Supreme Court, Kings County, March 6, 2023

Allyson Eacho for defendant.

Eric Gonzalez, District Attorney (Audrey Chao of counsel), for the People.

Defendant moves to invalidate the certificate of compliance that the district attorney filed on December 12, 2022 (see CPL 245.50 [4] [a]). He alleges that the discovery provided was insufficient to satisfy the automatic discovery requirement of Criminal Procedure Law § 245.20. His primary claim is that the district attorney did not disclose records underlying the impeachment material provided for potential police witnesses. He also argues for disclosure of certain information from the medical examiner and from the police department. In response to the motion, the assigned assistant district attorney states that all impeachment material and medical examiner material in her possession was disclosed, and that all police department material was properly disclosed.

I. Background

Defendant is charged by indictment with illegally possessing a handgun and cocaine seized by police from his person during a search incident to an arrest on September 27, 2022. The district attorney has disclosed hundreds of pages of discovery material, the body-worn camera recordings of 24 police officers, information about the known disciplinary history of potential police witnesses, and all of the material received from the medical examiner about the DNA testing and analysis conducted in this case.

II. Discussion

A. Impeachment Material

In fulfilling the automatic discovery requirement of Criminal Procedure Law article 245, the assigned assistant disclosed to defendant information about alleged misconduct committed by potential police witnesses. For each witness, the assigned assistant provided a so-called Giglio disclosure letter that summarized the known history of pending, substantiated, and unsubstantiated NYPD disciplinary actions against the officer,{**78 Misc 3d at 879} as well as the history of any known state and federal civil lawsuits against the officer. The assigned assistant also supplied to [*2]defendant any underlying records for these matters that were in the possession of the district attorney's office. Those records included Internal Affairs Bureau (IAB) reports and lawsuit complaints. The assigned assistant also disclosed redacted records of investigations conducted by the Civilian Complaint Review Board (CCRB).

Defendant argues that these disclosures are insufficient to comply with the automatic discovery requirement for impeachment material under Criminal Procedure Law § 245.20 (1) (k) (iv). He argues that the statute requires the district attorney to disclose all information and records for substantiated and unsubstantiated allegations of police misconduct. He also seeks undisclosed IAB records for certain officers, all records related to federal lawsuits for certain officers, and unredacted copies of the CCRB documents that were disclosed.

Under Criminal Procedure Law § 245.20 (1), the automatic discovery requirement applies to "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." The statute contains a nonexclusive list of "items and information" to be disclosed automatically (see id. subd [1] [a]-[u]). This list includes "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness" (id. subd [1] [k] [iv]).

In determining what must be disclosed as impeachment material, this court is guided by the language of the statute. Under Criminal Procedure Law § 245.20 (1), discovery is limited to material that is "relate[d] to the subject matter of the case." As this court has found in a prior decision, this language means that the alleged misconduct must be related to the subject matter of the case to be discoverable as impeachment material (see People v Hutchins, 74 Misc 3d 1234[A], 2022 NY Slip Op 50327[U], *2 [Sup Ct, Kings County 2022]).

In construing the statute, this court acknowledges that paragraph (k) requires disclosure of "[a]ll evidence and information" tending to impeach the credibility of a witness. The broad sweep of the quoted language might suggest to some that misconduct evidence is discoverable even when not related to the subject matter of the case, but that would be a misreading of the plain language of the automatic discovery{**78 Misc 3d at 880} statute. The broad language in paragraph (k) is qualified by the more specific, purposeful language in subdivision (1), which restricts discovery in the first instance to material that is related to the subject matter of the case (see People v Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U], *8 [Sup Ct, Nassau County 2022] ["This court finds that the words 'relate to the subject matter of the case' is a purposeful qualifier that the Legislature placed into the statute"]). This court is not free to ignore the qualifying language in subdivision (1) when interpreting the full scope of discovery under paragraph (k).

So far, no appellate court has addressed the issue of whether the language in subdivision (1) restricts the scope of the "evidence and information" to be disclosed under subparagraph (k) (iv) as impeachment material. Two appellate decisions that have discussed disclosure of impeachment evidence under the statute addressed only whether the statute requires disclosure of records underlying the alleged misconduct and not merely a list or summary of the misconduct (see Matter of Jayson C., 200 AD3d 447, 449 [1st Dept 2021] ["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"]; People v Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022] ["The People failed to provide relevant records to defendant, including underlying impeachment materials pursuant to CPL 245.20 (1) (k)"]). Neither decision addressed the issue of whether the misconduct had to be related to the subject matter of the case to be discoverable. These decisions provide authority for the form, but not the scope, of the [*3]information to be disclosed as impeachment material under Criminal Procedure Law § 245.20 (1) (k) (iv).

This court finds that the district attorney has complied with the statutory automatic discovery requirement for impeachment material. In the motion, defendant does not allege or attempt to show that any of the police misconduct disclosed as potential impeachment is related to the subject matter of this case. He does not, for example, allege that any of the misconduct occurred during the investigation of this case or that any of the misconduct relates to the charges against him or to any potential defense he might assert. In the absence of a showing that any of the misconduct is related to the subject matter of the case, defendant's primary claim provides no basis to invalidate the certificate of compliance.

Lastly, this ruling does not diminish a defendant's other rights of access to misconduct evidence for potential impeachment{**78 Misc 3d at 881} of a witness at a hearing or trial. The district attorney remains obligated, as a matter of due process, to disclose favorable evidence that "may affect only the credibility of a government witness" (People v Steadman, 82 NY2d 1, 7 [1993]). A defendant may use the subpoena process to seek records underlying police misconduct (see CPL 610.10 [3]; 610.20 [3], [4]). Here, in deciding this motion, this court rules only on the scope of information that the district attorney must disclose to satisfy the statutory discovery requirement and declare ready for trial (see CPL 30.30 [5]).

B. Medical Examiner Information

Defendant alleges the nondisclosure of the following information generated by the medical examiner: "ERD or 'raw data,' " "STRmix outputs," "Audit Trails for the Evidence and Suspect Testing," and "OCME laboratory errors report" (Eacho aff in supp ¶ 18). The office of the medical examiner is a non-law enforcement city agency "independent of and not subject to the control of the office of the prosecutor" (People v Washington, 86 NY2d 189, 192 [1995]). Material possessed by the medical examiner is, therefore, not within the control of the district attorney and not subject to automatic discovery if not received by the district attorney (see CPL 245.20 [1]; People v Perez, 73 Misc 3d 171, 185-186 [Sup Ct, Queens County 2021]; People v Lustig, 68 Misc 3d 234, 245-246 [Sup Ct, Queens County 2020]). Here, the district attorney provided defendant via a shared OneDrive everything received from the medical examiner in this case, including the two case files for the DNA analysis and testing (see Chao aff in opp, exhibit A, inventory of discovery at 3, item 5, folder with OCME documents). The district attorney was not required to obtain any additional information from the medical examiner before filing a certificate of compliance.

C. Police Department Material

Defendant alleges the nondisclosure of the activity logs for two detectives in the Emergency Services Unit (ESU). The assigned assistant believed that the only role of the detectives in this case was to help the Evidence Collection Team (ECT) officers make the recovered firearm safe at the 75th Precinct (see Chao aff in opp ¶ 5). Before filing the certificate of compliance, the assigned assistant sent discovery requests for the logs to the NYPD ECT, the 75th Precinct, and the Emergency Services Unit. The assigned assistant also sent follow-up emails to each detective, but did not receive the activity logs before filing the certificate of compliance on December 12, 2022.{**78 Misc 3d at 882}

Afterwards, the assigned assistant made additional follow-up requests by email to each detective individually and to the Emergency Services Unit, and eventually received the activity logs on February 7, 2023. On the same day, the assigned assistant disclosed the logs to defendant and filed a supplemental certificate of compliance (see CPL 245.60). Upon reviewing the [*4]activity logs, this court agrees with the assigned assistant that the logs do not contain information related to the subject matter of this case (see Chao aff in opp ¶ 11 ["the activity logs themselves contain nothing of relevance to the instant case"] & exhibit E).

In any event, under the circumstances, this court finds that the assigned assistant made a diligent and good-faith effort to determine "the existence of material or information" subject to automatic discovery (CPL 245.20 [2]) and provided to defendant all "known material and information subject to discovery" before filing the certificate of compliance (CPL 245.50 [1]). The subsequent discovery and disclosure of the activity logs does not impact the validity of the original certificate of compliance, which was "filed in good faith and after exercising due diligence" (CPL 245.50 [1-a]).

Defendant alleges the nondisclosure of "[a]ll discovery relating to additional arrests K22640487 and K22640491" (Eacho aff in supp ¶ 18). Defendant gives no further information about these arrests or any explanation for why they are discoverable. The assigned assistant responds that these arrests are not related to the subject matter of this case and arise from separate events that occurred one month and four months prior to this case. The assigned assistant reports that information for arrest K22640491 qualifies as supplemental discovery to be turned over no later than 15 calendar days before the first scheduled trial date (see CPL 245.20 [3]; 245.10 [1] [b]). This allegation provides no basis to invalidate the certificate of compliance filed on December 12, 2022.

Lastly, defendant alleges the nondisclosure of "Desk appearance ticket investigation" and the body-worn camera video of the two ESU detectives. The assigned assistant has confirmed that these materials do not exist (Chao aff in opp ¶¶ 12-13).

III. Conclusion

For the reasons stated above, this court finds that the assigned assistant exercised due diligence and made reasonable inquiries to ascertain the existence of material subject to discovery, and filed a valid certificate of compliance on{**78 Misc 3d at 883} December 12, 2022. Accordingly, the motion to invalidate the certificate of compliance is denied.