Criminal Court of the City of New York, Kings County, July 28, 2023

Brooklyn Defender Services (Kiersten Reider of counsel) for defendant.

Eric Gonzalez, District Attorney (Molly Sheehan of counsel), for the People.

On December 1, 2022, defendant was arraigned and charged with Penal Law § 120.14 (1) menacing in the second degree and various other charges. Defendant now challenges the validity of the People's certificate of compliance (COC), filed on February 2, 2023, as not proper under Criminal Procedure Law § 245.20 (1) because certain materials were not disclosed and made available to the defense, argues that the prosecution's supplemental certificate of compliance filed on April 10, 2023, supports a ruling that the original COC was invalid under CPL 245.50 (1-a) and moves for dismissal of the accusatory instrument pursuant to CPL 245.20 (1), (2) and 30.30 (5).

For the reasons set forth below, the defendant's motion to invalidate the People's COC is granted but the motion to dismiss pursuant to CPL 30.30 is denied.

Procedural History

On December 1, 2022, defendant was arraigned and charged with Penal Law § 120.14 (1) menacing in the second degree, a{**80 Misc 3d at 546} class A misdemeanor which had a 90-day speedy trial time. (See CPL 30.30 [1] [b].) Consequently, the People had until March 1, 2023, to file their certificate of compliance (COC) and statement of readiness (SOR) for trial.

On February 2, 2023, the 63rd day of their speedy trial time calculation, the People served initial discovery materials, and filed a COC and SOR. On March 2, 2023, the court ordered the defense to file their COC which the defense ignored.

On April 6, 2023, nine weeks after the People's COC was filed, defense counsel notified the People via email that their February 2, 2023 COC was defective and the SOR was illusory asserting that the People failed to disclose mandatory discovery pursuant to CPL 245.20 (1) and (2). On April 10, 2023, four days after receiving the defense email, the People filed their first supplemental certificate of compliance (SCOC).[*2]

On April 18, 2023, the People filed their second SCOC and the defense submitted the instant motion challenging the validity of the People's COC filed on February 2, 2023, and seeking to dismiss the accusatory instrument pursuant to CPL 245.20 (1), (2) and 30.30 (5).

On May 19, 2023, the People filed their response opposing the motion. On May 26, 2023, the defense filed a reply.

Since the most serious offense charged in the accusatory instrument is a class A misdemeanor, the People were required to be ready for trial within 90 days of the commencement of the action. (See CPL 30.30 [1] [b].)

CPL article 245 requires the People to file a COC and SOR with the court prior to announcing readiness under CPL 30.30. (See CPL 245.50 [3].) "In order for the People to be ready for trial and stop the speedy trial clock they must: (1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." (People v Ramirez-Correa, 71 Misc 3d 570, 572 [Crim Ct, Queens County 2021].)

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."{**80 Misc 3d at 547}

Under 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; People v Lustig, 68 Misc 3d 234, 238-239 [Sup Ct, Queens County 2020].) In fact, the "opening language" of the statute "itself points towards an 'open file' discovery policy." (See People v Markovtsii, 81 Misc 3d 225, 228 [Crim Ct, Kings County 2023]; People v Amir, 76 Misc 3d 1209[A], 2022 NY Slip Op 50856[U] [Crim Ct, Bronx County 2022].) Therefore, "[i]f something is in the prosecutor's file (or that of the police investigating agency) that does not fall within one of 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. (Lustig at 239-240; Markovtsii, 81 Misc 3d at 228; 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. A prudent prosecutor should resolve a question of doubt by disclosing the material.

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].) 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 Markovtsii, 81 Misc 3d 225 [Crim Ct, Kings County 2023]; 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].)[*3]

In the case before this court, the defendant asserts that the People failed to disclose police misconduct impeachment material regarding NYPD officers listed as potential witnesses. Moreover, the documents disclosed by the People had three disclosure deficiencies: (1) CCRB (Civilian Complaint Review Board) records were redacted improperly; (2) IAB (Internal Affairs Bureau) disclosure letters were undated and missing the heading information; and (3) underlying misconduct records{**80 Misc 3d at 548} were not disclosed. Furthermore, the IAB investigation file of Lt. Herrera, the complainant in the instant case, was not disclosed by the People. The People also failed to disclose the names of three police investigators, and precinct surveillance video related to the IAB investigation. Also, the People failed to provide BCI photos, property vouchers, and handwritten notes from one of the officers.

Consequently, the People's unexplained delay in failing to provide timely the initial Giglio material, underlying police misconduct of substantiated and unsubstantiated disclosures for all 13 officers, unredacted CCRB records, BCI photos and property vouchers was not reasonable. The defendant went so far as to provide still photos from the body worn camera to obtain the identity of officers who were at the scene or precinct, to which the People failed to provide a response. The People also failed to show that they made reasonable inquiries to obtain the IAB investigation file, related documents, BCI photos, property vouchers and video prior to filing their COC on February 2, 2023.

The court recognizes that the Civilian Complaint Review Board is not an agency within the custody or control of the Office of the District Attorney. (See People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U] [Crim Ct, Kings County 2022]; People v Godfred, 77 Misc 3d 1119 [Crim Ct, Bronx County 2022].) Nevertheless, any underlying documentation in the possession or control of the People relating to the substantiated and unsubstantiated claims against a testifying officer must be turned over to the defendant as "the underlying facts of substantiated and unsubstantiated findings may provide a good faith basis for cross-examination." (People v Castellanos, 72 Misc 3d 371, 374 [Sup Ct, Bronx County 2021], citing People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; see also People v Akhlaq, 71 Misc 3d 823 [Sup Ct, Kings County 2021].)

The People's first instance of trying to obtain this information occurred on April 17, 2023, when the People sent requests for IAB related documents. These efforts occurred 137 days after defendant's arraignment of December 1, 2022, and 74 days after the People filed their initial COC/SOR dated February 2, 2023. Therefore, the People's failure to provide the above records rendered their COC/SOR illusory.

"[T]he People are not without a remedy where disclosure is unduly burdensome or is not in their{**80 Misc 3d at 549} possession. CPL 245.10 (1) (a) permits the People additional time when discovery materials are exceptionally voluminous. More important, CPL 245.70 (2) permits the court to modify the time periods for discovery for good cause shown." (People v Barralaga, 73 Misc 3d 510, 518 [Crim Ct, NY County 2021]; People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021].)

Here, the People did not seek a protective order to modify discovery, but instead unilaterally decided to limit disclosure as a matter of convenience. The court feels compelled to respond to the People's claim that underlying misconduct records do not need to be disclosed as part of their discovery obligation.

Police Misconduct Underlying Records

The People conceded that they did not disclose all underlying police misconduct records and contend that the statute does not require disclosure of the underlying paperwork for each allegation against each law enforcement witness and that their interpretation is consistent [*4]with Brady v Maryland (373 US 83 [1963]). Relevant is that there is no appellate authority which guides the interpretation of this section of the new discovery statute, but the court disagrees with the People's analysis of the statute.

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 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." (CPL 245.20 [1] [k].)

The People's reliance on People v Garrett (23 NY3d 878 [2014]) is misguided. In Garrett the issue before the Court was impeachment evidence that was exculpatory. The Garrett Court held there were no Brady/Giglio violations due in part because the evidence was not material. (Id. at 891-892.) The previous{**80 Misc 3d at 550} discovery statute required the People to disclose impeachment information that was material.

[1] The People's discovery obligations under CPL 245.20 (1) (k) go beyond the Supreme Court case of Brady v Maryland (373 US 83 [1963]) and Giglio v United States (405 US 150 [1972]) (see People v Markovtsii, 81 Misc 3d 225 [Crim Ct, Kings County 2023]; 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]). The critical change is the elimination of the materiality requirement of Brady in favor of the more expansive "all 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 245.10.) Thus, disclosure of exculpatory evidence no longer needs to meet the old materiality standard.

Now turning the question to statutory construction. "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]; People v Roberts, 31 NY3d 406 [2018]; People v Markovtsii, 81 Misc 3d 225 [Crim Ct, Kings County 2023].) 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" (Marian T. at 49; Roberts at 418; Markovtsii, 81 Misc 3d at 229). "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" (Marian T. at 49; Roberts at 418; Markovtsii, 81 Misc 3d at 229).

CPL 245.20 (1) (k) starts with the words "[a]ll evidence and information." The People seek to have this court interpret the statute to substitute summary letters as inclusive for "[a]ll evidence and information." This is not statutory interpretation but a redrafting of the statute. A reading of the statute would not encompass a summary page drafted by the People. The People's summary page by itself would not comply with the words "[a]ll evidence and information" under CPL 245.20 (1){**80 Misc 3d at 551} (k). To give the statute its plain meaning this court interprets the statute to mean that the underlying records for substantiated and unsubstantiated misconduct and not just summaries of misconduct must be part of the discovery process. (See People v Markovtsii, 81 Misc 3d 225 [Crim Ct, Kings County 2023]; People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U] [Crim Ct, Kings [*5]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 Pennant, 73 Misc 3d 753 [Nassau Dist Ct, 1st Dist 2021]; People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020].) The People's summary disclosure letters of police misconduct are insufficient to satisfy CPL 245.20 (1) (k).

As a practical matter, the People should not be cast as the gatekeeper in determining impeachment material or drafting summary disclosure letters for defendant. 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).

In this case the People provided Giglio summaries, without the underlying substantiated and unsubstantiated records of the 13 testifying officers prior to filing their COC. The People's failure to provide underlying substantiated and unsubstantiated misconduct records would be insufficient to comply under CPL 245.20 (1) (k), thus invalidating the COC/SOR.

The People, notwithstanding their objection to article 245 automatic discovery requirements, concede in their affirmation to disclose to the defense the underlying records of substantiated and unsubstantiated complaints that are in their possession 30 days before trial. 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 comply with the timeline established in CPL 245.10 to avoid invalidating their COC.{**80 Misc 3d at 552}

Redaction of CCRB Records

Defendant claimed that the People provided improperly redacted misconduct records for only 3 of the 13 officers. Article 245 expressly provides the information that can be withheld or redacted from disclosure. (See CPL 245.20 [1] [c], [d], [g], [u] [iv]; [6]; People v Soto, 80 Misc 3d 473 [Crim Ct, NY County 2023]; People v Goggins, 76 Misc 3d 898 [Crim Ct, Bronx County 2022].) "[T]he People should have disclosed an unredacted version of the CCRB record at the outset or sought a protective order, rather than unilaterally redact." (People v Soto, 80 Misc 3d at 480; CPL 245.70.) The failure to seek a protective order while withholding information that was discoverable will invalidate the COC because the requirement to disclose and make available all known material and information subject to discovery will have been violated. (CPL 245.50 [1].) The People should have disclosed an unredacted version of the CCRB record at the outset or sought a protective order, rather than unilaterally redact.

However, the court was unable to determine whether the redacted CCRB records exceeded what was permitted since neither party submitted the redacted records for the court to review. In the future a prudent prosecutor should seek a protective order under CPL 245.70 or an in camera review.

The court's analysis does not end here. The issue remains whether defendant, by waiting 63 days to notify the People of their defects in their COC, can request all the time that was accrued to be charged to the People.[*6]

Adequacy of the Defendant's COC Challenge

The People's purported COC was deemed not valid. 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."

CPL article 245 was amended in May 2022 in several respects. One amendment requires a defendant to notify the People of alleged deficiencies related to the COC "as soon as practicable." CPL 245.50 (4) (a), (b) and (c) state:

"(a) Challenges to, or questions related to a certificate of compliance shall be addressed by motion.

"(b) To the extent that the party is aware of a potential defect or deficiency related to a certificate of compliance or supplemental certificate of compliance,{**80 Misc 3d at 553} the party entitled to disclosure shall notify or alert the opposing party as soon as practicable.

"(c) Challenges related to the sufficiency of a certificate of compliance or supplemental certificates of compliance shall be addressed by motion as soon as practicable, provided that nothing in this section shall be construed to waive a party's right to make further challenges, including but not limited to a motion pursuant to section 30.30 of this chapter."

The second component's duty to notify required the challenging party to alert its opponent to the discovery issue as soon as practicable prior to submitting motions to the court. The third component required that a motion challenging a COC be made as soon as practicable.

There is currently no appellate authority directly addressing the timeliness of a party that is entitled to disclosure to notify the opposing party of defects to their COC as soon as practicable. Some courts of concurrent jurisdiction have held that a defendant cannot unreasonably delay moving to challenge a COC while simultaneously asking the court to charge the People with all the time upon the COC being found illusory (People v Lanfair, 78 Misc 3d 371 [Cohoes City Ct 2023]; People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]; People v Knorr, 73 Misc 3d 285 [Henrietta Just Ct, Monroe County 2021]; People v Grant, 75 Misc 3d 1219[A], 2022 NY Slip Op 50549[U] [Yonkers City Ct 2022]). The concept of waiting is known as lying in wait for the 30.30 speedy trial time to expire.

The statute does not contain an explicit time frame for filing a COC motion or notifying the People of a defect in their COC or supplemental COC. The legislature had not defined the term "as soon as practicable." Therefore, this court will seek to interpret the language. Black's Law Dictionary has described this phrase to mean as soon as can be expected in the particular circumstances or in due time. But the phrase has also been construed to mean speedily. (See Black's Law Dictionary 122 [6th ed 1990].) This court could use as a parameter the time frame for motion practice which is 45 days under CPL 255.20 (1). Since the statute is silent as to time, a standard should be flexible.

One court provided useful factors in determining "as soon as practicable." In People v Lanfair (78 Misc 3d 371 [Cohoes City Ct 2023]), the court reasoned that in assessing whether the defense acted " 'as soon as practicable' in raising a [COC] challenge" a trial court can consider{**80 Misc 3d at 554}

"the length of the delay; the underlying charges; the nature of the discovery violation; whether the violation is obvious, and susceptible to easy detection, or obscure, and more likely to escape notice; whether there is evidence that the defense knew or should have known of the error; [and] the volume of discovery in the case." (Id. at 375.)

A factor to consider, which was not listed by the Lanfair court, is whether a party was [*7]prejudiced in failing to notify the opposing party of the defects in a timely manner. The discovery statute is not one sided. There are obligations on both sides that need to be completed in order to have this free flow of information to the parties. (See CPL 245.60.)

[2] In this case the People's initial disclosure defects were obvious. As to the CCRB redacted records the defense would have been able to assess the redactions right away and would also have known that the prosecutor did not seek a protective order rather than unilaterally redact the CCRB records. The IAB investigation of the complaining witness/member of service was also a defect that the defense should have been aware of as the said investigation was revealed in the complaint report that also revealed the names of three officers, who were allegedly involved in the IAB investigation that had not been disclosed. As to the missing underlying misconduct reports, they would also have been readily apparent to the defense since the People's disclosures consisted of summary letters only. Despite these and other defects pointed out by the defense, the defendant did not contact the People until nine weeks later to alert them as to the deficiencies. Given the obviousness of the CCRB redactions, IAB investigation, and missing underlying misconduct records the court cannot find that defendant acted "as soon as practicable." (People v Soto, 80 Misc 3d 473 [Crim Ct, NY County 2023]).

Accordingly, defendant did not notify the People of the alleged deficiencies related to the COC as soon as practicable and their motion to strike the COC/SOR is denied for failure to comply with the requirements of CPL 245.50 (4) (b).

Defense Failed to File Certificate of Compliance

The defendant, while simultaneously asking the court to invalidate the People's COC, neglected to notify the People of their defects in the COC and ignored defendant's obligation to file their COC. (See CPL 245.50 [2].) According to the court records{**80 Misc 3d at 555} defendant was ordered on March 2, 2023, to file their COC. However, defendant flouted the court's order. Defendant overlooked their obligation to exercise due diligence and reasonable inquiries to ascertain the existence of material and information to the People under article 245, while seeking to invalidate the People's COC (see CPL 245.10 [2]; 245.20 [4]; 245.50 [2]), similar to the concept of unclean hands.

The defendant, like the People, will have "[n]o adverse consequence . . . from the filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." (See CPL 245.50 [2].) Here, the defendant ignored a court order to file a COC in good faith and with due diligence. As a result, this court can devise an order as it seems just under the circumstances pursuant to CPL 245.80 that will restore balance to both parties.

The charges in the instant information required the People to be ready within 90 days of arraignment (CPL 30.30 [1] [b]). In this case the defendant was arraigned on December 1, 2022. The People filed their certificate of compliance and statement of readiness on February 2, 2023. However, the certificate of compliance and statement of readiness of February 2, 2023, were deemed not valid. The amount of time that had elapsed between the commencement of the criminal action to when defendant filed their motion on April 18, 2023, was 138 days. Since the [*8]certificate of compliance and statement of readiness were not valid, 138 chargeable days have accrued since December 1, 2022.

The question remains, however, whether it is appropriate to charge the prosecutor with delay following their improper readiness statement owing to their improper filing of a COC, especially when the COC is declared invalid months after it was initially filed. The discovery statute was never intended by the legislature to promote gamesmanship; instead, it is designed to ensure the free flow of information from the police to the prosecutor (see CPL 245.55) so that the prosecutor can disclose relevant material and information to the defense. (CPL 245.50 [4]; People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021].) Equity would not be served if the defense were allowed to neglect filing their COC and fail to inform the prosecutor as soon as practicable of their defects with the COC while simultaneously seeking to invalidate the People's COC.{**80 Misc 3d at 556}

The defendant waited 63 days, from February 2, 2023, to April 6, 2023, to notify the People of their COC defects. The court deemed the defendant's obligation under CPL 245.50 (4) to notify the People of their defects with their COC was not completed as soon as practicable. In order to encourage a more efficient discovery process and discourage the lying in wait concept the court will deduct 63 days from the People's time, due to the defense delay. Thus, 65 days will be charged to the People.

The People on the other hand also did not have clean hands in filing a COC/SOR that was illusory. Therefore, the time that elapsed from April 6, 2023, when the People were notified of their COC deficiency to when the defense filed their motion on April 18, 2023, was 12 days. Thus, the total time charged to the People is 75 days.

Accordingly, the People are charged with 63 days from the commencement of the criminal action on December 1, 2022, through February 2, 2023, when they filed their original COC. The People are charged an additional 12 days from April 6, 2023, when they were alerted to the COC deficiencies, to April 18, 2023, when the defense filed their motion. As the People are charged with a total of 75 days, they have not exceeded the 90-day period in which they must be ready for trial.

Accordingly, the defendant's motion to invalidate the People's COC/SOR is granted and their motion to dismiss pursuant to CPL 30.30 (1) (b) is denied.

Fittingly, the court orders the defense to file their COC within 10 days and the People to provide all outstanding items of discovery to the defense within the same 10 days. In the event the People fail to comply with the outstanding discovery within 10 days then the speedy trial clock will commence until a valid COC is filed.