Supreme Court, Kings County, September 2, 2020

Legal Aid Society (Laura W. Guthrie of counsel) for defendant.

Eric Gonzalez, District Attorney (Michelle J. Kiley of counsel), for plaintiff.

Defendant Casey Knight is charged with burglary in the second degree and other crimes. He moves to compel discovery and asks the court to find that the People's certificate of compliance with their discovery obligations is invalid. The People oppose. The court has considered the parties' initial submissions as well as a reply and surreply. A prior decision of this court addressed other matters (see People v Knight, 67 Misc 3d 247 [Sup Ct, Kings County 2020]).

Defendant was arraigned in December 2018 and his case adjourned throughout 2019 for various pretrial proceedings, including discovery. By December 20, 2019, the People had provided defendant with numerous items of discovery, which it identified in a notice and addendum, including surveillance videos of the incidents in question. On February 21, 2020, after the effective date of the newly enacted article 245 of the Criminal Procedure Law, the People served and filed a certificate of compliance with CPL 245.20, as well as additional discovery and an inventory of all that they had provided (see CPL 245.50). The People also gave defense counsel links to a cloud folder of discovery materials after she asserted that she had been unable to access what the People had previously disclosed to another attorney in her office. On July 17, 2020, after having produced a few additional items, the People served and filed a supplemental certificate of compliance.{**69 Misc 3d at 548}

The "automatic discovery" provision of CPL 245.20 (1) provides a non-inclusive list of items required to be disclosed to a defendant. This obligation includes "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" (CPL 245.20 [1] [emphasis supplied]). The statute requires that the prosecution certify its compliance with its discovery obligations in writing (CPL 245.50 [1]) and that challenges or questions related to a certificate of compliance be addressed by motion (CPL 245.50 [4]).

Together, CPL 245.50 and 245.60 impose a continuing duty to disclose discoverable material that the People learn of subsequent to their filing a certificate of compliance and allow them to file a supplemental certificate.

Finally, CPL 245.50 (1) provides that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances."

In his motion, defendant claims that the People failed to comply with their obligations as to several items of discovery. For the reasons stated in the People's response, the court finds that the People have in fact complied with their discovery obligations, that is, the items have been disclosed or the information has been provided.

[1] Further discussion is warranted with respect to the court's conclusion that defendant is not entitled to the "complete candidate list" returned by facial recognition software, as it is neither discoverable nor Brady material, as defendant claims.

As the People explained in their submissions, an investigating detective in this case utilized facial recognition software to compare images from video surveillance of the incidents to images in a police database. The software generated a list of possible matches in order of likelihood. Of the 243 candidates (which number is generated each time the system operates and thus not in itself significant), defendant was in first, second, third, fifth, sixth and seventh place. After reviewing only the first 13 candidates, the detective looked no further. He compared the surveillance images with the six photographs of defendant that the software had flagged in the police database and concluded that defendant was a possible match. All 13 database images that the detective viewed were preserved and provided to the defense.{**69 Misc 3d at 549}

As it turned out, the lead generated by the software—notably, that defendant's police database images repeatedly matched surveillance images of the crimes under investigation—was inconsequential, because defendant was independently identified and arrested. The lead generated by the software was not used in any way to identify him. Although it lends support to defendant's identification as the perpetrator of the crimes charged here, the People will not be relying on the software in their case.

In any event, as noted, the People disclosed to the defense the result of the police's use of the software, namely, that defendant was ranked as candidate one, two, three, five, six and seven of the most likely 13 candidates, which were the only ones the investigating detective compared to the surveillance footage. These 13 photographs, six of which were of defendant, were provided to the defense. Accordingly, to the extent that CPL 245.20 (1) (j) requires disclosure of "documents . . . concerning . . . comparisons," the People complied.

The remaining 230 images generated by the software (that is, images ranked 14 or lower) were of no consequence. They were not compared to the surveillance footage by the investigator, and the People had no obligation to preserve or disclose them. They were no more Brady material than is every photograph in the photo manager system or in a mug book that might in some way resemble a defendant's photograph. The defense makes no attempt at explaining how those photographs had exculpatory value, especially given that the software assigned defendant unchallenged pride of place over any other individual whose photograph it lifted from the police database.

The fact that the software's parameters allowed it to identify 230 additional photographs as possible (albeit far less likely) matches of the surveillance footage does not make those additional 230 photographs Brady material (see People v Ramirez, 224 AD2d 455 [2d Dept 1996] [destroyed photo array from which witness did not select defendant not exculpatory], lv [*3]denied 88 NY2d 883 [1996]; People v Quinones, 228 AD2d 796, 798 [3d Dept 1996] [same]).^[FN*] In a traditional identification procedure using mug books or the photo manager system to show{**69 Misc 3d at 550} a witness pictures of individuals with characteristics similar to those the witness has described, the images shown to the witness are preserved, not because they are Brady material—i.e., images of suspects—but so that the People may demonstrate at a suppression hearing that the identification procedure was not suggestive—i.e., that it did not single out the defendant (see People v Holley, 26 NY3d 514, 523-525 [2015]).

Indeed, even where such images are not preserved, they are not treated as suppressed Brady material, that is "favorable . . . evidence . . . material . . . to guilt" (see People v Garrett, 23 NY3d 878, 884 [2014]), because they are not "favorable," "evidence," or "material . . . to guilt." Rather, they are simply relevant to the reliability of the identification procedure. The People's failure to preserve them gives rise only to a rebuttable presumption that the identification procedure was suggestive (see Holley, 26 NY3d at 518), which is a far cry from the remedy of a new trial that is required when Brady material is suppressed.

It perhaps bears underscoring that none of the images at issue were shown to any witness; thus, they are as attenuated as can be not simply from having exculpatory value but from having relevance to any matter concerning the correct identification of defendant.

[2] With respect to the People's disclosure of instances of alleged misconduct by their potential police witnesses, the People satisfied their obligations under CPL 245.20 (1) (k) (iv) with the disclosure letters they provided.

The court rejects defendant's claim that the prosecution must produce underlying records in addition to the disclosures they made. Parenthetically, the court notes that the People provided it with the underlying materials, which the court reviewed and placed in a sealed envelope in the court file for possible appellate review after confirming that the People did not withhold anything that was required to be disclosed.

Nor are the People required "to conduct disciplinary inquiries into the general conduct of every officer working the case" (People v Garrett, 23 NY3d 878, 890 [2014]). To do so "would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefit defendants would enjoy from the information ultimately disclosed on account of the People's efforts" (id. at 891, quoting United States v Robinson, 627 F3d 941, 952 [4th Cir 2010]).{**69 Misc 3d at 551}

The disclosures required by subdivision (1) of section 245.20 are, as previously noted, limited to "items and information that relate to the subject matter of the case" (emphasis supplied). This language tracks not only the language but also the spirit of Garrett:

"[T]here is a distinction between the nondisclosure of police misconduct 'which has some bearing on the case against the defendant,' and the nondisclosure of such material which has 'no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes.' In the latter circumstance, the offending officer is not acting as 'an arm of the prosecution' when he or she commits the misconduct, and the agency principles underlying the imputed knowledge rule are not implicated." (Garrett, 23 NY3d at 889 [emphasis supplied and citations omitted].)

More recently, a court of coordinate jurisdiction specifically addressed the "possession, custody or control" language of CPL 245.20—highlighted above—and decided that CPL 245.20 would impose "an unreasonable and excessive obligation" on the People if it were read in such a way as to deem "all records in the possession of the police department, including personnel records, . . . in the custody and control of the People" (Matter of Certain Police Officers, 67 Misc 3d 458, 464, 469 [Westchester County Ct 2020]). As that court reasoned,

"To be sure, CPL 245.20 (2) qualifies the information imputed to the People to be that which is related to the prosecution of a charge. Notably, the personnel records at issue were not created for the purposes of the prosecution of the underlying charges, but for the purposes of the police department's administrative duties. Indeed, there could very well be documents contained in the personnel records that long predate the incident leading to this indictment. Had the legislature intended to impute all information in the possession of the police to the prosecutor, it would have eliminated this qualifier." (Id. at 470; see also People v Lustig, 68 Misc 3d 234, 243 [Sup Ct, Queens County 2020, Zayas, J.] ["The Court believes that such an onerous requirement would go far beyond 'a diligent, good faith effort' "].)

For these reasons, the People satisfied their disclosure obligations.{**69 Misc 3d at 552}

A very few discovery items were provided to defendant after the People's certificate of compliance dated February 21, 2020. Their absence from the original certificate of compliance does not vitiate it. By any measure it was filed "in good faith" and was "reasonable under the circumstances." In other words, the certificate was valid, and the People's compliance with their continuing duty of disclosure does not undermine it.

The parties are directed to confer and provide the court with mutually acceptable dates for the previously ordered suppression hearing.