Defendant Emmanuel Gonzalez is charged with two counts of rape in the third degree, six counts of criminal sexual act in the third degree, eight counts of sexual misconduct, two counts of forcible touching, twelve counts of sexual abuse in the third degree, and two counts of endangering the welfare of a child, based on incidents that allegedly occurred in September, October and November of 2018, when defendant was twenty-one-years old and the complainant fifteen and when, in addition to sexually assaulting her, defendant allegedly requested that she supply him with nude photographs of herself.

The People provided defendant with numerous items of discovery pursuant to the then-extant Criminal Procedure Law (CPL) § 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). A few more items of discovery were served on defendant with a supplemental certificate of compliance on July 22, 2020.

Defendant moves to compel disclosure of outstanding discovery and asks the court to find that the People's certificate of compliance is invalid.

Further, although the People previously consented to a Huntley hearing with respect to defendant's videotaped statement to the investigating detective, defendant now moves additionally to suppress a self-denominated "confession" he allegedly made to complainant's mother, a civilian witness, on December 12, 2018, or in the alternative for a voluntariness hearing (citing CPL §§ 710.20 [3], 60.45 [2]). He also seeks a hearing pursuant to Payton v. New York, 445 U.S. 573 (1980), to suppress statements and physical evidence obtained from him as a result of his having allegedly been unlawfully arrested in his home without a warrant or consent.

The People oppose defendant's motion to compel and his Payton motion.

With respect to the motion to compel, the "automatic discovery" provision of CPL § 245.20 (1) provides a non-inclusive list of items required to be disclosed to a defendant. This obligation includes "all items and information that relate to the subject matter of the case and are [*2]in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (CPL § 245.20 [1] [emphasis supplied]). The statute requires that the prosecution certify its compliance with its discovery obligations in writing (CPL § 245.50 [1]) and that challenges or questions related to a certificate of compliance be addressed by motion (CPL § 245.50 [4]).

CPL § 245.60 imposes a continuing duty to disclose discoverable material that comes into the People's possession subsequent to their filing a certificate of compliance and allows the People to file a supplemental certificate.

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

In his motion, defendant claims that the People failed to comply with their obligations as to several items of discovery. For the reasons stated in the People's response, the court finds that the People have in fact complied with their discovery obligations: the items do not exist, do not relate to the subject matter of the case, are not in the People's control, or have previously been disclosed.

In addition, in response to defendant's claim that some documents were improperly redacted, the People provided the court with unredacted copies of the Grand Jury Synopsis Sheet, the Early Case Assessment Bureau (ECAB) Screening Sheet, the Domain Awareness System (DAS) search result, and the Civilian Complaint Review Board Allegation History and Central Personnel Index File of a detective. As a result of the court's review, the People, at the court's direction, produced unredacted copies of all but one portion of the Grand Jury Synopsis Sheet and the entire ECAB Screening Sheet, making any further ruling as to those items unnecessary, except for the following observation.

The People cogently argue that Article 245 does not require the People to seek a protective order to redact information that is not discoverable. If material is not subject to disclosure, it may be redacted or withheld by the People. Although a protective order may be sought with respect to "materials claimed to be non-discoverable" (CPL § 245.10 [1] [a]), the availability of a protective order does not mean that the universe of "non-discoverable" materials is coextensive with those for which a protective order may issue. The protective order contemplated by CPL § 245.70 [1] (with respect to "discovery or inspection of any kind of material or information under this article" [emphasis supplied]), is for material that relates to the subject matter of the case (CPL § 245.20 [1] [emphasis supplied]), but that, due to a competing concern, must be withheld or whose disclosure may be restricted. Material that does not relate to the subject matter of the case also does not need to be disclosed and may therefore be redacted or withheld without the necessity of a protective order.

So, for example, a search of the police department's DAS revealed a single harassment complaint from 2016 in which the complainant was the victim. That complaint does not "relate[] to the subject matter of the case" (CPL § 245.20 [1]); thus, the People's redaction of the document was proper.

Further, the court agrees with the People that their disclosure regarding a potential witness — two substantiated allegations and one pending allegation of misconduct unrelated to the subject matter of the case but arguably of impeachment value - satisfies their obligations under CPL § 245.20 [1] [k] [iv]. The court rejects defendant's claim that the prosecution must produce underlying records in addition to these disclosures. Nor are the People required "to conduct disciplinary inquiries into the general conduct of every officer working the case" [*3](People v Garrett, 23 NY3d 878, 890 [2014]). To do so "would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefits defendants would enjoy from the information ultimately disclosed on account of the People's efforts" (id. at 891 [quoting United States v Robinson, 627 F3d 941, 952 [4th Cir 2010]]).

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

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

Garrett, 23 NY3d at 889 [emphasis supplied; citations omitted].

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

To be sure, CPL 245.20(2) qualifies the information imputed to the People to be that which is related to the prosecution of a charge. Notably, the personnel records at issue were not created for the purposes of the prosecution of the underlying charges, but for the purposes of the police department's administrative duties. Indeed, there could very well be documents contained in the personnel records that long pre-date the incident leading tothis indictment. Had the legislature intended to impute all information in the possession of the police to the prosecutor, it would have eliminated this qualifier.

(Id. [emphasis suppled]; see also People v Lustig, __ Misc 3d __, 123 NYS3d 469, 474 [Sup Ct Queens Co 2020] [Zayas, J.] ["The Court believes that such an onerous requirement would go far beyond 'a diligent, good faith effort '" [quoting CPL § 245.20 [2]]). Accordingly, the People's disclosure was sufficient.

The court further finds that the contact information for the complainant provided to defendant exceeds that which is required with respect to a "victim or witness of an offense defined under article one hundred thirty" of the penal law (CPL § 245.20 [1] [c]), as she is alleged to be. The court also reminds defense counsel — who complains that he was given information with which to contact the complainant via her mother - that the complainant is a child.

The absence of certain discovery items from the disclosure memorialized in the original certificate of compliance (such as the scratch complaint report, an updated disclosure letter pertaining to a detective, and the resume of an expert) does not vitiate the original certificate. By any measure it was filed "in good faith" and was "reasonable under the circumstances" (see CPL § 245.50 [1]). In other words, the certificate was valid.

With respect to the Payton issue, defendant's motion papers are devoid of any sworn allegations of fact stating the grounds for the motion. "Hearings are not automatic or generally available for the asking by boilerplate allegations" (People v Mendoza, 82 NY2d 415, 422 [*4][1993]). The sufficiency of the factual allegations should be (1) evaluated by the face of the pleadings, (2) assessed in conjunction with the context of the motion and (3) evaluated by defendant's access to information (id. at 426).

Defendant has not provided any facts whatsoever to warrant the granting of a hearing (see People v Gudin, 150 AD3d 414, 414 [1st Dept. 2017] [affirming denial of suppression motion without a hearing where motion "contained no factual allegations whatsoever, conclusory or otherwise, but only stated legal conclusions"], lv denied, 30 NY3d 980 [2017]; CPL § 710.60 [1] [defense motion "must contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds based upon personal knowledge of the deponent"]; see also People v Rose, 178 AD3d 1091 [2d Dept. 2019], lv denied, 34 NY3d 1162 [2020]). Defendant certainly knows the circumstances of his arrest, for example, how the officers allegedly entered his premises, and what if any facts would support his attorney's conclusory assertion that the entry was without consent. Despite having sufficient access to the necessary information, defendant has inexplicably failed to state a basis for a hearing (see People v Jones, 95 NY2d 721,727 [2001]; People v Vega, 210 AD2d 41 [1st Dept. 1994] [defendant's motion to suppress tangible evidence properly denied without a hearing for failure to set forth facts relating to the alleged warrantless search of his home; boilerplate allegations of warrantless search did not otherwise "as a matter of law support the ground alleged"] [citation omitted], lv denied, 85 NY2d 915 [1995]).

A Payton hearing is therefore denied.

The court also denies defendant's motion for a voluntariness hearing with respect to the confession defendant allegedly made to the complainant's mother, a civilian. Defendant has not asserted that this statement was involuntary within the meaning of CPL§ 60.45 (see CPL § 710.20 [3]), which requires that it be the product of force or pressure that undermined defendant's ability to choose whether to make the statement. Defendant does not allege that any force or pressure was used to obtain the statement; rather, he suggests that a day after he allegedly admitted to the mother that he had raped her daughter, unknown individuals communicated a threat to him (see Kuza Aff ¶ 64).

While a hearing may be necessary where a question regarding the voluntariness of the statement arises from the record, no such question appears here. The record discloses nothing to support defendant's contention that the confession he allegedly made to the mother occurred after rather than before any threat to him (see People v Samuels, 162 AD2d 559 [2d Dept. 1990]; cf. People v Grillo, 176 AD2d 346, 347 [2d Dept. 1991] [defendant argued his statements were made after he had been physically beaten and threatened by complainant and a relative]).

Although defendant claims that he need not provide sworn allegations to sustain his burden to obtain a voluntariness hearing, he omits to note that sworn allegations are excused only with respect to statements "claimed to have been involuntarily made to a law enforcement official" (People v Weaver, 49 NY2d 1012, 1013 [1980] [emphasis supplied]); see also People v Jorgensen, 26 Misc 3d 1232 [A] at *6 [Sup Ct Suffolk Co 2010] [defendant not entitled to notice with respect to statements made to prosecution witness who was a civilian and neither a public servant nor acting as an agent of law enforcement]). Defendant does not allege that the complainant's mother was a law enforcement official or agent or anything other than the aggrieved mother of an alleged rape victim.

Indeed, "[i]t is well-established law that if a confession is obtained without the knowledge or participation of law enforcement, it is fully admissible at trial and the law is [*5]clear that no hearing is required when dealing with admissions to private persons" (People v Grune, 139 AD2d 763 [2d Dept. 1988] [citations omitted], lv denied, 72 NY2d 860 [1988]). In such a case, there is no state action, which is a prerequisite to application of the exclusionary rule (see People v Velasquez, 68 NY2d 533, 537 [1986] [statements induced by nongovernmental entities, acting privately, do not fall within ambit of exclusionary rule]; see also People v Horman, 22 NY2d 378, 382 [1968] [where evidence is seized without participation or knowledge of a governmental official, it is admissible in a criminal prosecution], cert denied, 393 US 1057 [1969]).

The rationale is straightforward: The requirement that a suppression hearing be held only if "incriminating evidence [is] elicited by State interrogation serves both the underlying purpose of minimizing the imbalance between the accused and the State and the goal of deterring improper conduct on the part of its agents" (Velasquez, 68 NY2d at 537).

And suppression hearings, finally, are not intended to be discovery devices (see People v Mirenda, 23 NY2d 439, 449 [1969]).

The foregoing constitutes the decision of the court.