Criminal Court of the City of New York, New York County, July 6, 2023

Neighborhood Defender Services of Harlem (Daudi Justin of counsel) for defendant.

Alvin Bragg, District Attorney (Carolyn McGuigan of counsel), for the People.

By motion of May 9, 2023, defendant moves for an order deeming invalid the People's certificate of compliance (COC) and dismissing the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) (b). The People responded on {**80 Misc 3d at 475}June 1, 2023. Defendant replied on June 23, 2023. After a review of the motion papers, exhibits, and the court file, defendant's motion is denied.

Relevant Facts and Procedural History

On October 27, 2022, defendant was arraigned on an accusatory instrument charging her with identity theft in the third degree (Penal Law § 190.78 [1]), a class A misdemeanor, and related charges.

On January 18, 2023, the People filed and served a certificate of compliance (COC), a certificate of readiness (COR), an automatic discovery form (ADF), and a discovery list, off-calendar. The ADF included a disclosure advisory form for a testifying New York City Police Department (NYPD) witness, noting that the detective had been named a defendant in three civil actions. The discovery also included a redacted copy of a record of allegations of misconduct against the testifying detective that were investigated by the Civilian Complaint Review Board (CCRB).

On the court date of January 19, 2023, the People answered ready for trial. Defense counsel was not ready, and the case was adjourned to February 16, 2023, for trial.

On the court date of February 16, 2023, the People answered ready for trial. Defense counsel stated that additional time was needed to review discovery. The case was adjourned to March 10, 2023, for trial.

On March 7, 2023 (seven weeks after the People's COC was filed), defense counsel sent an email to the assigned Assistant District Attorney requesting an unredacted copy of the testifying detective's CCRB record. The following day, the People disclosed a new version of the [*2]CCRB record in which only the detective's personal identifying information was redacted. They also disclosed documentation related to civil lawsuits in which the testifying detective is a defendant and filed a supplemental COC and COR. The explanation in the supplemental COC for the belated disclosure states: "Despite the People's good faith efforts and the exercise of due diligence, this document was in the People's possession or control when the Certificate of Compliance was filed but was overlooked and not included in the discovery packet that was turned over to counsel on January 18, 2023."

By motion filed on May 9, 2023 (111 days after the People's COC was filed), defendant argues that the People's failure to{**80 Misc 3d at 476} disclose the unredacted CCRB record and civil lawsuit underlying documents as a part of their original COC renders it invalid.

Law

Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b]; [4]). Computation for speedy trial purposes begins on the day after the commencement of the criminal action (see CPL 30.30 [1] [b]; People v Stiles, 70 NY2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

Pursuant to CPL 245.20 (1), the People must automatically disclose to 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 or persons under the prosecution's direction or control." Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and shall state that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery . . . was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021], citing People v Aquino, 72 Misc 3d 518, 523 [Crim Ct, Kings County 2021]).

The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense (CPL 30.30 [5]). Additionally, pursuant to CPL 245.50 (3), "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."

Redacted CCRB Record

Pursuant to CPL 245.20 (1) (k) (iv), the People must disclose: "[a]ll evidence and information, including that which is known{**80 Misc 3d at 477} 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."

The CCRB is not a law enforcement agency, nor is it an agency within the People's control (see CPL 245.20 [1]). Therefore, the People are required to disclose only CCRB records [*3]that are in their possession, if they tend to impeach, pursuant to CPL 245.20 (1) (k) (iv) (see People v Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U], *5-7 [Crim Ct, NY County 2022]).

Like the NYPD's Internal Affairs Bureau (IAB), the CCRB investigates certain types of misconduct allegations and makes a finding.^[FN1] The possible outcomes on the merits for fully investigated allegations are defined as follows:

An allegation is "Substantiated" if the officer committed the alleged act of misconduct without legal justification.

An allegation is "Unable to Determine" (or "unsubstantiated") if there is insufficient evidence to determine whether or not misconduct occurred.

An allegation is "Unfounded" if the evidence suggests that the event or alleged act did not occur.

An allegation is "Within NYPD Guidelines" (or "exonerated") if the event did occur but the officer's actions were determined to be lawful. (See New York City, Civilian Complaint Review Board, Case Outcomes, https://www.nyc.gov/site/ccrb/investigations/case-outcomes.page [last accessed June 21, 2023]; see also New York City, Civilian Complaint Review Board, Data Transparency Initiative; People v Montgomery, 74 Misc 3d 551, 552-553 [Sup Ct, NY County 2022].)

Complaints may also be "mediated" on consent of all parties (see New York City, Civilian Complaint Review Board, Data Transparency Initiative).

Allegations that cannot be fully investigated are classified as "Unable to Investigate" or "truncated" (see New York City, Civilian Complaint Review Board, Case Outcomes; Data Transparency{**80 Misc 3d at 478} Initiative). Allegations are truncated when, for example, a complainant withdraws a complaint, is uncooperative, or cannot be located despite multiple attempts (Data Transparency Initiative). Where these outcomes are indicated, "no factual finding [was] ever made about whether or not misconduct occurred" (see Case Outcomes). One additional type of disposition is "Other Misconduct Noted" (OMN). Such a finding is made when actions are uncovered during a CCRB investigation that are not within the CCRB's jurisdiction, but are a violation of the NYPD Patrol Guide, and are therefore referred to the NYPD (see Civilian Complaint Review Board, Memorandum, Changing CCRB's Rules to Include Improper Usage of Body Worn Cameras Against Members of the Public as Part of Abuse of Authority at 2 n 13 [July 6, 2022], https://www.nyc.gov/assets/ccrb/downloads/pdf/about_pdf/board/2022/memo/07062022_BWC_Justification_Memo.pdf). These truncated dispositions are not a determination on the merits.

The People originally disclosed a heavily redacted three-page CCRB record of allegations of misconduct against a testifying detective. The People properly redacted personal identifying information from the top portion of the record, pursuant to CPL 245.20 (6) (see also Public Officers Law § 89 [2-b], [2-c]). In the substantive portion of the form, however, the People redacted everything except for the allegations that were found to be substantiated or [*4]unsubstantiated.^[FN2] The People argue that all their redactions were proper, as they are required to disclose only CCRB material related to substantiated, unsubstantiated, and pending claims.^[FN3]

Following a request by the defendant, the People disclosed an unredacted version of the record (save the proper redaction of the personal identifying information). This record documents 15 CCRB cases, with a total of 42 charges, against this detective. The unredacted version indicates a number of allegations{**80 Misc 3d at 479} that were not only resolved as "exonerated" or "unfounded," but also allegations with outcomes of: "mediated," "complainant uncooperative," "alleged victim uncooperative," "OMN," "alleged victim unavailable," "administratively closed," and "closed—pending litigation." The allegations for these secondary outcomes include, inter alia, abuse for search of person, physical force, seizure of property, failure to provide stop and frisk report, search of recording device, and threat of arrest—all types of allegations that may relate to officer credibility.

In the context of CPL 245.20 (1) (k) (iv), courts have typically ruled that allegations investigated by the IAB and CCRB deemed substantiated or unsubstantiated, or cases that are pending, must be disclosed, whereas exonerated and unfounded allegations may not be (see e.g. People v Montgomery, 74 Misc 3d 551; People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U], *3 [Crim Ct, NY County 2021]; People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]; but see People v Portillo, 73 Misc 3d 216 [Sup Ct, Suffolk County 2021] [holding allegations with all types of outcomes may tend to impeach]). Thus, this court finds that the People did not violate their automatic discovery obligation by redacting exonerated and unfounded allegations.

The redactions of the other allegations, however, were improper. In addition to the protections provided by the Public Officers Law, CPL article 245 provides several circumstances under which the People may withhold or redact material without first seeking a protective order (see CPL 245.20 [1] [c], [d], [g]; [6]). Otherwise, where the People believe portions of material in their possession may be non-discoverable, they must seek a ruling from the court (CPL 245.70, 245.10 [1] [a]). Here, the redacted material did not fall under any of the authorized exceptions. Nor did these redactions fall within the trial court precedent regarding substantiated, unsubstantiated, exonerated, and unfounded findings.

In People v Smith (27 NY3d 652, 662 [2016]), the Court of Appeals held that allegations in a civil lawsuit that are relevant to the credibility of a police officer may be used for impeachment at trial, regardless of whether the allegations resulted in an adverse finding against the officer. Under this reasoning, courts have held that unsubstantiated allegations may still tend [*5]to impeach. So too may allegations underlying these other CCRB outcomes, which are not findings on the merits, that concern officer credibility. In particular, the allegations{**80 Misc 3d at 480} deemed OMN indicate that there likely was misconduct, but of a type that is not within the CCRB's jurisdiction.

[1] Thus, it was not for the People to unilaterally redact this information without seeking a protective order (see People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U], *5 [Crim Ct, NY County 2021] [CPL article 245 relieves the People of any burden to define or determine what may be relevant or useful to defendant]; see also People v DaGata, 86 NY2d 40, 45 [1995]). Where there is uncertainty as to discoverability, "[t]here shall be a presumption in favor of disclosure" (CPL 245.20 [7]). As the United States Supreme Court advised, "[t]he prudent prosecutor will resolve doubtful questions in favor of disclosure" (United States v Agurs, 427 US 97, 108 [1976]). Here, for the uninvestigated CCRB outcomes (the parties have not identified any cases concerning these categories), the People should have disclosed an unredacted version of the CCRB record at the outset or sought a protective order, rather than unilaterally redact. Thus, the People's original COC was invalid.

Speedy Trial

[2] The People's initial purported COC was not valid. The People's "supplemental COC" filed on March 7, 2023, was properly filed. While that date is beyond 90 days after arraignments, for several reasons, the exceptional circumstances present in this case warrant a speedy trial exclusion (see CPL 30.30 [4] [g]). First, the consideration of whether these other CCRB categories may tend to impeach is a novel issue that has not been analyzed by this court or in any published decisions. While the People should have disclosed the material initially, or sought a ruling from the court, there was no precedent for this situation.

Also, CPL 245.50 (4) (b) requires that when a party is aware of a potential defect or deficiency in a COC, they must alert the other party "as soon as practicable." The statute does not provide a definition for "as soon as practicable" or set a time period for the defense to review discovery and make objections. Hence that time period is to be determined by the court, according to the particular circumstances presented.

In this case, the defect in the People's initial disclosure is glaring. The first version of the CCRB record is so heavily redacted that the majority of the three pages is concealed by large black boxes. Any review of the discovery would have revealed these redactions and alerted defendant to the potential{**80 Misc 3d at 481} defect. Yet, defendant did not contact the prosecutor concerning the redacted documents until seven weeks after receiving discovery (just two days before the scheduled March 10th court date), and did not file a motion regarding discovery until 111 days after receiving the original COC.^[FN4] Given the obviousness of the CCRB redactions, the court cannot find that defendant acted "as soon as practicable" (see People v Barralaga, 73 Misc 3d 510, 521 [Crim Ct, NY County 2021] [where discovery disclosure deficiency is readily apparent, defendant must communicate deficiency within a reasonable period]). It is also noteworthy that when the defense raised the issue, the People acted immediately and disclosed the unredacted version the following day (see People v Pondexter, 76 Misc 3d 349, 355 [Crim Ct, NY County [*6]2022] [among other factors, court considered People's attentiveness and promptness in disclosing material once learning of discovery lapse]). Thus it is the combination of the novel discovery issue, the delay on the part of the defense where the defect was readily apparent, and the People's promptness in disclosing the item once alerted that constitutes exceptional circumstances and the exclusion of speedy trial time (see CPL 30.30 [4] [g]).^[FN5]

Conclusion

Accordingly, the People are charged with 83 days from the commencement of the criminal action on October 27, 2022, through January 18, 2023, when they filed their original COC. The People are charged an additional day from March 7, 2023, when they were alerted to the CCRB issue, to March 8, 2023, when they disclosed an unredacted version. As the People are charged with a total of 84 days, they have not exceeded the 90-day period in which they must be ready for trial. Defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is therefore denied.