Criminal Court of the City of New York, Kings County, September 21, 2022

Brooklyn Defender Services (Juliana Wishne of counsel) for defendant.

Eric Gonzalez, District Attorney (Sherri Litvak of counsel), for plaintiff.

Procedural History

Defendant was arraigned on March 3, 2022, and was charged with one count of forcible touching, pursuant to Penal Law § 130.52 (1), a class A misdemeanor; one count of sexual abuse in the third degree, pursuant to Penal Law § 130.55, a class B misdemeanor; and one count of harassment in the second degree, pursuant to Penal Law § 240.26 (1), a violation. All charges stem from an incident that is alleged to have occurred on March 2, 2022.

On May 10, the People served and filed initial discovery, a superseding information (SSI) and a supporting deposition.

On May 13, day 71 of the People's speedy trial time, the People served and filed a certificate of compliance (COC) and a statement of readiness (SOR), along with additional discovery.

The defendant moved on June 24, 2022, to dismiss the charges on speedy trial grounds pursuant to Criminal Procedure Law § 30.30 (1) (b), as well as on facial insufficiency grounds pursuant to CPL 100.15, 100.40, 170.30 and 170.35.

The People oppose the motion in its entirety.

Defendant served and filed a reply which was considered by the court.

For the reasons stated below, the defendant's motion to dismiss is denied.

Parties' Contentions

The defendant's arguments are twofold. First, defendant argues that "the prosecution has failed to turn over all items of discovery to the defense." (Defendant's affirmation ¶ 7.) Defendant lists items "a" through "h," which have not been turned over. (Id.) Counsel asserts that since the People have not complied with their discovery obligations [*2]pursuant to CPL 245.20, their "statement of readiness is a nullity." (Id. ¶ 12.)

Defendant next argues that the accusatory instrument is facially insufficient as to Penal Law § 130.55, as the accusatory instrument "fails to state that the exception to the charge does not apply in this case." (Id. ¶ 16.) Defendant refers to the portion of the statute which in sum and substance states that it is an affirmative defense that the lack of consent is based on the victim being over 14 years old and under 17 years old, and the defendant being no more than five years older than the victim.

Counsel opines that since this count is facially insufficient, the People could not accurately certify pursuant to CPL 30.30{**76 Misc 3d at 1110}(5-a) that all counts were converted, and that, therefore, the entire accusatory instrument must, therefore, be found facially insufficient, and that the People could not declare readiness for trial.

Counsel concludes that the People should, therefore, be charged with all of the time from arraignment through the date the motion was served and for a total period of 113 chargeable days.

The People counter that "People's COC is valid as the People provided the defense all discoverable materials and SOR was not illusory" (People's mem of law at 4.) They proceed to address each discovery omission complained of by defendant:

a. 911 Call: The People assert that there was only one 911 call and that it was made by complainant's supervisor; and that this was shared with the defense.

b. Surveillance Footage: The People inform that there was no surveillance footage.

c. Sprint Report: The People assert that this was shared with the defense on May 10.

d. KCDA Material Checklist: The People allege that this item was not generated.

e. Miranda Page: They allege that this item was not generated.

f. Warrant Inquiry (WINQ): The People assert that they shared this with the defense.

g. Handwritten Arrest Report and Complaint Report: The People assert that they shared this with the defense on May 10. They concede that the pages were not scanned properly, and that they requested and sent a clear copy of these items on July 12. They affirm that the material that was not clear nevertheless gave adequate notice of the content of these discovery items.

h. Brady and Impeachment Material for Testifying Officers: The People counter that they provided all that was required by CPL 245.20 (1) (k), and they argue that the court should "find that the People satisfied their obligation under this section when they provided to the defendant disclosure letters listing all pending and substantiated complaints against [testifying] officers" (People's mem of law at 10), and that they are "not require[d] . . . to disclose underlying police disciplinary records." (Id. at 15.)

{**76 Misc 3d at 1111}The People next argue that the "[d]efendant has failed to demonstrate prejudice from late or non-disclosure . . . to invalidate the People's [COC and SOR]." (Id. at 28.)

Finally, the People counter defendant's facial insufficiency prong by asserting that the factual assertions in the accusatory instrument regarding Penal Law § 130.55 provide the defendant with adequate notice to prepare a defense. Specifically, they maintain that it is the defendant's burden to establish any affirmative defense by a preponderance of the evidence at a trial, pursuant to Penal Law § 25.00 (2). They opine that the affirmative defense in Penal Law § 130.55 is not an exception, nor is it an element that the People need to allege in the accusatory instrument.

The People conclude that the accusatory instrument is facially sufficient, that they satisfactorily complied with their discovery obligations, and that they should be charged with [*3]only 71 days of speedy trial time, and that, therefore, defendant's motion should be denied in its entirety.

Court's Reasoning

Discovery Compliance

Pursuant to CPL 245.20 (1), prosecutors are required to disclose "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control."

CPL 245.20 (2) provides that "[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one."

Good Faith, Due Diligence, and Reasonableness

Courts have held that belated disclosures should not invalidate a COC where the People have shown that they exercised due diligence and good faith reasonable under the specific circumstances of the case before the court. "[CPL article 245] should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute." (People v Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020].)

Where the People have a substantial amount of material to turn over and the court finds that the People did turn over a "vast majority" and utilized "significant" and continuous efforts to comply with their discovery obligations, the court in People v Bruni (71 Misc 3d 913, 922, 924 [Albany County Ct 2021]) held{**76 Misc 3d at 1112} that the People substantially complied with their CPL 245.20 (1) obligations. (See People v Kheir, 74 Misc 3d 712, 717 [Greenburgh Just Ct 2022] ["(T)he discovery statute should not be construed as an inescapable trap for the diligent prosecutor" (internal quotation marks omitted)]; People v Rodriguez, 73 Misc 3d 411 [Sup Ct, Queens County 2021].)

The court finds that the People's discovery disclosures in this case comport with due diligence and good faith and were reasonable under the circumstances. They provided discovery relevant to the facts in this case.

To the extent that the People's attempt at sharing some items of discovery may have been hampered by a technical malfunction, People v Nelson (75 Misc 3d 1203[A], 2022 NY Slip Op 50347[U] [Crim Ct, NY County 2022]) is instructive. The court here held that "an unknown technical error prevented the body-worn camera footage from being properly [shared with defense counsel]" (2022 NY Slip Op 50347[U], *2). The court found that "[a]ny mistaken non-disclosure was not the result of lack of due diligence . . . , nor the result of bad faith." (Id.) The court concluded that the "unintentional oversight . . . does not warrant invalidating the certificate of compliance." (Id. at *3.)

[1] Any technical error in this matter that resulted in the failure to transmit clearly an item of disclosure, and that afforded no benefit to the prosecution nor any prejudice to the defendant, should not result in a finding that the People's COC was illusory.

Further, the court notes that defendant's reply is directed entirely to the facial insufficiency argument and that defendant does not dispute the People's recitation of their good faith efforts and due diligence in complying with their disclosure requirements.

With respect to internal New York City Police Department (NYPD) records, the People are imputed to be in possession of police materials, and the statute provides that "[t]he prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the [*4]prosecution's direction or control." (CPL 245.20 [1].)

As the statute further states, such information includes "[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 . . . (iv) impeach the credibility of a testifying prosecution witness." (CPL 245.20 [1] [k].){**76 Misc 3d at 1113}

[2] While the People assert that "the People satisfied their obligation . . . when they provided to the defendant disclosure letters listing all pending and substantiated complaints against [testifying] officers," this is not this court's holding.

Any underlying documentation in the possession of the NYPD and relating to the substantiated or unsubstantiated claims against a testifying officer must be turned over to the defendant as "the underlying facts of substantiated and unsubstantiated findings may provide a good faith basis for cross-examination." (People v Castellanos, 72 Misc 3d 371, 374 [Sup Ct, Bronx County 2021], citing People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; see also People v Akhlaq, 71 Misc 3d 823 [Sup Ct, Kings County 2021]; see also CPL 245.20 [1] [k] [iv].)

In view of the foregoing, this court finds that with respect to the NYPD internal disciplinary records, a letter prepared by the prosecution summarizing the allegations of the officers' disciplinary records does not satisfy the mandates of CPL 245.20. Defendants are entitled to more than summaries prepared by the prosecution; they are entitled to detailed information so that they may both assess its relevance to the particular facts in the case and also evaluate how best to prepare arguments for use on cross-examination. To the extent that any testifying officer has pending substantiated or unsubstantiated internal disciplinary findings, the People are directed to provide the underlying records for each of those matters to the defendant in order to comply with their obligations under CPL 245.20 (1) (k) (iv).

The court notes that the Civilian Complaint Review Board (CCRB) is not a law enforcement agency, nor is it an agency within the People's control. (See People v Perez, 73 Misc 3d 171, 183-184 [Sup Ct, Queens County 2021]; see also People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021].)

As explained in the note to rule 6.16 of the Guide to New York Evidence (Impeachment of a Law Enforcement Officer, https://www.nycourts.gov/JUDGES/evidence/6-WITNESSES/6.16_Impeachment-Officer.pdf), allegations in a civil lawsuit that are relevant to the credibility of a police officer may be used for impeachment at trial whether or not the allegations resulted in an adverse finding against that officer, subject to the trial court's discretion. (See People v Smith, 27 NY3d 652, 662 [2016].) Thus, even unsubstantiated allegations of police{**76 Misc 3d at 1114} misconduct can be properly used to impeach a police officer on cross-examination.

Therefore, to the extent that the People are in possession of any material relating to substantiated, unsubstantiated or pending CCRB matters, they are ordered to provide those documents to the defense.

The above mandates of disclosure notwithstanding, disclosure alone does not presume that the defendant may use all or, indeed, any of the records at a hearing or at trial. The trial court should review the records prior to trial once the issues are framed and the witnesses determined to rule on what portion of the records may be used at trial. The trial "court must balance the nature of the misconduct allegation, the police officer's role in the case, and the possibility of prejudice or confusion." (Castellanos at 376.)

To the extent that the law remains unsettled regarding the scope of the People's discovery obligations, and as the People turned over discovery that they believed to be sufficient to comply with their statutory obligations, this court finds the People's COC valid. (See People v [*5]Randolph, 69 Misc 3d 770, 773 [Sup Ct, Suffolk County 2020] [declining to invalidate the COC or impose other sanctions "(s)ince the People have been acting in good faith and have provided discovery in harmony with their understanding of the requirements"]; see also People v Adams, 66 Misc 3d 918 [Sup Ct, Queens County 2020] [holding that the court's order directing the People to provide additional discovery did not invalidate People's prior COC where People had acted in good faith]; accord People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021].)

Facial Sufficiency

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the offenses charged. (CPL 100.15 [3]; 100.40 [1] [b]; 70.10.) These facts must be supported by nonhearsay allegations which, if true, establish every element of the offense. (CPL 100.40 [1] [c].) An information which fails to satisfy these requirements is jurisdictionally defective. (CPL 170.30, 170.35; People v Alejandro, 70 NY2d 133, 136-137 [1987]; People v Dumas, 68 NY2d 729, 731 [1986].)

The factual allegations in a misdemeanor complaint are sufficient if they provide defendant with "sufficient notice of the {**76 Misc 3d at 1115}charged crime[s] to satisfy the demands of due process and double jeopardy." (People v Dumay, 23 NY3d 518, 524 [2014] [citations omitted].) That is, the facts alleged must enable a defendant to prepare a defense and to avoid being tried twice for the same crime.

Penal Law § 130.55, sexual abuse in the third degree, provides that

"[a] person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person."

The factual portion of the SSI states, in pertinent part, that on or about March 2, 2022, at approximately 11:00 a.m., in the County of Kings: "the defendant did slap [the informant's] buttocks without informant's consent" and "the above described actions caused informant to fear imminent physical injury and to become alarmed and annoyed."

The portion of Penal Law § 130.55 which begins "it is an affirmative defense" is exactly that: an affirmative defense that must be proved by defendant at trial if it is relevant.

It appears to be a matter of first impression whether the language referred to in Penal Law § 130.55 is an exception that constitutes an element of the crime and must be pleaded and disproved by the People in each case at trial, or whether it constitutes a proviso, which may be raised by the defendant as a defense at trial. (See People v Williams, 57 Misc 3d 370 [Middletown City Ct 2017].) The Court of Appeals in People v Santana (7 NY3d 234, 237 [2006]) held that when evaluating whether an exclusion in a statute is an exception or a proviso, the courts should "[a]s a matter of common sense and reasonable pleading, [determine whether] [*6]the Legislature intended to require the People to negate each of the alternatives specified [in the statute]" (internal quotation marks and citation omitted).

Significantly, the Criminal Jury Instruction (CJI) for Penal Law § 130.55 explains each of the elements that the People{**76 Misc 3d at 1116} must prove beyond a reasonable doubt in order to prove someone guilty of Penal Law § 130.55. In enumerating those elements, it does not require that the People disprove the affirmative defense of the age of the parties; rather, it instructs that a jury must consider "an affirmative defense the defendant has raised" only after the jury has found that the People have proved the two enumerated elements beyond a reasonable doubt (CJI2d[NY] Penal Law § 130.55, Sexual Abuse, Third Degree, No Acquiescence).

In People v Villarreal (27 Misc 3d 269 [Crim Ct, Queens County 2009]), the court addressed the facial sufficiency of an information charging bail jumping in the third degree, Penal Law § 215.55, when that information did not plead facts to negate an affirmative defense specified in Penal Law § 215.59. It concluded that the information was facially sufficient because the exception of Penal Law § 215.59 "is clearly and unambiguously an affirmative defense that must be raised by the defendant." (Id. at 272.) The CJI for Penal Law § 215.55, as the CJI for Penal Law § 130.55, provides that the People must prove two enumerated elements beyond a reasonable doubt; if and only if the factfinder concludes that the People have met this burden are they to consider any affirmative defense.

This is in direct contrast to People v Rodriguez (68 NY2d 674 [1986]), on which the defense relies. In Rodriguez, the Court of Appeals reversed the Second Department's decision affirming a conviction for criminal possession of a weapon in the third degree where the People had failed to introduce any evidence that the defendant's possession of the weapon occurred outside his place of business. As explained in the dissenting opinion at the Appellate Division, the indictment itself, and the language of the Penal Law, required that the possession occur outside the defendant's home or place of business. (People v Rodriguez, 113 AD2d 337, 344 [1985].) Unlike the affirmative defense allowed under Penal Law § 130.55, as noted in the CJI for Penal Law § 265.03 (3), the home or place of business exception is an element that the People were required to prove beyond a reasonable doubt.

[3] The court finds that the affirmative defense is a proviso and not an exception, and as such the Penal Law § 130.55 charge is facially sufficient.{**76 Misc 3d at 1117}

Conclusion

Based on the foregoing, it is hereby:

Ordered that the People are further to disclose^[FN*] to the defense the underlying NYPD disciplinary records of pending, substantiated and/or unsubstantiated allegations of police misconduct of any testifying officer; as well as any records currently in the prosecution's possession regarding substantiated, unsubstantiated, or pending CCRB matters pertaining to any testifying officer.

The records referred to herein shall be disclosed to the defendant within 10 calendar days of the date of this order, subject to a request for a protective order (CPL 245.70 [1]), or a [*7]modification of the time period for disclosure for good cause (CPL 245.70 [2]); and it is further ordered that the People are to file a supplemental certificate of compliance confirming that they have provided all discovery required consistent with this decision.

In the event that the records are not turned over timely, the COCs previously filed will be found insufficient and shall not be found to have stopped the speedy trial clock.

As the People are only charged with 71 days of speedy trial time, defendant's motion is denied at this time, with leave to resubmit to this court as directed above.