Criminal Court of the City of New York, New York County, September 10, 2021

Janet E. Sabel, The Legal Aid Society (Richell Lisboa of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney (Jacqueline Studley of counsel), for plaintiff.

The defendant allegedly rear-ended a police vehicle that was stopped at a red light. At the time of the incident the defendant had a blood alcohol level of .19% by weight of alcohol in his blood, and he stands charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2]). He moves to invalidate the People's certificate of compliance with discovery (COC) and certificate of readiness (COR). He also moves to dismiss the accusatory instrument on speedy trial grounds (see CPL 30.30).

Certificate of Compliance

CPL 245.20 (1) requires the People to "disclose to [a] defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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." The People's discovery obligation is automatic, and thus the defendant no longer needs to make{**73 Misc 3d at 513} a demand for such discovery beforehand (see People ex rel. Ferro v Brann, 197 AD3d 787 [2d Dept 2021]). Once the People have disclosed all relevant items of discovery, they must file a proper COC before they may announce their readiness for trial by filing a readiness certificate (CPL 30.30 [5]).

In this case, the defendant was arraigned on a misdemeanor complaint on December 22, 2020, and the case was adjourned to February 4, 2021, for the prosecution to convert the misdemeanor complaint to an information. On February 4, the People converted the accusatory instrument, and the case was adjourned to April 15, for trial. The next day, February 5, 2021, the People served on defense counsel and filed with the court a COC and a COR.

The defendant claims the COC was invalid, and therefore the People improperly filed a readiness statement, because the discovery provided to him did not include numerous essential [*2]items: the defendant's arrest photos, his mug shot profile, the permit certification of the arresting officer for operating the Intoxilyzer 9000 allegedly used to perform the test of his blood alcohol content, the arresting officer's memo book, and all records of calibration, certification, inspection, repair or maintenance of the Intoxilyzer 9000 for the period six months before and six months after December 22, 2020, the date on which the alleged blood alcohol test was conducted.

The People acknowledge that they erred in failing to disclose the required discovery, but contend they made a good faith effort to provide all discoverable material. They claim their failure to turn over the discoverable material was the result of human error and argue, in part, that they thought they had in fact downloaded discovery materials when they had not. They ask the court to take into consideration the relative newness of CPL 245.20 at the time of disclosure and suggest it was foreseeable that it would lead to reasonable errors in the People's efforts to comply with the statute's mandates. They further contend that the defendant bears some responsibility by waiting more than two months to inform the People of their omissions. The People point out that once the defendant alerted them to the missing material on April 16, they turned over the material in their possession three days later.

CPL 245.20 (2) requires the People to make "a diligent, good faith effort to ascertain the existence of [discoverable] material or information . . . and to cause such material or information to be made available for discovery where it exists but is not{**73 Misc 3d at 514} within the prosecutor's possession, custody or control." This is a fundamental tenet of the new discovery laws and cannot be read out of the statute because it is inconvenient or burdensome for the People to meet their obligation. The prosecution's duty is to turn over all items and information enumerated in CPL 245.20 that are in their possession or control, including any such material in the possession of law enforcement, and they must use diligence to acquire any such material or information that exists so it can be turned over to the defense. The statute does not require the impossible; it does not demand that every scrap of discoverable information be turned over before the People may file a certificate of their compliance with discovery (see e.g. People v Bruni, 71 Misc 3d 913 [Albany County Ct 2021]; People v Erby, 68 Misc 3d 625, 629 [Sup Ct, Bronx County 2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020]). But it does demand that the People use diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC.

[1] Here, the People ask the court to accept that their good faith alone absolves them of their failure to disclose significant discoverable material they knew existed and that was either in their possession or in the possession of law enforcement. But good faith is, by itself, inadequate where the People fail to use diligence to comply with their discovery obligations.

Absent a valid explanation, the People's concession that they inexplicably failed to turn over numerous items of discovery is insufficient and, as a result, their filing of a COC on February 5, 2021, invalid. Nor have they shown good cause for their discovery lapse or explained how they used due diligence in ensuring that fundamental discovery material was disclosed timely. Frankly, given the nature and number of items the People failed to turn over, it is difficult to fathom an explanation that would result in a finding that they were diligent. CPL article 245 was in effect for over a year before the People served and filed their purported COC, long enough to accommodate the statutory disclosure requirements and to ensure appropriate delivery of discovery material to the defense.

Impeachment Material of Police Witnesses

The defendant also attacks the validity of the COC on the ground that the People have failed to provide relevant disciplinary records of the police officers they intend to testify in this case. As the defendant points out, CPL 245.20 (1) (k) (iv){**73 Misc 3d at 515} requires, in relevant part, that the People 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."

Generally, disciplinary records involving police officers take one of two forms. Civilian complaints against police officers are adjudicated by the Civilian Complaint Review Board (CCRB) and, following certain findings, the CCRB must turn over the results of their investigation to the police department (Rules of Civilian Complaint Review Board [38-A RCNY] § 1-33 [c], [d]). Complaints made by police personnel are adjudicated by the Internal Affairs Bureau (IAB) of the police department. While historically, the prosecutor was only required to disclose police disciplinary records in very limited circumstances (see e.g. People v Gissendanner, 48 NY2d 543 [1979]), the legislature recently repealed the statutory provision affording law enforcement officers confidentiality of their disciplinary records (see L 2020, ch 96, repealing Civil Rights Law § 50-a). With this repeal, the defendant contends that the People are obliged to provide him with a complete accounting of all such information, no matter how collateral to the specific events of this case, including all records held by the police department as to the officers involved in activity leading up to this case, to his arrest and to the sobriety tests conducted upon him.

In response, the People assert that they have diligently searched for and disclosed all potentially relevant evidence and information enabling the defendant to impeach the credibility of these officers and they invite him to use the state's Freedom of Information Law to secure more detailed records if he is so inclined.

However, CPL article 245 dramatically increases the rights of criminal defendants to meaningful discovery. When the legislature greatly reduced the confidentiality of law enforcement personnel records, all evidence and information that "tends to . . . impeach the credibility of a testifying prosecution witness" must be disclosed to the defense (CPL 245.20 [1] [k] [iv]). This requires more than providing a list of complaints filed against all testifying officers (see People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]). Instead, the prosecution must provide the relevant underlying disciplinary file documents, including all findings of complaints that were substantiated or unsubstantiated, but{**73 Misc 3d at 516} excluding exonerated or unfounded complaints (id., citing People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]). As the issue was appropriately described in Randolph:

"[A] case is 'substantiated' where it is determined that the facts clearly support the allegation, 'unsubstantiated' when the allegation cannot be resolved because sufficient evidence is not available, 'exonerated' where the act was legal, proper and necessary and 'unfounded' when there is evidence to establish that the act did not occur.^[FN1] Therefore, in cases involving exonerated and unfounded allegations, there is no good faith basis for cross-examination by the defendant's counsel and as such it is not evidence or information that tends to or has an inclination to impeach a police witness. Consequently, [*4]IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery.

"As to information required to be produced in substantiated and unsubstantiated IAB files, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. 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" (Randolph at 772 [citations omitted]).

In the present case, the People have only attached one-page descriptions entitled "Disclosure Advisory" (DAF) of impeachment material as to the seven relevant police officers. These disclosures imply that there are no "substantiated" or pending allegations of misconduct against any of the officers. However, the advisories also expressly omit from disclosure any findings of "unsubstantiated, unfounded, and exonerated" misconduct allegations. They each contain the following language:

"Various publicly available websites and databases {**73 Misc 3d at 517}contain disciplinary information for certain law enforcement officers.

"Information herein regarding civil lawsuits against an officer is not necessarily a complete list of civil lawsuits in which that officer is a defendant.

"Allegations of misconduct that have not been substantiated and are not pending (including, but not limited to, findings of unsubstantiated, unfounded, and exonerated), allegations of technical infractions, are not subject to disclosure and are not included in this advisory." (Emphasis added.)

[2] Insofar as the People's DAF merely informs the defendant that there is no impeachment material to disclose, the DAF is obviously sufficient. Yet it is unclear whether the People have within their possession, either on February 5, 2021, or later, any records of the adjudication of any civilian or police complaints of misconduct on the part of the relevant police officers.

CCRB is obliged to report to the New York City Police Commissioner a finding of "unsubstantiated" misconduct, defined as a finding that "there was insufficient evidence to establish whether or not there was an act of misconduct" (see 38-A RCNY 1-33 [e] [2]). Moreover, the Police Department's Internal Affairs Bureau similarly defines an "unsubstantiated" complaint as "[i]nsufficient evidence to clearly prove or disprove allegations made" (New York City Police Department Administrative Guide, Procedure No. 322-11 [eff June 3, 2020]). Thus, to the extent that the People have not disclosed, or have not used due diligence to uncover, any relevant "unsubstantiated" misconduct within their possession or the possession of law enforcement, their disclosure obligation remains unfulfilled. While it is unclear whether any such material exists for any officers the prosecution intends to call to testify, if it exists it must be disclosed. To the extent that the prosecutor has made no effort to determine whether this material exists, their COC was improperly filed.

Two additional arguments raised by the People deserve brief mention. First is their claim that turning over all "evidence and information" relating to impeachment material by witnesses they intend to call at trial is unduly burdensome. Even if true, burdensome is not the standard for forgiving the prosecutor's discovery obligation under CPL article 245, nor is the prosecution relieved of its obligation simply because the defendant{**73 Misc 3d at 518} has independent access, by subpoena or [*5]otherwise, to the same information.^[FN2] While the statute frees the prosecution from having to use their subpoena power to acquire impeachment material of their witnesses that they do not possess, where the prosecutor or law enforcement possesses such material, it must be included in disclosure. The defense is not precluded from seeking information by way of subpoena, but this does not excuse the People from their duty to supply potential impeachment material that they possess or is within the possession of law enforcement.

Moreover, the People are not without a remedy where disclosure is unduly burdensome or is not in their possession. CPL 245.10 (1) (a) permits the People additional time when discovery materials are exceptionally voluminous. More important, CPL 245.70 (2) permits the court to modify the time periods for discovery for good cause shown (People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021]). Here, the People did not seek a protective order to modify discovery, but instead unilaterally decided to limit disclosure as a matter of convenience.

The People also argue that the body of New York's Brady^[FN3] case law "demands only that a defendant be made aware of 'essential information' (see People v LaValle, 3 NY3d 88, 112 [2004]) related to misconduct that tends to impeach the People's witnesses," and that article 245 should not be read more broadly. However, the new statute is plainly worded and, unlike its predecessor discovery statute, is not limited to the minimum constitutional requirements set forth in the Brady rulings (compare CPL 240.20 [1] [h], repealed by L 2019, ch 59, § 1, part LLL, with CPL 245.20 [1] [k]). To the extent that People v Suprenant (69 Misc 3d 685, 695 [Glens Falls City Ct 2020]) is inconsistent with this analysis, I decline to follow it (cf. People v Davis, 70 Misc 3d 467, 473 [Crim Ct, Bronx County 2020]).

Finally, disclosure of all "evidence and information" tending to impeach the credibility of a testifying prosecution witness cannot be untethered from a recognition that the prosecutorial{**73 Misc 3d at 519} failure to disclose information favorable to the defense has been recognized as one of the principal causes of wrongful convictions (see e.g. New York State Justice Task Force, Report on Attorney Responsibility in Criminal Cases [2017]). Thus, it is unsurprising that the legislature expanded statutory disclosure requirements with respect to evidence and information favorable to the defense. Permitting the prosecutor to be the arbiter of "essential information" is antithetical to that principle. As the court held in People v Soto (72 Misc 3d at 1160), "it is not for the People to determine whether a particular item might be admissible or might serve as impeachment material" (see also People v Rouse, 34 NY3d 269 [2019] [trial court abused discretion in refusing to allow defendant to cross-examine police officer's unrelated misstatements made to a federal prosecutor in a different matter]).

This court therefore disagrees with the People that they satisfied their obligations pursuant to CPL 245.20 (1) (k) and that their filing of a COC was valid as to disciplinary records of the potential police witnesses. They are directed to disclose any relevant underlying disciplinary file documents, including all substantiated and unsubstantiated complaints. [*6]Following any such disclosure, the People must file a supplemental certificate of compliance as required by CPL 245.50.

Accordingly, the defendant's motion to invalidate the COC and COR is granted.

Operating a motor vehicle while intoxicated is a misdemeanor punishable by a sentence of up to one year in jail (Vehicle and Traffic Law § 1193 [1] [b]). Therefore, absent excludable time, the People must declare their readiness for trial within 90 days of commencement of the criminal action (CPL 30.30 [1] [b]). In this case, the action commenced with the filing of the criminal court complaint on December 22, 2020.

A review of the defense motion papers, the People's written response, the defendant's reply, and the court file discloses that the periods of delay are attributable as follows:

At arraignment on December 22, 2020, the case was adjourned for a necessary supporting deposition until February 4, 2021. This period of delay, 44 days, is chargeable to the People because without the supporting deposition, the accusatory instrument was not an instrument upon which the defendant could be tried, and the People were therefore unable to declare{**73 Misc 3d at 520} their readiness for trial (see People v Colon, 59 NY2d 921 [1983]; see also People v Kendzia, 64 NY2d 331, 337 [1985]). (Subtotal—44 days.)

On February 4, 2021, the court deemed the criminal complaint an information and adjourned the case for trial until April 15, 2021. The next day, February 5, 2021, the People served and filed their purported COC with CPL 245.20 (1) and a COR. Inasmuch as the court has found the COC improper, the COR is similarly found to be improper and may not be used to stop the speedy trial clock (CPL 30.30 [5]).

The question remains, however, whether it is appropriate to charge the prosecutor with all delay following their improper readiness statement owing to their improper filing of a COC, especially where the COC is declared invalid over six months after it was initially filed. The discovery statute was never intended by the legislature to promote gamesmanship; instead, it is designed to ensure the free flow of information from the police to the prosecutor (see CPL 245.55) so that the prosecutor can disclose relevant material and information to the defense. Indeed, to facilitate compliance, criminal courts in New York City require the parties to communicate with each other in accordance with CPL 245.35 to resolve any discovery disputes. Moreover, where discovery disputes continue to exist, any challenges made to a COC must be made by motion (CPL 245.50 [4]).

This case provides a good example of how discovery disputes can often be resolved when the parties communicate rather than litigate. After defense counsel informed the prosecutor that certain discovery material was missing from the disclosure provided, the prosecutor promptly sent over the missing material in her possession. Unfortunately, the defense waited almost two months to alert the prosecution to its lapse.

Moreover, when the People declare they are ready for trial by filing a COR, the defense must be given an opportunity to be heard on the issue of whether the People have complied with their disclosure requirements under article 245 (CPL 30.30 [5]). Understandably, where the defense has not had an opportunity to review the discovery material, they often defer being heard on this issue until they can review fully the discovery they've received. While this may be appropriate under the circumstances, it would encourage gamesmanship to permit the defense to allow the speedy trial clock to run for an unreasonable period before making a motion or [*7]contacting the{**73 Misc 3d at 521} prosecutor to resolve discovery disputes. CPL 30.30 (5) was enacted to protect a defendant from being unfairly disadvantaged preparing for trial by the withholding of discovery. That protection must not be used as a sword by the defendant to run out the CPL 30.30 clock.

[3] Thus, where a defendant fails to object to the People's COC or COR at the time of filing and it is apparent, either from the nature of the material disclosed or otherwise, that the People's filing is inadequate under article 245, the defendant must, within a period of time reasonable under the circumstances, communicate to the People that there is missing disclosure material (see CPL 245.35 [1]), and if not satisfied by the People's response, reach out to the court for assistance (see CPL 245.35 [2]), and then object promptly by motion (see CPL 245.50 [4]). Any undue delay by the defendant in seeking relief will not be charged to the People (see CPL 245.35 [4]).

In the present case, the defense should have been able to review the discovery material and make any deficiencies known to the People or the court within a brief period following the People's discovery. Even a cursory review of the discovery material in this case would have alerted the defendant to the People's insufficient disclosure. Although the definition of what is a reasonable period for the defense to review the discovery may vary from case to case, in this case three weeks should have been adequate. The People therefore will be charged for three weeks of delay following their improper COC and COR filing, but will not be charged for the delay after that until the day the defendant notified the People of their disclosure deficiencies. Once they were notified of the disclosure deficiency, the People are still responsible for any subsequent delay in turning over the missing material and any unexcused delay in filing a proper COC and COR. In summary, the People are charged with one day delay from February 4 to February 5, when they filed the COC and COR. An additional 21 days of delay occasioned by their filing the improper COC and COR and while the defendant had a reasonable opportunity to review the material and raise any objection, and the subsequent three days delay in delivering the discovery material not initially turned over to the defense. (Subtotal—69 days.)

On April 15, 2021, the case was adjourned to May 17, 2021, for motion practice. This period is not chargeable to the People (CPL 30.30 [4] [a]; People v Worley, 66 NY2d 523 [1985]).{**73 Misc 3d at 522}

The adjournment from May 17, 2021, to June 1, 2021, for decision of defendant's omnibus motions is not chargeable to the People (id.).

On June 1, 2021, the court decided the omnibus motions and adjourned the case for hearings and trial. This period of delay is not chargeable to the People (id.).

On July 9, 2021, the case was adjourned again until August 12, 2021, related to the instant motion and the case has remained sub judice on the instant motion. This period of delay is not chargeable to the People (id.).

Therefore, from the commencement of this case on December 22, 2020, through September 10, 2021, 69 days of chargeable time have accrued against the People. This is within the period afforded them pursuant to CPL 30.30. The defendant's motion to dismiss the accusatory instrument pursuant to this statute is therefore denied.