Criminal Court of the City of New York, Bronx County, November 4, 2020

The Bronx Defenders (Elizabeth Bright of counsel) for defendant.

Darcel D. Clark, District Attorney (Sharlene Disla of counsel), for plaintiff.

Defendant was arrested on January 14, 2020, and charged with assault in the third degree, criminal mischief in the fourth degree, endangering the welfare of a child and harassment. On March 20, 2020, an executive order issued by Governor Cuomo tolled all time periods in court matters due to the ongoing COVID-19 pandemic.

Procedural Background

On August 26, 2020, the People served and filed by email an automatic disclosure form pursuant to CPL 245.20 (1), listing numerous discovery items which had been provided to defendant. On the same date, pursuant to CPL 245.50 (1), the People filed a certificate of compliance (hereinafter referred to as COC) regarding their section 245.20 (1) discovery obligations, and a statement of readiness for trial.

On September 15, 2020, defendant served and filed by email the instant application seeking to have the People's COC, and thus, their statement of trial readiness, declared invalid [*2]due to the People's failure to turn over certain items: a "scratch 61" report; a "Medical Treatment of Prisoner" form; and finally, the disciplinary records of two police witnesses.

In determining this application, the court has reviewed all motion papers and exhibits filed in connection therewith, as well as the contents of the court file.

Statutory Framework

CPL 245.20 (1), the centerpiece of the 2020 criminal justice reform legislation regarding discovery in criminal cases, prescribes a detailed but non-exclusive list of discovery material which the People are obligated to disclose to defendant soon after the commencement of the action. (See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 [online version 2020].) Not only must the People make diligent, good faith efforts to determine whether discoverable material exists, but when it does, they must cause such material to be made available for discovery even when it is not{**71 Misc 3d at 189} within their possession, custody or control—with the exception of materials which may only be obtained by subpoena. (CPL 245.20 [2].) In fact, other than some limited exemptions not relevant here (see CPL 245.20 [1] [c], [d]; [6]; 245.65, 245.70), the prosecutor's obligation to provide discovery under the new 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." (Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10, cited in People v Suprenant, 69 Misc 3d 685 [Glens Falls City Ct, Sept. 10, 2020]; see also People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County, Sept. 15, 2020].) Once the automatic discovery items are provided, service of a valid COC is a condition precedent to the People's declaration of trial readiness serving to toll the statutory speedy trial time. (CPL 30.30 [5].) If the People fail to meet their obligations and the defendant can demonstrate prejudice the court may grant the defendant a remedy or sanction the People. (CPL 245.80.)

Discussion

In this case, defendant objects to the People's alleged failure to produce three items of discovery: a "scratch 61" report, a Medical Treatment of Prisoner report, and the underlying disciplinary records of two of the police officer witnesses involved in the case.

A "scratch 61" report is a handwritten complaint report prepared by a police officer, transcribed into a typewritten report. The People have turned over a typed complaint report. The People contend that after conducting an appropriate inquiry no "scratch 61" exists. The People concede their continuing duty to disclose under CPL 245.60 and the court holds that the People have fulfilled their obligations at this time.

Similarly, defendant's complaint that the People failed to turn over a Medical Treatment of Prisoner report is moot. The People have supplied to the court as exhibit A to their opposition filed herein a document called "Worksheet MTP—Approved," which was disclosed to defense under CPL 245.20 (1). The prosecutor affirms that this is the same form which defendant claims was omitted. The court finds that the People fulfilled their discovery obligations with respect to the Medical Treatment form sought by defendant.

The third item which was omitted from automatic discovery are the disciplinary records of two police officer witnesses. On August 25, 2020, the People disclosed by letter to defense{**71 Misc 3d at 190} counsel that those two officers had substantiated allegations of misconduct in their files, with a one-sentence summary of each allegation. The underlying disciplinary records did not accompany this automatic disclosure. Defendant argues that failure to provide the underlying [*3]records is a violation of CPL 245.20 (1) (k) (iv) which invalidates the People's COC and declaration of trial readiness. The People maintain that disclosure by letter of the substantiated acts met their burden of disclosing information relevant to the credibility of these witnesses.

CPL 245.20 (1) (k) codifies the People's obligations under Brady v Maryland (373 US 83 [1963]), Giglio v 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. (People v Suprenant, 69 Misc 3d 685, 693 [Glens Falls City Ct, Sept. 10, 2020].) Under CPL 245.20 (1) (k) (i), "[a]ll evidence and information . . . which is known to [the] police . . . that tends to . . . negate the defendant's guilt as to a charged offense" shall be disclosed. More specifically, the People must disclose information that could impeach a testifying witness for the prosecution, irrespective of whether the prosecutor credits the information. (CPL 245.20 [1] [k] [iv].)

In enacting the revised discovery procedures for 2020, the legislature urged that the statutory framework be interpreted with "a presumption in favor of disclosure." (People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County, Sept. 15, 2020], citing 2020 McKinney's Session Law News of NY, No. 2 at A-202.) Reinforcing the presumption of complete disclosure of police misconduct files is the June 2020 repeal of Civil Rights Law § 50-a. The repeal of Civil Rights Law § 50-a further erodes asserted claims of confidentiality in relation to police personnel files. (Randolph, 69 Misc 3d at 771.) Analyzing the plain language of the statute, the legislative intent of the revisions to article 245, and the repeal of Civil Rights Law § 50-a, the court holds that the clear intent of the legislature is to further enable defense access to these files. Therefore, the court orders that the disciplinary records of the substantiated allegations must be disclosed to the defense in their entirety.

Undoubtedly, the People acted in good faith in advising the defense by letter of the specific allegations of misconduct and discipline received involving the two police witnesses, especially as several lower courts have rules in accord with the People's interpretation. (See People v Knight, 69 Misc 3d 546 {**71 Misc 3d at 191} [Sup Ct, Kings County, Sept. 2, 2020] [People satisfied their obligations under article 245 with disclosure letters and providing the underlying records to the court]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County, Aug. 19, 2020]; People v Suprenant, 69 Misc 3d 685 [Glens Falls City Ct, Sept. 10, 2020] [letter sent to police instructing that records be available to defense upon request discharged the People's obligations].) However, this court is of the opinion that the holdings of Gonzalez, Knight, and Suprenant contravene both the plain mandates of the new discovery rules and the underlying intent of the revisions to ensure openness in criminal trial preparation.

The People argue that possession should not be imputed to the prosecution, since the disciplinary records were created for administrative purposes and not to prosecute the instant charges. Yet, the People do not maintain that as a practical matter the records are difficult to obtain. (People's reply at 4-5.) Whether or not the defense can pursue other avenues of disclosure does not relieve the People of their obligation to provide these records. The repeal of Civil Rights Law § 50-a eliminates barriers and obstacles that may have inhibited access to such records in the past. (See e.g. Matter of Certain Police Officers, 67 Misc 3d 458 [Westchester County Ct, Feb. 21, 2020].) In fact, it appears that the People already have in possession at least some evidence from the officers' Internal Affairs Bureau (IAB) records, since a short summary of information contained within those records was provided as discovery in the August 25, 2020 letter to the defense.

Notwithstanding the foregoing, the court notes that while article 245 requires disclosure of information, admissibility of the disclosed IAB material for impeachment purposes at hearing or trial remains a decision within the sound discretion of the trial court. The People thus may seek an in limine ruling to preclude any cross-examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness's credibility or there is no good faith basis for the inquiry. (People v Smith, 27 NY3d 652, 660 [2016].)

Conclusion

For the foregoing reasons, the People are hereby ordered to provide the underlying IAB records of the substantiated disciplinary proceedings to the defendant on or before November 30, 2020. The People may redact the officers' Social Security{**71 Misc 3d at 192} numbers and tax identifying information. (CPL 245.20 [6]; Public Officers Law § 89 [2] [b].) Any additional redactions must be sought by court order pursuant to CPL 245.70. The court finds that the People's initial disclosure by letter dated August 25, 2020, was filed in good faith and consistent with their understanding of the law. Defendant has failed to articulate any prejudice as a result of the limited disclosure. Therefore, the court holds that the People's COC and their declaration of trial readiness are valid, and no adverse consequences or sanctions shall be imposed on the People for its initial omission.