Criminal Court of the City of New York, Bronx County, December 19, 2022

The Bronx Defenders (Marissa Balonon-Rosen of counsel) for defendant.

Darcel D. Clark, District Attorney (LaToya Stephens of counsel), for plaintiff.

{**77 Misc 3d at 1121}Defendant is charged with violations of Vehicle and Traffic Law § 1192. The instant motion seeks orders from the court as follows: (i) dismissing the information pursuant to CPL 245.10 (1) (a) (ii) and 245.20 (2) for the People's failure to timely comply with the discovery obligations, or alternatively granting a hearing to determine the facts and conclusions of law regarding this issue; and (ii) suppressing all observations of police and evidence obtained as the result of defendant's warrantless arrest without probable cause, or alternatively a Mapp/Dunaway hearing. The People oppose the motion in its entirety. In determining the issues herein, the court has reviewed the motion papers and the court file and has determined that the motion can be decided based on the submissions and the court file (see People v Allard, 28 NY3d 41 [2016]; People v Lomax, 50 NY2d 351 [1980]).

Background

On March 27, 2022, NYPD Officer Christopher Alvarado witnessed defendant collide with multiple parked cars and observed that defendant exhibited indicia of alcohol intoxication. After a chemical test of his breath registered a blood alcohol level of .25%, defendant was arrested and arraigned on charges of four violations of article 31 of the Vehicle and Traffic Law, including aggravated driving while intoxicated.

Defendant filed this motion on October 17, 2022. No trial date has yet been set.

COC Challenge

On June 24, 2022, the 88th day after arraignment, the People filed their [*2]certificate of compliance with discovery obligations (COC) and a statement of trial readiness (SOR). On June 30 and July 1, 2022, the People shared additional discovery (a portion of the IDTU video, activity logs and roll call information for involved officers) and filed a supplemental COC.

Thereafter, on September 8, 2022, defense counsel notified the assigned ADA regarding the following missing discovery: (i) part of the IDTU video; (ii) accident and aided reports; (iii) photographs, if any; (iv) completed translator form; (v) underlying court documents for police officer lawsuits; (vi) underlying documents for substantiated and unsubstantiated misconduct allegations; (vii) CCRB history; and (viii) correct contact info for a police witness.

On September 29, 2022, the People shared with defendant photographs taken at the scene, remainder of the IDTU video, corrected contact information for a police witness, two accident{**77 Misc 3d at 1122} reports, IDTU officer license, and activity log. The prosecutor also served and filed with the court a letter setting forth the efforts they made to obtain and provide the missing discovery.^[FN1]

Defendant asserts that a speedy trial dismissal of the case is required due to the delayed sharing of discovery within the timelines provided in CPL 245.10 (1) (a) (ii) and 30.30 (1) (b), and the alleged incomplete disclosure of impeachment material under section 245.20 (1) (k) (iv). In opposition, the ADA affirms that the delayed disclosure was due to the many police personnel who responded to the scene, as well as "technical errors" (mentioned without elaboration) which thwarted discovery disclosure efforts. The prosecutor has described her efforts to obtain and share the required discovery prior to filing her COC. She had sent nine emails to different NYPD members requesting required materials; her continued efforts to obtain the complete IDTU video included going up the chain of command to contact the NYPD Lieutenant. The ADA demonstrated that when counsel alerted her to the missing items more than two months later, she promptly investigated and provided the missing items. There is no evidence that the ADA knew of or intentionally withheld any required materials that were not timely provided (see e.g. People v Cooper, 71 Misc 3d 559, 566 [Erie County Ct 2021] ["the People may not withhold known material and information . . . and expect the court to accept a (COC) and (SOR)"]).

No clear appellate guidance exists yet to resolve the contradictory trial court decisions regarding the propriety of dismissing a criminal case for insufficient or untimely disclosure of required automatic discovery under the 2020 statutory scheme. The court has considered the rules of statutory construction, available legislative history and intent of CPL article 245, preexisting jurisprudence regarding discovery violations, and the express terms of the statute.

Rules of Statutory Construction

In interpreting statutes, courts are mandated to "ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes §§ 92 [a]; 98, 111; see People v Mitchell, 38 NY3d 408, 411 [2022]; Riley v County of Broome, 95 NY2d 455, 463 [2000]). While the "statutory text is the clearest indicator of legislative intent" (Matter of DaimlerChrysler{**77 Misc 3d at 1123}Corp. v Spitzer, 7 NY3d 653, 660 [2006]; Statutes § 94), courts cannot "slavishly follow" the text, as all "interlocking provisions" of a statute must be harmonized to give a "sensible and practical over-all construction, which is consistent with and furthers" the enactment's scheme and purpose (Statutes §§ 97, 111; Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]; Vink v New York State Div. of Hous. & Community Renewal, 285 AD2d 203, 209-210 [1st Dept 2001]; Matter of 207 Realty Assoc., LLC v New York State Div. of Hous. & Community Renewal, 22 Misc 3d 509, 515 [Sup Ct, NY County 2008]; People v Kramer, 45 Misc 3d 458, 464 [Massapequa Park Just Ct 2014]). Courts are thus mandated to reject statutory language which "leads to conclusions inconsistent with the general purpose of the statute or to consequences irreconcilable with its spirit and reason" (Statutes § 111, Comment; Le Drugstore Etats Unis v New York State Bd. of Pharm., 33 NY2d 298, 302 [1973]; Matter of Astman v Kelly, 2 NY2d 567, 572 [1957]; People v Kramer, 45 Misc 3d at 464). "Language, however strong, must yield to what appears to be the intention, and that is to be found, not in the words of the particular section alone, but by comparing it with other parts or provisions of the general scheme of which it is a part" (Hayden v Pierce, 144 NY 512, 516 [1895]).

The passage of article 245 did not vitiate the rules of statutory construction. Courts always have been required to "look at the general scope and design of the law, at the evil to be remedied, or the benefit attained; and so to construe the law as to accomplish the object the legislature has in view" (Matter of Cooper, 22 NY 67, 88 [1860]). Courts must never interpret a statute "to produce a public mischief or to promote injustice" (Hayden v Pierce, 144 NY at 516).

Legislative Intent and History of Article 245

Criminal discovery rules always have evinced "a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial" (People v Copicotto, 50 NY2d 222, 226 [1980]). Prior to 2020, discovery procedures were cumbersome, outdated, and inefficient, resulting in defendants being blindsided by late disclosure of important evidence on the eve of trial (People v Leonardo, 75 Misc 3d 1237[A], 2022 NY Slip Op 50755[U] [Crim Ct, Queens County 2022]; People v Adrovic, 69 Misc 3d 563, 571 [Crim Ct, Kings County 2020]). The old restrictive rules also "inhibit[ed], {**77 Misc 3d at 1124}at great taxpayer cost," defendants' ability to reach reasonable pretrial dispositions of their cases precisely because they lacked sufficient early access to the evidence against them (Senate and Assembly Mems in Support of 2019 NY Senate-Assembly Bill S1716, A1431).

[1] The purpose of and justification for article 245 was specifically to eliminate "trial by ambush" and to remedy the above inequities by mandating earlier and broader discovery obligations by the prosecution, increasing efficiency in prosecutions and fairness to both sides. (Id.) Article 245 seeks to ensure that defendants and their attorneys can "intelligently investigate, secure and use any potentially exculpatory evidence, fairly weigh a guilty plea offer, or develop an appropriate trial strategy." (Id.) Article 245 simply effectuates long-standing legislative and constitutional goals of evidence sharing: enabling defendants to make better-informed trial and plea decisions, minimizing tactical and often unfair advantages to one side, and increasing to some degree the opportunity for an accurate determination of guilt or innocence (People v Copicotto, 50 NY2d 222, 226 [1980]).

Because this statute is remedial, it "should be liberally and not narrowly construed" (Morgan v Hedstrom, 164 NY 224, 231 [1900]). It was not meant to encourage gamesmanship by defendants seeking to create "an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply" with their new procedures (People v Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]). Instead, the rules seek not to punish unintentional or harmless noncompliance, but to ensure that defendants get a fair trial (People v Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U], *7 [Sup Ct, Nassau County 2022]).

The structure of CPL article 245 demonstrates the legislature's recognition that the [*3]reality of discovery in a criminal case is an ongoing process among independent stakeholders, built upon the good faith and due diligence of the People, and presupposing a continuing flow of communication between law enforcement, the People, and defendants (see e.g. People v Bruni, 71 Misc 3d 913, 916-917 [Albany County Ct 2021]). These foundations align with long-standing criminal procedure precedent (see e.g. People v Martinez, 71 NY2d 937 [1988] [adverse inference instruction given where People failed to preserve missing notes of officer]; People v Jones, 70 NY2d 547, 553 [1987] [where evidence is in the People's possession but{**77 Misc 3d at 1125} not timely provided to the defense, "the violation constitutes per se error requiring reversal, and good faith or inadvertence on the part of the prosecutor is of no moment"]).

Appellate Discovery Jurisprudence Pre-Article 245

The "overriding concern" for courts "fashioning an appropriate response to the prosecution's wrongful failure to preserve evidence" has always been "to eliminate any prejudice to the defendant while protecting the interests of society" (People v Kelly, 62 NY2d 516, 520 [1984] [internal quotation marks omitted]). In Kelly, the Court of Appeals held that a trial court had abused its discretion in dismissing charges on the ground that the People had wrongfully failed to preserve evidence, since less extreme remedies "were clearly available," and "the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence" (id. at 520-521). Preclusion or dismissal is only an appropriate sanction for discovery violations where a constitutionally protected right is implicated (People v Jenkins, 98 NY2d 280 [2002]; People v Patterson, 78 NY2d 711, 717 [1991]; People v Lewis, 44 AD3d 422, 423 [1st Dept 2007]; People v Vieweg, 155 AD3d 1305 [3d Dept 2017]).

Existing discovery jurisprudence was not abrogated by the passage of article 245 and remains binding on this court. Article 245 incorporates existing foundations into a new set of rules designed to modernize discovery and increase fairness, efficiency, and transparency in criminal prosecutions (Senate and Assembly Mems in Support of 2019 NY Senate-Assembly Bill S1716, A1431); for example, CPL 245.80 (2) now requires that the court determine whether "after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure."

Interpretation of CPL Article 245

Defendant argues that speedy trial dismissal here is required because some items of discovery were not provided prior to the People's filing of their COC and SOR, and the speedy trial period has now run. The rationales for this oft-asserted position are that the statute requires "all items and information" to be disclosed prior to the filing of the COC, that the running of the speedy trial clock is a function independent of the sanctions permitted under CPL 245.80, and that prejudice is not a factor to be considered in assessing the validity of the COC and the timeliness of the SOR (see e.g. People v Figueroa, 76 Misc 3d 888 [Crim Ct, Bronx County 2022]; People v Cartagena, 76{**77 Misc 3d at 1126}Misc 3d 1214[A], 2022 NY Slip Op 50943[U] [Crim Ct, Bronx County 2022]; People v Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U] [Crim Ct, NY County 2022]; People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020]). The court disagrees for the following reasons, and to the extent that other courts have reached these conclusions, the court declines to follow them.

If the phrase "all items and information" in section 245.20 (1) was truly intended to mean every [*4]item in the case, there would be no need for provisions granting exceptions thereto,^[FN2] or requiring a flow of information (§ 245.55), a continuing duty to disclose (§ 245.60), or a range of appropriate sanctions for delay or omissions (People v Nelson, 67 Misc 3d 313, 315 [Franklin County Ct 2020]). Had such been the legislature's intention, the statute simply needed to provide that until and unless the People have shared every document in the case, they should not file a COC and may not announce readiness for trial (People v Askin, 68 Misc 3d 372, 378-379 [Nassau County Ct 2020]). But this the legislature did not do. Every provision of the statute must be presumed to serve an intended purpose, and no rule of statutory construction permits segregation of a few words from the context of a statute (Matter of Albano v Kirby, 36 NY2d 526, 530 [1975]). Therefore, to dismiss cases based on the literal interpretation of "all items and information" renders superfluous article 245's qualifying provisions and violates the mandate to harmonize all sections of the law in such way as to carry out the specific remedial legislative intent thereof while avoiding "public mischief [and] injustice" (Hayden v Pierce, 144 NY at 516).

This is not to say that the court disagrees that "the People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant" (People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020]). However, it cannot be said that a prejudice analysis is prohibited in a court's evaluation of the People's{**77 Misc 3d at 1127} discovery compliance and readiness (cf. People v Trotman, 77 Misc 3d 1210[A], 2022 NY Slip Op 51181[U] [Crim Ct, Queens County 2022]; People v Webb, 77 Misc 3d 1202[A], 2022 NY Slip Op 51111[U] [Crim Ct, Queens County 2022]). The criminal justice reforms directly link CPL articles 30 and 245, and they must be read together. CPL 30.30 (5) now requires courts to evaluate the People's section 30.30 trial readiness declaration relative to their discovery compliance under CPL 245.20 (1) (People v Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U] [Crim Ct, NY County 2022]; People v Bruni, 71 Misc 3d 913, 917 [Albany County Ct 2021]). But this is not a zero-sum analysis: CPL 245.50 (3) permits the court to certify the People's timely declaration of readiness despite full compliance,^[FN3] and section 245.50 (1) permits the discretionary imposition of a wide range of sanctions for noncompliance, depending on the prejudice wrought to the defendant as a result. Read together as they must be, these provisions clarify that the legislature clearly did not intend for the confluence of articles 30 and 245 to lead courts to disregard appellate precedent and prevent judges from exercising their discretion to evaluate the consequences of delayed discovery. Such strict liability, piecemeal interpretation is without support in discovery policy and jurisprudence and leads to sweeping dismissal of cases for every omitted item, irrespective of whether a less draconian sanction could adequately permit [*5]a defendant to utilize the evidence.

Moreover, because the two statutes are directly linked, it is not a sensible or cohesive interpretation of the discovery scheme to hold that the running of the speedy trial clock is not an "adverse consequence" under section 245.50 (3) to justify dismissing cases in every instance for the People's delayed compliance with required discovery (cf. People v Vargas, 76 Misc 3d 646, 650 [Crim Ct, Bronx County 2022] [internal quotation marks and citations omitted]). Unquestionably, there is no greater "adverse consequence" to the prosecution of a criminal {**77 Misc 3d at 1128}case than its dismissal (People v Bruni, 71 Misc 3d 913, 919-920 [2021]; People v Nelson, 67 Misc 3d 313 [2020]).

Dismissal of a case for nonconstitutional discovery violations far in advance of trial is simply not a prudent exercise of discretion for the People's failure to provide every single piece of information related to the subject matter of a case, regardless of its relevance or materiality, and irrespective of whether a less draconian sanction could adequately permit a defendant to utilize the evidence. Such a result eviscerates the remedial scheme of the discovery reforms, violates construction mandates, and disregards both the legislative intent and history of article 245 and controlling appellate precedent on discovery violations. Moreover, when courts dismiss cases absent any demonstrated prejudice to a defendant, it is unfair not only to individual complainants but betrays the trust of the community at large. Such dismissals undermine the stated policy of fairness to both sides and the truth-seeking purpose of the criminal justice system, resulting in the public mischief and injustice about which the Court of Appeals warned over 100 years ago (Hayden v Pierce, 144 NY 512 [1895]). To the extent other trial court decisions have held otherwise, this court finds they are in direct contravention of the foregoing principles and declines to follow them.

The Delayed Discovery in This Case

Defense counsel's email to the prosecutor on September 8, 2022, resulted in the prosecutor's follow up with the NYPD for the following additional materials and the prompt sharing thereof as soon as they came into her actual possession: remainder of the IDTU video, corrected email address for police officer, accident reports, photos, and IDTU officer license and activity log. Had defense counsel alerted the prosecutor of the potentially missing materials "as soon as practicable," as required by CPL 245.50 (4) (b), the court is confident the items would have been shared sooner.

The ADA also noted that technical problems thwarted her efforts at full compliance, as well as did the large number of police personnel involved. Technical failure resulting in discovery gaps through no fault of the People will not invalidate a COC where there is reasonable diligence and good faith demonstrated, as the court finds here (People v Arefin, Crim Ct, Kings County, 2021, Kitsis, J., CR-008714-20KN). In circumstances where the prosecution is aware of but has not yet obtained automatic discovery, article 245 permits a court to modify the{**77 Misc 3d at 1129} time for discovery or make a finding of exceptional or special circumstances (§§ 245.50 [3]; 245.70). Where a defendant challenges the validity of a COC and/or an SOR, or seeks dismissal pursuant to CPL 30.30, the prosecution's failure to obtain a prior judicial ruling does not prevent the court from making a timing modification or finding of exceptional or special circumstances after the fact (People v Pealo, 71 Misc 3d 337 [Penfield Just Ct 2021]). The court finds that the short delay in full discovery compliance of the above items here was the result of unique circumstances.

As such, it does not invalidate the validity of the COC and SOR.

Impeachment Material

Defendant asserts that the People failed to provide him with (i) underlying documents for settled litigation; and (ii) underlying documents for IAB, CPI and CCRB investigations for Police Officers Christopher Murphy and Christopher Alvarado.

[2] Initially, the court notes that material which is not imputed to the People's constructive possession but is equally accessible to both sides in a criminal case is outside the scope of the timing requirements of automatic discovery under article 245. The CCRB is not a law enforcement agency, and its records are not imputed to be in either the constructive or actual possession of the People. CCRB records are available to the public via an open database. As such, unless the People are already in possession of any CCRB documents for testifying officers, their disclosure responsibilities do not extend to that agency's records (People v Altug, 70 Misc 3d 1218[A], 2021 NY Slip Op 50145[U] [Crim Ct, NY County 2021]; People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]). The same conclusion is reached regarding underlying documents of lawsuit settlements, as court documents are always accessible to the public unless sealed.

Though the law is unsettled as to the People's obligation to disclose unsubstantiated misconduct allegations investigated by the NYPD IAB, this court has previously held that they must be shared. However, exonerated or unfounded allegations need not be disclosed (People v Montgomery, 74 Misc 3d 551 [Sup Ct, NY County 2022]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]). Nor does either CPL 245.20 (1) (k) (iv) or the repeal of Civil Rights Law § 50-a automatically entitle defendant to the entirety of a police officer's "CPI" or central personnel file, aside from information related to the{**77 Misc 3d at 1130} subject matter of the case which tends to impeach the police witness' credibility (People v Akhlaq, 71 Misc 3d 823, 826 [Sup Ct, Kings County 2021]).

The form of disclosure of impeachment material is not specified in the statute and is subject to a wide range of interpretation. Defendants are entitled to detailed information about allegations of misconduct so they can understand the specific nature and degree of the misconduct alleged, determine its relevance to a particular defense, and prepare arguments as to its use on cross-examination at hearing and trial (People v Castellanos, 72 Misc 3d 371 [Sup Ct, Bronx County 2021]). But this court is not prepared to hold that summaries of impeachment material are never permissible and does not find the holding in Matter of Jayson C. (200 AD3d 447 [1st Dept 2021]) to be inconsistent with this determination.^[FN4] Clearly a simple list summarizing disciplinary history without details is insufficient to discharge the People's disclosure obligations. The court finds persuasive the decision in People v Akhlaq, which held that the sharing of the following type of summaries of misconduct allegations were detailed enough to meet required discovery compliance:

"[A]ppended to the People's certificate of compliance are documents that contain descriptions of misconduct for each testifying prosecution witness for whom such records exist. That information is culled from Internal Affairs Bureau (IAB) files, Civilian Complaint Review Board (CCRB) files, Police Department personnel files, and civil [*7]lawsuits. For each such witness, the People provide the officer's name and tax identification number, the date of the allegation, and the source of the information—IAB, CCRB, the personnel file, and/or a civil lawsuit. In addition, they provide a narrative of the allegation, including the precise nature of the misconduct and a general description of the individual who made the allegation. Also provided are the investigative steps taken by the Bureau, Board, or Department. Details regarding the result of any investigation or departmental trial, including punishment meted out, from suspension, to forfeiture of vacation days,{**77 Misc 3d at 1131} to imposition of a command discipline, are also included" (People v Akhlaq, 71 Misc 3d 823, 825-826 [Sup Ct, Kings County 2021]).

In this case, the court was not provided with a copy of the shared impeachment material, and so it cannot ascertain whether the People's compliance with section 245.20 (1) (k) (iv) is complete. Nonetheless, as the law continues to evolve, it is clear to the court that the People have exercised due diligence in their efforts to obtain the IAB records and acted in good faith on their understanding of the law in providing summaries. To any extent that the shared Giglio material did not include the above information, the People are ordered to disclose additional information.

Based on the prosecutor's described efforts, the rules of statutory construction, the legislative history and intent of article 245, and existing appellate precedent, the court finds that the People's discovery compliance efforts were diligent, the disclosures were reasonable under the circumstances, and their COC was filed in good faith. No trial date has yet been set for this matter, and defendant has failed to articulate any prejudice due to the claimed delay and omissions. Therefore, the court holds that the People's COC and their declaration of trial readiness are valid and timely, and no adverse consequences or sanctions against the People are indicated.

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/Mapp hearing is ordered to be held before trial, as well as a Sandoval/Ventimiglia hearing.

Other Motions

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.

Defendant's motions to invalidate the People's COC and to dismiss the information on speedy trial grounds are denied. Combined Dunaway/Mapp and Sandoval/Ventimiglia hearings are ordered to be held before trial.