County Court, Westchester County, February 18, 2021

Douglas G. Rankin, Brooklyn, for defendant.

Miriam E. Rocah, District Attorney, White Plains (John Astarita of counsel), for plaintiff.

Defendant stands accused of two counts of robbery in the first degree (Penal Law § 160.15 [2]), three counts of kidnapping in the second degree (Penal Law § 135.20), attempted assault in the first degree (Penal Law §§ 110.00, 120.10), and related charges. As set forth in the indictment, it is alleged that, on or about November 16, 2018, defendant, in Westchester County, New York, inter alia, forcibly stole property from two persons while armed with a deadly weapon, abducted three persons, and attempted to cause serious physical injury to a person by means of a deadly weapon.

By notice of motion dated November 5, 2020, with accompanying affirmation, defendant moves to strike the prosecution's certificate of compliance and compel discovery. In response, the People have submitted an affirmation in opposition, dated December 2, 2020. On January 13, 2021, the court held a virtual conference during which both counsel were heard on the motion.

The motion is disposed of as follows:

Defendant moves, pursuant to CPL 245.50 (4), "for an order finding the prosecution's Certificate of Compliance invalid and{**71 Misc 3d at 550} directing full compliance with [Criminal Procedure Law] § 245.20." (Notice of mot at 1.) Particularly, defendant asserts that the People have violated the automatic discovery provisions of CPL 245.20 (1) by not providing him with unspecified [*2]police disciplinary records. In support, defendant asserts that the recent repeal of Civil Rights Law § 50-a, which previously shielded police disciplinary records from disclosure, coupled with recent amendments to the criminal discovery statutes, mandates that the prosecution now automatically provide him with any and all disciplinary records of police officers who may be witnesses in his trial. Since the People have not provided those records, he continues, their certificate of compliance is invalid.

In response, the People first argue that, procedurally, defendant's motion to invalidate their certificate of compliance is untimely and, therefore, should be summarily denied. They assert that, almost one year ago, on March 24, 2020, defendant was served with a filed certificate of compliance. Subsequently, after inquiry, the court found that the People were actually ready for trial. Defendant failed, at that time, to contest the filing. Nor did he do so shortly after CPL 245.50 was amended (to provide that challenges to certificates of compliance must be made by motion). Instead, defendant filed the instant motion some six months after the statute was amended and almost eight months after the certificate was filed. Since defendant did not make the instant arguments earlier, he is, the People argue, precluded from asserting them now.

The People further oppose the motion on the grounds that they have provided defendant with all discovery materials (including any handwritten notes sought by defendant as "memo book entries"). Particularly with respect to police disciplinary records, the People assert that they inquired of police witnesses whether any exculpatory and/or impeachment material exists (see CPL 245.20 [1] [k]). The inquiry included questions regarding any lawsuits and/or complaints within their personnel files. The People assert that the police officer witnesses informed them, not later than March 12, 2020, that there were none; except that one of the police witnesses indicated that he had a 2001 DUI conviction from another state and that two detectives had each been the subject of a separate civil action. Shortly thereafter, while preparing for pretrial hearings scheduled for March 24, 2020, the People again inquired of all police witnesses as to civil actions in which they{**71 Misc 3d at 551} had been named parties, or complaints contained within their personnel files, which questions were all answered in the negative. The People assert that this is the only information that they know of which is specified by CPL 245.20 (1) (k). Upon disclosing this information to defendant, the People claim that they have fulfilled their CPL article 245 disclosure requirements and, therefore, defendant's motion should be denied.

Lastly, the People assert that CPL article 245 does not specifically reference police disciplinary records and therefore should not be read to include such records within its reach, at least insofar as request and review of such records for production to defendants is concerned. At a minimum, on its face, the statute does not impute possession of those records to the People nor require their production. Therefore, notwithstanding the repeal of Civil Rights Law § 50-a, they are not required to provide them to defendant.

1. Timeliness of the Motion

CPL article 245 sets no clear procedure for a defendant seeking to challenge a certificate of compliance. Pursuant to CPL 245.50 (4), "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." As Judge Donnino points out in his Practice Commentary, however, the statute is silent regarding the timing of such motion and whether it need be in writing. (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.50.)

Nonetheless, there is much to be said for the People's argument that defendant waived his right to litigate this issue. The People provided defendant with discovery materials in early 2020. At that time, the People also filed a certificate of compliance and announced readiness for trial. Defendant waited some eight months to challenge the People's certificate of compliance. The People argue that, since defendant did not challenge their representations when they filed the certificate of compliance nor reasonably soon thereafter, he is precluded from asserting the arguments in the instant motion some nine months later.

[1] Certainly, defendant's eight month delay in filing his motion supports a determination that he waived his objection. There are, however, numerous reported decisions wherein courts have addressed untimely defense motions seeking to strike a certificate of compliance on the grounds of what are{**71 Misc 3d at 552} asserted to have been deficiencies in discovery production. (See e.g. People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020]; People v Lustig, 68 Misc 3d 234 [Sup Ct, Queens County 2020]; see also People v Suprenant, 69 Misc 3d 685 [Glens Falls City Ct 2020].) In addition, the court was effectively closed for four months and many deadlines have been tolled for even longer. This, coupled with the lack of a statutory deadline for the motion, compels the court to reject the People's argument that defendant's motion must be denied on the grounds that counsel failed to move more promptly. Therefore, the court will address the asserted merits of defendant's motion.

2. Discovery under CPL Article 245

In 2019, the New York State Legislature dramatically amended the long-standing discovery provisions of the Criminal Procedure Law (L 2019, ch 59, § 1, part LLL, § 2 [eff Jan. 1, 2020]). The legislation, inter alia, repealed former article 240 (relating to discovery) and added a new discovery statute, article 245. These changes not only mandated that the prosecution provide significantly more discovery. They also directed that the materials be provided at an earlier stage of the proceedings. In 2020, CPL article 245 was amended with regard, inter alia, to the timing of such disclosures (L 2020, ch 56, § 1, part HHH, § 1 [eff May 3, 2020]).

Without question, the new CPL article 245 evinces a clear legislative intent to expand the prosecutor's obligation to provide information to the defendant. In addressing any discovery disputes, the court is guided by a "presumption in favor of disclosure." (CPL 245.20 [7].)

The legislature also added a new requirement that, upon providing all discovery materials, the prosecution must "serve upon the defendant and file with the court a certificate of compliance." (CPL 245.50 [1].) Defendant asserts that the instant certificate of compliance is invalid because the prosecution has not provided him with unspecified "police disciplinary records." (Defense counsel affirmation at 2.) During a virtual conference, counsel elaborated by stating that defendant is automatically entitled to the entire personnel file of every potential police [*4]officer witness.

3. Applicable Statutes

Defendant does not cite any case law in support of his motion. Rather, he relies on CPL 245.20 (1) (k) (iv). That statute{**71 Misc 3d at 553} requires disclosure of "[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: . . . (iv) impeach the credibility of a testifying prosecution witness."

In response, the People point to CPL 245.55 and certain trial level decisions to argue that the new discovery provisions mandate that they only need to provide police reports related to the specific case. That section provides

"1. Sufficient communication for compliance. The district attorney and the assistant responsible for the case, or, if the matter is not being prosecuted by the district attorney, the prosecuting agency and its assigned representative, shall endeavor to ensure that a 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.

"2. Provision of law enforcement agency files. 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 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." (CPL 245.55 [emphasis added].)

Similarly, CPL 245.20 provides:

"2. Duties of the prosecution. 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{**71 Misc 3d at 554} 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. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This [*5]subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph (c) or (e) of subdivision one of this section." (Emphasis added.)

4. Analysis

Recently, another judge of this court rejected a defendant's argument that CPL article 245 mandates that the prosecutor must affirmatively provide him with all police officer witness disciplinary files. In Matter of Certain Police Officers (67 Misc 3d 458, 469-470 [Westchester County Ct 2020, Blackwood, J.]), the court held that the new discovery statute directs the prosecution to furnish the defendant with only those records

"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 predate the incident leading to this indictment."

Thus, the court held, the People's duty under the new discovery statute is only to undertake a good faith effort to identify items that might be discoverable, guided by the admonition of CPL 245.20 (2) that "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (Id.)

Other courts have similarly held that the prosecution is not obligated, under CPL article 245, to obtain police disciplinary records specified in CPL 245.20 (1) (k) which are not in their possession. (Knight; Lustig; People v Davis, 67 Misc 3d 391 [Crim Ct, Bronx County 2020]; Suprenant.) In People v Gonzalez, the court held that, pursuant to CPL 245.20 (2), once the prosecution discloses the existence of police disciplinary records, they have satisfied their discovery obligations related thereto.{**71 Misc 3d at 555}

Defendant does not cite any contrary case law. Rather, he argues that the New York State Legislature's June 2020 repeal of Civil Rights Law § 50-a mandates that, pursuant to CPL 245.20 (1) (k) (iv), the prosecution provide him with all disciplinary records related to any law enforcement officers involved with the case (Civil Rights Law § 50-a, repealed by L 2020, ch 96, § 1 [eff June 12, 2020]). In the past, Civil Rights Law § 50-a had acted as a shield to prevent access to police disciplinary records. (People v Gissendanner, 48 NY2d 543 [1979].) Upon its repeal, both sides now have equal access to [*6]them.

In response, the People argue that defendant provides no support for his bald assertion that the legislative repeal necessarily made the formerly protected disciplinary records discoverable under CPL article 245. To the contrary, they argue that, because repeal of Civil Rights Law § 50-a now enables the public to acquire those records, they assuredly are not now more within the prosecution's control than before. The People also argue that the legislature, upon repeal of Civil Rights Law § 50-a, did not explicitly provide for application of CPL article 245 to the now available records. Therefore, the court should not impute such application.

One court has examined these arguments and held that determination of whether the People have complied with the new discovery mandate turns on whether the alleged police misconduct was found to be "substantiated," "unsubstantiated," "exonerated," or "unfounded." In People v Randolph, the court analyzed the new legislation and determined that the People were only required to provide the defendant with police records from "substantiated" and "unsubstantiated" misconduct complaints,^[FN1] implicitly rejecting defendant's argument that prosecutors must turn over all police personnel records.^[FN2]

The court has found two trial level decisions holding that the People's certificate of compliance was invalid due to the prosecution's failure to provide police disciplinary records. In both People v Rosario (70 Misc 3d 753 [Albany County Ct 2020]){**71 Misc 3d at 556} and People v Porter (71 Misc 3d 187 [Crim Ct, Bronx County 2020]), however, the courts were addressing situations where there was founded disciplinary information in the files. Even so, neither court takes the expansive view urged by defendant that, in all cases, the prosecution must provide all potential police witness disciplinary files to the defendant.

The Rosario court relied on the broad statutory framework for discovery, citing: the "presumption in favor of disclosure" (CPL 245.20 [7]), the presumption of possession by the People of "all items and information related to the prosecution of a charge" (CPL 245.20 [2]), and the requirement that all state and [*7]local police agencies shall "make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant." (CPL 245.55 [2].) The Rosario court also rejected the prosecution's continued reliance on People v Garrett (23 NY3d 878 [2014]) regarding such material, asserting that

"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[, 27 NY3d 652, 659 (2016)])." (Rosario, 70 Misc 3d at 768.)

As a result, the Rosario court held the certificate of compliance invalid and scheduled a hearing to consider discovery sanctions.

In People v Porter, the court directed the prosecutor to provide police personnel records related to founded indications of disciplinary material. The court went on to deny the defendant's request for imposition of sanctions after finding he was not prejudiced and that the People's filing of a certificate of compliance and statement of readiness was made in good faith. In any event, neither Rosario nor Porter stands for the blanket proposition, urged by defendant, that prosecutors must, in all cases, provide full disciplinary files of all possible police witnesses.{**71 Misc 3d at 557}

[2] In the absence of any known appellate guidance on the issue, the court rejects defendant's expansive statutory interpretation. In interpreting the new discovery statutes, "the court's primary obligation is to determine and give effect to the Legislature's intent." (People v Dewall, 15 AD3d 498, 500 [2d Dept 2005].) Certainly, the court may not "sit in review of the discretion of the Legislature or determine the expediency, wisdom or propriety of its action on matters within its powers." (People v Friedman, 302 NY 75, 79 [1950].) And, if the words of the statute "have a definite meaning, which involves no absurdity or contradiction, . . . courts have no right to add to or take away from that meaning." (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998].)

By its plain wording, CPL article 245 is quite specific in detailing the material that a prosecutor must provide. The [*8]absence of any specific reference to police personnel files militates against defendant's argument. (See People v Suprenant.) Likewise, the limiting statutory language requiring the prosecutor to provide material "related to the prosecution of a charge" (CPL 245.20 [2]), and "related to the investigation of the case or the prosecution of the defendant" (CPL 245.55 [2]), shows clear legislative intent to limit any expansive interpretation of the specific discovery provisions.

This was the approach taken by the court in People v Davis (70 Misc 3d 467 [Crim Ct, Bronx County 2020]). In Davis, the court held that the prosecutor was not required to provide Internal Affairs Bureau records. Rather, the new discovery statutes merely require disclosure of "information that is favorable to the defendant, but not necessarily the underlying material as well." (Id. at 476.)

This rationale was also adopted by the court in Matter of Certain Police Officers. As that court held, police personnel records are not "related to the prosecution of a charge" as required by CPL 245.20 (2). Rather, they are created "for the purposes of the police department's administrative duties." (67 Misc 3d at 470.) Therefore, the files themselves are not automatically discoverable.

This position was subsequently adopted by the Supreme Court in People v Knight. In Knight, the court held that the prosecution satisfied its discovery obligations regarding potential police witnesses by providing disclosure letters.

In sum, defendant's argument that CPL 245.20 (1) (k) (iv) requires the prosecution to automatically obtain and provide{**71 Misc 3d at 558} all personnel records from every potential police witness necessitates an overly expansive interpretation of the new discovery statutes. Moreover, his argument is belied by the clear wording of the statute. In addition, it is not supported by case law. Therefore, defendant's motion to strike the certificate of compliance for failure to provide him with police witness disciplinary records must be denied.

Accordingly, defendant's motion is in all respects denied.