Criminal Court of the City of New York, Kings County, June 26, 2023

Brooklyn Defender Services (Christopher Perks of counsel) for defendant.

Eric Gonzalez, District Attorney (Yi Liu of counsel), for the People.

The defendant is charged with assault in the third degree (Penal Law § 120.00 [1]), among other charges. Defendant now challenges the validity of the People's certificate of compliance (COC) and moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law § 30.30.

For the reasons set forth below, the defendant's motion is granted.

Procedural History

On November 17, 2022, the criminal action commenced with the filing of an accusatory instrument. On February 15, 2023, the People served initial discovery materials, and filed a COC and Statement of Readiness (SOR) on the 90th day.

On February 17, 2023, defense counsel sent the People, via electronic mail, a list of the discovery items that were missing: (1) EMS/ACR electronic prehospital care reports of complaining witness; (2) hospital records of complaining witness' treatment and/or diagnosis and follow-up treatment; (3) name and contact information for the medical provider who treated complaining witness at the hospital; (4) KCDA (Kings County District Attorney) material and body worn camera checklists; (5) handwritten arrest report; (6) handwritten or scratch copy of the complaint report; (7) DD5s 1-6 and any attachments; (8) underlying documents related to all substantiated, unsubstantiated and pending allegations of misconduct for testifying police officers; (9) color copies of all photos used in any and all identification procedures and text thread mentioned in the CPL 710.30 (1) (b) notice; (10) BCI color photos (rather than black and white); and (11) surveillance footage of the incident. The defense counsel also requested a time to confer with the People about the discovery.

Thereafter, on February 21, 2023, March 3, 2023, and March 6, 2023, defense counsel followed up with the People about the{**81 Misc 3d at 227} missing discovery. On March 6, 2023, the People and defense counsel conferred with each other about the missing discovery. On March 6, 2023, and March 14, 2023, the People finally attempted to contact the detective, via electronic mail and followed up with telephone messages in regard to the missing items.

In an email the People requested from the detective the following: (1) arrest report; (2) complaint report—handwritten/scratch report; (3) DD5s 1-5 and any attachments; and (4) any and all surveillance footage of the incident.

On March 14, 2023, the People, without filing a supplemental COC, turned over to the defense Giglio material consisting of disclosure letters listing pending and substantiated complaints against each of the potential police witnesses who took part in the case but not the underlying documents related to all substantiated, unsubstantiated, and pending allegations of misconduct for testifying police officers.

On March 21, 2023, the defense filed their motion. On April 4, 2023, the detective finally contacted the People and provided information and discovery. On April 5, 2023, the People filed their opposition to the motion and turned over additional discovery to the defense without filing a supplemental COC.

At issue here is whether the People's failure to file a supplemental COC and SOR invalidates the COC. For the reasons set forth below the court believes the failure to file the supplemental COC will invalidate the COC.

Pursuant to Criminal Procedure Law § 30.30 (5) "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of [CPL 245.20]." A proper, good-faith certificate of automatic discovery compliance is a prerequisite to a valid SOR. (CPL 245.50 [3]; People v Hooks, 78 Misc 3d 398 [Crim Ct, Kings County 2023].)

Criminal Procedure Law § 245.50 (1) defines a proper COC and requires the People to certify:

1. That they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of [discoverable] material."

2. That they "made available all known material and information subject to discovery."

{**81 Misc 3d at 228}A COC is not proper unless the prosecutor has disclosed to the defense all known material subject to discovery after having exercised due diligence and made reasonable inquiries to find out what discovery existed. (People v Hutchins, 74 Misc 3d 1234[A], 2022 NY Slip Op 50327[U] [Sup Ct, Kings County 2022]; CPL 245.50 [1].)

Under CPL article 245, the People's obligations to provide discovery are so broad as to "virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." (William C. Donnino, Prac Commentary, McKinney's Cons Laws of NY, CPL 245.10.) In fact, the "opening language" of the statute "itself points towards an 'open file' discovery policy." (Id.) Therefore, "[i]f something is in the prosecutor's file (or that of the police investigating agency) that does not fall within the defined items of disclosure" but is information that " 'relate[s] to the subject matter of the case' [it] will need to be disclosed," unless it is "work product" or subject to a protective order. (People v Lustig, 68 Misc 3d 234, 239-240 [Sup Ct, Queens County 2020]; see also CPL 245.20 [7].) Thus, material in the People's file would most likely be related to defendant's case and need to be disclosed.

In a challenge to the validity of a COC the court must determine whether the People exercised the requisite level of diligence in obtaining the materials, and whether their certification was filed in good faith and was reasonable under the circumstances. (People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020].) Moreover, "upon a challenge to a [COC], the People must articulate their efforts to comply with CPL 245.20 (1) with respect to the statutory subsections or specific items of discovery at issue." (People v Hutchins, 74 Misc 3d 1234[A], 2022 NY Slip Op 50327[U], *1 [Sup Ct, Kings County 2022].)

In this case, the People failed to file supplemental certificates of compliance with their disclosure on March 14, 2023, and April 5, 2023, after filing their COC on February 15, 2023. There is no appellate authority concerning the failure to file supplemental certificates of compliance.

CPL 245.50 (1) states: "If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and{**81 Misc 3d at 229} information provided." The question becomes whether the filing of supplemental COC was mandatory or permissive.

"When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature." (Matter of Marian T. [Lauren R.], 36 NY3d 44, 49 [2020].) Because "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." (Id. at 49.) "When the statutory language at issue is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible." (Id. at 49.)

When determining whether the filing of a supplemental COC was mandatory, the court needs to review CPL 245.50 (1-a) which describes the statute's intent and plain meaning. CPL 245.50 (1-a) states that

"[a]ny supplemental [COC] shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the [COC]. The filing of a supplemental [COC] shall not impact the validity of the original [COC] if filed in good faith and after exercising due diligence pursuant to [CPL 245.20], or if the additional discovery did not exist at the time of the filing of the original [COC]."

CPL 245.50 (1-a) clearly demonstrates that the supplemental COC was a necessary document and not an administrative filing. The supplemental COC provides the basis of the People's late disclosure filing. More importantly, the supplemental COC permits the court to determine whether the delayed disclosure impacted the validity of the COC. Thus, the People are required to file a supplemental COC with the additional discovery. The failure to file the supplemental COC impacts the original COC because good faith and due diligence can't be demonstrated. Thus, a failure to file a supplemental COC while filing late discovery will invalidate the COC. In sum a failure to file a supplemental COC is fatal and will inevitably invalidate the COC.

Even had the court overlooked the failure to file the supplemental COC, the People in their opposition did not argue that the missing items were subsequently discovered. Instead, the People alleged in conclusory fashion that they exercised good{**81 Misc 3d at 230} faith and due diligence in obtaining the missing discovery. The People's claim of due diligence arises from the telephone call and email messages to the detective on March 6, 2023, and March 14, 2023. The court recognizes that the People made some effort but it did not rise to due diligence. The People's affirmation lacked any explanation for not calling the detective into the prosecutor's office to obtain this information in a timelier fashion considering that the defense had requested these items in writing on February 17, 2023, and received the late disclosure on April 5, 2023. The missing items such as the videotaped surveillance, DD5s, initial Giglio material and underlying police misconduct both substantiated and unsubstantiated were disclosures that the People were aware of or in their possession when they filed their COC. Thus, the People did not make "reasonable inquiries" to ascertain the missing discovery prior to filing the COC.

The People in this case neglected to claim any of the statutory exceptions for filing a certificate of compliance while they knew the police officers' Giglio material, video and DD5s were still outstanding. The People had not requested a protective order under CPL 245.70 (1), nor did they argue a "good cause" basis existed that should allow the People more time to disclose the material under CPL 245.70 (2). The People failed to argue that the particular circumstances of this case merit either the tolling of the speedy trial clock, nor a declaration of readiness without a valid certificate of compliance (CPL 245.50 [3]; 30.30 [4] [g]).

The People contend that even though discovery was filed late their COC was valid because defendant failed to establish prejudice and that the discovery was provided prior to hearings and trial. The court disagrees with the prosecutor's contention that the certificate of discovery compliance is proper because defendant failed to establish prejudice as a result of the belated disclosures. The statute's framework does not contemplate a prejudice analysis when assessing the validity of a COC which is a threshold matter (see People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020] ["the People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant"]; see also People v Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021]). The impact of missing or belated discovery and whether prejudice was incurred by either party are evaluated separately when either party seeks a remedy or sanction for{**81 Misc 3d at 231} noncompliance under CPL 245.80. Here, the People failed to provide known discoverable material before the filing of their COC. Thus, a prejudice analysis is not relevant.

The People's unexplained delay in failing to timely provide the videotaped surveillance, DD5s, initial Giglio material, and underlying police misconduct of substantiated and unsubstantiated disclosures was not reasonable. The documents requested were in the People's possession which rendered the February 15, 2023 COC and SOR illusory.

Material—Substantiated and Unsubstantiated Police Misconduct

The People claimed that once they were notified of all the missing Giglio material on February 17, 2023, they diligently uploaded the material and shared the information with defendant on March 14, 2023. However, the People's unexplained delay in failing to timely provide impeachment materials for law enforcement witnesses renders the February 15, 2023 COC and SOR illusory.

The People asserted that CPL 245.20 (1) (k) does not require the disclosure of unsubstantiated claims against police officers as impeachment evidence. The People conceded that they did not disclose underlying police misconduct records and contend that the statute does not require disclosure of the underlying paperwork to each allegation against the law enforcement witness. The People admitted that they drafted their own written summaries of police misconduct and claimed this was sufficient for the statute. The court disagrees with the People's interpretation of the statute.

This court has previously stated that CPL 245.20 (1) (k) defines automatic discovery to include information that is favorable to the defense. It requires disclosure of

"[a]ll evidence and information, including that which is known to police . . . , that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the [*4]defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment . . . irrespective of whether the prosecutor credits the information."

{**81 Misc 3d at 232}The People's discovery obligations under CPL 245.20 (1) (k) go beyond the Supreme Court cases of Brady v Maryland (373 US 83 [1963]) and Giglio v United States (405 US 150 [1972]). (See People v Pennant, 73 Misc 3d 753 [Nassau Dist Ct, 1st Dist 2021]; People v Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021].) Critical is the elimination of the materiality requirement of Brady in favor of the more expansive "[a]ll evidence and information" regardless of whether the prosecutor finds the information material or credible. (See People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; CPL 245.20 [1] [k]; William C. Donnino, Prac Commentary, McKinney's Cons Laws of NY, CPL 245.20.) Thus, the People's summary disclosure letters of police misconduct are insufficient to satisfy CPL 245.20 (1) (k).

To give the statute its plain meaning of the words "[a]ll evidence and information" would entail the People to provide the underlying records for substantiated and unsubstantiated misconducts and not just summaries of misconducts. (See People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U] [Crim Ct, Kings County 2022]; People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U] [Nassau Dist Ct, 1st Dist 2021]; People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020].)

As a practical matter, the People should not be cast as the gatekeeper in determining impeachment material for the defense. Thus, summary letters are not sufficient to satisfy CPL 245.20 (1) (k). In sum "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." (People v Goggins, 76 Misc 3d 898, 901 [Crim Ct, Bronx County 2022]; see also People v Pennant, 73 Misc 3d 753 [Nassau Dist Ct, 1st Dist 2021].) Therefore, the People are required to provide the underlying records of substantiated and unsubstantiated misconduct and not just summaries of misconduct to satisfy their obligation under CPL 245.20 (1) (k).

The People, notwithstanding their objection to article 245 automatic discovery requirements, concede to disclose to the defense the underlying records of substantiated and unsubstantiated misconduct that is in their possession 30 days before{**81 Misc 3d at 233} trial. Thus, the People admit they have these records available but will not provide the documents until 30 days before trial, without providing support for their timeline. The People's arbitrary timeline of 30 days before trial is in violation of the timeline prescribed under CPL 245.10. In the future, the People must provide the documents according to the timeline established in CPL 245.10 to avoid invalidating their COC.

Video Surveillance in Police Possession and DD5s

Pursuant to CPL 245.20 (1) (g) the People were required to provide "[a]ll tapes or other electronic recordings" relevant to a case in "the possession, custody or control of the prosecution or persons under the prosecution's direction or control." CPL 245.20 (2) and CPL 245.55 (1) indicate that all items and information in NYPD possession are deemed to be in the People's possession.

The People declared that they made reasonable inquiries to ascertain the existence of the [*5]video and DD5s by emailing and calling the detective on March 6, 2023, and on March 14, 2023. The People's effort was not reasonable. The early case assessment screening sheet that the People submitted with their COC stated that a video was available and was reviewed by personnel of the District Attorney's office. Thus, the People were on notice that video surveillance existed in their possession when they filed their COC.

The same reasoning applies to the detective's DD5s. The People's opposition was silent in providing a basis for the late disclosure of the detective's DD5s. The complaint report that was submitted with the People's COC on the 90th day indicated the case status was open which should have prompted the People to inquire about the detective's follow-up complaint reports (DD5s).

The DD5s turned over by the People on April 5, 2023, disclosed that the detective collected the video on August 9, 2022, and uploaded a copy of the video surveillance recovered regarding this investigation, thus revealing that the People had the video in their possession all along. Thus, the People filed their COC knowing these items were outstanding.

Materials Related to the Identification Procedure

On November 17, 2022, at the arraignment, the People served CPL 710.30 (1) (b) notice of the identification procedure. The CPL 710.30 (1) (b) notice stated that a confirmatory photo identification took place via text. The photos were never{**81 Misc 3d at 234} exchanged and the People now state that the detective on April 4, 2023, claimed the pictures that were on his cell phone no longer exist. Thus, the People are unable to provide pictures to defense counsel. The People's explanation lacked detail as to how the pictures were lost. Further the People failed to set forth any efforts to contact the complainant witness about the pictures since the detective sent pictures to the complainant on the day of arrest. The lack of detail of why the pictures were lost and failure to set forth efforts made to contact the complainant do not amount to due diligence.

EMS/ACR Records Related to Medical Treatment and Transport of Complaining Witness

Emergency medical personnel are not employed workers in a law enforcement capacity, and any medical or transport records they maintain are, therefore, not under the control of the People. (People v Alvarez, 71 Misc 3d 1206[A], 2021 NY Slip Op 50292[U] [Sup Ct, Queens County 2021]; see People v Rahman, 74 Misc 3d 1214[A], 2022 NY Slip Op 50120[U] [Sup Ct, Queens County 2022]; People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U] [Crim Ct, Kings County 2022].) Accordingly, EMS records are not part of the People's automatic discovery obligations and the People are not required to subpoena records for the defense. (CPL 245.20 [2].) Of course, this does not prevent the defense from subpoenaing the records.

Hospital Records

The People are not required to turn over the contact information for Dr. Chong or the hospital medical records of the complainant as part of their initial discovery obligations since the records are not in the possession or control of the People. CPL 245.20 (2) provides that "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (CPL 245.20 [1], [2].)

BCI Arrest Photo

The People conceded that they did not provide the BCI photos in color to the defendant. The People claimed that the BCI photos are not relevant because counsel is aware what defendant looks like.

CPL 245.20 (1) (h) specifically states that initial discovery includes "[a]ll photographs and drawings made or completed by a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to{**81 Misc 3d at 235} call as a witness at trial or a pre-trial hearing, or which relate to the subject matter of the case."

The People's claim that the defendant's black/white photo was duplicative of the color BCI photo is unavailing. The discovery statute does not suggest or provide for matters which the People believe are duplicative. The People cannot decline to provide particular items because they believe they are duplicative. (See People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U] [Crim Ct, Bronx County 2022] [the prosecution cannot decline to disclose items of discovery because they claim it is duplicative of other items of discovery]; People v Ajunwa, 75 Misc 3d 1220[A], 2022 NY Slip Op 50626[U], *4 [Crim Ct, Bronx County 2022] ["(i)t is not the People's decision to look at two entirely different police reports and decide that they believe one contains information 'duplicative' of the other and so will not be disclosed"].) Thus, the People were required to provide the color BCI photos to the defendant.

The misdemeanor charges in the instant information require the People to be ready within 90 days of the commencement of the criminal action. (CPL 30.30 [1] [b].) In this case the defendant's action was commenced on November 17, 2022, with the filing of the misdemeanor complaint. The People filed their COC and SOR on February 15, 2023. However, the COC and SOR of February 15, 2023, are invalid. Since the COC and SOR were not valid, 124 chargeable days have accrued from November 17, 2022, to March 21, 2023, when the defense filed their motion. Accordingly, defendant's motion to dismiss pursuant to CPL 30.30 (1) (b) is granted.