Criminal Court of the City of New York, Bronx County, November 21, 2022

Giovanni Escobedo, Yonkers, for defendant.

Darcel D. Clark, District Attorney (Brianna Pryce of counsel), for plaintiff.

Defendant was arrested and arraigned on April 23, 2022, charged with violations of Vehicle and Traffic Law § 1192 (1) and (3). Defendant filed the instant omnibus motion on October 24, 2022, seeking orders from the court as follows: (i) suppression of all observations of police and evidence obtained as the result of defendant's warrantless arrest without probable cause, or alternatively a Mapp/Dunaway hearing; (ii) suppression of all statements defendant made to police as the fruit of the unlawful arrest and as involuntarily made, or alternatively a Huntley hearing; (iii) granting a hearing to determine the admissibility of defendant's refusal to submit to a chemical test of her breath or blood under Vehicle and Traffic Law § 1194; (iv) dismissing the case pursuant to CPL 30.30 and 245.80 for the People's failure to comply with their discovery obligations; (v) granting a Sandoval/Ventimiglia hearing to determine admissibility of any prior bad acts or convictions which the People may seek to introduce at trial; (vi) leave to file a memorandum of law and further motions. Except for their consent to a Huntley hearing on the question of voluntariness, the People oppose the motion in its entirety, and argue that the motion itself should be precluded as untimely. In determining the issues herein, the court has reviewed the motion papers, the court file and some items of the discovery previously shared by the People.

Background

On April 23, 2022, Police Officer Thomas Natoli, on patrol, observed defendant operating a vehicle on a public highway at a rate of speed above the 25 mph speed limit, without activated headlights or taillights, and brake lights only when she stopped the vehicle. Activating his lights and siren, he instructed defendant to pull over, and she did. Upon approaching the open window on the driver's side of defendant's vehicle, Officer Natoli observed that defendant had bloodshot, watery eyes, and flushed face. The odor of an alcoholic beverage emanated from her breath. Officer Natoli asked her to step out of the vehicle, whereupon, conducting a horizontal gaze nystagmus test, he observed that she exhibited involuntary jerking of her eyes. [*2]Defendant told Officer Natoli where she was going and that she "had one margarita three hours ago." Defendant refused to submit to a portable breath test and Officer Natoli placed her under arrest at approximately 2:20 a.m. At the 45th Precinct{**77 Misc 3d at 730} IDTU (Intoxicated Driver Testing Unit), defendant was asked, and refused, to submit to a chemical test of her breath. At about 3:10 a.m., defendant was advised of her Miranda rights, agreed to speak with officers, and then answered a series of questions.

Timeliness of the Motion

Defendant was arraigned on April 23, 2022, and current counsel was assigned on May 4, 2022. In court on June 10, the day after the People filed their certificate of compliance (COC) and statement of trial readiness (SOR), counsel requested a discovery compliance conference instead of a motion schedule regarding his objections to the COC. The court ordered counsel to confer with the prosecutor, and the case was adjourned four more times for such purpose, though during this period, there was neither a conference nor a motion schedule set. On September 30, 2022, this court ordered counsel to file his motions by October 20, and after an extension was granted, defendant filed the instant motion on October 24.

[1] CPL 255.20 (1) requires that all pretrial motions shall be served or filed within 45 days after arraignment and before commencement of trial, except for motions "based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within" that time frame (CPL 255.20 [3]). The court finds that counsel's delay in addressing the claimed discovery issues renders this motion untimely. Nonetheless, as the case is not yet in a trial posture, the court exercises its authority to control its calendar and will address the merits of the motion. (CPL 255.20 [3]; People v Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U] [Sup Ct, Nassau County 2022]; People v Dhanraj, 40 Misc 3d 250, 251 [Crim Ct, Bronx County 2013].)

Suppression Motions

The court finds that sufficient grounds have been set forth to raise issues of fact which warrant a hearing on the issues of probable cause to arrest, voluntariness of defendant's statements, accuracy of the refusal warnings, and admissibility of any prior bad acts or convictions. Defendant's suppression motion is granted only to the extent that a combined Dunaway/Huntley/Mapp/refusal hearing is ordered to be held before trial, as well as a Sandoval/Ventimiglia hearing.{**77 Misc 3d at 731}

COC Challenge

[2] The People filed their COC and SOR via EDDS (Electronic Document Delivery System) on June 9, 2022, at 2:04 p.m., on the 47th day after arraignment. Among other discovery, the People shared with defendant records of misconduct allegations only for the arresting officer Thomas Natoli, as they intend to call only that officer to testify. Defendant, however, argues that this is insufficient, and that the terms of CPL 245.20 (1) (k) (iv) entitle her to essentially the entire personnel file including potential impeachment material for all officers involved in the case, regardless of whether the People intend to call them as witnesses or not. For the reasons following, the court disagrees.

Defendant relies on People v Figueroa (76 Misc 3d 888 [Crim Ct, Bronx County 2022]) to support her argument that impeachment material for all involved police officers is required to be disclosed. The court finds that defendant's position flies in the face of the express provision of CPL 245.20 (1) (k) (iv) requiring disclosure only of material which would tend to impeach the [*3]credibility "of a testifying prosecution witness." Figueroa extrapolates from two federal cases^[FN1] to hold that impeachment material of non-testifying officers could tend to "negate the defendant's guilt" and "support a potential defense" and therefore must be disclosed. (CPL 245.20 [1] [k] [i], [iii].) However, Jackson and Kyles address the constitutional obligation of the prosecutor to disclose Brady material—such ethical obligations under Brady and its progeny existed prior to the effective date of CPL article 245, and remain, independent of section 245.20 (1) (k) (iv), which did not supplant it. The facts of Jackson and Kyles render their holdings inapposite to the question of whether disciplinary records of non-testifying police officers are required to be disclosed under article 245. To the extent that Figueroa relies thereon, this court finds that{**77 Misc 3d at 732} case unpersuasive, and finds that the People have complied with the statutory mandate regarding police misconduct records.

Defendant further insists that the substance of potential police impeachment material required to be shared under article 245 includes

"pending, founded, unfounded, substantiated, unsubstantiated and exonerated allegations, along with corresponding entire files and all underlying documents and/or media (UNREDACTED), including but not limited to: CCRB Allegation History; IAB log; Internal Case Management System Worksheet/ Internal Affairs Log; IA Reports; Internal Case Management and Tracking Worksheet/ Allegation Finding (ICMT); CCRB CTS; CPI (disciplinary file including incidents investigated and where no action taken) and the Garret [sic] disclosure letter along with all underlying lawsuit information." (Defendant's affirmation in support of omnibus mot at 10-11.)

There is much debate and precious little appellate guidance on the question of the extent of required disclosure of police misconduct records under CPL article 245. For the following reasons, the court finds the extent of defendant's demanded disclosure overbroad, unsupported by the terms of article 245 and well-reasoned trial court decisions interpreting this provision.

[3] Initially the court notes that the Civilian Complaint Review Board (CCRB) is an independent civilian agency, not a law enforcement agency, whose records are equally available to both parties. An open database has been created to permit public access to such information. Thus, CCRB records are not imputed to be in either the constructive or the actual possession of the People. The same reasoning applies to records of lawsuits filed and court proceedings. Therefore, the People are not required under CPL article 245 to provide records of the CCRB or any lawsuits involving testifying officers, unless they are in actual possession thereof (see e.g. People v Eric Hardmon, Crim Ct, Bronx County, Apr. 12, 2021, Beller, J., docket No. [*4]CR-000460-21BX).

In contrast to CCRB and court records, records of the Internal Affairs Bureau (IAB) of the NYPD are imputed to be in the People's constructive possession. (CPL 245.20 [2].) IAB disciplinary records of substantiated and unsubstantiated allegations{**77 Misc 3d at 733} of misconduct of police witnesses must be disclosed to the defense, and the People are directed to make such records available.^[FN2] (See People v Brian Newby, Crim Ct, Bronx County, July 6, 2021, Stone, J., docket No. CR-016221-20BX; People v Venticinque, Sup Ct, Bronx County, Mar. 17, 2021, Hornstein, J., indictment No. 577/2020.)

[4] The People attached their Giglio disclosures as an exhibit to their opposition papers. For each incident there is a summary letter attached to the underlying records which provides the same information contained in the record, including the result. Though some material is redacted, it appears that the redacted material is either protected information, outside the scope of article 245 as it does not relate to the subject matter of the allegation or is disclosed elsewhere in the record. The court finds persuasive the reasoning in People v Akhlaq (71 Misc 3d 823, 826 [Sup Ct, Kings County 2021]), in which case the court found "defendant received that to which he is entitled" under the statute where, as in this case, the People disclosed a very detailed summary of the testifying officer's misconduct allegations. As in Akhlaq, this court finds that the People's disclosures here in this regard were sufficient. To the extent that cases cited by defendant reach a different result, the court finds them to be inconsistent with the express terms of article 245 as well as the legislative intent and policy thereof, and therefore declines to follow them.

[5] The court has considered and rejected defendant's arguments that no COC is valid until every item listed under CPL 245.20 (1) has been shared, and that dismissal under CPL 30.30 is required if that does not occur. Numerous provisions of article 245 expressly provide that compliance based on due diligence which is reasonable under the circumstances of the case is a sufficient basis upon which to file a COC in good faith even if some items are otherwise unavailable, and that if these conditions exist, a court can deem the COC valid and the People ready for trial.

Defendant's position ignores the important fact that the statutory framework of criminal discovery has always given the courts the discretion to fashion the appropriate remedy, from a wide range thereof, for the People's failure to comply{**77 Misc 3d at 734} with any of the discovery provisions. Prior to the effective date of article 245, the principle was well-settled in appellate jurisdiction that where a defendant suffers no prejudice because of delayed discovery, preclusion of evidence or dismissal of the case is unwarranted, even where the People have failed to show good cause for the delay. This court is still bound by such precedent, as, for example, set forth in People v Lewis (44 AD3d 422, 423 [1st Dept 2007]), People v Vieweg (155 AD3d 1305 [3d Dept 2017]), and their progeny.

In sum, the court declines to interpret the cohesive legislative scheme of discovery and trial readiness according to the strict liability standard urged by defendant in her motion papers, finding no legislative intent nor precedent in the case law to support such a draconian standard. Instead, the cornerstone of the discovery mandate is demonstrated, diligent effort by the People [*5]to attain discovery compliance which is reasonable under the unique circumstances of each case, after which the prosecutor may file a COC and declare trial readiness in good faith. If the People have met this burden, the court has the power to deem the COC and SOR valid and timely as reasonable under the circumstances, even if some items are "lost, destroyed, or otherwise unavailable." (CPL 30.30 [5]; 245.50 [1], [3].) The court finds that the 2022 amendments further emphasize the legislative intent and policy that reasonableness under the circumstances of the case is the overarching theme of article 245.

Consequently, the court denies defendant's motions to invalidate the People's COC and to dismiss the information on speedy trial grounds.

Defendant's motion to file a memorandum of law is denied. Defendant's reservation of rights to file additional motions is also denied subject to CPL 255.20 (3) for leave to file upon good cause shown.

The People's COC of June 9, 2022, was timely filed within the statutory speedy trial deadline and demonstrates sufficient compliance with their discovery obligations. Defendant's motion to dismiss on that ground is denied. A combined Dunaway/Huntley/Mapp/refusal hearing is ordered to be held before trial, as well as a Sandoval/Ventimiglia hearing.