Criminal Court of the City of New York, Kings County, November 20, 2023

The Legal Aid Society, Brooklyn (Joelle Ryu of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Eric Kang of counsel), for the People.

Defendant Naqam Sylvestre moves this court for an order deeming the People's certificate of compliance (COC) improper and dismissing the accusatory instrument pursuant to CPL 30.30 (1) (b) because certain discoverable materials were not disclosed within the allotted speedy trial time.

This court finds that the People's COC is invalid, and thus, the People's statement of readiness (SOR) is illusory. There are 200 days charged to the People. Accordingly, defendant's motion to dismiss the accusatory instrument is hereby granted.{**81 Misc 3d at 1053}

Defendant was arraigned on April 4, 2023, on a misdemeanor complaint filed on April 3, 2023, which charged him with Penal Law § 120.00 (1) assault in the third degree (a class A misdemeanor), Penal Law §§ 110.00, 120.00 (1) attempted assault in the third degree (a class B misdemeanor), Penal Law § 120.15 menacing in the third degree (a class B misdemeanor), and Penal Law § 240.26 (1) harassment in the second degree (a violation).

At defendant's arraignment, the matter was adjourned to June 5, 2023, for the parties to appear in Part AP3. On that date, the People answered not ready, and the case was adjourned for the People's discovery compliance. The People filed and served their COC and SOR with initial discovery off-calendar on June 16, 2023. From July 14, 2023, to October 23, 2023, this matter had four additional appearances. Defendant requested a motion schedule on October 23, 2023, which the court granted.

CPL 30.30 (1) (b) provides that, when a defendant is charged with a misdemeanor punishable by a sentence of more than three months, and no felonies, the action must be dismissed if the prosecution is not ready for trial within 90 days of its commencement.

To declare readiness for trial, the People must, among other things, file a valid COC (People v Larkins, 76 Misc 3d 133[A], 2022 NY Slip Op 50922[U], *1 [App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2022]). Defendant's motion seeks dismissal of the instant matter pursuant to CPL 30.30 on the grounds that the People failed to comply with their discovery obligations, rendering their COC improper and SOR illusory.

CPL 245.20 (1) provides that the People must disclose "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." This subdivision of the statute provides a non-exhaustive list of 21 categories that are included in the types of material required to be disclosed. "The People's 'possession' includes discoverable material that is in the possession of the police" (People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *2 [Crim Ct, Bronx County 2022], citing CPL 245.20 [2]).{**81 Misc 3d at 1054}

CPL 245.50 (1) also requires the People to file a COC that certifies, in good faith, that: (1) they have "made available all known material and information subject to discovery" (see also People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021]); and (2) they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material (see also People v Hooks, 78 Misc 3d 398, 400 [Crim Ct, Kings County 2023]).

On a motion to declare a COC invalid, the defendant must first "identify a specific defect with the People's [COC]," then the burden shifts to the People to "demonstrate the propriety of their certification" (People v Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U], *2 [Albany City Ct 2022]). The People must explain, in detail, the reasonable inquiries they made to obtain the discoverable materials (People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U], *7 [Crim Ct, Bronx County 2023]; Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U], *2).

A. Validity of the People's COC

CPL 245.10 (1) (a) (ii) states that "[w]hen the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint." In the event that certain discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution," the People are permitted up to a total of 65 calendar days to comply with their discovery obligations (CPL 245.10 [1] [a]). The People filed and served their original COC with initial discovery on June 16, 2023, which was 74 days after defendant's arraignment. The People do not explain this delay.

Defendant's motion argues that the COC is invalid because the People belatedly disclosed the following materials: (i) booking photos for other individuals apprehended in connection with the alleged incident; (ii) name and adequate contact information for witness Joshua Abrams; (iii) ECAB screening sheet for one of the other individuals apprehended in connection with the alleged incident; and (iv) the criminal court complaint for one of the other individuals apprehended in connection with the alleged incident. Defendant further alleges that the{**81 Misc 3d at 1055} COC is invalid due to the People's failure to disclose the following materials: (i) the event chronology for 911 calls, 911 call audio, 911 call dispatch event reports, and radio runs pertaining to the alleged incident; (ii) the name and adequate contact information for two witnesses at the scene of the incident; (iii) arrest reports and any related paperwork for the complaining witness in connection with the alleged incident; (iv) body-worn camera footage and activity logs for [*3]Officers Truong and Murphy; (v) underlying disciplinary records for 16 potential law enforcement witnesses; (vi) Domain Awareness System (DAS) reports; and (vii) EMS reports for the complaining witness.

1. Belatedly Disclosed Discovery

The People's opposition fails to sufficiently address any of the belated disclosures defendant describes. It does not appear that the People filed or served any supplemental COCs regarding these materials as required by CPL 245.50 (1), or otherwise detailed their attempts to timely obtain this material (Hooks, 78 Misc 3d at 401). Rather, the People state only when they received the material and produced it to defendant, which was after the People filed their COC (People's mem of law at 15-16). As such, the court has no basis upon which to determine that the People exercised due diligence and good faith in ascertaining the existence of the materials and attempting to timely disclose them.

2. Missing Discovery

The People's opposition further fails to address items (i) through (iv) in the aforementioned list of materials that defendant alleges the People failed to disclose.^[FN1] As a result of the People's failure to demonstrate the validity of their COC with regard to those discoverable materials, this court finds that the COC is invalid. The court assesses the remaining items addressed by both parties as follows:

a. Disciplinary Records

Defendant's motion argues that the People's COC is invalid because the People failed to turn over complete, unredacted,{**81 Misc 3d at 1056} underlying disciplinary records, including Internal Affairs Bureau (IAB) and Civilian Complaint Review Board (CCRB) materials and attachments, for 16 officers. These materials are collectively referred to as "Giglio" materials.^[FN2] In response, the People argue that CPL 245.20 does not require them to automatically produce underlying disciplinary records, including CCRB materials, and that their disclosure of summary letters is sufficient (People's mem of law at 31-33).

CPL 245.20 (1) (k) (iv) requires the People to produce "[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: . . . (iv) impeach the credibility of a testifying prosecution witness" (emphasis added). In this case, the People's notice/disclosure form (NDF) specifies that all 16 of the officers whose records are at issue here are potential prosecution witnesses.

There is a split in the Appellate Division about whether disclosure of summary letters can [*4]satisfy the People's obligation to produce impeachment materials pursuant to CPL 245.20 (1) (k) (iv). In People v Johnson (218 AD3d 1347, 1350 [4th Dept 2023]), the Fourth Department found summary letters to be sufficient, holding that the "defendant was not automatically entitled to the entirety of a police officer's personnel file as impeaching material under CPL 245.20 (1) (k) (iv), but rather only to the extent that the information 'relate[d] to the subject matter of the case' " (quoting CPL 245.20 [1]). Conversely, in Matter of Jayson C. (200 AD3d 447, 449 [1st Dept 2021]), the First Department ruled that underlying police disciplinary records must be disclosed for impeachment purposes.^[FN3]

{**81 Misc 3d at 1057}The People contend that this court must follow Johnson because, they argue, neither the Second Department nor the Court of Appeals has ruled on the issue in question (Maple Med., LLP v Scott, 191 AD3d 81 [2d Dept 2020]). However, the First Department's ruling in Matter of Jayson C. (200 AD3d 447, 449 [1st Dept 2021]) directly contrasts with Johnson. Were this court required to follow another department of the Appellate Division, there appears to be two options.

However, the Appellate Term of the Second Department did confront the disclosure of police disciplinary records in People v Hamizane (80 Misc 3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). Consequently, this court is not required to follow either Johnson or Jayson C. (People v Graham, 177 Misc 2d 542, 543 [App Term, 2d Dept 1998], affd 93 NY2d 934 [1999]). The People also contend that this court should not be bound by any Appellate Term holding, as doing so may result in a split between supreme courts and criminal courts in the same county. The People argue this may occur because a criminal court must follow an Appellate Term decision, but a supreme court in the same county is not similarly bound. However, the People's solution to this possibility is to allow an Appellate Division decision to bind an Appellate Term in a different appellate department. This course does not sensibly align with the criminal court system's appellate structure, where the Appellate Term answers directly to the Court of Appeals in criminal cases (Graham, 177 Misc 2d at 544).

Based on the reasoning above, this court sees no legal obstacle to following the ruling of an appellate court in neighboring districts. In Hamizane, the court held that, "with respect to every listed potential police witness, it was the People's obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records" to satisfy the People's obligations under CPL 245.20 (1) (k) (iv) (Hamizane, 80 Misc 3d at 11 [emphasis added]). The court rejected the argument, which the People make here, that their disclosure obligations are [*5]limited to information that relates to the subject matter of the case or to the prosecution of a charge (id. at 10-11, citing People v Garrett, 23 NY3d 878 [2014]). Indeed, the court held that "[i]mpeachment evidence is not limited to what is related to the subject matter of the charges{**81 Misc 3d at 1058} against a defendant" (id. at 11, citing Jayson C., 200 AD3d at 449).

However, the People contend that the same Appellate Term has reversed course in its subsequent decision in People v Weisman (81 Misc 3d 129[A], 2023 NY Slip Op 51248[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). In Weisman, the defendant was convicted of charges for violating Vehicle and Traffic Law §§ 1180 (b) and 306 (b). In its decision, the court noted that production of Giglio materials was not preserved for review and, therefore, affirmed the defendant's conviction. Nevertheless, the court stated that the People did not violate CPL 245.20 (1) (k) (iv) for not disclosing certain IAB files, as it was "undisputed that the contents of the IAB files [were] not 'relate[d] to the subject matter of the case' " (Weisman, 2023 NY Slip Op 51248[U], *2, citing CPL 245.20 [1]).

The court in Weisman does not explain why it included this discussion of the IAB files when the Giglio issue itself was not preserved for review, and was, therefore, not required to affirm the lower court's decision. In the absence of such explanation, this court must conclude that the discussion is dicta, as it was not "necessary to resolve [the] issue" (Matter of Doe v Rensselaer Polytechnic Inst., 172 AD3d 1691, 1692 [3d Dept 2019]). Dicta may not serve as controlling precedent (People v Rosano, 69 AD2d 643, 654 [2d Dept 1979], affd 50 NY2d 1013 [1980]). Accordingly, this court is not bound by Weisman.

[1] In accordance with Hamizane, the People were required to produce all underlying disciplinary records. If the People believed that certain information should have been withheld, they should have applied for a protective order under CPL 245.70 (People v Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *6 [Crim Ct, Queens County 2022]).

Lastly, with regard to the CCRB material, the People are not deemed to be in possession of this material automatically because the CCRB is not a law enforcement agency (People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U], *6 [Crim Ct, Kings County 2022]). However, having provided the documents, the People were required to produce them without redaction (Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *6).

Accordingly, the People's failure to fully disclose complete and unredacted disciplinary records, including CCRB records in their possession, renders the COC improper and invalid.{**81 Misc 3d at 1059}

b. DAS Report

[2] Defendant argues that the People were required to provide any DAS reports generated for this case. The People contend that DAS reports are not discoverable, and thus, did not need to be turned over to defendant. However, the People also admit that some DAS results may be discoverable under CPL 245.20 (1) (People's mem of law at 23). As such, "[t]he People cannot categorically refuse to disclose it" (People v Amir, 76 Misc 3d 1209[A], 2022 NY Slip Op 50856[U], *5 [Crim Ct, Bronx County 2022]). Rather, the People must produce their file for this matter, which includes the police's file (People v Rugerio-Rivera, 77 Misc 3d 1230[A], 2023 NY Slip Op 50069[U], *3 [Crim Ct, Queens County 2023]; Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *2). If the People are in possession of a DAS report with information that relates to this case, which the People do not deny, then the People must produce it. It is not for the People to determine what is discoverable (Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *1; People v Eleazer, 78 Misc 3d 1222[A], 2023 NY Slip Op 50316[U], *2 [Crim Ct, NY County 2023]).

Accordingly, this court finds that the DAS report is automatically discoverable under [*6]CPL 245.20 (1), and the People had a duty to produce it.

c. EMS Report for Complaining Witness

Defendant contends that the COC is invalid because the People failed to disclose the EMS report for the complaining witness in this matter. Pursuant to CPL 245.20 (1) (j),^[FN4] the People are required to disclose documents

"concerning physical or mental examinations . . . 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 were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing."

[3] In opposition, the People argue that they were not required to disclose the EMS report prior to filing their COC because it was not in their actual possession (People's mem of law at 30). However, the statute holds that the EMS report is automatically discoverable in any of three circumstances: if the report (1) was "made by or at the request or direction of" law {**81 Misc 3d at 1060}enforcement; (2) was made by a prosecution witness; or (3) will be a prosecution exhibit (see e.g. People v Rahman, 79 Misc 3d 129[A], 2023 NY Slip Op 50692[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023] [upholding the trial court's determination that EMS records were discoverable "because EMS provided treatment to the complainant at the request or direction of the NYPD"]). As the People are in the better position than the defendant to know if any of these circumstances apply, the People have the burden of proof here. The People have not shown that all of these circumstances do not apply to the EMS report, and so that EMS report was discoverable pursuant to CPL 245.20 (1) (j).

This court credits the People's assertion that the EMS records are not within their possession. In that situation, the People are not required to provide the report, but they are required to exercise due diligence to ascertain the report's existence and make it available for discovery (Rahman, 79 Misc 3d 129[A], 2023 NY Slip Op 50692[U], *2, citing CPL 245.20 [2]). If and when these records enter the People's possession, they are required to disclose them automatically pursuant to CPL 245.20 (1) (j).

Here, the People state that they submitted a subpoena to obtain the EMS records on July 27, 2023. This attempt to procure the records was 115 days after the commencement of this action and 41 days after the filing of the COC and SOR. Based on the failure of the People to make any diligent effort to make the EMS records available for discovery prior to filing the COC and within the speedy trial time, the COC is invalid.

B. Dismissal of the Action

Because the top charge in this matter is a misdemeanor, the case must be dismissed when the prosecution is not ready for trial within 90 days of the commencement of a criminal action (CPL 30.30 [1] [b]).

There are at least 200 days charged to the People:

The criminal complaint in this matter was filed on April 3, 2023. Defendant was arraigned on April 4, 2023, and the parties next appeared on June 5, 2023, in Part AP3. 63 days charged.[*7]

At the appearance on June 5, 2023, the People answered not ready, and the matter was adjourned once more for the People's discovery compliance. The People filed and served their COC and SOR off-calendar on June 16, 2023. 11 days charged.{**81 Misc 3d at 1061}

The court finds that the SOR was illusory given the invalidity of the People's original COC. As such, the People's filings did not stop the running of the speedy trial clock (People v Brown, 214 AD3d 823, 825 [2d Dept 2023]), and all of the days between the People's filing of the COC (June 16, 2023) and defendant's filing of the instant motion (Oct. 20, 2023) are chargeable to the People. 126 days charged.

200 days charged.

The People have exceeded the 90 days permitted by CPL 30.30 to declare readiness for trial.

The People argue that the dismissal is not an appropriate remedy in this instance. The standard for filing a valid COC is clear, and the consequences for not filing a valid COC by the 90-day deadline are unambiguous. Dismissal is appropriate when the People's COC is invalid and the People were not ready for trial within the time prescribed by CPL 30.30 (Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *3; People v Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U], *6 [Crim Ct, NY County 2022]). "[A] showing of prejudice is not required to establish that a [certificate of compliance] is improper" (Hamizane, 80 Misc 3d at 10; People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020] ["(T)he 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 Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, NYLJ, June 6, 2022 ["One must distinguish this discretionary type of dismissal (in CPL 245.80), however, from a dismissal under CPL § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance"]). Early resolution of discovery disputes, with the court's assistance if needed, is far more preferable than the risk of dismissal, which is the consequence here. Accordingly, it is hereby: ordered that defendant's motion to dismiss the accusatory instrument is granted. The matter is ordered dismissed and sealed.