Criminal Court of the City of New York, Kings County, June 5, 2023

Brooklyn Defender Services, Brooklyn (Mariah Almonte of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Santiago Uribe of counsel), for the People.

The defendant is charged with Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree. The matter was arraigned on November 27, 2022. The People were not ready on the next court date (Dec. 17, 2022), and the matter was adjourned to February 28, 2023, for the People's certificate of compliance (COC). The People filed the COC and statement of readiness (SOR), and certified the facial sufficiency of all counts in the complaint off calendar on February 24, 2023. The People stated ready on the next court date (Feb. 28, 2023), and the court adjourned the matter to April 24, 2023, for trial.

The defendant filed the instant motion on April 21, 2023, seeking dismissal of the accusatory instrument pursuant to CPL 30.30 (1) (b) on the grounds that the People's COC is invalid. The People submitted written opposition on May 8, 2023, to which the defendant filed a response on May 15, 2023. For the reasons set forth below, the defendant's motion is denied.

The defense contends that the instant matter is subject to dismissal, because the People failed to disclose automatic discovery before serving and filing the COC. Specifically, the defense alleges that the People did not disclose (1) Civilian Complaint Review Board (CCRB) history, Giglio disclosure letters, and underlying disciplinary records for all involved officers, (2) the completed activity log for one officer, (3) name and contact information for four witnesses, (4) vouchering paperwork, (5) photocopy of invoiced security/narcotic envelopes and corresponding chain of custody records, (6) laboratory items, and (7) documents pertaining to the Gas Chromatography-Mass Spectrometry (GC/MS) operator.{**80 Misc 3d at 228}

The People maintain that they exercised due diligence prior to filing the COC, and request that this court consider a sanction in lieu of dismissal.

The statutory framework of CPL 245.10 "abolishes the prior mechanism for obtaining discovery through serving a demand upon the People and instead requires that the People provide the discovery listed in CPL 245.20 'automatically' within the deadlines established" (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021], quoting People v [*2]Mashiyach, 70 Misc 3d 456, 461 [Crim Ct, Kings County 2020]). The People are statutorily mandated to make a diligent, good-faith effort to ascertain discovery and to 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" (CPL 245.20 [1]). Items and information in the possession of local police, or a law enforcement agency, are deemed to be in the possession of the People (CPL 245.20 [2]; People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50950[U] [Crim Ct, Bronx County 2022] [includes discoverable material in possession of and favorable information known to police]), and the People must actually produce any such discovery to the defense (People ex rel. Ferro v Brann, 197 AD3d at 787-788 [2d Dept 2021]).

Upon complying with their discovery obligation, the People must file a COC that states they exercised due diligence, made reasonable inquiries to ascertain the existence of material and information subject to discovery, and disclosed same to the defense (CPL 245.50 [1]). It is statutorily prescribed that the People shall not suffer adverse consequences for filing a certificate of compliance in good faith and reasonable under the circumstances (CPL 245.50 [1]; People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U] [Sup Ct, Queens County 2021] [holding minor oversights, delayed discovery of the existence of certain items, or good-faith position that material in question was not discoverable will not invalidate a COC]).

The defendant has the initial burden of identifying a specific defect with the People's COC (People v Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U] [Albany City Ct 2022]). If discovery is contested, the burden shifts to the People to demonstrate that they operated in good faith and exercised due diligence, and to show that they expeditiously provided any missing discovery to the defense (People v Pondexter, 76 Misc 3d 349, 353 [Crim Ct, NY County 2022]).{**80 Misc 3d at 229}

The People disclosed impeachment material for the two officers that they intend to call as witnesses but omitted information about the other 16 officers that were involved. The defendant argues that the People were required to disclose CCRB allegation history, Giglio disclosure letters, and underlying disciplinary records for all officers involved in the investigation and arrest of the defendant. Defendant further contends that this material goes beyond impeachment material and overlaps into discovery that is potentially favorable to the defendant.

The Edwards court held that

"[c]learly, th[e] language [of CPL 245.20 (1) (k) (iv)] puts the People on notice that they must review—and disclose where appropriate—disciplinary records in their possession pertaining to police witnesses they intend to call at hearing or trial. Had the legislature wished to extend this obligation to all [police] witnesses, and not only testifying ones, they easily could have done so" (People v Edwards, 77 Misc 3d 740, 744 [Crim Ct, Bronx County 2022]).

[1] This court, similar to the court in Edwards, finds that the People's obligation to provide police disciplinary records does not extend to all of the officers involved in an arrest and investigation. The defense cannot enlarge the People's obligation in this regard. The People provided disciplinary records for the officers they intend to call as witnesses and therefore, they have complied with their discovery obligation.

Defendant argues that the People have failed to disclose a completed activity log for one officer, because that officer's activity log states, "no reported activities on [the day of the arrest] 11/26/22." The court finds creditworthy the People's explanation that they received the activity log for this officer on February 21, 2023 (People's opp at 15). After defense counsel [*3]conferred with the People, the People made another request for this officer's activity log, which was received on April 13, 2023 (id.). This activity log also states that there were no reported activities. The People cannot turn over what does not exist. Thus, the court finds that the People acted with due diligence regarding this item.{**80 Misc 3d at 230}

Defendant argues that the People failed to provide contact information for four individuals who the defense believes are witnesses, one of which is codefendant, Elbert Norris (Norris).^[FN*]

CPL 245.20 (1) (c) requires that the People provide "[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto."

It is understood that the People are required to disclose the subject individuals' information if they are known to have relevant evidence or information. The defense points out that the officers questioned the individuals but fails to satisfy its burden of going forward. That is, the defense offers no explanation as to why there is a belief that the individuals have information about the case, other than body-worn camera footage that reveal the officers spoke with them. The court credits the People's explanation: two of the individuals stated that they did not witness the events that triggered the defendant's apprehension or arrest, and one individual remained silent (People's opp at 13).

[2] As a codefendant, Norris was directly involved in the case and is clearly someone who has evidence or information relevant to the offenses charged herein. The People concede that they did not disclose Norris's contact information. However, after defendant alerted the People to the missing contact information on April 7, 2023, the People expeditiously provided defense counsel with Norris's contact information on April 10, 2023, and filed a supplemental COC on April 11, 2023. Thus, the court finds that information pertaining to the aforementioned individuals is not subject to automatic discovery and further, the People were demonstrably diligent in remitting Norris's information to the defense.

An officer in this case created a property voucher for $761, and defendant argues that this voucher is discoverable and must be disclosed.

CPL 245.20 (1) (m) states that the People

"shall disclose to the defendant . . . all items and information that relate to the subject matter of the{**80 Misc 3d at 231} case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to . . .

"[a] list of all tangible objects obtained from . . . the defendant."

The statute further provides that the list "shall include a designation by the prosecutor as to . . . which tangible objects were recovered by a public servant or an agent thereof" (CPL 245.20 [1] [m]). Property vouchers are tangible objects in the possession of law enforcement and therefore, such vouchers are deemed to be in the constructive possession of the People and subject to automatic discovery (CPL 245.55).

[3] Prior to filing the original COC, the People received and disclosed five vouchers to the defense. The issue raised by the defense, however, is that there exists body-worn camera footage [*4]revealing the creation of a sixth voucher for purposes of inventorying the money that was seized from the defendant (defense mot at 12). The existence of a sixth voucher is not denied by the People. The court finds that such voucher was created for safekeeping and does not relate to the subject matter of the case. The crime exacted upon defendant is criminal possession of a controlled substance in the seventh degree, which alleges that the defendant knowingly and unlawfully possessed a controlled substance. The court finds that any sum of money recovered from the defendant is irrelevant, since the subject Penal Law infraction is without an element that relates to, inter alia, the sale of a controlled substance. Thus, the court finds that the voucher in issue is not subject to automatic discovery. The defense may avail itself of issuing a subpoena for such voucher if it is believed that the voucher has potential utility in this case.

Defense counsel argues that the People must disclose a photocopy of narcotic envelopes and their chain of custody records.

[4] The People maintain that photocopies of narcotic envelopes were not generated in this case (People's opp at 16). The People cannot turn over what does not exist.

The defendant further notes that the legal chain of custody paperwork does not indicate where the alleged controlled{**80 Misc 3d at 232} substance was located from November 26, 2022 (the day the material was seized from the defendant), until November 29, 2022 (the day on which the material was delivered to the NYPD laboratory). Contrary to the defendant's contention, a gap in the chain of custody between the narcotics envelope and the chemist's receipt of such envelope is unrelated to discovery (see People v Jimenez, 233 AD2d 465, 465 [2d Dept 1996], citing People v Wilson, 150 AD2d 628 [2d Dept 1989]; and see People v Muniz, 193 AD3d 1116, 1118 [3d Dept 2021], quoting People v Carter, 131 AD3d 717, 723 [3d Dept 2015] [holding " 'any gaps in the chain of custody go(es) to the weight of the evidence, not its admissibility' "]). Rather, the issue is within the trial judge's province, and potentially, the jury in its evaluation of the weight of the evidence (People v Jimenez, 233 AD2d at 465 [2d Dept 1996], citing People v Wilson, 150 AD2d at 628 [2d Dept 1989]). For this reason, the court finds that CPL 30.30 (1) (b) is inapplicable.

Defendant states that the People have failed to provide the following laboratory related items: completed Office of Chief Medical Examiner results, scan of the Controlled Substance Analysis Section Worksheet (currently uploaded but illegible), the make and model of the GC/MS instrument, documentation as to the maintenance of the GC/MS instrument, NYPD laboratory's most recent Annual Accreditation Review Report, and any documentation available with respect to the standard operating procedure for contamination control and contamination monitoring in the NYPD laboratory (defense mot at 5). Upon defense counsel notifying the People of missing items, the People requested said items from the NYPD laboratory and received identical copies of documents they had disclosed prior to filing their original COC (People's opp at 14).

CPL 245.20 (1) (j) requires the People to disclose

"all reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically . . . or scientific tests or experiments or comparisons, relating to the criminal action or proceeding . . . not limited to, laboratory information management system records relating to such materials, any preliminary or final findings of non-{**80 Misc 3d at 233}conformance with accreditation, industry or governmental standards or laboratory protocols, and any conflicting analyses or results by laboratory personnel regardless of [*5]the laboratory's final analysis or results."

(a) Documentation Pertaining to the Make and Model of the GC/MS Instrument Used during Testing and Validation Studies and Documentation of Maintenance Pertaining to the GC/MS Utilized

In a Vehicle and Traffic Law case, CPL article 245 provides specific items that the People must disclose to the defense. Comparably, Gas Chromatography-Mass Spectrometry (GC/MS) tests are performed in an NYPD laboratory, and the test results go to the heart of a controlled substance charge. It is hardly arguable, then, that laboratory testing instruments, and their maintenance, are germane to the accuracy of the test results that the People would fully intend to use at trial. It is axiomatic that the People would not be able to make out their case without showing that the instrument used to analyze the controlled substance actually worked; reciprocally, the function of lab materials is highly relevant to a potential defense for defendant.

[5] In People v Stancu, the court held that "the calibration records of the instrument are meaningless if the chemical composition of the simulator solutions used to calibrate the instrument are not correct" (People v Stancu, Crim Ct, Queens County, Apr. 3, 2023, Novillo, J., docket No. CR-020401-21QN; People v Ponce, Crim Ct, NY County, Feb. 27, 2023, Rosenthal, J., docket No. CR-023248-22NY [In order to admit the BAC results to meet their burden at trial, the People must prove that the Intoxilyzer machine was in proper working order at the time the test was administered], citing People v Boscic, 15 NY3d 494 [2010]). Akin to that line of reasoning, the test results of the controlled substance in this matter are meaningless if the GC/MS instrument is not working properly. The court finds that the make, model, and maintenance of the GC/MS instrument are relevant to the subject matter of this case and within contemplation of the People's discovery obligations under CPL 245.20 (1) (j).

Here, the controlled substance in issue was tested in an NYPD laboratory, as reflected on the top left quadrant of the Controlled Substance Analysis Section laboratory report that the People filed with the superseding complaint on February{**80 Misc 3d at 234} 24, 2023. The NYPD laboratory testing instruments that were used to test the substance obtained from the defendant are inherently in the constructive possession of the People (CPL 245.55). Thus, the make, model, and maintenance of the GC/MS instrument that was used to test the alleged controlled substance in this case are subject to automatic discovery.

Here, the People submitted a Laboratory Information Management System request to the NYPD laboratory, requesting all the documentation regarding drug analysis in this case (People's opp at 14). The People disclosed what they received to the defense prior to filing the original COC, on February 24, 2023. On April 7, 2023, defense counsel emailed the People an extensive list of missing items, including missing laboratory documentation. On April 10, 2023, one business day later, the People emailed defense counsel asking for clarification on some of their discovery inquiries (People's opp at 14). On April 12, 2023, the People received a discovery packet that mirrored the documents that were initially received from the NYPD laboratory. The People dutifully shared the initial documents with defense counsel prior to filing the original COC. They further emailed NYPD laboratory criminalist Nazia Mahmood (Mahmood) on May 4, 2023, to request additional materials from the laboratory. In the People's exhibit B, Mahmood stated that the requested items are not part of automatic discovery.

It is reasonable for the People to initially make a general request to an NYPD lab for discoverable items. With such general requests, however, the People must ensure that the [*6]documentation received includes everything that is enumerated under article 245. One of the dangers with making a blanket request for discovery is that the People put the onus on the requestee to determine, inter alia, what discovery is relevant to disclose, as is the case here (People's exhibit B). The court cautions against the practice of making such general requests. Rather, the People are required to review their own discovery to ensure that everything enumerated under article 245, which essentially provides a discovery checklist for the People, is actually provided to the defense.

Here, the People made two inquiries to the NYPD lab, both of which were reasonable and leveled to ascertain the existence of material and information that was subject to discovery. The People's second request conjured an erroneous statement from Mahmood that the specific items were not discoverable. The People did disclose what was received in good faith and in a{**80 Misc 3d at 235} manner that is reasonable under the circumstances. The court orders the People to ascertain and disclose the items that remain outstanding within 30 days of the receipt of this decision. If the People are unable to disclose to defendant the missing discovery within that time, the People must detail what efforts they have made to ascertain the discovery and how much more time they need to obtain said item. Based on the attendant circumstances, however, the court is disinclined to render the People's COC invalid on this ground.

(b) Complete Laboratory Results and Printed Scan of the Controlled Substance Analysis Worksheet

Defense argues that they are "missing an analysis report on Item 1B, which accounts for 91 of the tablets in question—it seems as though they were not tested at all" (defense mot 5). The People reached out to Mahmood who explained that as part of laboratory procedure the lab only analyzes "up to the highest possible weight threshold for the invoice. Once the highest possible weight threshold is reached, remaining units are not analyzed. Therefore, the (91) units in item 1B were not tested" (People's opp at 14; People's exhibit B). The People have turned over what laboratory results exist.

Defendant further argues that the Controlled Substance Analysis Worksheet is illegible. Upon reviewing the documents, the court concurs that the pages are illegible. The People disclosing items that are not legible renders those items effectively useless. As part of the People's discovery obligations, they must make efforts to ascertain and disclose discovery, which includes providing defendant reasonable access to such discovery. A legible copy of the worksheet was not turned over prior to the People's filing of the original or supplemental COC, and there is no indication whether a legible version exists. The People did not address the legibility of the worksheet in their opposition papers, but they stated that upon the defendant notifying them of missing items they made a second request for laboratory documents and received an identical copy of the Controlled Substance Analysis Worksheet that was disclosed in their original COC. The court, in considering whether omission of a legible worksheet renders the People's COC invalid in this case, finds that it does not.

The court orders the People to disclose a legible version of the worksheet within 30 days of the receipt of this decision. If the People are unable to disclose the worksheet within this time, the People must explain the efforts they have made to{**80 Misc 3d at 236} ascertain the worksheet and how much more time they need to obtain said item.

(c) NYPD Lab's Most Recent Annual Accreditation Review Report and Documentation [*7]with Respect to the Standard Operating Procedure of the NYPD Laboratory

Defendant argues that the People are required to disclose NYPD laboratory's most recent Annual Accreditation Review Report and documentation regarding the standard operating procedure in the NYPD laboratory (defense mot at 5). CPL 245.20 (1) (j) requires that the People provide any preliminary or final findings of nonconformance with accreditation, industry or government standards or laboratory protocols. On this issue, the People state that they disclosed all the Drug Laboratory Analysis documents within the People's possession, but they do not address whether there are findings of nonconformance with accreditation or industry standard laboratory procedures for the NYPD (People's opp at 14-15).

The court orders the People to disclose to defendant any findings of nonconformance with respect to laboratory accreditation, industry or government standards, or laboratory protocols within 30 days of the receipt of this decision. If the People are unable to disclose such information within this timeframe, the People must explain the efforts they have made to ascertain the items, if such exist, and how much more time they need to obtain said items.

Defendant argues that the People are required to disclose documentation regarding proficiency testing documentation of any errors committed by expert, Karol Alvarez (Alvarez). The People maintain that they have provided such documents.

Under CPL 245.20 (1) (f), the People are required to disclose a list of proficiency tests and results within the past 10 years of each expert witness whom the prosecutor intends to call as a witness. The court accepts the People's representation that they have disclosed all testing documentation and errors committed by Alvarez. However, the People filed a notice/disclosure form for initial discovery on February 24, 2023, and did not list Alvarez as an expert witness. Regardless of the materials initially provided to the defense concerning Alvarez, the issue is moot, since the People have not included Alvarez on the list of prospective witnesses.

When the top count of an accusatory instrument is an A misdemeanor, as is the case here, the People must be ready for{**80 Misc 3d at 237} trial within 90 days of the commencement of the criminal action. (CPL 30.30 [1] [b]; 170.30 [1] [e].) A criminal case is commenced by the filing of an accusatory instrument (CPL 100.05). To be ready for trial and stop the speedy trial clock, the People were required to file the COC in good faith and a valid SOR and certify that all the counts in the accusatory instrument are facially sufficient pursuant to CPL 30.30 (5-a) (People v Ramirez-Correa, 71 Misc 3d 572 [Crim Ct, Queens County 2021]). The date from when the case began, November 27, 2022, to the date the People filed their COC, February 24, 2023, is 89 days. Therefore, the People are ready within the allotted speedy trial timeframe.

Based upon the above findings, it is hereby ordered, that the defendant's motion is denied.