Criminal Court of the City of New York, Queens County, January 31, 2023

The Legal Aid Society (Sade Stephenson of counsel) for defendant.

Melinda Katz, District Attorney (Jairo Z. Coronado of counsel), for the People.

In a misdemeanor prosecution with a maximum sentence of 364 days in jail, the People have 90 days from arraignments to validly state ready for trial. Validly stating ready for trial requires the People to first properly certify that they have complied with automatic discovery. That is a task which, in this case, the law mandated the People complete within 35 days of arraignments.

Here, the People filed their certificate of discovery compliance on the 84th day after arraignments. But when the People certified compliance with discovery, late, they did so knowing they had "not yet obtained" the memobooks of three police officers in the case. They provide little information about their efforts to obtain these memobooks before filing their certificate. They only state that they "reached out" to the "NYPD" two days beforehand—on the 82nd day after arraignments. Then, even though they "knew of the missing memobooks," they certified compliance with discovery, anyway. The People only disclosed the memobooks over two weeks later, on the 102nd day after arraignments.

But that was not the only problem here. When the People claimed to certify compliance, they also had not disclosed disciplinary records relating to charges against two of their police{**78 Misc 3d at 507} witnesses. Instead, the People had disclosed only summary letters, which they authored, containing little information about the officers' misconduct. After over 200 days past arraignments, the People finally provided some of the underlying records for one officer. They have never provided any underlying documents for the second.

Under these circumstances, the People failed to properly certify discovery before stating ready for trial. (CPL 245.20 [1] [e], [k]; People v Rodriguez, 77 Misc 3d 23 [App Term, 1st Dept 2022]; Matter of Jayson C., 200 AD3d 447, 448-449 [1st Dept 2021]; CPL 245.50 [1], [3]; 30.30 [5]; People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021].) As calculated below, the People have exceeded the 90 days the law allows them to validly state ready for trial. (See CPL 30.30 [1] [b].) Therefore, the court must dismiss the case. (See id.)

I. The Discovery Statute

The discovery statute's plain text is clear. A "proper" certificate of discovery compliance is necessary to stop the speedy-trial clock. (CPL 245.50 [3].) The statute defines a "proper" certificate of compliance in "subdivision one" of CPL 245.50. (Id.) That section provides several "necessary conditions" to a proper certificate. (See generally People v Vargas, 76 Misc 3d 646, 649 [Crim Ct, Bronx County 2022].) One such necessary condition is that the certificate be filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for material that is lost, destroyed, or under a protective order. (CPL 245.50 [1].) Another is that the People certify, in good faith, that "after exercising due diligence and making reasonable inquiries to ascertain the existence" of discoverable material, "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.; see also CPL 30.30 [5].)

Appellate courts have analyzed whether the People filed a proper certificate of compliance by relying upon this clear plain text. (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021]; People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022].) They are right to do so. "[T]he text itself is generally the best evidence" of "the legislature's intent." (People v Francis, 30 NY3d 737, 740 [2018] [internal quotation marks omitted].) Therefore, "courts should construe unambiguous language to {**78 Misc 3d at 508}give effect to its plain meaning." (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006].) Notably, the appellate courts have not relied on case law about discovery violations predating the 2020 discovery reforms, back when discovery had almost nothing to do with CPL 30.30. (Compare Ferro, 197 AD3d 787; People v Rodriguez, 77 Misc 3d 23 [App Term, 1st Dept 2022]; Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022], with prosecution's response at 4 [citing cases about discovery violations from 2003, 2008, and 2016, when discovery was not tied to prosecutorial readiness].)

II. The Missing Memobooks

[1] When applying these standards to the People's approach to the police memobooks in this case, it is clear their certificate of compliance was not proper. On that certificate, the People certified they had "disclosed and made available all existing known material and information subject to discovery, except for any items that are the subject of a protective order." (Certificate of compliance at 1.) But this was patently false. The People "knew of discoverable material, i.e., memo books," that they had not disclosed. (Prosecution's response at 6.) Indeed, they readily admit that when they filed their certificate, they "did not have every document to comply with the discovery rules." (Id.)

What the People did here is not what the discovery statute requires. Even though the People "knew of the missing memo books," they nonetheless two days later "filled [sic] the [certificate of compliance] and the SOR." (Id. [emphasis added].) But a "certificate" is a document that is supposed to contain "a certified statement . . . as to the truth of something." (Merriam-Webster Dictionary [2022], certificate [emphasis added].) It should go without saying: the People cannot file a certificate in which they certify they have "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v Quinlan, 71 Misc 3d 266, 271 [Crim Ct, Bronx County 2021]; People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020].)

[2] Nor can the court endorse the People's claim that they "exercised due dillegence [sic] in obtaining the missing documents." (See prosecution's response at 5-6.) "Due diligence" refers to the People's efforts before filing a certificate. That is why the certificate must state that "after exercising due diligence," the prosecutor "has disclosed and made available all known material." (See CPL 245.50 [1] [emphasis added].){**78 Misc 3d at 509}

Assessing "due diligence requires the People to demonstrate how due diligence was exercised." (People v Critten, 77 Misc 3d 1219[A], 2022 NY Slip Op 51315[U], *3 [Crim Ct, NY County 2022] [internal quotation marks omitted].) To do so, the People must show a "factual basis" for the court to find "due diligence." (People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U], *7 [Crim Ct, Kings County 2021]; see also People v Carrillo, 75 Misc 3d 1227[A], 2022 NY Slip Op 50680[U] [Crim Ct, Bronx County 2022] [same].) And that makes sense. "The 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]; see also Campbell v United States, 365 US 85, 86, 96 [1961] ["(T)he ordinary rule . . . does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary"]; National Communications Assn. Inc. v AT & T Corp., 238 F3d 124, 130 [2d Cir 2001] ["(A)ll else being equal, the burden is better placed on the party with easier access to relevant information"]; 9 J. Wigmore, Evidence § 2486 [J. Chadbourn rev ed 1981] ["(T)he burden of proving a fact is said to be put on the party who presumably has a peculiar means of knowledge"].) Only the People know what efforts they made, if any.

But the People here provide little information about any efforts to obtain these memobooks before filing their certificate. (See prosecution's response at 5-6.) They do not provide anything more than that they "reached out" to the "NYPD" two days before filing. (Id.) They do not explain, for instance, who they talked to, why the memobooks were missing, or whether they followed up before filing their certificate. They do not relay the substance of any communications with any member of the police department. They do not explain why the first time they contacted the police regarding these memobooks was 82 days after arraignments—well beyond the 35-day deadline for discovery. (See CPL 245.10 [1] [a] [ii].) And they do not explain why, knowing that this material was missing, they never petitioned a court for any of the numerous opportunities for relief that the discovery statute provides them. (See e.g. CPL 245.70 [2] [authorizing courts to modify discovery periods for "good cause"]; 245.50 [3] [authorizing courts to allow a prosecutor to state ready without full discovery compliance in "special circumstances"]; see also Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *4 ["Where the People do {**78 Misc 3d at 510}not seek any of (the statute's) numerous opportunities for relief, they cannot be said to have exercised due diligence before filing their COC"].) Plainly, the record here is not sufficient for the court to find due diligence.

In sum, the court cannot harmonize what the People did here with the discovery statute. Without permission from any court, the People decided to violate the 35-day discovery deadline; served discovery on the 84th day after arraignments instead; and then certified they disclosed "all existing known material" even though they knew they had not disclosed some known material. That means their certifications were not made in good faith. Therefore, the certificate was not proper and could not support a valid statement of readiness.

III. The Police Misconduct Records

The next issue fares no better. When the People certified compliance with discovery, they had not disclosed any disciplinary records for their police witnesses. Instead, the People [*2]disclosed mere summaries that they had authored of their witnesses' disciplinary matters.

There is no longer ambiguity over whether the People may only disclose mere summaries of their testifying police witnesses' prior misconduct records. The Appellate Division has held that such summaries are insufficient to meet what CPL 245.20 (1) (k) (iv) requires. (Matter of Jayson C., 200 AD3d 447, 448-449 [1st Dept 2021]; see also People v Polanco-Chavarria, 74 Misc 3d 1210[A], 2021 NY Slip Op 51297[U], *4 [Rockland County Ct 2021] [analyzing Jayson C.]; People v Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *5 [Crim Ct, Queens County 2022]; People v Trotman, 77 Misc 3d 1210[A], 2022 NY Slip Op 51181[U], *3-4 [Crim Ct, Queens County 2022]; People v Goggins, 76 Misc 3d 898 [Crim Ct, Bronx County 2022]; People v Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U], *3 [Crim Ct, NY County 2022].) That decision is uncontested amongst the Appellate Division's departments and is therefore controlling on all trial courts throughout the state, including this one. (See Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984] [where another department's decision is the only authority "on point," then a trial court must understand that decision "to be binding authority"].)

It is worth reviewing what Jayson C. held. There, in a juvenile delinquency proceeding, the defense, relying on CPL 245.20 (1) (k) (iv), sought impeachment information about several police officers involved in the case. (Jayson C., 200 AD3d at 448.){**78 Misc 3d at 511} The presentment agency—which acts like the prosecution in a juvenile delinquency proceeding—responded by sending summary "disclosure letters" to the defense. (Id.) The lower court held that these disclosure letters were sufficient because it believed that CPL 245.20 (1) (k) (iv) was "inapplicable" to juvenile delinquency cases. (Id. at 448-449.) But the Appellate Division unanimously reversed, holding that "the denial of records available under CPL 245.20 (1) (k) (iv), which broadly requires disclosure of all impeachment evidence, deprived appellant of equal protection of the laws." (Id. at 449.) "A similarly situated defendant in a criminal proceeding," it wrote, "would be entitled to access to the impeachment materials requested by appellant." (Id. [emphasis added].)

This predicate conclusion in Jayson C. was "not dicta," as it was "necessary to the resolution of the issue presented." (See Matter of Report of Apr. 1979 Grand Jury of Montgomery County, 80 AD2d 654, 655 [3d Dept 1981] [where a court's statements are "necessary to the resolution of the issue presented," they are "not dicta"].) If a "similarly situated defendant in a criminal proceeding" were not entitled to anything more than disclosure summaries, then the Appellate Division could not have held that the juvenile appellant was entitled to anything more, either. (Jayson C., 200 AD3d at 449.)

Jayson C.'s conclusion follows straight from the text of the discovery statute. Criminal Procedure Law § 245.20 (1) (k) (iv) requires the disclosure of "[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 . . . impeach the credibility of a testifying prosecution witness." Evidence of "a police witness's prior bad act . . . can be proper fodder" for impeaching that witness. (People v Smith, 27 NY3d 652, 661 [2016].) Therefore, at minimum, the People must disclose "all evidence and information" regarding a testifying police witness's prior bad acts in their possession or the possession of police; " '[a]ll' means all." (People v Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U], *2 n 2 [Crim Ct, Bronx County 2022].)

The First Department's Appellate Term agrees with this analysis. In People v Rodriguez, it affirmed a lower court's dismissal where the People only provided mere summaries of their police witnesses' disciplinary records before the CPL 30.30 time limit expired. (See People v Rodriguez, 77 Misc 3d 23, 24-25 [App Term, 1st Dept 2022]; People v Rodriguez, Crim Ct,{**78 Misc 3d at 512} Bronx County, May 20, 2021, CR-002613-20BX.) Because the People "failed to provide relevant records to defendant, including underlying impeachment materials pursuant to CPL 245.20 (1) (k)," the lower court "properly held" that the certificate of compliance "was not valid and therefore did not stop the speedy trial clock." (Rodriguez, 77 Misc 3d at 25.) Appropriately, the Appellate Term cited Jayson C. to support its holding. (Id.)

Rodriguez accords with the weight of authority throughout trial courts in the city. (See e.g. Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U] [Gershuny, J.]; People v Bravo, Crim Ct, Queens County 2022, Johnson, J., CR-002662-22QN; Goggins, 76 Misc 3d 898 [Morales, J.]; Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U] [Rosenthal, J.]; People v Mohammed, Crim Ct, NY County 2022, Wang, J., CR-026662-21NY; People v Salaam, Crim Ct, NY County 2022, Maldonado-Cruz, J., CR-019124-21NY; Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U] [Licitra, J.]; People v Castellanos, 72 Misc 3d 371 [Sup Ct, Bronx County 2021, Clancy, J.]; People v Perez, 71 Misc 3d 1214[A], 2021 NY Slip Op 50374[U] [Crim Ct, Bronx County 2021, Johnson, J.]; People v Sozoranga-Palacios, 73 Misc 3d 1214[A], 2021 NY Slip Op 51036[U] [Crim Ct, NY County 2021, Stein, J.]; People v Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021, Weiner, J.].)

"Courts have ruled time and again that case summaries prepared by the People are insufficient to satisfy the mandates imposed by CPL 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witnesses, should not be filtered through the prosecution." (Goggins, 76 Misc 3d at 901.)

As at least 10 different courts have explained, the fact that the records here relate to "unsubstantiated" disciplinary charges is of no matter. (Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U] [Gershuny, J.]; Goggins, 76 Misc 3d 898 [Morales, J.]; People v Alvia, 76 Misc 3d 704 [Crim Ct, Bronx County 2022, Licitra, J.]; Edwards, 74 Misc 3d 433, 442 [Weiner, J.]; Castellanos, 72 Misc 3d 371 [Clancy, J.]; Polanco-Chavarria, 74 Misc 3d 1210[A], 2021 NY Slip Op 51297[U] [Schwartz, J.]; People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021, Rosenthal, J.]; McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Kitsis, J.]; Perez, 71 Misc 3d 1214[A], 2021 NY Slip Op 50374[U] [Johnson, J.]; People v Cooper, 71 Misc 3d 559 [Erie County Ct 2021, Eagan, J.].){**78 Misc 3d at 513}

[3] These courts have explained the issue in depth, but the court summarizes the analysis here. The People wrongly presume that "an unsubstantiated complaint does not provide a good faith basis to inquire on cross-examination." (Prosecution's response at 8.) In NYPD discipline, "unsubstantiated" is a term of art—it only means there is an "absence of evidence [that] precludes resolution of the allegation one way or the other." (Edwards, 74 Misc 3d at 442.) And as the Court of Appeals has explained, "there is no prohibition against cross-examining a witness about bad acts that have never been formally proved" in another forum. (Smith, 27 NY3d at 661.) A police witness's "prior bad act" that "has not been proved" in another proceeding may still be "proper fodder for cross-examination." (Id.) Therefore, "unsubstantiated" allegations provide a good-faith basis for inquiry on cross-examination, and so the People must disclose the underlying disciplinary records.

[4] Despite these decisions, the People here only disclosed mere summaries of the officers' misconduct with their certificate of compliance; their choice to do so was not in "good faith." (Prosecution's response at 8-9.) The People should not have disregarded Jayson C., and the many lower court decisions following it, to adopt an unjustifiably narrow interpretation of the statute. This is especially true given the discovery statute's "presumption in favor of disclosure when interpreting" its sections, including CPL 245.20 (1) (k). (CPL 245.20 [7].)

In any event, the statute does not allow the People to make a unilateral "good faith" [*3]determination that items do not fall under the discovery statute. Determining what should be discoverable "is not the People's province." (People v Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U], *5 [Crim Ct, NY County 2022].) 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.) That the People claim to have exercised "good faith" 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." (Williams, 2021 NY Slip Op 50743[U], *5.)

If the People ever believe that any records are not discoverable, the statute provides a "process" for them to "follow." (Best,{**78 Misc 3d at 514} 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *5.) "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Best, 2022 NY Slip Op 50859[U], *5.) But what the People cannot do is "file a certificate of compliance claiming they have disclosed all known discovery if they have not actually done so without the express permission of the court." (People v Aguayza, 77 Misc 3d 482, 489 [Sup Ct, Queens County 2022]; see also Sozoranga-Palacios, 73 Misc 3d 1214[A], 2021 NY Slip Op 51036[U] [the People do not act in "good faith" where they withhold disciplinary records without court permission].)

Here, "the People knowingly failed to disclose discoverable material in their possession without leave of the court or a protective order." (Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *6.) This refusal to disclose was "merely an expression" of unilateral "policy and desire." (Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U], *5.) Accordingly, the certificate "was not valid and therefore did not stop the speedy trial clock." (Rodriguez, 77 Misc 3d at 25.)

IV. The CPL 30.30 Calculation

December 17, 2021—February 23, 2022

The People commenced this case on December 17, 2021. On that date, the People were not ready for trial. The court adjourned the case to February 23, 2022. In the interim, 68 days elapsed without a statement of readiness from the People.

February 23, 2022—March 30, 2022

On February 23, 2022, the People still were not ready for trial. The court adjourned the case to March 30, 2022. On March 11, 2022, the People filed a statement of readiness. However, as explained above, the People's statement of readiness was illusory as it was not preceded by a proper certificate of discovery compliance. Therefore, 35 more days elapsed without a valid statement of readiness from the People.

The remainder of the adjournments are moot. The People are only allowed 90 days from arraignments to validly state ready for trial. (CPL 30.30 [1] [b].) By March 30, 2022, 103 days of delay had elapsed without a valid statement of readiness from the People. Therefore, the People exceeded their speedy-trial time, and the court must dismiss the case. (See id.)