Supreme Court, Queens County, April 28, 2020

Janet Sabel, The Legal Aid Society, Queens (Danielle Welch of counsel), for defendant.

Melinda Katz, District Attorney, Queens (Alyssa Wanderon of counsel), for plaintiff.

Defendant Matthew Lustig is charged with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]) and theft of services (Penal Law § 165.15 [3]). He has challenged the validity of the People's certificate of discovery compliance (see CPL 245.50 [1]), asserting that the People have failed, in a myriad of ways, to comply with the disclosure requirements contained in article 245 of the Criminal Procedure Law, which took effect on January 1, 2020. The People counter that they have, in fact, satisfied their discovery obligations, and that the materials that defendant seeks are either not in their possession or control, have already been disclosed, or are not related to "the subject matter of the case" (CPL 245.20 [1]).

During a court-ordered discovery conference, the parties resolved the overwhelming majority of their disputes. Of the literally dozens of issues defendant had initially raised, the discoverability of only five categories of materials remained: (1) reports generated by searches of the New York City Police Department's "Domain Awareness System" and "Recidivist Tracking and Reporting Database"; (2) certain communications between law enforcement officials and witnesses and between law enforcement officials themselves; (3) the "contents" and "associated material" of a civil lawsuit filed in federal court against one of the police officers involved in this case; (4) the electronic raw data used in the DNA testing that was conducted in this case, as well as laboratory protocol manuals utilized by the Office of the Chief Medical Examiner (OCME) and the NYPD ballistics lab; and (5) any overtime vouchers that were submitted by police officers in this case. Defendant's motion, then, requires the court to decide whether these categories of materials are discoverable under the newly enacted discovery statute. 

In August of 2019, defendant was indicted for two counts of criminal possession of a weapon in the second degree and one count of theft of services. Approximately two months later, in connection with omnibus motion practice, the People provided{**68 Misc 3d at 237} defendant with a bill of particulars and four disks containing a variety of discovery materials, ranging from reports of ballistics and DNA analyses, to complaint follow-up reports (DD5s), to body camera and surveillance footage.

On January 1, 2020, New York's fundamentally reconceived criminal discovery statute took effect and, not long thereafter, the People filed a certificate of discovery compliance in accordance with CPL 245.50 (1). The 12-page document the People filed addressed each subdivision of CPL 245.20 (1)—the new discovery statute's "automatic discovery" provisions—indicating whether discoverable materials existed for each category and, if so, describing what the materials were and when and how they had been disclosed or made available for inspection.

On January 29, 2020, defendant filed a challenge to the validity of the People's certificate of compliance, alleging nearly 50 deficiencies (or at least potential deficiencies) with the People's purported satisfaction of their discovery obligations. Given these widely divergent views regarding the People's discovery compliance, the court ordered the prosecutor and defense counsel to "diligently confer to attempt to reach an accommodation as to [their] dispute[s] concerning discovery prior to seeking a [court] ruling" (CPL 245.35 [1]) on the myriad of issues raised by defendant's motion. The court directed defendant to file a revised motion after that conference.

Following the court-ordered discovery conference, and the filing of a discovery letter by defendant and an affirmation in opposition by the People, the parties agreed that they had "resolved the overwhelming majority of" challenges raised by defendant. The only issues defense counsel continued to dispute were the People's obligation to produce reports generated by the New York City Police Department's "Domain Awareness System" and "Recidivist Tracking and Reporting Database"; certain communications between law enforcement officials and witnesses and between law enforcement officials themselves; materials related to a civil lawsuit filed in federal court against one of the police officers involved in this case; the electronic raw data used in the DNA testing that was conducted in this case, as well as laboratory protocol manuals utilized by OCME and the NYPD ballistics lab; and any overtime vouchers that were submitted by police officers in this case. The court, accordingly, will only address those issues.{**68 Misc 3d at 238}

New York's recently enacted article 245 of the Criminal Procedure Law significantly broadened the scope of the prosecution's discovery obligations.^[FN1] CPL 245.20 (1) now provides that a prosecutor "shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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" (emphasis supplied). Unlike its predecessor, CPL 240.20 (1), which delineated a discrete list of items that were required to be disclosed, the new discovery statute lays out a non-exhaustive list (see CPL 245.20 [1] [defining the People's discovery obligations by outlining a number of categories of materials that must be disclosed, but noting that the People's compliance is "not limited to" those materials]). The list is so expansive 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, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10). And, in case any doubt arises about whether a particular item must be disclosed, the statute includes an explicit "presumption in favor of disclosure [that applies] when interpreting" the prosecution's discovery obligations (CPL 245.20 [7]).

A significant component of the new discovery statute is the requirement that the prosecution certify its discovery compliance in writing. The certificate of compliance must "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. It shall also identify the items provided" (CPL 245.50 [1]). The filing of a certificate of compliance is a prerequisite to asserting trial readiness under CPL 30.30 (see CPL 245.50 [3]); however, "[n]o adverse consequence to the prosecution . . . shall result from the filing of a certificate of compliance in good faith" (CPL 245.50 [1]).{**68 Misc 3d at 239}

The DAS and RTRD Search Results

The first set of items in dispute are search results from the NYPD's Domain Awareness System (DAS) and Recidivist Tracking and Reporting Database (RTRD). According to the People, DAS "is a central platform used by [the NYPD] to collect data" about criminal defendants (or, in some cases, witnesses) which searches, among other police department sources, crime reports, license plate readers, and "a network of cameras." The DAS search of defendant revealed his pedigree information, information regarding two car accidents, and information about a 1994 arrest as well as "probation information that stemmed from that case." It also included the arrest report related to this case, which, the People state, has already been disclosed to the defense.

RTRD, the People indicate, and as its name implies, "tracks personal information and prior arrests of suspects and defendants." A search of that database in connection with this investigation revealed "defendant's own private information and his limited arrest history."

[1] In the People's view, none of the information derived from these searches—aside from the (already disclosed) arrest report from this case that was among the results of the DAS inquiry—"relate[s] to the subject matter of the case" and therefore does not need to be produced to the defense. But, both the DAS and the RTRD were used by the NYPD as investigative tools to gather information about defendant. And, clearly, the officers who ran these searches thought they had the potential to yield information that would enhance their investigation of the weapons possession charges for which he was arrested.

True, based on the People's description of the results of the searches, they would seem to have little, if any, relevance to this case. But the court is disinclined to hold that materials in a police investigative file are not related "to the subject matter of the case" simply because, in the People's estimation, they appear to be of minimal value (cf. People v Giuca, 33 NY3d 462, 475 [2019] ["the nondisclosure of material evidence (is not) excused by the good faith belief of the prosecutor that the material was not relevant"]), particularly given the statutory presumption favoring disclosure (CPL 245.20 [7]). Indeed, the court agrees with Judge Donnino's opinion that,

"[i]f something is in the prosecutor's file (or that of the police investigating agency) that does not fall{**68 Misc 3d at 240} within one of the defined items of disclosure, it should invariably 'relate to the subject matter of the case' and will need to be disclosed, unless it constitutes 'work product' [CPL 245.65] or material subject to a protective mandate by statute or court order [CPL 245.70]" (Donnino, Practice Commentary, CPL 245.10).

Beyond that, even though the DAS and RTRD searches in this case were not particularly productive from the People's perspective, the fact remains that, in other cases, they will almost certainly be the source of Sandoval or Molineux material, which the prosecution has an obligation, under CPL 245.20 (3), to disclose to the defense. In that sense, then, the results from these database searches will, quite frequently, relate to the subject matter of the case, especially where the defendant decides to exercise his right to testify on his own behalf.

In short, the People were required to disclose the DAS and RTRD search results, and are therefore ordered to do so, subject to any redactions that may be appropriate.

Summaries of Oral Communications Made to and between Law Enforcement Officials

Defendant further contends that the People are required to disclose several categories of communications between law enforcement officials and civilian witnesses, and between law enforcement officials themselves. Many of these recorded communications constitute Rosario material (see People v Rosario, 9 NY2d 286 [1961]), and must be disclosed, and the People do not argue otherwise. Beyond that, though, defendant also appears to suggest that the People must summarize and then disclose unrecorded statements made by individuals who possess information about the facts of this case. The court disagrees.

Prior to the enactment of the new discovery statute, it was well-settled that the People had no obligation to, in effect, create discovery for a defendant. In People v Steinberg (170 AD2d 50 [1st Dept 1991]), for example, the First Department explained that a prosecutor is obligated to disclose written or otherwise recorded statements under Rosario and its previous statutory equivalent, CPL 240.45 (1) (a). That obligation, however, extended only to "written or recorded" statements, and prosecutors were not required to transcribe or take notes during witness interviews so that oral statements were covered by the rule (Steinberg, 170 AD2d at 76; see also Matter of Catterson v Rohl, 202 AD2d 420, 423 [2d Dept 1994] ["nothing in {**68 Misc 3d at 241}the Rosario line of cases in any way imposes an obligation on the prosecutor to create Rosario material in interviewing witnesses"]).

[2] The new discovery statute did not alter this long-held understanding of the discoverability of unrecorded witness statements. Although CPL 245.20 (1) (e) requires the disclosure of statements made by a broader category of individuals than CPL 240.45 (1) did—namely, "[any] persons who have evidence or information relevant to any offense charged or to any potential defense thereto" (CPL 245.20 [1] [e]), as opposed to only those people whom the prosecution intends to call as witnesses (CPL 240.45 [1] [a])—the statements required to be disclosed are still limited to those that are "written or recorded or summarized in any writing or recording" (CPL 245.20 [1] [e]). Had the legislature intended to depart from well-settled law by imposing an affirmative burden upon law enforcement to provide summaries of oral communications, it could have easily added statutory language to that effect. The legislature, however, did not do that; it, instead, expressly maintained the status quo. Thus, the People are not obligated to summarize and disclose any oral communications between civilian and law enforcement witnesses or among law enforcement witnesses themselves.^[FN2]

Documents Pertaining to Civil Lawsuits against NYPD Witnesses

A third disputed issue is whether the People were required to provide the "contents . . . and associated material" of a civil lawsuit filed in federal court against one of the police officers involved in this case—which stems from the officer's alleged misconduct in an unrelated matter—as opposed to simply providing the name of the lawsuit and its docket number, which the People did disclose. Defendant asserts that the new discovery statute imposes a burden on the People to gather these publicly available documents and provide them to the defense. The People, relying on the Court of Appeals' decision in People v Garrett (23 NY3d 878 [2014]), disagree.

CPL 245.20 (1) (k) (iv) provides, as relevant here, that the People must disclose to the defense "[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{**68 Misc 3d at 242} case, that tends to . . . impeach the credibility of a testifying prosecution witness." This provision essentially codifies one aspect of the People's obligations under Brady v Maryland (373 US 83 [1963]) (see Donnino, Practice Commentary, CPL 245.10 [noting that "(p)aragraph (k) contains a listing of information favorable to the defendant that must be disclosed (whether in 'tangible' form or not) drawn from Brady v Maryland"]). As with all of the other automatic discovery provisions, the People are only required to produce information that is in their "possession, custody or control," or the possession, custody or control of other entities under the People's "direction or control" (CPL 245.20 [1]).

In Garrett, one of the detectives involved in obtaining a murder confession from the defendant was (perhaps [see Garrett, 23 NY3d at 884 n 1]) the subject of a federal lawsuit that accused him of coercing a confession from a suspect in an unrelated arson case (id. at 883). The District Attorney's Office had no knowledge of the lawsuit until after defendant had been convicted and sentenced (id.). Nevertheless, he argued in a post-conviction motion that the failure to disclose the lawsuit constituted a Brady violation and entitled him to a new trial.

The Court of Appeals disagreed, reasoning that the prosecution had not "suppressed" favorable impeachment evidence from the defense (id. at 886). The Court acknowledged that, ordinarily, the People are imputed "with knowledge of exculpatory information in the possession of the local police, notwithstanding the trial prosecutor's own lack of knowledge" (id. at 887 [internal quotation marks omitted]). But there are limits to this principle. For example, "[a] police officer's secret knowledge of his own prior illegal conduct in [an] unrelated case[ ] will not be imputed to the prosecution for Brady purposes where the People had no knowledge of the corrupt officer's 'bad acts' until after . . . trial" (id. at 878-888 [some internal quotation marks omitted]). That was the case in Garrett and, therefore, there was no Brady violation.

In the People's view, Garrett resolves the question of whether they have an obligation to produce the "contents" of the federal lawsuit against one of the officers involved in this case because, just like in Garrett, the allegations of misconduct pertain to an unrelated matter. But Garrett did not turn on that distinction; in fact, the Court of Appeals agreed with the defendant that the allegations against the detective, although related to a different criminal investigation, "were favorable to defendant as {**68 Misc 3d at 243}impeachment evidence" (id. at 886). The reason there was no Brady violation was that the People had no knowledge of the lawsuit until after the defendant's trial had concluded.

The opposite is true here. The People are aware of the federal lawsuit's existence, which, of course, is why they disclosed it to the defense. The only question, then, is whether the People must take the additional step of providing to the defense the various filings related to the lawsuit. The court concludes that they do not.

[3] It is true, as defendant points out, that CPL 245.20 (2) requires the prosecution to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control." But that provision goes on to say that the "prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL 245.20 [2]), which suggests that this provision is not meant to make the prosecution obtain documents that are not in its possession or control that the defense can just as easily obtain.

In the case of filings related to federal lawsuits, they are publicly available, but not free (see Ann E. Marimow, Should the public pay a dime for access to court records?, Washington Post, Feb. 3, 2020, available at https://www.washingtonpost.com/local/legal-issues/should-the-public-pay-a-dime-for-access-to-court-records/2020/02/02/578fa488-42d1-11ea-b5fc-eefa848cde99_story.html [noting that "(t)he federal judiciary charges 10 cents per page to pull up court files from its online record repository"]). And a lawsuit could easily entail dozens of filings. Defendant, however, does not indicate how many of these documents would need to be disclosed to satisfy the People's obligation to provide the defendant with impeachment material. He simply states that he is entitled to the lawsuit's "contents" and "associated material[s]," whatever that might mean. Interpreted expansively, defendant's request could require the disclosure of hundreds, if not thousands, of pages of documents, all at the cost of ten cents per page.

The court believes that such an onerous requirement would go far beyond "a diligent, good faith effort" (CPL 245.20 [2]) on {**68 Misc 3d at 244}the People's part to provide the defendant with impeachment material related to one of their witnesses (cf. Garrett, 23 NY3d at 890 [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"]; compare People v Todd, 67 Misc 3d 566, 570-571 [Sup Ct, Queens County 2020] [CPL 245.20 (2) required that the People attempt to ascertain the names of witnesses who anonymously called 911]). It would, indeed, require the People to bear the costs of obtaining documents that are equally available to defendant. And such a requirement would, in this court's view, be counterproductive since it would incentivize prosecutorial ignorance about lawsuits involving police witnesses, because knowledge of them would drastically increase their discovery obligations. The court does not believe that the legislature intended that result.

The court, in short, concludes that by disclosing the existence of the lawsuit against the officer, the People met their obligations under CPL 245.20 (1) (k) (iv).

Electronic Raw Data Used in DNA Testing and Laboratory Protocols

Defendant also argues that the People's certificate of compliance was invalid because, at the time it was filed, they had not provided to the defense "the ERD or 'raw data' for DNA testing and STRmix outputs" conducted by OCME.^[FN3] The court disagrees.

CPL 245.20 (1) (j) requires the disclosure of

"[a]ll reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning . . . scientific tests or experiments or comparisons, 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."

The People do not dispute that raw DNA data is discoverable under this provision. Instead, they contend that, since OCME is not under their control, they were not obligated to provide{**68 Misc 3d at 245} this information to the defense in order to certify their discovery compliance.

The People's position is supported by section 245.20 (1) (j)'s express recognition

"that information required to be disclosed [under this subdivision] may emanate from a 'forensic science laboratory or similar entity not under the prosecution's direction or control'; accordingly in its last sentence, the statute authorizes 'a party' to have a court issue a subpoena or other order 'to cause' the materials to be disclosed" (Donnino, Practice Commentary, CPL 245.10, quoting CPL 245.20 [1] [j]; see also CPL 245.20 [2] [requiring a "diligent, good faith effort (from the prosecutor) . . . to cause (discoverable) material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control," but not requiring the prosecutor "to obtain by subpoena duces tecum material or information which the defendant may thereby obtain"]).

[4] It is well settled that OCME is an independent, non-law enforcement agency that is not within the direction or control of New York City's District Attorneys' offices (see People v Washington, 86 NY2d 189, 192 [1995] ["it is clear that the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor, and that OCME is not a law enforcement agency"]; see also People v John, 27 NY3d 294, 308 n 5 [2016] [acknowledging OCME's "independen(ce) of law enforcement for purposes of the People's discovery obligation(s) under (former) CPL article 240"]; People v Tsintzelis, 153 AD3d 558, 558 [2d Dept 2017] [holding that raw DNA data "was not in the possession or control of the People"], revd on other grounds 35 NY3d 925 [2020]). Defendant does not argue otherwise.

Accordingly, the People did not have to obtain the raw DNA data from OCME and then provide it to the defense in order to validly certify their discovery compliance, since defendant could have obtained it himself from OCME by subpoena or court order. That the People did, later, obtain and disclose the raw data simply demonstrates the overall seriousness with which{**68 Misc 3d at 246} they have endeavored to meet their discovery obligations in this case.

The court likewise rejects defendant's assertion that the People were required to provide him with laboratory "protocol manuals" from OCME and the NYPD ballistics lab.^[FN4] CPL 245.20 (1) (j) contains no such requirement. Instead, as the People correctly point out, the statute requires the disclosure of any "preliminary or final findings of non-conformance with accreditation, industry or governmental standards or laboratory protocols" (CPL 245.20 [1] [j])—of which, in this case, there were none, the People report. There was, then, nothing in this regard to disclose.^[FN5]

Moreover, as a practical matter, the court notes that the relevant OCME laboratory protocols appear to be available online (see NYC Office of Chief Medical Examiner, Department of Forensic Biology, https://on.nyc.gov/353e9nd [publishing "Protocols for Forensic STR Analysis Manual" and "Protocols for Mitochondrial DNA (mtDNA) Analysis Manual"]). So, certainly, the defense cannot complain about lack of access to those materials.

And, regarding the defense's supposed need for the NYPD ballistics lab's protocol manuals, the court is skeptical. Indeed, this is not a case in which ballistics analysis, for example, linked a spent shell casing to a particular firearm. This is, rather, a simple gun possession case. Thus, the ballistics analysis relevant to these charges would seemingly be limited to the relatively straightforward issue of testing the operability of{**68 Misc 3d at 247} the gun and ammunition. Therefore, even if the court were to agree with the defendant that, in some scenarios, CPL 245.20 (1) (j) contemplates the production of materials (like laboratory protocol manuals) that are not specifically enumerated in that subdivision, he has failed to articulate why this is such a case.

Overtime Vouchers

Finally, defendant argues that the People were required to disclose any overtime vouchers submitted by police officers in connection with this case. The court agrees with the People that overtime vouchers fall outside the scope of their discovery obligations, expansive though they may be, because the vouchers do not "relate to the subject matter of the case" (CPL 245.20 [1]). As the First Department observed, in rejecting a claim that an overtime voucher constituted Rosario material, an "overtime voucher contains no factual assertions about or descriptions of the events" underlying the charges (People v Watkins, 157 AD2d 301, 313 [1st Dept 1990]). Consequently, any overtime vouchers related to this case are not discoverable.

In sum, the court grants defendant's motion only to the extent that it directs the People to disclose to the defense the results of the NYPD's DAS and RTRD searches. In all other respects, defendant's motion is denied.

The court, moreover, finds the People's certificate of compliance to be valid, since it was clearly filed "in good faith" (CPL 245.50 [1]). Therefore, "[n]o adverse consequence to the prosecution . . . [should] result" (id.) from the fact that the certificate was filed prior to the disclosure of the DAS and RTRD search results. The People's position that those reports do not relate to the subject matter of the case was not at all unreasonable and was supported with logical arguments.

What is more, no one disputes that the new discovery statute represents a dramatic departure from its predecessor. So, it is inevitable that litigants will legitimately debate, and courts will then have to interpret, certain aspects of the statute's new requirements. Given this learning curve, a court should not invalidate a certificate of compliance simply because it ultimately rejects a good faith argument made by the prosecution about the discoverability of particular kinds of materials or information, especially when, as in this case, the People{**68 Misc 3d at 248} have been demonstrably diligent in satisfying their discovery obligations.^[FN6]