Supreme Court, Queens County, December 3, 2020

The Legal Aid Society, Kew Gardens (Kristie Ranchurejee of counsel), for defendant.

Melinda Katz, District Attorney, Kew Gardens (Samantha DeLao of counsel), for plaintiff.

The defendant, Saray Cano, is charged with aggravated driving while intoxicated as a class E felony (Vehicle and Traffic Law § 1192 [2-a]), two counts of driving while intoxicated as a class E felony (Vehicle and Traffic Law § 1192 [2], [3]), aggravated driving while intoxicated as an unclassified misdemeanor (Vehicle and Traffic Law § 1192 [2-a]), two counts of driving while intoxicated as an unclassified misdemeanor (Vehicle and Traffic Law § 1192 [2], [3]), and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]).

The People filed a certificate of compliance, pursuant to CPL 245.50 (1), on February 21, 2020. Shortly thereafter, they filed a supplemental certificate on February 24, 2020. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials. The People oppose the defendant's motion.

On January 1, 2020, the new article 245 replaced article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia, [*2]expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See L 2020, ch 56, § 1, part HHH; 2020 McKinney's Session Law News of NY, No. 1 at 475-480.)

Pursuant to CPL 245.20 (1), prosecutors are now required to disclose "all items and information that relate to the subject matter of the case and are in the possession, custody or control{**71 Misc 3d at 731} of the prosecution or persons under the prosecution's direction or control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. (CPL 245.20 [1].) CPL 245.10 sets forth a time line for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional 30 days without the need for a motion.

In making such disclosures,

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)] 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." (CPL 245.20 [2].)

Importantly, "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].) The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting article 245. (CPL 245.20 [7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." (CPL 245.60.)

The new discovery law also, for the first time, ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL 245.20 (1). (CPL 245.50 [1].) Therein, the People must affirm 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{**71 Misc 3d at 732} and information subject to discovery." (Id.) In addition to this statement, the certificate must include a list of the discovery materials provided. (Id.) Moreover, if the People provide additional discovery in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information provided." (CPL 245.50 [1].) Notably, the statute also specifies, "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." (CPL 245.50 [1].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL 30.30. Pursuant to CPL 245.50 (3),

"absent an individualized finding of 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 [*3]of this section."

The statute further clarifies that

"[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 [CPL 245.80 (1) (b)], despite diligent and good faith efforts, reasonable under the circumstances." (CPL 245.50 [3].)^[FN1]

And CPL 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded{**71 Misc 3d at 733} by a certification of good faith compliance with the disclosure requirements of section 245.20 . . . ." (CPL 30.30 [5].)

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL 30.30 [5]; People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct, NY County 2020].) However, in evaluating a claim regarding the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper certificate" of compliance, which it makes the prerequisite to an announcement of trial readiness. (CPL 245.50 [3].) Given that the statute specifies that "[n]o adverse consequence" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances" (CPL 245.50 [1]), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL 245.50 (3) and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *1, *3 [Sup Ct, Kings County 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct, Queens County 2020]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v Davis, 70 Misc 3d 467, 474-480 [Crim Ct, Bronx County 2020].) Indeed, in People v Erby (68 Misc 3d at 633), a court of coordinate jurisdiction addressing a discovery challenge observed:

"As the legislative history of article 245 indicates, and as the article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic{**71 Misc 3d at 734} discovery rules specified in CPL 245.20."

Similarly, in People v Knight, another court addressed a situation in which the People had provided "[a] very few [additional] discovery items" to the defendant after filing their certificate [*4]of compliance. (69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that "[b]y any measure it was filed 'in good faith' and was 'reasonable under the circumstances' " and, thus, was "valid." (Id.)

In his motion, the defendant has included a long list of materials, which he asserts are discoverable, that the People did not provide prior to filing their certificate of compliance. In their opposition papers, the People have enumerated these items and addressed each of them in turn. For most of these materials, the People have given a detailed explanation of their efforts to locate this material and their determination, after these efforts, that the requested material does not exist. (See People's response, item Nos. 1-6, 9-14, 16-22, 24, 26, 27, 29, 31.) This court finds that the efforts the People describe with respect to these items, including calling the relevant officers or agencies, discussing the existence of such material with them, and attempting to locate it, amounted to due diligence. And, notably, the defendant has not articulated any good faith basis to suggest these materials, in fact, exist. The People, therefore, fulfilled their discovery obligations pursuant to CPL 245.20 (1) appropriately with respect to these alleged items.

Moreover, there are a few materials in this list that the People assert they have already provided. (See People's response, item Nos. 15, 31-33.) The court finds that the People have also fulfilled their discovery obligations with respect to these items.

As for the remaining materials, the People argue that certain items requested are not discoverable pursuant to CPL 245.20. These materials warrant further discussion. The first such category of items is drafts of criminal complaints written in this case. The People argue that these drafts are not discoverable pursuant to CPL 245.65, because they constitute the internal documents of one of the parties relating only to their legal research, opinions, or theories. The People also affirm that they have questioned the arresting officer about the draft complaint that he created during the intake process. He advised{**71 Misc 3d at 735} them that he copied and pasted the contents of the draft directly from the police complaint report he created, which the People note has already been shared with defense counsel. That draft was then deleted as a part of a routine process of the Queens District Attorney's Office's computer system. The People have not been able to locate any copy of the original draft. Accordingly, this material has been destroyed and cannot be turned over.

[1] The draft at issue is discoverable and subject to automatic discovery pursuant to CPL 245.20 (1) (e), which provides for automatic discovery of "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports." Nevertheless, because the draft was destroyed, the failure to turn it over does not render the People unable to announce ready or certify their compliance pursuant to CPL 245.50 (3). As discussed above, that section states,

"[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 [CPL 245.80 (1) (b)], despite diligent and good faith efforts, reasonable under the circumstances."

Thus, the People's inability to disclose this material does not vitiate their certificate of compliance.

In such circumstances, where discoverable material is lost or destroyed, "the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost or [*5]destroyed material may have contained some information relevant to a contested issue." (CPL 245.80 [1] [b].) Here, the substance of the destroyed material was copied directly from another report, which is still in existence and which the People provided to defense counsel before filing their certificate of compliance. Because the defense is in possession of all information contained in the destroyed material, no sanction is appropriate.

The second category of evidence that the People argue is not subject to the discovery statute is overtime reports from the officers involved in the case. The defendant argues that this material{**71 Misc 3d at 736} is discoverable under CPL 245.20 (1) (e), which as previously discussed, requires disclosure of police and law enforcement agency reports containing evidence or information relevant to any offense charged or potential defense. The People disagree, arguing that the report is not relevant to this case, but rather, is administrative documentation relating to the officers' employment.

In People v Watkins (157 AD2d 301, 313 [1st Dept 1990]), the First Department concluded that an overtime voucher did not constitute Rosario material because it "contains no factual assertions about or descriptions of the events which were the subject matter" of the witness's testimony. More directly concerning the matter at issue—namely, the People's obligations under the new discovery statute—the court in People v Lustig (68 Misc 3d 234) addressed the issue of whether overtime vouchers were discoverable under CPL 245.20 (1). Citing Watkins, the court concluded that they were not. Overtime records "fall outside the scope of [the People's] discovery obligations, expansive though they may be, because the vouchers do not 'relate to the subject matter of the case.' " (Id. at 247.)

[2] This court agrees. Because overtime records do not relate to the subject matter of the case, the offense charged, or any potential defense, they are not discoverable pursuant to CPL 245.20 (1).

The final category of material that the People argue is not discoverable is impeachment information contained in police personnel files and civil lawsuits filed against police witnesses. The defendant argues that the repeal of Civil Rights Law § 50-a renders all impeachment material in police personnel and administrative files subject to automatic disclosure under CPL 245.20 (1) (k). And he claims that a list or summary of impeachment information regarding the testifying officers is insufficient. The People contend that such material is not discoverable because the paragraph requiring disclosure of impeachment material does not mandate the disclosure of the underlying records, which would be unduly burdensome. In that regard, they argue that such material is not deemed to be in the possession of the prosecution pursuant to CPL 245.20 (2), as it does not relate to the prosecution of a charge. Further, the People assert that there is no relationship between the repeal of Civil Rights Law § 50-a and the People's discovery obligations.

{**71 Misc 3d at 737}Under the automatic discovery statute, the People are required to disclose "[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].) That paragraph further provides: "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." (CPL 245.20 [1] [k].) Importantly, this paragraph is a part of CPL 245.20 (1), which broadly states that the People must disclose "all items and information that relate to the subject matter of the case," followed by a non-exhaustive list that includes the impeachment material discussed in [*6]paragraph (k). As discussed previously, the discovery law dictates 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].)

Several trial courts have addressed the scope of the People's obligation to disclose impeachment material under CPL 245.20 (1) (k). In Matter of Certain Police Officers (67 Misc 3d 458, 469 [Westchester County Ct 2020]), the court considered (1) a motion to vacate orders the People had sought directing law enforcement witnesses to answer a questionnaire pertaining to their conduct, and (2) a motion to quash a subpoena for police personnel records that the People had sought in the alternative. The People intended to use the questionnaires to fulfill their discovery obligations pursuant to CPL 245.20 (1) (k). In a discussion of the People's duty under the statute, the court found that if the police answered the questions in the People's questionnaire in the negative (stating that there was no misconduct in their history of employment with the police department), "the inquiry ends," because, in that event, the People would not have an obligation to obtain the officers' personnel records. (Id.) In that regard, the court "[did] not read CPL 245.20 to mean that all records in the possession of the police department, including personnel records, are deemed to be in the custody and control of the People," reasoning that, "[u]nder such a reading, it could be said that the People would be under the obligation to turn over every police witness' personnel record in every case—an unreasonable and excessive obligation that [the] court [was] not willing to impose." (Id. at 469-470.)

{**71 Misc 3d at 738}Further, in People v Gonzalez (2020 NY Slip Op 50924[U], *2-3), the court found that the People had fulfilled their obligation under CPL 245.20 (1) (k) by making a disclosure regarding certain misconduct by a potential witness and that the People were not required to produce the underlying personnel records relating to the misconduct. Similarly, in People v Knight (69 Misc 3d at 550), the court found that the People had satisfied their duty under CPL 245.20 (1) (k) by providing disclosure letters regarding officers' misconduct. The court rejected the claim that the People were required to produce the underlying records in addition to these disclosures. (Id.)

[3] Based on the language of the statute and its interaction with the overall statutory scheme of article 245, this court finds that the People are not required to obtain and disclose all personnel records in the possession of the New York City Police Department. Nor are they required to obtain and disclose all civil lawsuits involving testifying officers. CPL 245.20 (1)'s qualification requiring the People to turn over all material "that relate[s] to the subject matter of the case" is an important limitation on the items they must provide. Similarly, CPL 245.20 (2) limits the items deemed to be in the People's custody and control to those "related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency." This language circumscribes the People's discovery obligations. Because they do not relate to the prosecution of the charge, police personnel records are not deemed, by the statute, to be in the People's control.^[FN2]

This reading is consistent with the Court of Appeals' conclusion in People v Garrett (23 NY3d 878, 889 [2014]), on which the People rely. Although, obviously, the case was decided [*7]before article 245 was enacted, the use of the word "related" in the statute tracks the language the Court used in that case to discuss the type of police misconduct of which the prosecution has imputed knowledge, whether or not they have actual knowledge. The Court noted that "there 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.' " (Id. at 889, quoting People v Vasquez, {**71 Misc 3d at 739}214 AD2d 93, 100 [1st Dept 1995].) Relying on that distinction, the Court concluded that the People did not have constructive knowledge of an unrelated lawsuit against a police witness of which they did not have actual knowledge. (Id.)

Here, because the requested items are not within the People's control and do not relate to the subject matter of the case, they do not fall within the ambit of CPL 245.20 (1). A contrary finding would not only go beyond the plain language of CPL 245.20, but also render the People's discovery obligation an almost insurmountable burden. Because, in this case, the People are unaware of any instances of misconduct by the police witnesses, in order to obtain the requested material, they would have to obtain all personnel records relating to each police witness and comb through them in case they contain some instance of misconduct as well as search for lawsuits in every possible jurisdiction where the witnesses could have been sued for misconduct. This quest would amount to a widespread fishing expedition, which the People presumably would have to engage in multiple times before trial, as most police witnesses will be current law enforcement employees and, thus, could naturally have new matters arise in their personnel files between the time of discovery and trial. The court does not find that CPL 245.20 (1) requires the People to engage in such a Sisyphean task. As the Court of Appeals observed regarding information about civil suits in Garrett, "[t]his 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." (23 NY3d at 891.)

As for the remaining materials, the People disclosed a few items of negligible significance belatedly upon reviewing the defendant's motion and conducting further inquiries. The court finds that the delayed disclosure of these items does not render their certificate of compliance invalid. Given that it was made in good faith and reasonable under the circumstances, the court finds that the original certificate was proper, pursuant to CPL 245.50 (3).

Finally, the defense requests that the court summarily suppress all evidence related to the breathalyzer test, apparently as a sanction under CPL 245.80, though they do not characterize it as such. They argue that this sanction is an appropriate measure for the People's failure to meet their discovery obligations as to the belatedly disclosed and otherwise unavailable{**71 Misc 3d at 740} material because of the suspension of CPL 30.30 by executive order during the COVID-19 pandemic.

[4] Pursuant to CPL 245.80 (1) (a), "[w]hen 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." Here, the defendant has failed to show any prejudice arising from late discovery of a few materials. Certainly, the suspension of CPL 30.30 does not render the delayed disclosure of a few materials more prejudicial. The fact that the People were not charged with time pursuant to CPL 30.30 during the pandemic only affects the calculations that will take place in the event a CPL 30.30 motion is filed. As this case is not yet scheduled for a hearing or trial, the defendant has not been thwarted in his ability to use [*8]these materials—nor has he been deprived of sufficient time to review them. This court, therefore, finds that the defendant has not suffered any prejudice as a result of this delay and no sanction is warranted.

The defendant's motion is, therefore, denied in all respects.

"When material or information is discoverable under this article but cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue."

Thus, this section addresses only situations in which material is "lost" or "destroyed," leaving unclear the meaning of "otherwise unavailable" in CPL 245.50 (3).