County Court, Dutchess County, January 7, 2020

The Law Firm of William G. Sayegh, P.C., Carmel (Kiersten M. Schramek of counsel), for defendant.

William V. Grady, District Attorney, Poughkeepsie (Kristine M. Whelan of counsel), for plaintiff.

Defendant stands accused by the grand jury of the County of Dutchess of five counts of attempted murder in the first degree, a class A-II felony, in violation of sections 110.00 and 125.27 (1) (a) (i) of the Penal Law; one count of criminal possession of a weapon in the second degree, a class C armed violent felony, in violation of section 265.03 (1) (b) of the Penal Law; one count of criminal obstruction of breathing, a class A misdemeanor, in violation of section 121.11 (a) of the Penal Law; three counts of menacing in the second degree, a class A misdemeanor, in violation of section 120.14 (1) of the Penal Law; one count of criminal mischief in the fourth degree, a class A misdemeanor, in violation of section 145.00 (1) of the Penal Law; and two counts of endangering the welfare of a child, a class A misdemeanor, in violation of section 260.10 (1) of the Penal Law.

The grand jury returned the indictment on or about September 24, 2019. Defendant was produced in County Court for arraignment on the indictment on October 1, 2019. During that court appearance, the People filed and served a statement of readiness for trial. Because the results of a CPL article 730 psychiatric examination that had been ordered by a lower court had not yet been received, the matter was then adjourned to October 16, 2019.

At the October 16, 2019 appearance, the court determined that defendant is not incapacitated, and that he is fit to{**66 Misc 3d at 761} proceed. Defendant was arraigned on the indictment, and the People represented that they remained ready for trial. The court directed the People to file and serve a supplemental bill of particulars by October 31, 2019, and directed defendant to file a supplemental notice of intent to present psychiatric evidence by January 17, 2020. Finally, the court set an omnibus motion schedule which, inter alia, set a January 10, 2020 deadline for defendant to file reply papers, if any, to the People's answering papers opposing that motion.

By letter dated December 27, 2019, defendant has requested an extension of time to file reply papers. Defendant asserts that the defense is entitled to substantial pretrial discovery under the criminal justice reform legislation that went into effect on January 1, 2020. Defendant argues that this discovery is likely to contain information that would lead to a request for permission to file papers supplementing any reply that might be filed by the original January 10 deadline, and that granting an extension of that deadline until after the anticipated discovery is received would promote judicial economy and carry out the purposes of the new legislation.

The People oppose this application on the grounds that these discovery requirements are not applicable to cases in which the People stated their readiness for trial prior to the January 1, 2020 effective date of the criminal justice reform legislation. Specifically, the People assert that there is nothing in CPL article 245 stating that it applies retroactively. The People also assert that the court must issue an unsealing order before any transcripts of grand jury testimony can be released to defendant.

It has long been recognized that "[b]roader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence." (People v Copicotto, 50 NY2d 222, 226 [1980].) Until last week, the extent of those pretrial discovery obligations was defined by CPL article 240. However, effective January 1, 2020, CPL article 240 has been repealed and replaced by CPL article 245. This development represents a sea change in the statutory scheme governing pretrial discovery in a criminal action.

Under the former article 240 regimen, the onus was on the defendant to demand pretrial discovery. And the list of items that the People were obligated to produce upon receipt of that{**66 Misc 3d at 762} demand was fairly circumscribed (former CPL 240.20). In practice, the bulk of pretrial discovery in most criminal cases was deferred until the exchange of Rosario material, which was not statutorily mandated until after the jury was sworn (former CPL 240.45).

The newly enacted article 245 shifts the discovery burden by placing the onus on the People to make early disclosure of a broad array of material that was previously deferred until the eve of trial, including the testimony of all witnesses who appeared before the grand jury (CPL 245.20). Absent an application for a protective order, the People are obligated to make this initial, mandatory disclosure as soon as practicable, but not later than 15 days after the arraignment on an indictment (subject to an additional 30 day extension that is available under certain tightly limited circumstances) (CPL 245.10).

"While statutory amendments may be prospective or retrospective in effect, procedural statutes will generally be construed to operate retroactively." (People v Anderson, 306 AD2d 536, 536 [2d Dept 2003] [citation omitted].) "A finding that the statute is procedural, however, does not necessarily establish its application to cases already pending. The legislative intent remains the lodestar." (People v Sorbello, 285 AD2d 88, 94 [2d Dept 2001].)

[1] The legislative history to article 245 pounds a steady beat: that broad pretrial discovery is essential to a fair and just criminal justice system; that the discovery afforded by the former article 240 was unduly restrictive; and that the comprehensive discovery provided by article 245 will promote better and more efficient outcomes (Senate Introducer's Mem in Support, L 2019, ch 59, § 1, part LLL, § 2 [2019 NY Senate Bill S1716; 2019 NY Assembly Bill A1431]). Recognizing the goals that this legislation seeks to achieve, there is no plausible basis to interpret the broad discovery provisions of article 245 as being beyond the reach of pending indictments that were the subject of an earlier statement of readiness for trial.

Accordingly, to the extent that the People assert that article 245 is wholly inapplicable to this case, that argument is rejected. The People shall comply with their automatic discovery obligations under the statute within 15 days from the date of this decision and order.

[2] To the extent that the People assert that an unsealing order is required before the grand jury transcripts can be disclosed to defendant, that argument is also rejected. The{**66 Misc 3d at 763} disclosure of those transcripts is expressly authorized (and indeed, compelled) by CPL 245.20 (1) (b). Much like the production of Rosario material under former CPL 240.45 (1) (a), there is no need for an unsealing order authorizing the statutorily-mandated production of these grand jury minutes.

However, that automatic statutory disclosure obligation is limited to transcripts of witness testimony. It does not extend to any legal instructions that the People provided to the grand jury. Any request for discovery and inspection of those legal instructions will be considered in the exercise of the court's discretion during omnibus motion practice.

Finally, while the court finds that pending indictments are subject to the automatic disclosure requirements of article 245 on a going-forward basis, that holding is limited to the precise issue presented in this case: to wit, whether the People must provide automatic disclosure now that article 240 has been repealed and replaced with article 245. This holding does nothing to vitiate the statements of readiness for trial that the People previously communicated on the record, which were made under former article 240, and which predated the certificate of compliance and trial readiness provisions of CPL 245.50. To the extent that there is any question about whether the People's statement of readiness continued unabated upon the effective date of article 245, or whether it temporarily lapsed pending compliance with the certificate of compliance and trial readiness provisions of the new law, that question is not squarely before the court, and has not been decided. Based on the foregoing, it is hereby ordered that the parties shall comply with their respective discovery obligations under the newly enacted CPL article 245. The People are directed to comply with their initial, automatic disclosure requirements by January 22, 2020; and it is further ordered that defendant's time to file omnibus motion reply papers is extended to February 4, 2020; and it is further ordered that the People are granted permission to file surreply papers, in the event that defendant raises new factual or legal arguments on reply based upon information obtained as a result of the disclosure ordered herein. Those surreply papers, if any, shall be filed on or before February 11, 2020; and it is further ordered that the court conference previously scheduled for February 11, 2020, at 9:30 a.m. shall proceed as scheduled.