Supreme Court, Kings County, July 14, 2021

Brooklyn Defender Services, Brooklyn (Jillian Modzeleski of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Yvette L. Creightney of counsel), for plaintiff.

The defendant moves for an order invalidating the People's certificate of compliance and directing the People to disclose all outstanding items and information discoverable under CPL 245.20. The People oppose the defendant's motion. Upon review of the parties' respective motion papers and the court file, the defendant's motion is denied.

On November 21, 2019, the defendant was arraigned on the captioned indictment, which charged him with attempted assault in the first degree and other related offenses stemming from three discrete incidents that allegedly occurred on or about August 16, 2019, September 2, 2019,^[FN1] and September 25, 2019. On September 18, 2020, the People served and filed a certificate of compliance, pursuant to CPL 245.50.

The defense states that, on September 21, 2020, "counsel made a record during a virtual court appearance about the insufficiencies in [the People's] discovery that rendered their certificate of compliance invalid." Specifically, counsel claimed that the defense was missing "911 calls, radio runs, memo books from officers that responded to the September 2, 2019 TPO and the August 18, 2019 TPO,^[FN2] medical records from the August 18, 2019 incident, photos of injuries, DD5's and the exculpatory information mentioned in the People's NDF." Defense [*2]counsel further alleges that the People expressed their intent to disclose additional discovery at a future date—namely, exculpatory information, contact information for the complaining witness and any photographs relating to the case. According to the defendant, although deficiencies in the People's{**72 Misc 3d at 905} discovery persist, the People have neither withdrawn their certificate of compliance nor furnished the defense with all of the missing items.

CPL 245.20, entitled "Automatic discovery," sets forth the People's discovery obligations in all criminal matters, which include "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (CPL 245.20 [1] [a]-[u]). For purposes of CPL 245.20 (1), "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 prosecution is required to "perform its initial discovery obligations under subdivision one of [CPL 245.20] as soon as practicable" but not later than 20 calendar days after the defendant's arraignment on an indictment if the defendant is in custody during the pendency of the criminal case (CPL 245.10 [1] [a] [i]); otherwise, the People must satisfy the requirements of CPL 245.20 "within thirty-five calendar days after the defendant's arraignment on an indictment" (CPL 245.10 [1] [a] [ii]). However, the time period prescribed by the statute "may be stayed by up to an additional thirty calendar days without need for a motion" when the discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution" (CPL 245.10 [1] [a]).

Once the People have, in good faith, complied with the mandates of CPL 245.20, they are to file a certificate of compliance (CPL 245.50). The certificate of compliance must 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" (CPL 245.50 [1]).

If the prosecution discloses additional discovery subsequent to the filing of its certificate of compliance in accordance with CPL 245.60, it must serve and file a supplemental certificate identifying the additional material and information provided (CPL 245.50 [1]). However, "[n]o 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{**72 Misc 3d at 906} for a discovery violation as provided in section 245.80 of this article" (CPL 245.50 [1]).

Defense counsel argues that, under the statutory framework, the defense does not bear the burden of establishing that evidence or information is discoverable; rather, the defense asserts that "to withhold material the prosecution must establish the contested materials are wholly irrelevant to the criminal proceeding and rebut the presumption in favor of disclosure when interpreting CPL § 245.20."

Preliminarily, the court notes that defense counsel acknowledges receipt of 911 calls, memo books and hospital records, but alleges that the disclosures were "incomplete" without specifying the basis for that claim. The defense seemingly asks the court to go through the People's discovery and determine which of the 911 calls and medical records, among other materials, may have been omitted from the People's disclosures, which the court declines to do. The court will only address the items properly identified in the defendant's papers.

[*3]911 Calls and Radio Runs for All TPOs

According to the People, there are no radio runs or 911 calls associated with the August 16, 2019 incident because it was not initially reported to law enforcement. The People further state that NYPD records indicate that the September 25, 2019 incident was a "pick up" and that there are no 911 calls associated with the incident. The People aver that, on September 15, 2020, they provided defense counsel with the event information form for the incident of September 25, 2019 (NY St Cts Elec Filing [NYSCEF] Doc ID YGIZ4N at 71).

The defendant does not dispute that the radio run and 911 call pertaining to the September 2, 2019 incident was disclosed via OneDrive on September 15, 2020. The issue is therefore moot.

Contact Information for the Complainant

The People state that the contact sheet bearing the complainant's phone number was included in the subfolder labeled "Redacted Tyrone Moore," which was uploaded on September 15, 2020. A copy of the contact sheet is attached to the People's motion (NYSCEF Doc ID YGIZ4N at 192).

Medical Records for the August 16, 2019 TPO/Photos

The People shared the complainant's medical records from August 18, 2019, with defense counsel via OneDrive on September 15, 2020 (NYSCEF Doc ID YGIZ4N at 73-117). On{**72 Misc 3d at 907} the same date, the People uploaded photos that purport to depict photos of the complainant's injuries.

Scratch and Typed Complaint Reports for All TPOs; Scratch Arrest Report and Prisoner Movement Slip for Unspecified TPO

According to the People, Officer Morel—the arresting officer for the September 2, 2019 incident—received negative results when he searched NYPD records for a scratch complaint report and a prisoner movement slip associated with the matter. The People also spoke with three additional officers, including Sergeant Patrick Lynch of the 75th Precinct, who confirmed Officer Morel's statement.

The People served defense counsel with electronic copies of the scratch arrest and complaint reports for the September 25, 2019 incident via OneDrive on September 15, 2020.

Memo Books for Responding Officers/DD5s for August 16, 2019 and September 2, 2019 TPOs

The People state that there are no memo book entries or DD5s for the August 16, 2019 incident because it was not reported at the time. The People also indicate that no DD5s were generated for the September 25, 2019 incident.

Memo book entries of the arresting officer for the September 2, 2019 and September 25, 2019 incidents, Officer Morel, were shared with the defense via OneDrive on September 15, 2020.

The People do not dispute that they failed to provide the memo book entries for the responding officer(s) for the September 2, 2019 incident or the DD5s relating to the incident. According to ADA Creightney, the DD5s were inadvertently omitted during the process of uploading the People's discovery to their shared OneDrive folder. Upon learning of the missing DD5s, ADA Creightney contacted members of the NYPD and obtained additional scanned copies of the relevant DD5s and any associated attachments, which were uploaded with the People's motion papers. Because the omission of the DD5s at issue appears to be an unintentional oversight, it does not demonstrate that the People acted in bad faith so as to warrant invalidating their certificate of compliance (CPL 245.50 [1]).

The People have yet to provide the memo book entries for the responding officer (Officer Darrell Scraper) for the September 2, 2019 incident. In her affirmation, ADA Creightney asserts that she attempted to obtain the memo book(s) from the{**72 Misc 3d at 908} NYPD upon receiving the case, but all of her efforts were to no avail. ADA Creightney states that her multiple subsequent requests have been similarly unfruitful. Her most recent NYPD request was made in the days before she executed her affirmation in opposition to the instant motion. The court finds that the People exercised due diligence to secure the memo book(s). Consequently, the absence of the memo book(s) does not invalidate their certificate of compliance.

Brady/Exculpatory Information

The defendant's claim that the People withheld Brady material is predicated upon the fact that the People "checked" the box for "Exculpatory and Impeachment Information" on their "Notice of Disclosure Form" (NDF). ADA Creightney indicates that the box was checked off because there are relevant Giglio disclosures, which the People provided to the defense prior to filing their certificate of compliance. ADA Creightney asserts that the People are not aware of any exculpatory information at this time, and she acknowledges the People's obligation to disclose such information should any come to light.

Accordingly, the defendant's motion is denied.

The court directs the parties to diligently confer to resolve any further discovery disputes (CPL 245.35 [1]).