Criminal Court of the City of New York, New York County, October 25, 2023

Legal Aid Society (Khushboo Sapru of counsel) for defendant.

Alvin Bragg, District Attorney (Juan Rodriguez, Jr. of counsel), for the People.

By motion of September 19, 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 October 6, 2023. Defendant replied on October 10, 2023. After a review of the motion papers, certain discovery, and the court file, defendant's motion is granted.

Relevant Facts and Procedural History

On May 13, 2023, defendant was arraigned on an accusatory instrument charging him with forcible touching (Penal Law § 130.52 [1]), a class A misdemeanor, and sex abuse in the third degree (Penal Law § 130.55).

On August 9, 2023, the 88th day after arraignment, the People filed and served a COC, certificate of readiness (COR), automatic discovery form (ADF), and discovery list. The ADF included a disclosure advisory form (DAF) for a testifying New York City Police Department (NYPD) witness, referencing three unsubstantiated allegations of misconduct investigated by the NYPD's Internal Affairs Bureau (IAB). The People disclosed some underlying records associated with these allegations, but did not disclose several attachments, including media files. The People also disclosed a summary report of Civilian Complaint Review Board (CCRB) allegations but did not disclose associated underlying records.

On August 23, 2023, the People answered ready for trial. The defense requested an adjournment to continue reviewing discovery.

On September 4, 2023, defense counsel contacted the assigned Assistant District Attorney to inquire about missing underlying records.[*2]

{**81 Misc 3d at 1123}On the court appearance of September 7, 2023, defendant requested a motion schedule to challenge the COC for failure to disclose all underlying records associated with allegations of police misconduct.

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." "[A]ll 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]). The People must make a diligent, good-faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control, provided that the prosecutor shall not be required to obtain by subpoena duces tecum material which the defendant may thereby obtain (CPL 245.20 [2]).

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{**81 Misc 3d at 1124} [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."

Discussion

At issue is whether the People are required to disclose the records underlying allegations of misconduct for law enforcement witnesses, and if so, whether the disclosures must include media and documentary files attached to the misconduct investigation records.

Pursuant to CPL 245.20 (1) (k) (iv), the People must disclose: "[a]ll evidence and information, including that which is known 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."

In Matter of Jayson C., the First Department held that summaries of police misconduct are insufficient to comply with this statute (see 200 AD3d 447, 449 [1st Dept 2021] [statute "broadly requires disclosure of all impeachment evidence"]). And, in People v Rodriguez, the Appellate Term, First Department affirmed that the People's COC was invalid for failure to disclose underlying impeachment materials (77 Misc 3d 23 [App Term, 1st Dept 2022]). Both before and in response to these decisions, this court and trial courts throughout the state have consistently held that CPL 245.20 (1) (k) (iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of police misconduct.^[FN1]

In People v Martinez, this court refined its analysis to expressly consider whether the nature of the disciplinary allegations{**81 Misc 3d at 1125} at issue would tend to impeach the testifying officer, pursuant to the principles of impeachment recognized by the Court of Appeals (2022 NY Slip Op 50476[U], *3-5). In People v Walker (83 NY2d 455, 461 [1994]), the Court found that impeachment evidence "demonstrates an untruthful bent" or "reveal[s] a willingness or disposition . . . voluntarily to . . . place the advancement of . . . individual self-interest ahead of principle or of the interests of society." The Court restated that imperative in People v Smith (27 NY3d 652, 661 [2016]) and again in People v Rouse (34 NY3d 269 [2019]), where impeachment of a testifying officer was at issue. Thus, impeachment evidence concerns the credibility of the officer witness—the trustworthiness of a witness, whether the witness is believable or whether the witness' history of behavior and actions undermine that witness' claims. Accordingly, when

"a substantiated or unsubstantiated disciplinary finding against a testifying officer bears on that officer's credibility such that it would tend to impeach the officer's testimony by demonstrating an 'untruthful bent' or 'willingness [and] disposition [to] voluntarily place the advancement of [the officer's] individual self-interest ahead of principle or of the interests of society,' the People must disclose the materials and information underlying that disciplinary finding in order to file a valid COC" ({**81 Misc 3d at 1126}Martinez, 2022 NY Slip Op 50476[U], *6-7, citing People v Walker, 83 NY2d at 461).

Notwithstanding these decisions, the People have consistently argued that they need not disclose underlying records because the First Department and Appellate Term decisions are vague, limited, and do not address the issue of whether impeachment materials relate to the subject matter of the case, and that the trial courts have been split on this issue. In fact, two appellate decisions now address the issue of whether allegations of police misconduct are related to the subject matter of the case.

In People v Hamizane, the Appellate Term, Second Department held that the People must disclose underlying records of police misconduct that tend to impeach the credibility of a testifying witness (80 Misc 3d 7, 11 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] ["(c)learly, the disciplinary records of a potential police witness which were created in relation to a different case go to the weight of the credibility of the witness and can be used for impeachment purposes"]). Hamizane cited the Court of Appeals in holding that "[i]mpeachment evidence is not limited to what is related to the subject matter of the charges against a defendant" (id., citing People v Smith, 27 NY3d at 667). More recently, in People v Johnson (218 AD3d 1347, 1350 [4th Dept 2023]), the Fourth Department found that a defendant is "not automatically entitled to the entirety of a police officer's personnel file as impeaching material under CPL 245.20 (1) (k) (iv)." However, "information relate[d] to the subject matter of the case" must be disclosed (id. [internal quotation marks omitted]). Holding that the records in that case need not have been disclosed, the Court did not provide any description of those records. The Johnson Court did, however, cite People v Lewis, a Kings County case, which offers examples of potentially discoverable impeachment material, including incidents that occurred during the investigation of the instant case or material that relates to the instant charges or a potential defense (78 Misc 3d 877, 880 [Sup Ct, Kings County 2023]). Neither Johnson nor Lewis addresses the nature of the misconduct allegations or whether they might bear on an officer's credibility as a witness in the instant case. Thus, those cases are limited in their analysis and applicability here, as credibility is always related to the subject matter of the case (see People v Edwards, 74 Misc 3d 433, 440 [Crim Ct, NY County 2021] ["(s)ince impeachment evidence is relevant{**81 Misc 3d at 1127} to whether the factfinder in the case should believe [*3]the witness, that evidence necessarily relates to the 'subject matter of the case' "]). Accordingly, this court again holds that underlying records that tend to impeach are discoverable.

In the instant case, the People's initial discovery disclosures included a DAF for a testifying officer with three unsubstantiated allegations of misconduct. The People disclosed records titled Internal Management System Worksheet—Internal Affairs Logs (IAB logs) that are associated with the unsubstantiated IAB allegations. The logs related to two of the allegations that are at issue.

The first allegation concerns a failure to take police action. According to the IAB logs, a complainant made a noise complaint, and in responding, the police called the subject and told him to keep the noise down, but did not go to their door and did not file a report. The IAB logs contain three embedded "attachments" created during the investigation. These files are named "resource recap," "C/C audio," and "ICAD#." The file image that corresponds to "resource recap" is redacted. While the defense is able to see the existence and names of these files, the actual files themselves were not disclosed.

The second allegation is for an incomplete or inaccurate complaint report and aided report. According to the IAB logs, a complainant reported he was assaulted with a wooden stick by a woman after she told him "I hate gay people." While the complainant believed the case should be prosecuted as a hate crime, the incident was dropped from an arrest to an "aided" event because the police made a determination he was hit with a purse, not a weapon. The IAB logs contain five embedded "attachments" created during the investigation. These files are named "CC audio with C/V," "aided," "email," "ICAD," and "video." The log itself notes that law enforcement used these attachments—in particular, the recorded interview with the complainant—to reach their determination that there was no discrimination and that the allegation was unsubstantiated. Again, the "attached" files were not actually attached or disclosed.

The first question is whether these allegations bear on officer credibility and tend to impeach. In prior cases before this court, where the People only disclosed DAFs with allegations that could potentially bear on credibility, this court held that absent more meaningful descriptions, underlying documentation, or argument to the contrary, allegations may tend to impeach (see{**81 Misc 3d at 1128} e.g. People v Jackson, 79 Misc 3d at 837; see also People v Grecia Rosales, Crim Ct, NY County, Oct. 28, 2022, CR-012540-22NY, slip op at 7-8 [similarly invalidating COC because there was insufficient information for court to determine whether allegations tend to impeach]). Here, on their face, allegations regarding possible discrimination and failure to make arrests and reports may bear on credibility. The People control all of the relevant information concerning the character and content of the disciplinary findings against the officer. If the evidence and information concerning those findings would not tend to impeach the officer here, the People had the opportunity to establish that fact. The People made no attempt to do so. Accordingly, it would be wrong, and contrary to the CPL article 245 "[p]resumption of openness . . . in favor of disclosure," for the court to assume that the materials underlying the disciplinary findings at issue here would not tend to impeach (CPL 245.20 [7]). Thus, disclosure of underlying records is required.

The second issue is whether the People met their obligation to provide "[a]ll evidence and information" with respect to these records (CPL 245.20 [1] [k]). They did not. Both reports contain written summaries of the investigation; however, substantive material related to the IAB's investigative actions is contained in the embedded files, which were not disclosed. As [*4]these allegations may tend to impeach, and the statute requires the People disclose all evidence and information, the People were required to disclose complete underlying records, which includes the embedded attachments (see People v Bruce, Crim Ct, NY County, Oct. 5, 2023, Ryan, J., CR-000375-23NY [invalidating COC for failure to disclose IAB log attachments and for improper redactions of same documents]; see also People v Morales, Crim Ct, NY County, Nov. 7, 2022, CR-028871-21NY, slip op at 10-11 ["any and all" underlying records for substantiated and unsubstantiated allegations include attachments to IAB logs]).

The People argue that their COC should not be deemed invalid because they disclosed comprehensive discovery and reasonably relied on the authority of the Fourth Department Johnson case and the rulings of many other courts that have held they need not disclose underlying records—either because they do not relate to the subject matter of the case, or because they are not in the People's actual possession. They urge the court to follow People v Gaskin, another recent Fourth Department decision holding that in evaluating a COC, the court{**81 Misc 3d at 1129} should only consider whether their COC "was filed in good faith and reasonable under the circumstances" (214 AD3d 1353, 1355 [4th Dept 2023] [internal quotation marks omitted]).

For several reasons, those arguments are unavailing. First, volume is not a measure of discovery compliance. Without disclosing complete records underlying the unsubstantiated disciplinary findings that may be used to impeach a testifying witness, the People cannot file a valid COC (see Hamizane, Martinez, Bruce, and Morales, discussed supra).

Second, underlying records of police misconduct investigated by the IAB are deemed to be in the People's possession. CPL 245.55 places a shared discovery obligation on the prosecutor and police. CPL 245.55 (1) directs the prosecutor to ensure "a flow of information" sufficient to place within the prosecutor's possession and control evidence discoverable under CPL 245.20 (1) (k). And, CPL 245.55 (2) requires the NYPD to comply with requests from the prosecution and to "make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article." Pursuant to CPL 245.20 (2), "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," which includes the complete underlying disciplinary records at issue here. Thus, the People's failure to disclose material expressly deemed to be in their possession undermined their ability to file a valid COC (People v Jackson, 79 Misc 3d at 838).^[FN2]

Third, the People's reliance on general good faith is misplaced in the context of article 245 discovery obligations. The People's claim that in good faith they ignored the body of [*5]case law requiring disclosure of underlying records in favor of other cases that might support nondisclosure does not excuse their failure to make "a diligent, good-faith effort" to ascertain the{**81 Misc 3d at 1130} existence of and to disclose underlying disciplinary records. The People have long been on notice of the cases requiring disclosure of underlying records (see Matter of Jayson C., Rodriguez, and cases cited in n 1, supra). Whether the misconduct allegations tend to impeach is the analysis that determines whether discovery is required (People v Martinez; People v Edwards, 74 Misc 3d at 440 ["impeachment evidence . . . necessarily relates to the 'subject matter of the case' "]). The holdings in Johnson and Lewis are not the product of that analysis. Thus, the People's reliance on their outcomes is misplaced.

Finally, the Fourth Department Johnson decision was issued on July 28, 2023, when only 14 days of the speedy trial period in this case remained, long after discovery should have been disclosed (see CPL 245.10 [1] [a] [ii]), or at a minimum, sought. The People do not provide any information about when they requested the underlying records and whether any efforts were made to obtain the attachments. The People have not described any diligent efforts to obtain complete records. Absent any indication that the People ever sought the attachments, the court cannot find due diligence (see People v Pondexter, 76 Misc 3d 349, 353 [Crim Ct, NY County 2022], quoting People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U], *4 [Crim Ct, Kings County 2021] [a "bare-bones assertion does not provide the Court with the necessary factual basis to make a finding" of due diligence]). It was at their peril that the People elected to file a COC in reliance on a new, limited Fourth Department decision, rather than seeking to obtain complete underlying records. The People's decision here did not satisfy the good-faith and reasonableness standard contemplated by Gaskin. Accordingly, the People have not filed a valid COC or properly answered ready for trial.^[FN3]

Speedy Trial Calculation

For the reasons stated above, the COC and COR of August 9, 2023, did not stop the speedy trial clock. The People are therefore charged from the day after the commencement of the criminal action on May 13, 2023, through September 7, 2023, when the defense stopped the clock by requesting a motion{**81 Misc 3d at 1131} schedule (CPL 30.30 [4] [a]) (117 days). As the People have exceeded the 90-day speedy trial period, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is granted.