County Court, Nassau County, April 28, 2020

Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City (Bruce Barket of counsel), for defendant.

Madeline Singas, District Attorney, Mineola (Arlene Markarian of counsel), for plaintiff.

Defense orally moved for a hearing to challenge the validity of the People's certificate of compliance and statement of readiness.^[FN1] A hearing was held on March 11, 2020. Below is the court's decision denying a defense request to void the People's certificate of compliance. The court finds the People properly announced ready for trial on February 5, 2020. Defense obligations pursuant to CPL 245.20 (4) have commenced.^[FN2]

Facts

On October 29, 2017, at 1:25 a.m., it is alleged that the 38 year old defendant entered his mother's bedroom where she was sleeping, climbed on top of her and aggressively punched and bit her about the face, head, neck, chest and back. He is further alleged to have thrown his mother off her bed and into the wall and dresser. This assault is reported to have lasted approximately 20 minutes and resulted in his mother losing several teeth and suffering facial fractures, bruising, swelling and lacerations. At some point during the altercation, the defendant's nine year old son entered the room to intervene. The defendant fled the home with the child and hid in a nearby wooded area with the child in an effort to evade the police. Once located, the defendant refused to be handcuffed.{**68 Misc 3d at 374}

Procedural History

The defendant was indicted on multiple charges on September 5, 2018, and arraigned on the indictment on September 13, 2018. The People announced ready for trial and remained in a trial ready posture under the controlling statutes for that time period. Current counsel was retained in later October 2018 and a plea offer was discussed between the parties. In December 2018 a motion schedule was agreed upon and defense discussed the possibility of utilizing a psychiatric expert and a drug expert related to the defendant's state of mind at the time of the alleged crime. Justice Robert McDonald issued a decision and order on June 28, 2019, and the case was set down for pretrial hearings on July 16, 2019.

On August 1, 2019, the case was transferred to the Trial Assignment Part in an effort to move the case to hearing and trial. Between August 1, 2019, and December 20, 2019, discussions and motion practice were undertaken related to the lack of information provided by defense regarding their psychiatric defense. The People moved to preclude the psychiatric defense and defense argued he provided sufficient information for the People to proceed with an exam by their psychiatrist. Because discovery reform took effect on January 1, 2020, this court issued a decision dated January 6, 2020, advising both the People and the defense to comply with the new statute, thereby deferring decision on preclusion until the time frame passed for defense to file reciprocal discovery and a certificate of compliance with appropriate documentation related to their potential defense.

On December 20, 2019, defense was given an opportunity to pick an adjourn date in the new year. Defense chose January 15, 2020. This court determined that it would use the date the defense picked in January as the date that "30.30 time" would start to accrue against the People if they had not filed a certificate of compliance or a statement of readiness under the new discovery laws. Thus, the People, despite having previously been ready under the prior statute, were now being "charged time" under the new statute.

The People filed their first certificate of compliance on February 5, 2020 (court exhibit 5). Within that filing, the People advised defense that they were awaiting the curriculum vitae of Dr. Sarah Isasi; they advised that the Crime Victims Board assisted the victim/mother with medical expenses and disclosed the notes they were provided; and they advised that they had{**68 Misc 3d at 375} not yet determined what physical evidence would be introduced at trial. The People thereafter certified that they exercised due diligence in obtaining discovery and certified compliance. On February 10, 2020, the People filed supplemental discovery and recertified compliance (court exhibit 6). That filing contained the curriculum vitae of expert Roseman, née Isasi. It likewise advised that Police Officer (PO) Kerstiens' memo book was still outstanding because he was on military leave. The People previously provided the memo book of PO Kerstiens' partner. These two officers were part of a transport team for a "fit for confinement" evaluation. Thereafter, on February 14, 2020, the People filed a "2nd Supplemental Automatic Discovery Form and Re-Certification" (court exhibit 7). In that document they provided additional information related to the defendant's transport to and from his "fit for confinement" examination; they provided the memo book of PO Kerstiens and the radio transmissions related to this assignment. The People provided additional information to defense on how to access the Nassau County OCME Forensic Laboratory website for manuals and certificates. All paper work directly related to testing had previously been provided. On February 26, 2020, the People filed their "3rd Supplemental Automatic Discovery Form and Re-Certification" (court exhibit 8). In that document they provide the curriculum vitae of two doctors and the proficiency tests of Sarah Roseman, née Isasi. They additionally provided recently received medical records of the victim obtained via subpoena and advised that they would provide additional medical records when and if received.

As a result of the first three filings, defense corresponded with the People about their disclosures. On February 5, 2020, defense sought clarification related to redactions within the provided discovery. The People responded via email on February 19, 2020 (court exhibit 4). On February 18, 2020, the defense sought 25 pieces of information related to memo books, unredacted paper work, additional curriculum vitae and other matters (court exhibit 1). The People responded to those requests, in writing, on February 25, 2020 (court exhibit 2).

Thereafter, on February 26, 2020, the defense challenged the validity of the People's certificates of compliance and statement of readiness and sought a hearing which was conducted on March 11, 2020. During that hearing, in addition to the court exhibits detailed above, the People submitted an affirmation of Assistant District Attorney Steven L. Schwartz which was{**68 Misc 3d at 376} received as court exhibit 3. During the hearing, the court asked counsels certain questions and sought certain information. The response was received on March 12, 2020, and was marked as court exhibit 9.

Compliance Hearing

The hearing started with the court acknowledging that CPL article 245 does not specifically authorize a "compliance hearing." As of May 3, 2020, the newly enacted CPL 245.50 (4) mandates that "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." It is still open for interpretation as to whether this "motion" must be in writing and whether it will trigger CPL 30.30 tolling for "motion practice." Regardless, both sides acknowledged that this hearing was authorized under CPL 30.30 (5) and agreed to proceed.

At the hearing, the defense argued, in sum and substance, that the People's filing of four certificates of compliance must cause the first three certifications to be illusory or void and thus the People could not have announced "ready for trial" until the final compliance certificate was filed.

The People argued that CPL article 245 allows for, and in fact mandates, the filing of multiple certificates of compliance and such subsequent filings do not negate the prior filings of the People if done in good faith and after diligent efforts were made to obtain the required materials.

Legal Analysis

CPL article 245 became effective on January 1, 2020. Certain amendments to the statute will be effective as of May 3, 2020. CPL 245.20 delineates the discovery that the People are required to provide to defense and CPL 245.10 (1) dictates the time frame under which this discovery is to be provided. CPL 245.50 (1) requires the People to serve upon defense and file with the court a certificate of compliance stating that they have met their discovery obligations. Only after such filing, may the People declare their readiness for trial pursuant to CPL 245.50 (3) and 30.30.

The People's declaration of readiness has been questioned by defense long before CPL article 245 became effective. Under this new law, however, the court must conduct a different inquiry to determine the validity of the People's readiness. The court is now required to delve into the accuracy and good faith filing of the newly established certificate of compliance.{**68 Misc 3d at 377}

Defense in this case argued that the filing of subsequent certificates of compliance was "a presumptive admission that [the People] failed" at their discovery obligations. (Hearing tr at 29 [Mar. 11, 2020].) He further argued that subsequent certificates of compliance, which are allowed by CPL article 245, are for newly discovered items and not for items the People knew existed but were having difficulty obtaining.

The court disagrees. First, the court notes that as of May 3, 2020, CPL 245.10 (1) mandates six time frames within which CPL 245.20 (1) discovery must be provided:

• "as soon as practicable" (CPL 245.10 [1] [a]); but

• not later than 20 days after arraignment if the defendant is in custody (CPL 245.10 [1] [a] [i]);

• not later than 35 days after arraignment if the defendant is at liberty (CPL 245.10 [1] [a] [ii]);

• 30 additional days after the initial discovery time frame without the need for court intervention;

• as dictated by the court pursuant to CPL 245.70 (2); and

• no later than 15 days before trial for certain Vehicle and Traffic Law and municipal code infractions (CPL 245.10 [1] [a] [iii]).

Interestingly, CPL 245.20 (1) details six additional time frames that extend the above requirements:

• grand jury testimony can be provided as late as 30 days before the first scheduled trial date (CPL 245.20 [1] [b]);

• expert opinion evidence can be provided as late as 60 days before the first scheduled trial date (CPL 245.20 [1] [f]);

• additional electronic recordings are allowed 15 days after a defense request (CPL 245.20 [1] [g]);^[FN3] • tangible property and its designation as trial evidence can be stayed without court intervention (CPL 245.20 [1] [o]);

• Vehicle and Traffic Law and computer offenses have varying time frames related to those charges (CPL 245.20 [1] [s], [u] [iv]).{**68 Misc 3d at 378}

CPL 245.60 acknowledges that there will be continued disclosure for information subsequently learned about and CPL 245.50 (1) provides that a supplemental certificate of compliance is mandated for information accounted for in CPL 245.60 and that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith." As of May 3, 2020, the good faith filing by the People must be "reasonable under the circumstances" as that language has been added to the statute.

The first question before the court is what meaning should be applied to the words "subsequently learns" as utilized in CPL 245.60. The Honorable Robert G. Main, Jr. of Franklin County rejected a defense request to apply a narrow interpretation of the words. In People v Nelson (67 Misc 3d 313 [2020]) decided February 10, 2020, he stated:

"Essentially, if the court accepted the defendant's narrow interpretation, then Criminal Procedure Law § 245.60 could be read to insulate the prosecution from any sanction if a police agency concealed information from the People, and then the People subsequently learned of the evidence, while simultaneously exposing the People to a sanction where the People disclose the existence of the evidence, in good faith, prior to actually obtaining a physical copy of it." (Id. at 316-317.)

Moreover, a narrow reading of CPL 245.60 and "subsequently learns" nullifies the words of CPL 245.50 (1) that state that no sanction is forthcoming for the filing of a certificate of compliance in good faith and reasonable under the circumstances. In this case, the subsequent discovery provided by the People consisted of several curriculum vitae, medical records received via subpoena, a memo book of an officer who is currently in the military, recordings and paper work associated with the transport of the defendant to and from his "fit for confinement" exam, proficiency tests and instructions on how the defense could access the internal documents of the Nassau County OCME Forensic Laboratory. Under a narrow reading of CPL 245.60, none of these documents would constitute that which the People "subsequently learn[ed]" about as the People advised defense the items existed and were forthcoming.

At the time of this hearing, the question before the court was whether the People are prohibited from filing a certificate of{**68 Misc 3d at 379} compliance until every document they know exists, and is held to be under their control, is physically turned over to the defense. The answer to that question required an analysis of the legislature's intent. If physical possession was required (because the discovery was not lost or destroyed [CPL 245.80 (1) (b)]), there would be no need for the statute to delineate varying time frames for discovery, or to discuss continuing discovery, or to state that no sanction should arise from the filing of subsequent certificates of compliance or to allow for filings of certificates of compliance in "good faith." Moreover, there would be no need for a sanctions section and no need for a "prejudice" evaluation as detailed in CPL 245.80. The legislature simply needed to state that until and unless the People have every document that exists in a case in their possession, they should not file a certificate of compliance and should not announce readiness for trial. Such a position is not reasonable and clearly not what the legislature intended.

As of May 3, 2020, the legislature amended CPL 245.50 (3) as follows:

"Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of [exceptional] special circumstances in the instant case by the court before which the charge is pending, 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. A court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by paragraph (b) of subdivision one of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances. Provided, however, that the court may grant a remedy or sanction for a discovery violation as provided by section 245.80 of this article." (L 2020, ch 56, § 1, Part HHH, § 7 [additional emphasis added].)

Despite this change in the law, and because CPL 245.80 was not amended to add "or otherwise unavailable" as stated above, the court still must determine what documents are "relate[d] to the subject matter of the case" in CPL 245.20 (1). Are the memo books of a transport officer or an officer on crowd control,{**68 Misc 3d at 380} or their specific radio transmissions, or the blotters in a precinct necessarily "related" to the subject matter of a case? Because the legislature did not define this phrase within CPL article 245, the court must look to prior statutes that used that language and case law for assistance in understanding that phrase. McKinney's Consolidated Laws of NY, Book 1, Statutes § 75 (Comment), advises that the "power to construe the statutes of this state is ordinarily vested in the courts." However, the legislature can provide the meaning they intend behind the use of certain words.

"Where a word has received a judicial construction it will almost invariably be given the same meaning where it is again used by the Legislature in connection with the same subject. Thus where the same word comes up for construction a second time, or rather in connection with a second act, the Legislature is deemed to have had knowledge of the construction which had previously been placed upon it, and to have used it in subservience to such judicial meaning." (Id.)

Prior case law has discussed evidence which "relates to the subject matter of the witness' testimony." (See People v Rosario, 9 NY2d 286, 289 [1961] [emphasis added].) The Court of Appeals, in People v Poole (48 NY2d 144, 148-149 [1979]), interchanged the word "relate" with "relevant" when examining whether the People provided all Rosario material at a trial. We know from People v Scarola (71 NY2d 769, 777 [1988]) that the Court of Appeals held that evidence is relevant "if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence." Utilizing this legislative construction and precedent, this court believes that certain documents that can be disclosed under the "[p]resumption of openness" mandated in CPL 245.20 (7) are not "related to the subject matter" of the case such that the People are precluded from filing a certificate of compliance until those documents are obtained and turned over to the defense.

Based on the above, the court has carefully evaluated each document provided to defense subsequent to the People's initial certificate of compliance and statement of readiness to determine if the initial certificate of compliance was filed in "good faith" and reasonable under the circumstances. Regarding the subsequent filing of curriculum vitae, the court finds{**68 Misc 3d at 381} that such documents are not within the control of the People and filing same upon receipt does not negate the People's compliance certification and state of readiness for trial. The same ruling holds for medical records obtained via subpoena. Although the People may be legally required to obtain same (depending on the nature of the charges), they have no control over when an outside agency will fill a subpoena request. As long as the People timely submit the subpoena and advise defense of same, this court finds that they may certify compliance while awaiting these documents. Moreover, military leave has previously been held to be excludable time under CPL 30.30 (4) (g). (People v Clark, 39 Misc 3d 127[A], 2013 NY Slip Op 50414[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013].) That ruling has not changed under the new laws.

The paper work and recordings related to the defendant's "fit for confinement" examination are documents the People should have known existed and should have obtained. In fact, they provided the memo book of the partner officer to the officer on military leave who was part of this assignment. Thereafter, the People provided additional paper work and recordings related to same as generated by the Nassau County Police Department. This court finds that the subsequent filing of those documents does not negate the People's certificate of compliance filed in good faith. The court does not find that paper work to be "related to the subject matter of the case." Defense has argued that he is putting forth a psychiatric defense and thus the "fit for confinement" would be related and relevant to this prosecution. However, defense has not provided any material evidence beyond an "intention" to pursue a psychiatric defense to the People. In fact, the People have moved for preclusion of same based on the defendant's delay in providing the statutorily required information for that defense. As stated in CPL 245.60, once the People receive reciprocal discovery and determine that the "fit for confinement" is now related to the subject matter of the case, they will have already satisfied the need to provide this information "that became relevant to the case or discoverable based on reciprocal discovery received from the defendant." The court likewise finds that the People filed their certificate of compliance in "good faith" despite the subsequent disclosure of proficiency tests of one witness^[FN4] and instructions on how to access the internal computer of OCME for manuals{**68 Misc 3d at 382} and other documents. The People had previously provided all information from OCME that consisted of "reports" specifically related to this case.

Continuing further, the defense in this case additionally argued that the People's certificate of compliance and statement of readiness are null and void because there were outstanding issues related to redactions and a belief on the part of defense that documents exist in contradiction of the People's claim that they do not exist. The court will now turn its attention to those matters.

Initially, defense objected to the redactions contained in discovery packets 1, 2, 3, 7, 8 and 10. The People responded to defense via email (court exhibit 4). Not satisfied with the response, defense sent a letter request to the People (court exhibit 1) seeking the same and/or additional information. The People responded in letter form (court exhibit 2).

Although the court has no reason to doubt the word of the People, as officers of the court, that the redactions they personally initiated were for work product and thus allowed pursuant to CPL 245.65, the court did agree to review same. That review does not and will not negate the People's filing of compliance and readiness. When the People obtain access to these documents, they can send them to the court under seal.

The next issue relates to the grand jury. Defense is seeking unredacted copies of the witness' testimony along with the entire presentation under CPL 245.20 (1) (b) and (7). The People argue that the redactions are not "testimony" and the statute mandates that testimony be provided. In fact, the plain language of the statute requires release of the "testimony of a person." Based on the legislative construction argument detailed above and legal precedent, these words will be given their common and previously agreed upon meanings. As such, the People are only required to disclose the testimony of a witness. The question and answers between the People and the grand jurors and the charge presented to the grand jury will remain under the purview of the court for review. If the court determines that the question and answer session or the charge were not legally proper, the court will so state in its ruling related to the grand jury proceeding. The court has already found the grand jury proceedings in this case were legally proper.

The defendant's medical records related to his "fit for confinement" examination can be obtained by the defense. These medical records are not under the control of the People, and at this{**68 Misc 3d at 383} point, without reciprocal discovery detailing a psychiatric defense, are not "related to the subject matter of the case" as this court has interpreted those words.

The defense is seeking the memo books of detectives. The People have advised they do not exist as detectives do not utilize memo books. That is the end of the inquiry. If the People should be mistaken, the court will entertain a request for sanctions if appropriate.

The defense seeks "all outstanding memo book entries of law enforcement officers assigned to this matter, even if their assignment was brief." (Court exhibit 1, request 9.) Based on the court's legal analysis detailed above, even if the People were to obtain additional memo books of peripheral law enforcement officers, it would not negate the People's certificate of compliance and statement of readiness.

The defense is likewise seeking all paper work from the "crime victims board." The People did supply the limited paper work they were given by this agency which is now known as the Office of Victim Services. This is a state agency and documents associated with a victim who seeks their services are confidential except in limited circumstances. The request by defense from this agency is to determine what "promises, rewards and inducements" were provided to the victim as related to this case (CPL 245.20 [1] [l]). The People have already provided defense with the information related to the victim seeking reimbursement for out-of-pocket medical expenses. That is not a promise, reward or inducement under the control of the People. Moreover, the People have advised the defendant that the victim has abandoned her efforts to obtain reimbursement. There is no logical reasoning that seeking reimbursement of medical expenses already paid by a victim equates with a "promise, reward or inducement" when the agency providing the reimbursement is not under the control of the People nor funded by the People. (See People v Berkley, 157 AD2d 463 [1st Dept 1990] [victim service agency is not a law enforcement agency and refusal of director to disclose notes of a conversation with victim cannot be held against the People].) No further paper work from this agency need be subpoenaed by the People. Separately, under the category of promises, rewards and inducements, the People disclosed that they paid for a cab ride for the victim.

The defendant next sought "any and all underlying documents relating to prior investigations by the Office of Children{**68 Misc 3d at 384} and Family Services" (court exhibit 1, request 1) in addition to unredacted copies of documents already provided by that agency. The records maintained by the Office of Children and Family Services are not in the custody of or under the control of the People. These records can be obtained via subpoena and redactions will occur as mandated by controlling law for the agency. In this case, the agency, pursuant to Social Services Law § 422, redacted the "source of the report(s) of abuse and/or maltreatment . . . to safeguard his/her identity." (Court exhibit 9, letter of Justin J. Jannone, Esq., agency attorney.) The defense will be given the opportunity to advise the court why disclosure of this information would be "related to the subject matter" of this prosecution. Regardless, these redactions do not negate the People's filing of certification and statement of readiness.

Any matters not specifically addressed in this decision have been determined by the court to not impact the court's determination as to whether the People filed their initial certificate of compliance in good faith.

Based on the above, the defendant's motion to void the People's certificate of compliance and statement of readiness dated February 5, 2020, is denied. Defendant's obligation to provide reciprocal discovery will commence upon the lifting of Executive Order 202.14 which has "suspen[ded] and modifi[ed]" all CPL time requirements.