County Court, Albany County, November 20, 2020

Matthew C. Hug, Albany, for defendant.

P. David Soares, District Attorney, Albany (David J. Szalda and Christopher D. Horn of counsel), for plaintiff.

By indictment filed on August 14, 2020, defendant was arraigned on murder in the second degree, a class A-I felony (Penal Law § 125.25 [1]), and criminal contempt in the second degree, a class A misdemeanor (Penal Law § 215.50 [3]).

On September 16, 2020, the People filed a certificate of compliance (CoC) and statement of trial readiness (STR) (see CPL 245.50 [1]; 30.30 [5]). After oral argument at the September 17, 2020 CoC inquiry, defendant opted to file a written challenge to the People's September 16, 2020 CoC and STR (see CPL 30.30 [5]). By letter dated September 24, 2020, defendant asserted [*2]the People failed to comply with CPL 245.20 (1) (c), with respect to names and adequate contact information for all witnesses to the incident, and with CPL 245.20 (1) (k) (iv) in failing to provide the disciplinary records and adequate supporting documentation with respect to the People's 13 law enforcement witnesses. After service of additional discovery upon defendant, on September 30, 2020, the prosecutor filed and served a supplemental CoC (Supp CoC), pursuant to CPL 245.50 (2). By affirmation and memorandum of law filed on October 2, 2020, the People oppose defendant's challenge to their September 16, 2020 CoC and STR. At the October 22, 2020 continuation of the judicial inquiry, inter alia, defendant orally responded to the People's arguments set forth in their October 2, 2020 memorandum of law.

As noted in the supplemental statutory commentaries, the newly enacted CPL 30.30 (5) mandates that, "irrespective of a challenge by the defense," upon the People's STR, the court shall make inquiry into the People's " 'actual readiness' (or in decisional law language, whether the statement of readiness is{**70 Misc 3d at 755} 'illusory,' that is, not truthful or accurate)" (William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, CPL 30.30). If, after inquiry, "the court determines that the People are not ready to proceed to trial [due to an improper CoC], the prosecutor's statement or notice of readiness shall not be valid for purposes [of stopping CPL 30.30 time from accruing]" (CPL 30.30 [5]).

As applicable here, in enacting CPL 245.20 (7) the legislature unequivocally instructs that when interpreting statutes governing the timing of discovery, the prosecution's automatic disclosure obligations and disclosures required for certain guilty pleas "[t]here shall be a presumption in favor of disclosure" (emphasis added).^[FN1] Thus, this court must employ a presumption in favor of disclosure when interpreting all subsections of CPL 245.20, including CPL 245.20 (1) (k) (iv), when assessing whether the People have filed a proper CoC and whether the People's STR was valid to stop the CPL 30.30 clock from running.

Effective January 1, 2020, New York State's newly enacted discovery statute, CPL article 245 and associated amendments to CPL 30.30, inter alia, took effect. CPL 245.20 (1) now requires the People to disclose 21 non-exhaustive categories of discoverable material (entitled "automatic discovery") to defendant "as soon as practicable" but not later than a fixed period of time (see CPL 245.20 [1] [a]-[u]; 245.10 [1]). Barring certain exceptions (see CPL 245.10 [1] [a] [iv]), and depending on defendant's custodial status (see CPL 245.10 [1] [a] [i], [ii]), a prosecutor is required to serve defendant with automatic discovery "as soon as practicable" but not later than 20-35 days after defendant's arraignment on a criminal instrument (see CPL 245.10 [1] [a] [i], [ii]). Beyond these time lines, the legislature has further shortened the People's time line for service of the seven forms of exculpatory evidence set forth at CPL 245.20 (1) (k) (i)-(vii). This unique time line, among other prosecutorial mandates, is set forth within CPL 245.20 (1) (k), and provides:{**70 Misc 3d at 756}

"Information under [CPL 245.20 (1) (k)] 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" (emphasis added).

If the People require additional time to comply with their discovery obligations, CPL 245.70 (2) directs the prosecutor to move for additional time, which may be granted "upon a showing of good cause." No good cause extensions were requested in this case.

Discovery compliance now requires the People, upon disclosing "all known" materials, to certify that due diligence was exercised to ascertain the existence of any other materials (see People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County, Sept. 3, 2020, Kitsis, J.]). Specifically, CPL 245.20 (2) provides, in relevant part:

"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 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 material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution" (emphasis added).

Any assessment of a prosecutor's due diligence with discovery compliance must be considered in conjunction with the provisos contained within CPL 245.55 (1) and (2). CPL 245.55 (1), entitled "Sufficient communication for compliance," provides, in relevant part, that

"[t]he district attorney and the assistant responsible for the case . . . shall endeavor to ensure that a {**70 Misc 3d at 757}flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article" (emphasis added).

CPL 245.55 (2), entitled "Provision of law enforcement agency files," provides:

"Absent a court order or a requirement that defense counsel obtain a security clearance mandated by law or authorized government regulation, upon request by the prosecution, each New York state and local law enforcement agency shall make available to the [*3]prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article" (emphasis added).

Unless the court makes an "individualized finding of special circumstances" the People "shall not be deemed ready for trial [until they have] filed a proper certificate [of compliance] pursuant to [CPL 245.50 (1)]" (see CPL 245.50 [3]). Pursuant to CPL 245.50 (1), after the prosecutor provides all automatic discovery (see CPL 245.20 [1] [a]-[u]), excepting discovery lost or destroyed (see CPL 245.80 [1] [b]) or items subject to a protective order (see CPL 245.70), the prosecutor shall file and serve a certificate of compliance, which "shall 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] [emphasis added]).

The sole "condition precedent to the prosecutor's ability to file a [CoC] is the discovery of all material considered [a]utomatic [d]iscovery" (People v Napolitano, 67 Misc 3d 1241[A], 2020 NY Slip Op 50802[U], *3 [Sup Ct, NY County, June 11, 2020, Paek, J.]). It was recently observed that a CoC "serves only one practical purpose: It is a necessary prerequisite to a valid statement of readiness under CPL 30.30" (People v Barnett{**70 Misc 3d at 758}, 68 Misc 3d 1000, 1002 [Sup Ct, NY County, July 20, 2020, Statsinger, J.]). Inasmuch as defendant is charged with murder in the second degree, CPL 30.30 (1) is inapplicable to his case (see CPL 30.30 [3] [a]).^[FN2] While Supreme Court's observation in People v Barnett is understandable in the context of the case before it, surely the People's full compliance with their automatic discovery obligations is just as practically purposeful, if not more so, for defendants charged with crimes falling outside the time constraints of CPL 30.30 (1). In fact, in this court's judgment, the absence of CPL 30.30-time constraints to incentivize discovery compliance seemingly requires greater judicial scrutiny over the People's discovery compliance. Accordingly, for purposes of this decision, the court's determination concerning the validity of the People's CoC relates solely to defendant's request for sanctions for discovery noncompliance.

The Court of Appeals in People v Smith (27 NY3d 652, 659 [2016]) acknowledged what it described as "the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination" and noted that the Court has indicated as much since 1979 (see id., citing People v Garrett, 23 NY3d 878 [2014]; People v Gissendanner, 48 NY2d 543 [1979]). Thus, among the many [*4]categories of automatic discovery, CPL 245.20 (1) (k) provides, inter alia, that the People shall disclose to defendant "[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 case, that tends to . . . impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]; see Kyles v Whitley, 514 US 419, 437 [1995] ["the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"]; People v Rouse, 34 NY3d 269 [2019]; People v Smith at 660; People v Baxley, 84 NY2d 208, 213-214 [1994]).

CPL 245.20 (1) (k) requires the People to disclose,{**70 Misc 3d at 759}

"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" (emphasis added).

As noted above, a prosecutor must make a diligent, good faith effort to ascertain the existence of all automatic discovery, but particularly pertinent to the People's CPL 245.20 (1) (k) (iv) Brady/Giglio discovery obligations, the prosecution is deemed to have in its possession all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency (CPL 245.20 [2]). In addition, the Office of the Albany County District Attorney (ACDA) as well as the trial prosecutor are required under CPL 245.55 (1) to maintain a flow of information with law enforcement sufficient to place within its possession "any evidence or information discoverable under" CPL 245.20 (1) (k). Moreover, CPL 245.20 (1) (k) provides that evidence and information falling under subparagraphs (i)-(vii) of that subdivision "shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information" (emphasis added).

The judicial inquiry assessing the validity of the People's CoC requires the court "to delve into the accuracy and good faith filing of the newly established certificate of compliance" (People v Askin, 68 Misc 3d 372, 376 [Nassau County Ct, Apr. 28, 2020, Corrigan, J.]). The People's September 16, 2020 CoC is a two-page document containing five bulleted paragraphs (see court's exhibit 1). As is relevant here, by the CoC, the trial prosecutor certifies that "the Office of the Albany County District Attorney has exercised due diligence and made diligent, good faith efforts to ascertain the existence of discoverable material or information subject to CPL 245.20 (1)" (emphasis added); that all known material and information subject to{**70 Misc 3d at 760} automatic discovery, not subject to a protective order, "has now been disclosed or made available to the defendant"; and that after summarizing the electronic discovery disclosed to date, the People declare trial readiness. No affirmation from the District Attorney or a qualified supervising ADA with the appropriate basis of knowledge attesting to the facts underlying that Office's "due diligence" and "good faith efforts" to comply with CPL article 245 was attached in support of the trial [*5]prosecutor's CoC (see CPL 245.55 [1] [noting the separate obligations of the Office of the District Attorney and the trial prosecutor to endeavor to ensure a flow of communication between it and members of law enforcement sufficient for compliance]).

At the September 17, 2020 CoC inquiry, after reserving his right to file a written challenge to the CoC, defendant outlined his prospective arguments to include insufficient compliance with CPL 245.20 (1) (c) regarding contact information for the People's listed witnesses and with CPL 245.20 (1) (k) (iv) regarding disclosure of impeachment materials for the People's 13 law enforcement witnesses. As explained and confirmed by the court, the responses to the questionnaires vary considerably; some prospective witnesses refuse to answer questions or invoke union protections, while others contain unintelligible or partial responses or candidly state that they do not know the answer to the question asked. The defense also detailed and was critical of certain impeachment summaries received with the questionnaires for Albany Police Department (APD) Detectives Stephen Behrens, William DiCarlo, Timothy Haggerty, Dean Halpin, Matthew Serpe, Matthew Zucchelli and Police Officer Daniel Kohler. Additionally, the defense noted it had not received any follow-up materials for two prospective APD detective witnesses who both self-reported in questionnaires dated January 15, 2020, the existence of potential impeachment materials. The court then asked the prosecutor to describe steps taken in response to the quality of the answers received on the questionnaires:

"COURT: For instance, for any officer who refused to answer the questionnaire, what alternative efforts did you take to assess whether impeachment materials subject to Brady/Giglio existed in relation to that witness?{**70 Misc 3d at 761}

"ADA: So, Judge, regarding the witnesses that were on the witness list that are law enforcement that we asked the questionnaire preset questions relating to any potential Brady or Giglio or the progeny, if an officer refused, what we do is that we file an e-mail with the Office of Professional Standards of Albany Police Department with language requesting that the Albany Police Department reviews that individual's personnel file. And the language mirrors the statute, asking for any information in that individual's personnel file related to trustworthiness, honesty, or integrity, and complaints subject—that are complaints under those terms" (Sept. 17 CoC inquiry tr at 6).

In concluding the September 17, 2020 portion of the CoC inquiry, based on the obvious deficiencies and inconsistencies in the People's Brady/Giglio disclosures, the court informed the People that it appeared they did not fully appreciate the scope of their duties and obligations regarding CPL article 245 discovery compliance. The court also questioned the propriety of using the APD Office of Professional Standards as an "appropriate named agent" (see CPL 245.35 [3]) in meeting the People's weighty CPL 245.20 (1) (k) (iv) Brady/Giglio disclosures. While not ruling on the validity of the People's CoC at the time, in very plain terms, the court informed the People that more was required of them to establish due diligence:

"COURT: it's incumbent upon you to sit down with the various law enforcement agencies, explain the law, and tell them that they have to comply with it. The new discovery law has the force and effect of a court order and is punishable by contempt. And aside from that, discovery sanctions can be applied. For example, if one of your officers refuses to answer your questions, they may not be allowed to testify" (Sept. 17 CoC inquiry tr at 9).

Defendant filed and served his written challenge to the People's CoC on September 24, 2020.

On September 30, 2020, after serving additional discovery upon defendant, the People filed a Supp CoC, pursuant to CPL 245.50 (1), and maintained their September 16, 2020 STR (see court's exhibit 2). CPL 245.50 (1) provides in relevant part that{**70 Misc 3d at 762}

"[i]f additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No 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" (emphasis added).

CPL 245.60, in turn, provides in relevant part:

"If . . . the prosecution . . . subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article" (emphasis added).

Thus, to avoid sanctions for late service of automatic discovery, the prosecutor must establish that the initial CoC was filed "in good faith and reasonable under the circumstances."

At the October 22, 2020 continuation of the September 17 CoC inquiry, the prosecutor acknowledged that his Supp CoC contained the following CPL 245.60 additional items of automatic discovery that were served upon defendant on September 29, 2020:

• An updated witness list dated September 29, 2020;^[FN3]

• Supplemental impeachment materials pertaining to Albany Detectives Bernacki and Jourdin;

• A September 18, 2020 supplemental DNA case report received on September 21, 2020;

• Resume for Dr. Bernard Ng;

• Email correspondence with a new witness.

{**70 Misc 3d at 763}When asked how the supplemental law enforcement impeachment materials satisfied his CPL 245.20 (1) (k) (iv) discovery obligations, the prosecutor responded that, based on Detective Bernacki and Jourdin's responses to the questionnaires, pursuant to his continuing obligation to disclose (see CPL 245.60), on September 17 and 24, 2020, he asked the APD Office of Professional Standards to review Bernacki and Jourdin's personnel files for impeachment [*7]materials. Materials were received from the APD on September 25 and served upon defendant on September 29, 2020. In answering the above question, the People failed to account for the fact that the underlying questionnaires forming the basis for the requested impeachment materials were self-reported to the ACDA by the detectives in questionnaires dated January 15, 2020.

Putting obvious issues of staleness aside, the facts even as minimally known demonstrate that despite the Office of the ACDA being placed on direct notice of the existence of potential impeachment material for two law enforcement witnesses on January 15, 2020, it took in excess of seven months (for the Office) and in excess of five months from defendant's April 27, 2020 arraignment on the felony complaint for the trial prosecutor to follow his Office's emailing procedure in tasking the APD Office of Professional Standards with reviewing attendant disciplinary files for potential impeachment materials. Standing alone, the People's unexplained delay in failing to timely provide Brady/Giglio impeachment materials for these two law enforcement witnesses renders the September 16, 2020 CoC and STR illusory and, moreover, fails to support a finding that the People's September 16, 2020 CoC was filed "in good faith and reasonable under the circumstances."

From the September 17 and October 22, 2020 judicial inquiries, as well as the trial ADA's affirmation in opposition to defendant's CoC challenge, the following constitutes the limited information presently known regarding the policies, procedures, communications and efforts utilized by the Office of the ACDA in conjunction with the APD in complying with the self-effectuating order (see CPL 245.20 [5]) compelling the disclosure of Brady/Giglio CPL 245.20 (1) (k) (iv) impeachment materials for law enforcement witnesses:

On an unknown date, Chief Assistant David Rossi drafted the impeachment questionnaires applicable to this case and{**70 Misc 3d at 764} distributed them on an unknown date and by an unknown manner to an unknown number of APD law enforcement witnesses for completion. By design, the questionnaires seek self-reporting from law enforcement witnesses regarding the existence of personal impeachment materials, including complaints founded or unfounded, criminal acts, acts of dishonesty or acts affecting an officer's integrity. It is unknown what, if any instructions were provided to the prospective witnesses in completing the questionnaires. At an unknown time, place and manner the unsworn completed questionnaires were collected and uploaded to an electronically stored file accessible to members of the ACDA's Office. If, how often and by what means the questionnaires are updated and/or reviewed separately or in association with the APD Office of Professional Standards also remains unknown as do the procedures underlying the entirety of the agency between the APD Office of Professional Standards and the Office of the ACDA in complying with CPL article 245.

The court additionally notes that insufficient facts have been set forth from which the court can assess the People's due diligence and good faith efforts in complying with the remaining six categories of CPL 245.20 (1) (k) discovery (see CPL 245.20 [1] [k] [i]-[iii], [v]-[vii]), not to mention facts supporting a compliance determination regarding CPL 245.20 (1) (a)-(j), (l)-(u).

In light of two recent posttrial vacaturs of judgments of convictions based on the ACDA's failure to provide timely Brady/Giglio impeachment materials (People v Hector Gomez, Sup Ct, Albany County, July 2, 2020, Lynch, J., ind No. 18-1-8272; People v Dimitrius Smith, Sup Ct, Albany County, Sept. 8, 2020, ind No. 22-[*8]8560), it is incumbent upon the Office of the ACDA to provide facts permitting meaningful judicial inquiry and review in determining whether the Office of the ACDA as well as the trial prosecutor (see CPL 245.55 [1]) acted with due diligence and good faith efforts in providing "all evidence and information" relevant to the impeachment of their testifying law enforcement officers.

In defending the Office of the ACDA's current CPL 245.20 (1) (k) (iv) Brady/Giglio practices in this case, including the scope of impeachment disclosures, by their memorandum of law, the People, inter alia, cite in excess of 20 rules of statutory{**70 Misc 3d at 765} construction in urging this court to follow the statutory interpretation of CPL article 245 pertaining to the People's CPL 245.20 (1) (k) (iv) discovery obligations set forth by People v Askin (68 Misc 3d 372 [Nassau County Ct, Apr. 28, 2020, Corrigan, J.]) and People v Nelson (67 Misc 3d 313 [Franklin County Ct, Feb. 10, 2020, Main, J.]).^[FN4]

The court finds the People's urged statutory interpretation fundamentally flawed in failing to acknowledge, let alone discuss, the impact of CPL 245.20 (7)—the controlling, legislatively mandated rule of statutory construction to be employed when interpreting the People's automatic discovery obligations, including Brady/Giglio witness impeachment material (see Statutory Interpretation: Presumption in Favor of Disclosure: CPL 245.20 [7], supra).

Moreover, and respectfully, this court concurs with Judge Kitsis's criticism of the statutory analysis employed in Askin and Nelson as set forth in notes four and seven in People v Adrovic.

"This court has difficulty understanding the reasoning in People v Askin (68 Misc 3d 372 [Nassau County Ct 2020]), cited by the People, which declined to follow the plain language of the statute and held that when the legislature said 'all known materials,' it didn't really mean 'all known materials.' In contrast, this court finds that the literal language of the statute is controlling, and believes courts are bound to apply the laws as they are written. (Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018].)" (People v Adrovic, 69 Misc 3d at 572 n 4.)

Unlike Askin and Nelson, and in accord with Adrovic, this court finds that "the literal language of the statute is controlling, and believes courts are bound to apply the laws as they are written" (People v Adrovic, 69 Misc 3d at 572 n 4, citing Matter of Anonymous v Molik, 32 NY3d 30 [2018]).

Perhaps the omission of the presumption of openness (CPL 245.20 [7]) from the People's memorandum of law is better understood when considering the net effect its inclusion would have upon a theory of statutory construction seemingly aimed at finding the bottom floor of CPL 245.20 (1) (k) (iv) discovery compliance.{**70 Misc 3d at 766}

For example, the People argue that they are not imputed with complete possession of police disciplinary files for their law enforcement witnesses despite CPL 245.20 (2), entitled[*9]"Duties of the prosecution," providing unequivocally that "[f]or purposes of [CPL 245.20 (1) automatic discovery], all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution" (emphasis added).

Moreover, that information subject to subparagraphs (i)-(vii) of CPL 245.20 (1) (k) "shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information" should act to remove any doubt over what might and might not be permissible individual items of impeachment as an impediment to discovery.

Similarly, despite clear, newly enacted statutory language detailing the scope of the People's CPL 245.20 (1) (k) (iv) disclosure obligations, the People maintain their continued reliance on the viability of People v Garrett (23 NY3d 878 [2014]) to define the scope of their present-day CPL 245.20 (1) (k) (iv) obligations in vetting their law enforcement witnesses (see William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 [questioning the continued viability of People v Garrett in light of the passage of CPL 245.20 (2)]). In enacting CPL 245.20 (2), the legislature is presumed to be aware of People v Garrett's holding that due process did not require a prosecutor to question law enforcement witnesses about "potential misconduct" or to search the dockets of federal and state court cases for filed "complaints" against them (see id. at 890). The legislature was likewise aware of the holdings in People v Smith (27 NY3d 652 [2016]) and People v Rouse (34 NY3d 269 [2019]) concerning the scope of and import of law enforcement impeachment material.

With knowledge of Garrett, Smith and Rouse as well as countless wrongful convictions, inter alia, the legislature, acting within its purview, enacted CPL article 245, codifying all aspects of the People's Brady/Giglio disclosure obligations within CPL article 245.

Additionally, the People's attempt to limit their present-day CPL 245.20 (1) (k) (iv) Brady/Giglio disclosure obligations solely to "materially" exculpatory information is contradicted by the New York Assembly Legislative Memorandum in Support{**70 Misc 3d at 767} of Bill No. A1431, which includes summaries for the proposed subsections of automatic discovery now contained in CPL 245.20 (1). The summary for CPL 245.20 (1) (j), which was subsequently renumbered (1) (k), provides:

"Section 245.20(1) (j): The prosecution timely discloses all information which tends to negate the defendant's guilt or to mitigate the defendant's culpability, tends to support a potential defense, tends to support a motion to suppress on constitutional grounds, or which would tend to reduce the punishment of the defendant. (This generally is constitutionally-mandated disclosure, and such disclosure is also consistent with the prosecutor's ethical obligations under the Rules of Professional Conduct.) It is mandated to occur earlier than generally occurs under current law, and is broader in that, under the present statute, only 'materially' exculpatory information need be disclosed (which leads to confusion and uncertainty on all sides)" (Mem in Supp, 2019 NY Assembly Bill A1431 [emphasis added]).

The following apt observations were made by the court in People v Adrovic upon similarly being urged by the prosecution to adopt the statutory interpretation employed by Askin and Nelson:

"Several trial courts have adopted the position that the statute, despite its plain language, does not require that the prosecutor disclose 'all known' materials prior to certifying [*10]compliance, because the statute also contemplates ongoing disclosures for materials the parties 'learn of' subsequently. Thus, the hypothetical has been presented that if the police conceal information from the prosecutor, and the prosecutor learns of it later, the prosecutor may then disclose it with a supplemental certificate of compliance under CPL 245.60, but that that same prosecutor would be prohibited from making the disclosure if the police had been open about the information from the start; these courts reason that this would be an absurd outcome and thus the plain language of the statute cannot be followed. (See e.g. People v Nelson, 67 Misc 3d 313, 316-317 [Franklin County Ct 2020]; People v Askin, 68 Misc 3d 372 [Nassau County Ct 2020].) This hypothetical, invented to show the absurd results that could flow{**70 Misc 3d at 768} from giving effect to the language of the statute, ignores the portion of the statute which states that 'all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.' (CPL 245.20 [2].) It also ignores the solution provided for by the legislature: if there is discoverable material which the prosecution knows of but doesn't yet possess, it should either move for an extended time line pursuant to CPL 245.70 (2) or seek an individualized finding of exceptional circumstances pursuant to CPL 245.50 (3). While courts are rightly loath to get drawn into sometimes picayune battles over discovery between the parties, the legislature has now tasked us with resolving these disputes" (People v Adrovic, 69 Misc 3d at 573 n 7 [emphasis added]).

Consideration of the historical context surrounding the passage of CPL article 245; the sheer number of new statutory sections within CPL article 245 directly speaking to the duties and obligations of prosecutors and law enforcement individually and collectively coupled with judicial discovery compliance review (see CPL 245.50); and an embedded statutory rule of construction mandating a presumption of disclosure (see CPL 245.20 [7]) leads this court to conclude that the legislature intended the plain language of CPL article 245 to govern the breadth of the People's Brady/Giglio obligations.

In sum, if the People intend to call a member of law enforcement as a witness at trial, they must disclose all evidence and information, including that which is known to police or other law enforcement agencies acting on their behalf in the case, that impeaches the credibility of that law enforcement witness irrespective of whether they credit the information pursuant to CPL 245.20 (1) (k). There is simply no law enforcement exception to these requirements and as stated above, "law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination" (People v Smith at 659).

Lastly, when assessing the good faith efforts of the prosecution, the court agrees with the People's assertion that the practices of other District Attorney Offices are relevant to assessing the "good faith" of the prosecution in this case. While the People maintain their practices (which remain largely unknown) are{**70 Misc 3d at 769} in keeping with those of unspecified District Attorney Offices throughout the state, for purposes of comparative analysis attached to this decision and order as court's exhibit 3 are samples of CPL article 245 compliance materials generated by the Madison County District Attorney and his Chief Assistant. These documents are made available [*11]for informational purposes on the Madison County District Attorney's website (see https://www.madisoncounty.ny.gov/2465/Discovery-Documents [last visited Nov. 17, 2020], cached at http://www.nycourts.gov/reporter/webdocs/DiscoveryDocsMadisonCounty.pdf). The Office of the Madison County District Attorney's approach to meeting its CPL article 245 obligations is certainly not the only means by which the prosecution can establish its due diligence and good faith efforts in complying with their CPL article 245 responsibilities. However, as the court's CoC due diligence and good faith efforts determination is necessarily a fact-based inquiry, the standing affirmations of the Madison County District Attorney and his Chief Assistant detailing the efforts undertaken by that Office in preparing for 2020 discovery reforms, including, inter alia, a description of procedures, conversations and directives given to county-wide law enforcement agencies, appreciate the breadth of a factual predicate necessary to enable a court to assess whether the prosecutor's Office as well the individual trial prosecutor have exercised due diligence and made good faith efforts in meeting their discovery obligations as set forth in CPL article 245.

In finding the People's September 16, 2020 CoC and concomitant STR invalid, in addition to potential discovery sanctions, to facilitate compliance with CPL article 245 and to reduce or streamline further litigation or future disputes about discovery, pursuant to CPL 245.35 (3) and (4), the court hereby issues the following discovery compliance order:

The prosecutor is to file an additional certificate of compliance containing sufficient facts from which a due diligence determination can be made, stating that the prosecutor "and/or an appropriate named agent" has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article, including such evidence or information{**70 Misc 3d at 770} that was not reduced to writing or otherwise.

If the Office of the ACDA continues to utilize the APD Office of Professional Standards as their agent in meeting their CPL 245.20 (1) (k) (iv) Brady/Giglio obligations, sufficient facts and arguments should be submitted permitting a judicial determination as to whether the APD Office of Professional Standards is an "appropriately named agent" (see CPL 245.35 [3]), as they are essentially policing themselves, to assist the Office of the ACDA in meeting its CPL 245.20 (1) (k) (iv) discovery obligations.

This court reiterates its often stated and unwavering opinion that it is not the role of this court to instruct the People on how to meet their statutory discovery obligations, but merely to assess whether they have. Having held the People's September 16, 2020 CoC and STR invalid and not filed "in good faith and reasonable under the circumstances," this matter is adjourned for the submission of written arguments concerning discovery sanctions.