The People have filed a motion pursuant to CPLR § 2221 for leave to re-argue and/or renew the decision and order of the previous motion court dated February 3, 2023, which granted Defendant's motion to deem invalid the People's certificate of discovery compliance ("COC") and statement of trial readiness ("SOR") for the People's failure to fully comply with their discovery obligations under CPL article 245.

In determination of the instant motions, this court has reviewed the contents of the court file and all proceedings heretofore had herein. As set forth fully below, the court now grants the People's motion for re-argument of the prior court's decision and order; upon reconsideration, the court deems the People's May 11, 2022 COC valid as reasonable under the circumstances and based on due diligence; finds that the May 11, 2022 SOR was filed in good faith within the speedy trial period; and recalls and vacates the February 3, 2023 order to the People to file an application for an unsealing order.

Defendant was arraigned on March 20, 2022 on charges of Driving While Intoxicated (VTL § 1192[3]) and Driving While Impaired (VTL § 1192[1]). On May 11, 2022, the People filed their COC and SOR, followed by several supplemental COCs. To comply with CPL § 245.20 [1][k][iv], the People shared two CCRB files for the arresting officer, Dmitriy Lyubchenko, which disclosed a total of five allegations of misconduct with the following dispositions: exonerated, unfounded, complainant uncooperative, victim unidentified. (see, Taveras, at *3). In an additional "Giglio letter," the prosecutor disclosed that in a 2018 case in Bronx Criminal Court, Hon. Linda Poust-Lopez had found the testimony of Officer Lyubchenko [*2]to be "incredible" after a suppression hearing in a case charging similar violations of VTL § 1192, after which the case was dismissed by the People and sealed by the court. The ADA shared the case information and the written hearing decision, which was published in the New York Law Journal. (People v Francis Alifonso, NYLJ, April 19, 2019, p. 40, vol. 261, no. 75 [Poust-Lopez, J.]).^[FN1]

On August 26, 2022, Defendant filed an omnibus motion to dismiss all charges under CPL § 30.30 for the People's failure to fully comply with their discovery obligations under CPL § 245.20, or in the alternative, to suppress evidence and statements of Defendant. Defendant asserted that the following items of automatic discovery were not timely provided: i) underlying documents of CCRB allegations; ii) underlying documents of Officer Dmitriy Lyubchenko's incredibility finding in the 2018 case; iii) daily roll call log; iv) unexpired health permit; v) NYPD policy re field testing in DWI cases; vi) calibration, etc., records of the breath testing machine.

In opposition, the People contended that they had shared all CCRB material in their possession, and that based on their understanding of the law, they were not required to disclose underlying CCRB documents for exonerated or unfounded misconduct allegations. Nonetheless, after being ordered to do so by Hon. Valentina Morales at a discovery conference on August 2, 2022, the prosecutor made two follow-up requests for such material through her office's Discovery Compliance Unit ("DCU"). The DCU is the formal procedural channel created by the District Attorney's Office ("DAO") to facilitate a flow of information for discovery compliance, as required under CPL § 245.55. The ADA received no additional discovery material. She informed the court that the DCU had explained to her that the CCRB does not respond to requests for materials; instead, the CCRB provides to the DAO quarterly updates of CCRB reports of substantiated "or other" misconduct. (People's Affirmation in Opposition, October 28, 2022, p. 4). The prosecutor disputed Defendant's arguments that CPL § 245.20 [1] required them to provide sealed case records, noting that the DA's office does not have access to sealed files under CPL § 160.50. (People's Affirmation in Opposition, pp. 6-7). The People also asserted that they had earlier shared the daily roll call log, unexpired health permit for Officer Lyubchenko, and all calibration records for the six months on either side of the Defendant's arrest date, as required by CPL § 245.20 [1][s]. These items are reflected on the COC as supplemented.

On February 3, 2023, Judge Morales issued an amended decision and order which invalidated the People's May 11, 2022 COC but denied dismissal of the charges on speedy trial grounds, as 90 days of time chargeable to the People had not elapsed. (People v Taveras, 77 Misc 3d 1231(A), *2-3 [Crim Ct Bronx County 2023]). Judge Morales discounted the prosecutor's recitations of the efforts she had made to obtain the underlying CCRB and 2018 case documents and rejected the ADA's explanations for the inability to do so, which had been thwarted by the existence of CCRB procedures and the broad scope of the sealing statute. The judge held that because the People only consulted and relied on their internal DCU regarding the [*3]missing CCRB documents and had not moved to unseal the records of the 2018 case, they did not demonstrate the diligent, good faith efforts to obtain and provide discoverable impeachment material not in their possession as required under CPL § 245.20 [2]. (Id.). The court distinguished binding appellate caselaw denying People's unsealing applications as materially inapposite and thus inapplicable to the facts at bar and concluded that only the People had the authority to move to unseal the record in the 2018 case. (Id., at *6-8). Judge Morales ordered the ADA to file an application to unseal the 2018 case record to meet the People's Giglio disclosure obligations. On February 8, 2023, after Judge Morales had been transferred out of Bronx County Criminal Court, the People duly submitted the application to unseal the 2018 case to the court in part AP-3, which order remains unsigned. On February 17, 2023, the People filed the instant motion to reargue the February 3 decision and order of the prior court. Defendant opposes such motion.

The provisions of CPL § 2221 permitting reconsideration of a court's decision may be applied in a criminal action. (People v Merly, 51 Misc 3d 858, 860 [Sup Ct Bronx County 2016] [internal citations omitted]; People v DeFreitas, 48 Misc 3d 569 [Crim Ct NY County 2015]). Even were CPLR § 2221 inapplicable, however, the power to grant "re-argument" to correct mistakes or misapprehensions is inherent to judicial authority. (see, e.g., People v Godbold, 117 AD3d 565, 566 [1st Dep't 2014]; People v Baptiste, 70 Misc 3d 706, 708 [Crim Ct NY County 2020]). Here, the People have moved for "re-argument" under CPLR § 2221[d][2], and not "renewal" under CPLR § 2221[e][2], as they have asserted no new facts, but contend that the prior court overlooked or misapprehended matters of fact and law in determining the August 26 COC challenge motion.

A motion to reargue must be made to the judge who signed the order unless they are unavailable. Judge Morales is no longer sitting in Bronx County Criminal Court; thus the motion is properly before this court for determination. (CPLR § 2221 [a]; C & N Camera & Electronics, Inc. v Service Mutual Insurance Company, 210 AD2d 132, 133 [1st Dep't 1994], cited in People v Davis, 27 Misc 3d 1226(A) [Sup Ct Bronx County 2010]; Billings v Berkshire Mut. Ins. Co., 133 AD2d 919, 919—20 [3d Dep't 1987]). This court finds it a prudent exercise of discretion to grant the People's motion to reargue Defendant's August 26, 2022 omnibus motion, (see, People v Oceanside Institutional Indus., Inc., 15 Misc 3d 22, 25 [App Term 2d Dep't 2007], and upon reconsideration, the Court finds as follows:

1. The People demonstrated diligence in their effort to provide the required material under CPL § 245.20[1][k][iv], and their compliance was reasonable under the circumstances.

2. The People were improperly ordered to file an application for an unsealing order, as such is prohibited under CPL § 160.50. Such order is recalled and vacated.

3. Defendant is entitled to have access to the records in the 2018 case.

4. The May 11, 2022 COC as supplemented is valid, and the SOR of the same date was a good faith declaration of the People's trial readiness, tolling the speedy trial time.

5. Suppression of evidence is denied except to the extent that pre-trial hearings are ordered pursuant to Huntley/Dunaway/Mapp/1194/Sandoval/Ventimiglia.

The COCs filed by the People indicate that three of the six items alleged to be missing already have been shared with Defendant (the daily roll call log, unexpired health permit, and [*4]calibration, etc. records of the breath testing machine), and Defendant's contention regarding the fourth item (that the People are required to disclose NYPD policy regarding alcohol field testing of non-English-speaking suspects) is unsupported by the express terms of the statute. The court will address only the potential impeachment material under CPL § 245. 20 [1][k][iv] (the underlying CCRB records and the records from the 2018 case).

The extent of police impeachment material required to be disclosed preceding the filing of a valid COC remains an evolving area of litigation with little clear appellate guidance. (People v Montgomery, 74 Misc 3d 551 [Sup Ct NY County 2022]; Hudson Police Loc. 3979 v Bower, 73 Misc 3d 1063, 1067 [Sup Ct Columbia County 2021] [internal citations omitted]). Nonetheless, the court finds that the February 3 order invalidating the COC and SOR misapprehended the facts and the law.

The CCRB is not a law enforcement agency. As such its records, available to the public via an open database, are not imputed to the People's constructive possession but are equally accessible to both sides in a criminal case and are outside the scope of automatic discovery. (People v Perez, 73 Misc 3d 173, 183-184 [Crim Ct 29021]; People v McKinney, 71 Misc 3d 1221(A)). Therefore, the court finds persuasive decision of courts of concurrent jurisdiction which have held that the People's responsibilities are discharged under CPL § 245.20 [2] if they demonstrate a diligent effort to obtain and provide those records. (see, e.g., People v Altug, 70 Misc 3d 1218(A), 2021 WL 728654 [Crim Ct NY County 2021]; People v Kelly, 71 Misc 3d 1202(A) [Crim Ct NY County 2021]).

The legislature included the People's actual receipt of impeachment material as a separate triggering event for its "expeditious" disclosure to defendants. (CPL § 245.20[1][k]). This separate specific time frame supersedes the more general disclosure time requirements of article 245 and underscores the legislature's intent that impeachment material is not part of initial automatic discovery. (Statutes § 238; People v Martin, 71 Misc 3d 1211(A), *1-2 [Erie County Ct 2021]; People v Lawrence, 64 NY2d 200, 236 [1984]).^[FN2] Thus delayed disclosure of Giglio material should not invalidate an otherwise timely filed COC. The Court also finds persuasive, and here follows, those cases holding that underlying documents regarding exonerated or unfounded allegations need not be disclosed. (People v Montgomery, 74 Misc 3d 551 [Sup Ct NY County 2022]; People v Martin, 71 Misc 3d 1211(A), [Erie County Ct. 2021; People v Randolph, 69 Misc 3d 770 [Sup Ct Suffolk County 2020]).

The measure of the People's discovery compliance in providing material outside of their possession is not their success in doing so within the speedy trial period, but their exercise of diligent efforts to obtain it and good faith in disclosing it expeditiously upon receipt, without the need to resort to the use of a subpoena duces tecum. (CPL § 245.20 [2]; see also, e.g., People v Harris, 77 Misc 3d 1207(A) [Sup Ct Queens County 2022]). Contrary to the decision of the prior court, this court finds that the COC should not have been invalidated by the People's failure to procure underlying documents not in their possession or control despite their reasonable efforts. The People properly utilized the institutional procedures created for the flow of [*5]information to obtain and provide the underlying CCRB documents. (CPL § 245.55). The prosecutor adequately described her efforts based on her understanding of the law and explained the operating procedures that thwarted her success in procuring the underlying documents to which Defendant has equal access. (CPL § 245.50 [1-a]). The People have fulfilled their obligations under article 245 regarding CCRB records. If the CCRB provides the underlying documents at issue via their quarterly reports, the People are directed to disclose them "expeditiously upon receipt." (CPL § 245.20 [1][k]). If Defendant finds that the currently provided information is insufficient, he can request a judicial subpoena duces tecum for the records.

Judge Morales concluded that the phrase in CPL § 245.20 [1][k] requiring the People to obtain and disclose "all evidence and information" tending to impeach a witness was a "legal mandate the nature of which would be impossible to fulfill without unsealing criminal records." (NYS Comm'n on Judicial Conduct v Rubenstein, 23 NY3d 570 [2014][ Judiciary Law § 42 [3] specifically grants the Commission broad access to all information from "any court" to fulfill its investigatory mandate]). Finding that "all evidence and information" included records outside the people's control, the February 3 decision rendered superfluous the express exemption provision of § 245.20 [2], ignoring its clear legislative intent that the prosecution need not obtain documents by court order which defendants can similarly access. This the court may not do. (People v Lustig, 68 Misc 3d 234, 243—44 [Sup Ct Queens County 2020]["The Legislature clearly did not intend such an onerous requirement to provide defendants with impeachment material related to one of their witnesses"]).

Despite the clear legislative intent, the judge decided that unsealing orders are qualitatively different from subpoenas duces tecum; therefore CPL § 245.20 [2] did not prevent her from ordering the People to apply for an unsealing order to fulfill their discovery requirements. This was a judicial expansion of the People's grant of authority under CPL § 160.50 and their obligations under CPL § 245.20 [1][k][iv], and improperly compelled the People to do that which they are forbidden to do by both statutes. (People v Davis, 67 Misc 3d 391 [Crim Ct Bronx County 2020]).

Courts do not have the liberty to "legislate under the guise of [statutory] interpretation" by construing one provision of a statute in a way which nullifies another. (Statutes § 98; People v Anonymous, 34 NY3d 631, 642 [2020], citing People v Finnegan, 85 NY2d 53, 58 [1995]; see also Statutes § 231; McCluskey v Cromwell, 11 NY 593, 603 [1854]). Instead, courts must construe statutes to harmonize their provisions, giving effect to every part thereof, and neither rejecting provisions as superfluous nor supplying a provision by implication on which the law was silent. (Statutes §§ 74, 97, 231, 363; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995], cited in People v Simmons, 203 AD3d 106, 111 [1st Dep't 2022] lv denied 38 NY3d 1035; Jarl Co. v Village of Croton-on-Hudson, 148 Misc 150, 153 [1924], affd 262 NY 551 [1933]).

Had the legislature intended the People's article 245[1][k][iv] obligations to override the express exemption provision of CPL § 245.20 [2] and limits of CPL § 160.50, it would have included such provision therein, or amended the latter statute to so state. The legislature's failure to do either must be construed by courts as intentional. (Statutes §§ 73, 74). A harmonized construction of the limitation provisions of both CPL §§ 160.50 and 245.20 [2] compels the conclusion that the People cannot be ordered to obtain discovery by court order. (Statutes § 98, [*6]CPL § 245.20 [2]).

Nor is the prior court's construction supported by existing discovery jurisprudence. (see, People v McGuire, 196 AD3d 1155, 1156 [4th Dep't 2021], lv denied, 37 NY3d 1163 [2022], reconsideration denied, 39 NY3d 964 [2022] [People's Rosario and Brady obligations are limited to materials under their possession or control, excluding court transcripts which they did not order and which were held by the court]; People v Garrett, 23 NY3d 878, 890 [2014] [rejecting the position that prosecutors have an "affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witnesses"]).

Although the Court of Appeals has recognized courts' power to unseal where there is a specific statutory grant of authority for a specific purpose, (New York State Comm'n on Jud. Conduct v. Rubenstein, 23 NY3d, at 581), and granted that "cases may arise in which the exercise of a power to unseal would be appropriate," (Hynes v Karassik, 47 NY2d 659, 664 [1979]), the power does not reside with the prosecution. The Court uniformly construes the CPL § 160.50 sealing exceptions narrowly and eschews efforts by the prosecution and lower courts to override the very clear terms and legislative policy of CPL § 160.50, decrying courts' attempts to achieve what they may perceive to be a better outcome under the umbrella of "dubious" inherent authority. (Anonymous, 34 NY3d, at 643-644; see also, Comm'n on Judicial Conduct v Rubenstein, 23 NY3d 570; Katherine B. v Cataldo, 5 NY3d 196 [2005]; Harper v Angiolillo, 89 NY2d 761 [1997]; Matter of Alonzo M., 72 NY2d 662, 668 [1988]; Matter of Dondi, 63 NY2d 331 [1984]; Hynes v Karassik, 47 NY2d 659; see, generally, People v FB, 155 AD3d 1, 8 [1st Dep't 2017]). The Court consistently emphasizes that additions to the few narrowly drawn exceptions to the broad sealing provisions of CPL § 160.50 "should be created by the Legislature, not by the court" (Matter of Joseph M., 82 NY2d 128, 133-134 [1993]), and recently noted that proposals to broaden exceptions to § 160.50 are repeatedly rejected by the legislature. (Anonymous, at 643-644).

In view of the foregoing, there is no judicially created authority for the People to apply for an unsealing order in this case. The prosecutor's disclosure obligations were fulfilled when she provided the Giglio letter regarding the judicial incredibility finding and shared with Defendant the case information and the published decision. (see, People v Goins, 208 AD3d 592 [2d Dep't 2022], lv denied 39 NY3d 962; United States v Teman, 465 F Supp 3d 277, 334-35 [SDNY 2020] [the government cannot be required to produce that which it does not control] [internal citations omitted]).

The above conclusion notwithstanding, the court agrees that in the court's administration of justice, the records of the 2018 case are discoverable. (Green v Giuliani, 187 Misc 2d 138, 151 [Sup Ct NY County 2000], citing Hynes v Karassik; see also, Matter of Stanley, 32 Misc 3d 897 [Sup Ct Kings County 2011]; People v Cruz, 1 Misc 3d 908(A) [Sup Ct Bronx County 2004], and see generally, People v Vega, 116 AD3d 454 [1st Dep't 2014]).

The sealing statute was passed to protect defendants "from public odium arising out of the disclosure" of their arrest, not to protect public servants from scrutiny after potential wrongdoing. (see e.g., In Re Central Screening Committee of the App Div, 28 Misc 3d 726 [Sup Ct Bronx County 2010]; Gebbie v Gertz, 94 AD2d at 171). The statutory privilege of confidentiality under CPL § 160.50 does not implicate a constitutional right, nor is it an absolute privilege. (People v Torres, 291 AD2d 273, 274[1st Dep't 2002], citing , Matter of Charles Q. v Constantine, 85 NY2d 571 [1995], and People v Patterson, 78 NY2d 711 [1991]; NYS Comm'n [*7]on Judicial Conduct v Rubenstein, 23 NY3d 570; Gebbie v Gertz Div. of Allied Stores, 94 AD2d 165, 171 [2d Dep't 1983]). In contrast, cross-examination of a witness and an opportunity to impeach based on prior bad acts(subject to certain discretionary limitations) is universally recognized as a pre-eminent truth seeking device, and an important aspect of the constitutional right of confrontation. (People v Rouse, 34 NY3d 269 [internal citations omitted]). Use of records from a sealed case for the purpose of cross-examination of a prosecution witness in that case does not appear to implicate any of the confidentiality considerations underlying the enactment of the sealing statute. (Matter of Stanley, 32 Misc 3d 897 [Sup Ct Kings County 2011], citing Matter of Joseph M, 82 NY2d 128, 131-132 [1993]). Thus, the statutory privilege of confidentiality under § 160.50 must yield to a defendant's constitutional right to confront a witness about their prior incredible testimony. (Id.; People v Davis, 67 Misc 3d 391, 399 [Crim Ct Bronx County 2020] [internal citations omitted]).

There is no absolute bar to cross-examination of a witness regarding a prior judicial determination that their testimony was unworthy of belief, provided that the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility. (People v Moore, 185 AD3d 472, 473 [1st Dep't 2020], citing Rouse, 34 NY3d at 275—280, People v Smith, 27 NY3d 652, 660 [2016], People v Sandoval, 34 NY2d 371, 376 [1974]).^[FN3]

While the People have no authority to apply for unsealing in this case, CPL § 160.50 [1][d] permits sealed criminal court records to be made available to the accused or to the accused's designated agent. Notably, Bronx Defenders represented Francis Alifonso in the 2018 case, and represents Defendant here. Though they may find it inconvenient to do so, Bronx Defenders could have sought permission from Francis Alifonso to access his sealed record, as could any party seeking access to sealed records. (New York Times Co. v Dist. Atty of Kings County, 179 AD3d 115, 124 [2d Dep't 2019]; Van Loon v Moskowitz, 172 AD2d 749 [2d Dep't 1991]; People v GV, 74 Misc 3d 171, 173 [Nassau County Ct 2021]).^[FN4]

The court does not find, however, that the 2018 case is a sealed record. After the case was dismissed and the record sealed, Francis Alifonso filed a civil lawsuit against New York City alleging false arrest and imprisonment, malicious prosecution, and other civil rights under 20 USC § 1983 arising out of the incident. That suit was settled in July 2020.^[FN5] This fact, not argued by either party nor considered by the prior judge, is dispositive of the question of how to access the records of the 2018 case.

When a statutory privilege is designed to protect an individual by keeping certain information or conduct secret, that protection may be deemed waived where the individual affirmatively places the information or conduct in issue. (Best v 2170 5th Ave. Corp, 60 AD3d 405 [1st Dep't 2009], citing Green v Montgomery, 95 NY2d 693, 700 [2001] ["The privilege of CPL 160.50 may not be used 'as a sword to gain an advantage in a civil action' "] [addl internal citations omitted]; People v Cruz, 1 Misc 3d 908(A); Kalogris v Roberts, 185 AD2d 335 [2d Dep't 1992]; Abrams v Skolnik, 185 AD2d 407 [3d Dep't 1992]; Gebbie v Gertz Div. of Allied Stores, 94 AD2d 165, 171). The prior judge overlooked these principles. The court should have held, as this court does now, that an unsealing order is unnecessary because the filing of a civil suit by Mr. Alifonso operated as a waiver of his confidentiality privilege provided by CPL § 160.50, and that the records of his 2018 case are accessible without an unsealing order. The information therein may be reviewed by the parties as potential impeachment material. Because the court record is accessible to both parties, the court finds that the People have no further discovery obligations in this regard.

The Court's decision in this regard should not be construed as a determination that cross-examination will be permitted into the incredibility finding or underlying facts of the 2018 case. At this point, the exculpatory value of any evidence therein is purely speculative, and whether it may be used for impeachment trial is subject to the court's discretion. Defendant is therefore ordered to review the records prior to the first schedule trial date and submit to the court those that he finds relevant and material as a source of cross-examination. The court will review such records to determine whether and to what extent the nature of Officer Lyubchenko's conduct in that case or the circumstances in which it occurred bear logically and reasonably on the issue of his credibility in this case. (People v Moore, 185 AD3d 472, citing People v Rouse, 34 NY3d 269).

In view of the foregoing, the Court finds that the COC filed on May 11, 2022 was filed in good faith upon due diligence and their discovery compliance was reasonable under the circumstances. Defendant's motion to invalidate the COC is denied.

Upon the Court's reconsidered finding that the People's discovery compliance was sufficiently diligent and reasonable under the circumstances, the Court also finds that the SOR of May 11, 2022 was timely filed to toll the speedy trial time on the fifty-second day after arraignment. Defendant's motion to dismiss on speedy trial grounds is denied.

Defendant's motions to suppress his statements to law enforcement as the fruits of an illegal arrest and because they were involuntarily made are denied except to the extent that the court will hold a combined pre-trial hearing as follows: Huntley/Dunaway/Sandoval/Ventimiglia.

The court grants the People's motion to reconsider the February 3, 2023 amended decision and order. Upon reconsideration, the court denies Defendant's motions to invalidate the COC and dismiss the information on speedy trial grounds. The People's application for an unsealing order is denied as improperly filed. Defendant's motions to suppress his noticed statements and prior bad acts or convictions are granted only to the extent that the Court orders pre-trial Huntley/Dunaway/Sandoval/Ventimiglia hearings to be held immediately prior to trial.

The February 3, 2023 decision and order is hereby vacated and replaced with the instant decision and order.

SO ORDERED.