City Court of Glens Falls, September 10, 2020

Robert Knightly for defendant.

Jason M. Carusone, District Attorney (Robert P. McCarty of counsel), for plaintiff.

On or about July 10, 2020, the above named defendant was arraigned in this court on charges of criminal mischief in the fourth degree (Penal Law § 145.00) (court case No. 0438-20) and petit larceny (Penal Law § 155.25) (court case No. 0507-20). The defendant was represented at his arraignment by the Warren County Public Defender's Office, Carline Barnes, Esq., of counsel. The defendant's case was adjourned to August 6, 2020, and, on the record, Ms. Barnes announced that defense was accepting delays pursuant to CPL 30.30 and article 245 for the period of the adjournment. The People then filed separate certificates of compliance for each charge, and provided copies of the certificates to defense counsel. The certificate of compliance for the criminal mischief in the fourth degree charge is dated April 3, 2020, while the certificate of compliance for the petit larceny charge is dated May 22, 2020. By email dated July 16, 2020, as a result of a conflict of interest, attorney Robert Knightly was assigned to represent the defendant.

The criminal mischief charge alleges that, on March 15, 2020, at about 8:59 p.m., the defendant did intentionally damage a sign belonging to Radici Kitchen and Bar located at 26 Ridge Street, Glens Falls, by and repeatedly striking the sign causing damage to the sign. The misdemeanor complaint is supported by two supporting depositions of James Humphreys, an employee of Radici Kitchen and Bar, together with a CPL 710.30 notice which alleges that on March 15, 2020, the defendant made a statement to Glens Falls Police Department Officer Samantha Smith that "I hit a sign. Is that what this is about?" It is alleged that the chalkboard sign was broken to pieces. The petit larceny charge alleges that the defendant did knowingly and unlawfully steal $599.91 from [*2]the Glens Falls National Bank by withdrawing said amount from his account, and that just prior to his withdrawals, he made eight ATM night{**69 Misc 3d at 687} deposits with empty envelopes and $1.30 in cash, and these deposits were falsely represented as containing a total of $2,401.50. The defendant then allegedly withdrew a total of $600 over five separate ATM withdrawals for a total loss of $599.91. The misdemeanor complaint is supported by a supporting deposition of Wendy Nolan, physical security analyst at the Glens Falls National Bank, together with the checking activity report for the defendant's checking account, and surveillance photographs allegedly of the defendant at the bank.

On August 6, 2020, the defendant appeared with Robert Knightly, Esq. At that appearance, a plea offer was orally made on the record by Assistant District Attorney Robert McCarty, which was rejected by defense counsel. Mr. Knightly objected to the People's certificate of compliance, indicating that the defendant's criminal history was not provided. The People requested a written motion, and Hon. Nikki Moreschi directed defense counsel to file a written motion outlining the defendant's objections to the People's certificate of compliance.^[FN1] The matter was placed on for August 25, 2020, for the defendant to file a written motion outlining his objections to the People's certificate of compliance.

On August 21, 2020, defense counsel filed a letter motion with this court dated August 18, 2020, objecting to the People's certificate of compliance. In his written motion, the defendant alleges that the certificate of compliance is dated April 3, 2020, and therefore it "cannot apply to the charge of Petit Larceny that occurred on April 24, 2020."^[FN2] The defendant further objected that the People identified potential witnesses, Glens Falls Police Officers Zachary Tanner and Samantha Smith, and identified that these officers have disciplinary records with their police agencies, but the disciplinary records were not produced. The defendant further objects that Warren County Sheriff Officers James Neal and Matthew Oswald were identified as potential witnesses, but whether or not they had{**69 Misc 3d at 688} disciplinary records was not disclosed. The defendant asserts that the disciplinary records of police officers involved in the arrest or investigation are discoverable, especially since Civil Rights Law § 50-a was repealed on June 12, 2020. The defendant requests that this court "dismiss the People's Certificate of Compliance as illusory . . . and charge the relevant time periods under CPL 30.30 to the People." Finally, the defendant asserts that this court's record from the July 10, 2020 arraignment demonstrates that defense counsel never accepted the discovery or speedy trial time.

On August 21, 2020, the People filed a letter response to the defendant's motion. In their response, the People note that the date on the certificate of compliance is merely the date the certificate was prepared, not the filing date. Mr. McCarty further indicates that the People filed and served a separate certificate of compliance for each charge pending against the defendant. With respect to the disciplinary records of the Glens Falls Police Officers, Tanner and Smith, the People assert that the Glens Falls Police Department "maintains personnel records and will make copies available upon a request made to that agency in writing . . . or by phone . . . [and these] disclosures will be made in accordance with Public Officers Law §§ 86, 87." The People further assert that defense counsel accepted CPL speedy trial and discovery time from July 10, 2020, through August 6, 2020, and that "prior and current executive orders renders this [speedy trial] argument moot."

On August 25, 2020, the parties appeared for oral argument on the defendant's motion. At the oral argument, the People asserted that the defense counsel could contact the Glens Falls Police Department to obtain copies of Officer Smith's and Officer Tanner's disciplinary records and that disclosure of the existence of the records was sufficient. They further assert that they have disclosed the existence of any disciplinary records known to exist. Defense counsel asserts that the obligation to provide disclosure of police disciplinary records is on the People, and the defendant should not have to seek copies of these records by FOIL request or otherwise from police agencies. Defense counsel further objected that the People had not disclosed criminal history records for the listed civilian witnesses. The People maintain that no such records exist to be provided. This court adjourned this case to September 10, 2020, for a decision on the defendant's motion.

The issues before this court include: (1) whether CPL 245.20 requires the People to both disclose the existence of police{**69 Misc 3d at 689} disciplinary records and also produce copies of the disciplinary records or can the People disclose the existence of disciplinary matters against an officer and provide a method for defense counsel to obtain those records directly from the police agency; (2) whether the People's certificates of compliance were filed in good faith or are they illusory; (3) if the People's certificates of compliance are illusory, what is the appropriate remedy; and (4) what, if any, speedy trial time is chargeable to the People on these criminal charges.

In deciding the defendant's motion, this court takes judicial notice of the official recording of the defendant's proceedings in this court, and judicial notice of Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8).

Effective January 1, 2020, the legislature substantially expanded the disclosure requirements of both the People and the defendant in criminal cases by repealing CPL article 240 and enacting CPL article 245. (See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10.) This new pretrial statutory discovery procedure

"evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader 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]).

Pursuant to CPL 245.20 (1), the People are obligated to provide "automatic" disclosure to the defendant of the items listed. By "automatic" disclosure, CPL 245.20 mandates that the defendant is no longer obliged to "demand" discovery and, instead, the People are obligated to provide disclosure of the listed items regardless of a defense "demand," and they must do so normally within a short period after arraignment on an accusatory instrument. (See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10.)

The "automatic discovery" provision of CPL 245.20 (1) (a)-(u) provides a nonexclusive list of items required to be disclosed to a defendant. This obligation includes "all items and information {**69 Misc 3d at 690}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." (See People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *1-2 [Sup Ct, Kings County, Aug. 19, 2020], quoting CPL 245.20 [1].) Exempt from this automatic disclosure is information that is subject to a protective mandate granted by statute (e.g. CPL 245.20 [1] [c] and [d] concerning the identity of a confidential informant or the identity of an undercover officer) or information precluded by court order (CPL 245.70) and the prosecutor's "work product" (CPL 245.65). A prosecutor's "work product" includes "those portions" of documents "which are only the legal research, opinions, theories or conclusions" of the People or its attorney or the attorney's agents. (CPL 245.65; cf. People v Consolazio, 40 NY2d 446, 453-454 [1976].) The prosecutor may also redact "social security numbers and tax numbers" from information required to be disclosed. (CPL 245.20 [6].) Other than these types of exclusions, the prosecutor's obligation to provide discovery under the current statutes is "so broad 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, Statutory Discovery, in General.)

Thus, CPL 245.20 (2) mandates that the prosecutor "make a diligent, good faith effort to ascertain the existence of material or information discoverable" under CPL 245.20 (1) (a)-(u), and the prosecutor must then "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." (CPL 245.20 [2] [emphasis added].)^[FN3] However, the prosecutor shall "not be required to obtain by subpoena duces tecum [*4]material{**69 Misc 3d at 691} or information which the defendant may thereby obtain." (CPL 245.20 [2].) Once the automatic discovery has been provided, the statutory scheme then requires that the prosecution certify its compliance with its discovery obligations in writing, and the certificate of compliance must be served on defense counsel and filed with the court before the People can announce trial readiness. (CPL 245.50 [1].)

If the defendant objects to the People's automatic discovery, any challenges or questions related to the filed certificate of compliance must be addressed by a motion (CPL 245.50 [4]). Furthermore, "[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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." (CPL 245.50 [1].)

To "facilitate compliance" with discovery and avoid unnecessary litigation of disputes, CPL 245.35 authorizes the trial court to issue an order: (1) requiring the parties to confer to resolve a dispute prior to seeking a ruling by the court; (2) requiring a compliance conference with the parties and the court "or its staff"; (3) requiring the prosecution to file an "additional" certificate of compliance stating that there were "reasonable inquiries" of the police and those involved in the case about the existence of the information "favorable" to the defendant that is listed in paragraph (k) of CPL 245.20 (1), including information that was "not reduced to writing or otherwise memorialized," and that any such information was disclosed to the defendant; and (4) requiring other measures or proceedings necessary to achieve the mandated discovery. (See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10.) When resolving discovery disputes, CPL 245.20 (7) provides a presumption in favor of disclosure when interpreting disclosure provisions of CPL 245.20 (1) (i.e., the "automatic discovery" by the prosecution). (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10.)

CPL 245.80 (1) (a) provides possible remedies or sanctions for discovery violations, in pertinent part: "When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced." Subdivisions (2) and (3) of this section set forth{**69 Misc 3d at 692} various remedies or sanctions which the court may impose. (See People v Rambally, 68 Misc 3d 1212[A], 2020 NY Slip Op 50921[U] [Nassau Dist Ct 2020].)

In the present case, the defendant objects to the People's alleged failure to produce (a) the disciplinary records of two police officers involved in the investigation or arrest of the defendant; (b) whether other officers identified as potential witnesses have any disciplinary records; and (c) the criminal history of civilian witnesses. The defendant asserts that CPL 245.20 (1) (k) mandates not just the disclosure of an officer's disciplinary history, but the production of the disciplinary records. (Knightly Aug. 18, 2020 letter mot.) The People assert that they have provided defense [*5]counsel notice that two officers have disciplinary records and with a method to obtain the disciplinary records directly from the police agency by requesting the records either by letter or by phone, and that they have disclosed any other required evidence that exists. (McCarty Aug. 21, 2020 letter response.)

With respect to the prosecution's obligation to disclose Brady (373 US 83 [1963]) and Giglio (405 US 150 [1972]) information, CPL 245.20 (1) (k) provides:

"All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article."

Thus, subdivision (1) (k) of CPL 245.20 codifies the People's obligation to disclose information favorable to the defendant as required by Brady v Maryland (373 US 83 [1963]), Giglio v {**69 Misc 3d at 693}United States (405 US 150 [1972]) and their progeny, as well as Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.8 (b) and the New York State Unified Court System's Administrative Order of Disclosure. (See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10.) The items listed in CPL 245.20 (1) (k) clarify the type of favorable information that the People must disclose, regardless of whether the prosecutor finds the information to be "material" or "credible." (See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10; see also People v Baxley, 84 NY2d 208, 213-214 [1994]; People v Robinson, 133 AD2d 859, 860 [2d Dept 1987].) It is well settled that civil allegations or complaints against a police officer involved with the investigation or arrest of the defendant can be information favorable to the defendant as impeachment evidence. (People v Garrett, 23 NY3d 878, 886 [2014] [civil allegations against the arresting officer were favorable to defendant as impeachment evidence]; Strickler v Greene, 527 US 263, 281-282 [1999]; Kyles v Whitley, 514 US 419, 450-451 [1995]; People v Wright, 86 NY2d 591 [1995] [information that provided a motive for the police to favor the complainant's version of events]; People v Zimmerman, 10 NY2d 430 [1962] [statements of a People's witness which contained material inconsistencies].)

Here, contrary to the defendant's assertion, CPL article 245 does not mandate the People to obtain the police officer's disciplinary files for the defendant and produce those files to defense [*6]counsel. Instead, CPL 245.20 (2) clearly provides that the "prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery." (CPL 245.20 [2] [emphasis added].) Thus, the People's discovery obligation is satisfied where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the material or information to be made available to defense counsel.

In recent decisions, trial courts have held that the People do not need to obtain the disciplinary records from the police department, provided defense counsel is provided with a manner to obtain the records. In People v Gonzalez (68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020]), the defendant was charged with two counts of rape in the third degree and multiple sex offenses based on incidents{**69 Misc 3d at 694} that allegedly occurred in September, October and November of 2018. The People provided defendant with numerous items of discovery pursuant to the then-extant Criminal Procedure Law § 240.45 and People v Rosario (9 NY2d 286 [1961]), between March and September of 2019. On January 14, 2020, after the effective date of the newly enacted CPL article 245, they then provided additional discovery materials. On February 21, 2020, the People served and filed a certificate of compliance with CPL 245.20, as well as additional discovery and an inventory of discovery materials. (See CPL 245.50; Gonzalez, 2020 NY Slip Op 50924[U].) A few more items of discovery were served on defendant with a supplemental certificate of compliance on July 22, 2020. (Gonzalez, 2020 NY Slip Op 50924[U].) The defendant objected to the People's failure to disclose certain disciplinary records on police officers involved in the investigation and arrest of the defendant. (Id.) The Supreme Court held that the People's disclosure that a potential witness had two substantiated allegations and one pending allegation of misconduct unrelated to the subject matter of the case but arguably of impeachment value satisfied their obligations under CPL 245.20 (1) (k) (iv). (Id. at *2.) The Supreme Court specifically rejected the "defendant's claim that the prosecution must produce underlying records in addition to these disclosures." (Id. at *2-3, citing People v Garrett, 23 NY3d 878, 890 [2014].) Similarly, in People v Lustig (68 Misc 3d 234 [Sup Ct, Queens County 2020]) the Supreme Court held that the People were not obligated to provide contents and associated material of civil lawsuits filed in federal court against a police officer involved in the prosecution of weapons possession charges, under CPL 245.20 (1) (k) (iv), where the People disclosed the name of the lawsuit and the docket number, and the documents were equally available to defendant. The Supreme Court further held that "by disclosing the existence of the lawsuit against the officer, the People met their obligations under CPL 245.20 (1) (k) (iv)." (Lustig at 244.) In People v Knight (69 Misc 3d 546 [Sup Ct, Kings County, Sept. 2, 2020]), the Supreme Court held that the People satisfied their obligations under CPL 245.20 (1) (k) (iv) where the prosecutor disclosed instances of alleged misconduct by their potential police witnesses, and the court rejected the defendant's claim that the prosecution must produce underlying records in addition to the disclosures they made.

Here, the People have met their obligations under CPL 245.20 (1) (k) (iv) by disclosing the existence of disciplinary records{**69 Misc 3d at 695} of two officers, and by causing the officers' disciplinary records to be disclosed to defense counsel by having the Glens Falls Police Department make copies [*7]available to defense counsel upon a request, either in writing or by phone (McCarty Aug. 21, 2020 letter). Contrary to the defendant's assertion, the fact that Civil Rights Law § 50-a has been repealed does not mandate an opposite decision. The repeal of Civil Rights Law § 50-a has made certain officer personnel records equally accessible by prosecutors and defense counsel, subject only to redaction in accordance with Public Officers Law §§ 86, 87 and 89.

Finally, with respect to the defendant's objection to the failure to disclose disciplinary records of other police officers or criminal histories of civilian witnesses, the People have responded that no such records exist. Based on the foregoing, the People's certificate of compliance was filed in good faith and is not illusory.

With respect to the defendant's assertion that the CPL 30.30 time from the date of the arraignment (July 10, 2020) is chargeable to the People, this assertion is not supported by the record. More specifically, on July 10, 2020, the defendant's prior counsel accepted, on the record, all time delays under CPL article 245 and section 30.30 from July 10, 2020, to August 6, 2020. On August 6, 2020, defense counsel appeared seeking to make an oral motion objecting to the People's certificate of compliance, and Judge Moreschi directed that the defendant's objections must be made in writing. The defendant's case was then adjourned to August 25, 2020, for the defendant to file his motion. The time delay from August 6, 2020, to the date of this decision and order were occasioned by "pre-trial motions" and, as a result, those dates are excluded from "the time within which the people must be ready for trial." (See CPL 30.30 [4] [a].)

The defendant's motion seeking to invalidate the People's certificate of compliance is denied. Based on this court's review of the record, the People's certificate of compliance was filed in good faith and is not illusory. The defendant's motion seeking to assess the time delays from July 10, 2020, to the present on the People is denied.

"make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided, that the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain" (CPL 240.20 [2] [emphasis added]).

A key difference between the old and the new statutes is that the old statute dealt with "property" while the new statute expanded it to "material or information." (People v Davis, 67 Misc 3d 391, 396 [Crim Ct, Bronx County 2020].)