Criminal Court of the City of New York, Bronx County, June 27, 2023

The Legal Aid Society (Ailee Katz of counsel) for defendant.

Darcel D. Clark, District Attorney (Garrett Tracey of counsel), for the People.

Summary

1. The court holds that Bridge and Tunnel Officers of the Triborough Bridge and Tunnel Authority constitute a "law enforcement agency" for purposes of the People's discovery compliance obligations.

2. The court holds that the discoverability of impeachment material for a law enforcement official does not turn on whether the official is expected to testify as a prosecution witness.

3. The court holds that the OCME (Office of the Chief Medical Examiner of the City of New York) results and reports of the testing of defendant's blood sample are discoverable.

4. The branch of defendant's omnibus motion to deem invalid the People's certificate of compliance and supplemental certificate of compliance, dated, respectively, February 16 and March 24, 2023, and the correlating statements of readiness, is denied.

5. The People are granted a two-week excludable period from the date of this decision and order to file a supplemental certificate of compliance in accordance with this decision and order, and/or to move for a protective order.

6. The branch of defendant's omnibus motion to suppress fruits of defendant's observation, seizure and arrest is granted to the extent of ordering the following pretrial hearings: Dunaway/Huntley/Mapp/Atkins.

7. Molineux and Sandoval matters are reserved to the trial court for resolution.

8. All other branches of defendant's omnibus motion are denied.

Defendant, Reggie Vaillant, stands charged in a superseding information (SSI) with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while ability [*2]impaired by alcohol (Vehicle and Traffic Law § 1192 [1]). According to the allegations of the SSI, on December 7, 2022, a named Bridge and Tunnel Officer (BTO) of the Triborough Bridge and Tunnel Authority (TBTA),^[FN1] upon responding to a {**80 Misc 3d at 860}vehicular collision "within the confines of the Robert Francis Kennedy Bridge [in the] County of the Bronx, . . . observed the defendant seated behind the steering wheel of a red 2004 Toyota . . . hav[ing] damage to its front end." The investigating BTO also observed a "white 2013 Jeep . . . with damage to its rear." Defendant, who "appeared to have trouble staying awake, . . . to be dazed, and to be speaking incoherently," stated to the investigating BTO, "I was having fun, drinking a bottle of [Hennessy cognac]." The investigating BTO, who "was present when Defendant agreed to provide a sample of his blood to the [NYPD (New York City Police Department)] for the purposes of testing said blood," then "vouchered" and "took said blood sample to the Office of the Chief Medical Examiner of the City of New York (OCME) for toxicology analysis."

Defendant was arraigned on December 9, 2022, and the People filed and served a certificate of compliance (CoC) and statement of readiness (SoR) for the first time on February 16, 2023. Following the receipt of a February 27, 2023 email by defendant alleging discovery issues, the People turned over more discovery material to the defense and, on March 24, 2023, filed and served a supplemental certificate of compliance (SCoC) and another SoR. Defendant now moves the court in an omnibus motion dated April 21, 2023, supplemented by reply papers dated May 26, 2023, to, among other things, deem invalid the People's CoC and SCoC. Defendant submits that discoverable material, some previously brought to the People's attention by defendant and some not, has all either not been turned over to the defense as of the filing of the omnibus motion or was turned over after a period of inexcusable delay, specifically:

a. Unredacted memo book entries for four named BTOs;

b. Impeachment material for seven named BTOs and three named NYPD officers;

c. Ambulance call report for the driver of the white Jeep;

d. "Adequate name and contact information for responding EMS personnel";

e. Results and reports of OCME testing of defendant's blood; and

f. "Complete record of judgments of conviction for" a named witness.{**80 Misc 3d at 861}

By their responsive papers dated May 16, 2023, the People oppose the branch of defendant's omnibus motion seeking invalidation of their CoC and SCoC.

The court will first address defendant's points, and the People's counterarguments, concerning the discoverability of each delineated item. Next, the court will evaluate the People's overall due diligence respecting their discovery obligations. Finally, the court will address the remaining branches of defendant's omnibus motion.[*3]

1. Discoverability Determinations

a. BTO Memo Books

Concerning any redacted or outstanding memo books, the People argue that they should not be deemed noncompliant with the discovery statute for two reasons. First, they assert that TBTA BTOs, as a matter of law, do not constitute a law enforcement agency under the custody and control of the District Attorney's Office. "The legislature explicitly organized the TBTA as a public corporation" and did "not designate TBTA as a law enforcement body" (citing Public Authorities Law § 552). As such, the People submit, the statutory presumption that "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution" (CPL 245.20 [2]) is inapplicable respecting BTO impeachment material.

Alternatively, the People make a factual argument that the assigned assistant district attorney (AADA) was diligent and acted in good faith to obtain and turn over this material. On December 12, 2022, just three days after defendant's arraignment, the AADA contacted the investigating BTO by phone "and asked her to provide, among other things, all memo books belonging to any and all [officers] who participated in the arrest. On that call she informed me that TBTA memobooks [sic] are not electronic (unlike that of the NYPD)." The next day, December 13, 2022, the AADA contacted "the [investigating BTO] and another [named] officer who had responded to the incident" and "explained the pressing nature of the request and even requested the entire file created related to this case" (emphasis in the People's responsive papers).

The following day, December 14, 2022, the AADA spoke with an unnamed employee of the "TBTA by phone to request all {**80 Misc 3d at 862}materials related to this case and was instructed to submit a subpoena. Following that call the [AADA] sent two subpoenas." The AADA followed up with a third subpoena on February 1, 2023, "requesting the production of the 'Names, shield numbers and Memo books for every officer who responded to Arrest Number: A22-017-4 / Incident number: I22-3809-4.' " On "February 9, 2023, [the investigating BTO] met with the [AADA]. In preparation for the meeting, the [AADA] asked that she bring any outstanding paperwork, memobooks, and police reports." The AADA reviewed this material and, on February 12, 2023, "sent a follow-up email to TBTA requesting the outstanding memobooks." One outstanding memo book was received "[l]ater that week" and "was provided to the defendant prior to the People filing the COC." The TBTA informed the AADA that the outstanding memo book for another named BTO "would not be provided as it contains no entries related to the incident." To date, the People have turned over 14 memo books, although some contain redactions. The People explain in their responsive papers that they "issued multiple subpoenas for those memobooks and TBTA provided the People memobooks with redactions."

[1] The court rejects the People's contention that TBTA BTOs do not comprise a "law enforcement agency" for purposes of discovery compliance. Granted, none of the definition sections of the Criminal Procedure Law, Penal Law or Vehicle and Traffic Law define "law enforcement agency" (see CPL 1.20; Penal Law § 10.00; Vehicle and Traffic Law, title 1, art 1). However, concerning the statutory sealing of a criminal case upon "the termination of a criminal action or proceeding against a person in favor of such person" (CPL 160.50 [1]), the Court of Appeals has made clear that the "term 'law enforcement agency' . . . includes law enforcement entities in addition to police departments and the Division of Criminal Justice Services" (Matter [*4]of Katherine B. v Cataldo, 5 NY3d 196, 204 [2005] [emphasis added]). One stated basis for this conclusion is the fact that "[w]ithin section 160.50 itself, the term 'law enforcement agency' always appears in conjunction with the terms 'police department' and/or 'the division of criminal justice services,' " with one exception (id.). Similarly, the discovery statute uses "law enforcement agency" in conjunction with "police" (see CPL 245.20 [1] [e], [k]; [2]), with two exceptions. In each "exception," however, it is clear that "law enforcement agency" is an umbrella term encompassing local police forces and other like agencies (see CPL 245.45, 245.55 [2]).{**80 Misc 3d at 863}

The court's determination that, respecting the People's discovery obligations, TBTA BTOs constitute a law enforcement agency is unremarkable since, "when police and other government agents investigate or provide information with the goal of prosecuting a defendant, they act as 'an arm of the prosecution,' and the knowledge they gather may reasonably be imputed to the prosecutor under Brady [v Maryland (373 US 83 [1963])]" (People v Garrett, 23 NY3d 878, 887 [2014]; see CPL 245.20 [2] ["items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution"]). The Metropolitan Transportation Authority (MTA)^[FN2] touts BTOs as the "Triborough Bridge and Tunnel Authority law enforcement personnel patrol[ling] the MTA's seven bridges and two tunnels" (MTA, Agencies and Departments, MTA Bridges and Tunnels, https://new.mta.info/agency/bridges-and-tunnels [last accessed June 24, 2023] [emphasis added]).

Organizations and governmental entities beyond the MTA recognize BTOs as law enforcement officers, as well. According to the BTOs Benevolent Association,

"[BTOs] are New York State Peace Officers, who patrol New York City's Toll Bridges & Tunnels. We're a unique group of dedicated, highly trained men and women who serve and protect the New York metro area motoring public. Our duties include performing law enforcement . . . .

"[BTOs] receive training in accordance with the New York State Municipal Police Training Council standards, New York City Fire Department training, NIMS Training, Recognizing and Dealing with Weapons of Mass Destruction Training, Radiation Detector Training, American Red Cross First Aid/CPR training and MTA Bridges & Tunnels Training Academy.

"Remember, we're here to help you. If you need assistance . . . or witness a crime on any of our bridges & tunnels or surrounding areas, please tell a [BTO] that you need help" (Bridge and Tunnel Officers Benevolent Association, btoba.org [last accessed June 24, 2023]).

An NYC Department of Citywide Administrative Services job description states:{**80 Misc 3d at 864}

"WHAT THE JOB INVOLVES: [BTOs] . . . perform various duties concerned with vehicular traffic on the bridge and tunnel facilities of the [TBTA] (an agency of the [MTA]) . . . . They . . . patrol structures and roadways; perform security duties; . . . respond to traffic emergencies . . . ; issue summonses, make arrests and perform other law enforcement functions, such as testifying in court or at administrative hearings . . . ; serve as Peace Officers; learn and apply Vehicle and Traffic Laws, Penal Law, Criminal [*5]Procedure Law, and Triborough Bridge and Tunnel rules and regulations; know and enforce rules concerning transportation of hazardous materials . . . ; and perform related work" (City of New York Department of Citywide Administrative Services, Notice of Examination, Bridge and Tunnel Officer, Exam No. 6091, Triborough Bridge and Tunnel Authority, https://www.nyc.gov/assets/dcas/downloads/pdf/noes/bridgeandtunnelofficer.pdf [last accessed June 24, 2023]).

Additionally, the investigating BTO's actions in this matter are consistent with government-sanctioned law enforcement activities. She responded to the scene of an automobile accident; was present when blood was taken from defendant for toxicology analysis; and was entrusted to voucher, thus establishing chain of custody, and to transport the blood sample to OCME. The court will, therefore, "adhere to the time-tested adage: if it walks like a duck, quacks like a duck, and looks like a duck, then it's a duck" (Sierra Club v Van Antwerp, 526 F3d 1353, 1359 [11th Cir 2008] [internal quotation marks omitted]). Accordingly, the court holds that TBTA BTOs constitute a "law enforcement agency" for purposes of the People's CPL article 245 discovery obligations. Consequently, the BTO memo books are, indeed, "deemed to be in the possession of the prosecution" (CPL 245.20 [2]).

b. BTO and NYPD Impeachment Material

[2] The court also rejects the People's overly constricted viewpoint, espoused in their responsive papers, that " 'impeachment' material is only applicable to a testifying witness, and 'impeachment' is only favorable to a defendant if it pertains to a prosecution witness." The People's conclusion—that, because they have "disclosed to the defendant impeachment material for any [BTO and NYPD officer] witness the People intend to{**80 Misc 3d at 865} call" as testifying witnesses, they have "complied with their statutory . . . and constitutional obligations"—is likewise rejected. The People must turn over to the defense "evidence and information . . . that tends to . . . negate the defendant's guilt as to a charged offense" (CPL 245.20 [1] [k] [i]); "support a potential defense to a charged offense" (CPL 245.20 [1] [k] [iii]); and "impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]). Such material may well "include[ ] serious allegations that could bear on the [non-testifying officer's] conduct in defendant's arrest and the overall investigation of this case. Accordingly, underlying records concerning the [non-testifying officer's] misconduct could tend to negate defendant's guilt or support a potential defense" (People v Jackson, 79 Misc 3d 832, 840 [Crim Ct, NY County 2023]; see People v Figueroa, 76 Misc 3d 888, 895-896 [Crim Ct, Bronx County 2022] ["This case presents a clear example of why disclosure of prior misconduct is not limited to witnesses whom the People choose to call to testify"]).

Practical consideration of the interests of judicial economy also counsels for the early disclosure of discovery material for non-testifying law enforcement officials. A party's witness list is not infrequently subject to change, even—or especially—at the last minute. If the People turn over discovery material for a non-testifying official to the defense early on, then, should the People later conclude that the official's testimony is necessary, proceedings will not be needlessly delayed as the People work to locate, procure and turn over to the defense the impeachment material, as well as file and serve a supplemental certificate of compliance.^[FN3]

The court therefore holds that the discoverability of impeachment material for a law enforcement official does not turn on whether the official is expected to testify as a prosecution witness. The People are required pursuant to the discovery statute to turn over the impeachment material they presumptively{**80 Misc 3d at 866} possess for all law enforcement officers involved in the instant matter (see CPL 245.20 [2]).

c. Ambulance Call Report

The People assert, first, that they should not be deemed noncompliant with the discovery statute because the FDNY (New York City Fire Department), which provided EMS services in this matter, is not a law enforcement agency under the custody and control of the District Attorney's Office. The People alternatively assert their due diligence in attempting nonetheless to obtain this evidence. The AADA sent a letter to the driver of the white Jeep on December 14, 2022, requesting that he "agree to sign a HIPPA [sic] release" and return it in an enclosed, pre-addressed, stamped envelope. Having received no response, "[o]n January 18, 2023, the [AADA] reached out to [the driver's] attorney . . . with the goal of getting her client to sign a HIPPA release." On February 1, 2023, the AADA again "reached out to [the driver] with the hope he would agree to sign a HIPPA release." To date, the driver of the white Jeep has not provided the People with written authorization to access the medical information.

[3] The only reasonable way for the People to obtain the ambulance call report for the driver of the white Jeep—a private citizen who has not been cooperative with the People about signing a HIPAA release for this information and who at one point was represented by counsel—is with a subpoena. However, defendant presumably could do the same, and "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL 245.20 [2]). Therefore, the People have no statutory obligation to obtain the call report, so long as they have provided the defense with identification and/or contact information reasonably permitting the defense to attempt to procure this material himself.

d. EMS Personnel Contact Information

The defense protestation, that the People failed "to provide adequate name and contact information" (emphasis in defendant's reply papers) for the individual who provided defendant with EMS services, is belied by an NYPD police report previously turned over to the defense. It informs that an "FDNY ladder No. 17 Firefighter [name given] was treating subject for injuries sustained in the accident." This constitutes "name[ ] and adequate contact information for [the FDNY EMS employee] . . . whom the prosecutor knows to have evidence or{**80 Misc 3d at 867} information relevant to any offense charged or to any potential defense thereto" (CPL 245.20 [1] [c]). This information can be used to identify, locate, make contact with or subpoena the individual, should defendant desire to do so. Assuming arguendo that this individual's contact information is [*6]discoverable, the People have satisfied the disclosure obligation. Consequently, the People's counter-protestation that FDNY personnel information is not discoverable, as a matter of law, is academic; the court declines to address it.

e. OCME Test Results

[4] The People are correct that OCME, "for purposes of discovery matters, is an independent agency not controlled by the People or engaged in law enforcement activity" (People v Heyward, 214 AD3d 578, 579 [1st Dept 2023]; see People v Brown, 13 NY3d 332, 340 [2009] ["OCME and Bode are not law enforcement entities; they are scientific laboratories that work independently from the District Attorney and New York City Police Department"]; People v Washington, 86 NY2d 189, 193 [1995] ["(I)t is clear that the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor, and that OCME is not a law enforcement agency. . . . The People have no power to dictate the contents or practices within OCME"]). But, this does not end the court's inquiry into the discoverability of the results and reports of OCME testing of defendant's blood sample.

The People are required to make available to the defense

"[a]ll 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, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity . . . or which the prosecution intends to introduce at trial or a pre-trial hearing" (CPL 245.20 [1] [j]).

OCME testing results and reports of defendant's blood sample clearly are "reports . . . relating to the criminal action . . . made by or at the request or direction of a public servant engaged in law enforcement activity," as well as, likely, a "report[ ] . . . the prosecution intends to introduce at trial" (id.). Hence, the discoverability of this material turns, not on{**80 Misc 3d at 868} whether OCME is a law enforcement agency, but rather on the discovery statute's clear disclosure mandate. Accordingly, the court holds that the OCME results and reports of the testing of defendant's blood sample are discoverable.

f. Named Witness' Record of Criminal Convictions

Defendant, in his reply papers, does not refute the People's responsive averment that the named witness, whom the defense initially believed to have a connection with the instant matter, in fact does not. Although the Legislature expressly intends the discovery statute to be read and interpreted liberally (see CPL 245.20 [7]), it will not reach persons, places, things or information having no objective, articulable nexus with the criminal matter at hand.

2. Due Diligence Analysis

The People are statutorily required to make "a diligent, good faith effort to ascertain the existence of material or information discoverable . . . and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (CPL 245.20 [2]). Only thereafter,

"shall [the People] serve upon the defendant and file with the court a [CoC] . . . stat[ing] that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to [*7]discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1] ["No adverse consequence to the prosecution or the prosecutor shall result from the filing of a (CoC) in good faith and reasonable under the circumstances"]).

[5] The People present a clear timeline of the various efforts they undertook to obtain and turn over material, including that which the People viewed, even if incorrectly, as non-discoverable, thus making "a proper record permitting . . . review of" defendant's motion to deem invalid the People's CoC and SCoC (People v Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022]).

• BTO Memo Books: The People clearly have been extremely proactive, diligent and overwhelmingly successful in their attempt to procure these items;

• Officer Impeachment Material: The People, despite {**80 Misc 3d at 869}possessing impeachment material of non-testifying law enforcement officers, refused to turn it over to the defense, contrary to the statutory "presumption in favor of disclosure" (CPL 245.20 [7]). The People also chose to not avail themselves of the statutory option of asking the court to evaluate their legal theory that this material was not discoverable at the time defendant first demanded this discovery in his February 27, 2023 email (see CPL 245.70 [1] ["Upon a showing of good cause by either party, the court may at any time order that discovery or inspection of any kind of material or information under this article be denied, restricted, conditioned or deferred, or make such other order as is appropriate"]). Granted, the People are correct that the question of whether impeachment evidence concerning non-testifying, law enforcement witnesses is discoverable is currently unresolved. The trial courts are divided (compare e.g. Jackson, 79 Misc 3d at 840, and Figueroa, 76 Misc 3d at 895-896, with People v Diaz, 77 Misc 3d 727, 731-732 [Crim Ct, Bronx County 2022]) and currently without appellate guidance on this question. That being said, the People's choice—a self-serving interpretation "bent on constricting the discovery statute, rather than acceding to the command of the Legislature that '[t]here shall be a presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20' " (People v Payne, 79 Misc 3d 827, 831 [Crim Ct, Bronx County 2023], quoting CPL 245.20 [7])—is not acceptable.

• Ambulance Call Report: As noted previously, the People attempted, repeatedly, though unsuccessfully to date, to obtain the needed medical authorization to procure the report.

• EMS Personnel Contact Information: The People did "disclose to the defendant" (CPL 245.20 [1]) the FDNY EMS employee's name, job title (firefighter) and work location (FDNY ladder No. 17). Assuming arguendo that the individual's contact information is discoverable, the People satisfied the statutory disclosure obligation. Consequently, the People's protestation that FDNY personnel information is{**80 Misc 3d at 870} not discoverable as a matter of law is academic to this matter; the court therefore declines to address it.

• OCME Test Results: It is undisputed that the People made requests of the OCME for this material on both February 16 and March 14, 2023, and upon receipt did turn them over to defendant on March 24, 2023. The People were active, and successful, in obtaining and turning over OCME documentation they posited, wrongly, was not discoverable, though there may have been some weeks of needless delay in turning the material over to the defense.

• Named Witness' Record of Criminal Convictions: The court infers from defendant's silence in his reply papers a concession to the People's valid legal assertion that they have no due diligence discovery obligation respecting the elusive witness named by defendant.[*8]

Upon the factual record here, the court finds that the People, on the whole, demonstrated due diligence—and at times quite dogged determination—in procuring discoverable material even while, in some instances, doubting its discoverable nature. Although the Legislature intends that the discovery statute be read and interpreted liberally (see CPL 245.20 [7] ["There shall be a presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20"]), it is also the case that "flawless" perfection is not the proper standard against which to judge the People's discovery compliance (58 Am Jur 2d, New Trial § 297 [Due diligence in procuring newly discovered evidence for new trial in criminal cases] ["The exercise of due diligence . . . does not require an impeccable, flawless investigation in all situations"]). Rather, the standard is objective reasonableness; "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a [CoC] must be evaluated" (People v Rodriguez, 73 Misc 3d 411, 417 [Sup Ct, Queens County 2021]).

Defendant makes colorable complaints about instances in which the People's performance could have been better and material could have been turned over more timely. Also, pursuant to holdings of this decision and order the People may yet need to make available to the defense additional outstanding discovery. Although not insignificant, the issues complained of{**80 Misc 3d at 871} are insufficient, against a reasonableness standard, to deem the People not duly diligent, on the whole, in complying with their discovery obligations. Accordingly, the branch of defendant's omnibus motion seeking invalidation of the CoC and SCoC, dated, respectively, February 16 and March 24, 2023, is denied.

The People are reminded of their continuing discovery, Brady and Giglio obligations (see CPL art 245; Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83 [1963]). The People are ordered to make available to the defense any outstanding unredacted BTO memo books and unredacted impeachment material for all BTO and NYPD officials regardless of intent to call as a testifying witness. The People are granted a two-week excludable period from the date of this decision and order to file a supplemental certificate of compliance concerning this and any other outstanding discoverable material in accordance with this decision and order (see CPL 245.35 [3]), and/or to move for a protective order if appropriate (see CPL 245.70 [1], [2]). The defense is reminded, too, of its discovery and CoC obligations (see CPL 245.20 [4]; 245.50 [2]).

The branch of defendant's omnibus motion seeking suppression of the fruits of his observation, seizure and/or arrest is granted to the extent of ordering the following hearings: Dunaway/Huntley/Mapp/Atkins.

Molineux and Sandoval issues (see People v Sandoval, 34 NY2d 371 [1974]; People v Molineux, 168 NY 264 [1901]) are reserved to the trial court for resolution.

All other branches of defendant's omnibus motion have been reviewed and are denied as redundant of motions decided herein, duplicative of applicable statutory or constitutional guidelines, or unsupported by defendant's arguments or the record.