schedule, stopping the CPL 30.30 clock. (CPL 30.30 [4] [a]; People v South, 29 Misc 3d 92, 95 [App Term, 2d Dept, 9th & 10th Jud Dists 2010].) Accordingly, 90 days have accrued from arraignments, and the People are within their speedy-trial time.{**76 Misc 3d at 897}

For the foregoing reasons, the People's statements of readiness and COCs were illusory and not proper, but the defense's motion to dismiss is denied.

Before filing a valid COC and statement of readiness, the People are ordered to produce:

1. All information relating to allegations of prior misconduct, including any related underlying material, by Officers Puello, Jagtiani, Woisin, and Mena held by the Bronx District Attorney's Office or the NYPD or that is otherwise known to police.

a. This directive includes non-privileged documents held by the New York City Law Department if the Law Department represented any of these officers in civil lawsuits regarding their alleged misconduct.

Before filing a valid COC and statement of readiness, the People are further ordered to:

2. Engage in a diligent, good faith effort to ascertain the existence of any material held by the FDNY related to this case, and if it exists, to make it available to the defense.

In addition, to any extent to which the People have not already done so, or to any extent not otherwise covered by the above orders, before filing a valid COC and statement of readiness, the People are also ordered to produce:

3. The entirety of their file and the police file for this case except for any work product or any material under a protective order; and

4. All evidence and information, including any underlying documents, in the possession of or known to the People or the police, that impeaches the credibility of any witness against Mr. Figueroa.