Defendants move this court for an Order (1) determining that internal personnel records of police agencies are automatically discoverable pursuant to CPL §245.20(1) and (2) striking the People's previously filed certificate of compliance for failure to provide the same.

After considering the arguments made by counsel and due deliberation thereon, defendants' motion is denied in its entirety.

Defendants were arrested on December 23, 2019 by members of the Buffalo Police Department and charged with unlawful weapons possession. On February 26, 2020 defendants were arraigned, with counsel, by this court on the instant indictment charging each with two counts of criminal possession of a weapon in the second degree (PL §265.03 [3]).

At defendants' arraignment, the People declared trial ready and provided a "certificate of compliance statement of readiness for trial" pursuant to CPL §245.50 for the court and counsel.

On March 6, 2020, the People provided the grand jury minutes to defendants and the court and filed a supplemental certificate of compliance pursuant to CPL §245.50.

To date, the People have not furnished any disciplinary records, or other personnel records, of any law enforcement officers.

Defendants argue that internal personnel records maintained by police agencies are not only automatically discoverable, but that knowledge of their existence and their contents are imputed to the People as if it were in their possession and control. As such, defendants argue, the People cannot file a statement pursuant to CPL §245.50, declaring readiness for trial, until those personnel records are disclosed.

For the following reasons, defendants' arguments do not survive a plain reading of the relevant statutes.

When required to interpret statutes, a court's principal obligation is to "ascertain and give effect to the intention of the Legislature" (Town of Irondequoit v. County of Monroe, 36 NY3d 177, 182 [2020] internal quotations omitted). Where, as here, the statutes to be interpreted are part of a wider "statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible" (Id.,quoting Matter of Mestecky v. City of New York, 30 NY3d 239, 243 [2017]). Further, it is a fundamental rule of statutory construction that a specific, particular provision of a statute will supercede a general provision in the same statute (People v. Lawrence, 64 NY2d 200, 236 [1984]).

On January 1, 2020, a raft of changes to the criminal procedure law enacted by the New York State Legislature became effective. In addition to enacting a new discovery statute, the Legislature linked the People's compliance with discovery to trial readiness (CPL §245.50). Under the new provisions, the People must certify their "good faith compliance" with CPL §245.20 before their declaration of trial readiness will toll the speedy trial statute (CPL §30.30[5]).

Pursuant to CPL § 245.20(1), the People must disclose to the defendant all items and information that relate to the "subject matter of the case" (CPL §245.20[1]). The remainder of the statute enumerates the classes of evidence that must be disclosed to the defendant in the "initial discovery" phase (CPL §245.20[1][a - u]). The initial discovery phase, where the items subject to "automatic discovery" must be disclosed, should be completed within 20 days of arraignment where the defendant is in custody and 35 days where the defendant is not (CPL §245.10[1]).

The Legislature, undoubtedly aware of the burdens imposed by this time line, created exceptions to it within the "timing of discovery" statute (CPL §245.10 [1][a][iv][A-B]) and within the "automatic discovery" statute itself.

At issue here are the provisions of CPL §245.20(k), which requires evidence and information known to police that "tends to impeach the credibility of a testifying prosecution witness" to be turned over "expeditiously upon its receipt." The scope of this statute clearly includes testifying law enforcement officers. However, it must also be read within the context of CPL §240.20(1), which restricts the universe of discoverable information to that which "relates to the subject matter of the case."

In limiting the discovery of impeachment material, the Legislature chose to mirror the distinction drawn by the Court of Appeals regarding the People's obligation under Brady to disclose impeachment evidence. In People v. Garrett, the court recognized the difference between impeachment evidence generated over the course of the criminal investigation in [*2]question, rather than impeachment evidence relating to a prosecution witness that had nothing to do with the criminal investigation ( 23 NY3d 878, 889 [2014]).

In addition to limiting impeachment evidence to material related to the investigation of the relevant defendant, the Legislature declined to make this information part of "automatic discovery" pursuant to the time line established by CPL §245.10(1). Instead, the Legislature requires the People to disclose this material "expeditiously upon its receipt" (CPL §245.20[1][k]).

The creation within the statute of an independent triggering event for disclosure (i.e. the prosecutor's receipt of the information) of the material described in CPL 245.20(1)(k) supercedes the more general disclosure requirements of CPL Art. 245. Further, the wording used by the Legislature presumes both that this material is not in the People's possession, and that it would likely come into the prosecutor's possession after automatic discovery is completed. Indeed, the Legislature charges the prosecutor to make a "diligent, good faith effort" to find discoverable material, even when it is not "within the prosecutor's possession" (CPL §245.20[2]). It is sufficient, for the purposes of discovery compliance, to establish a "flow of information" between prosecutors and law enforcement agencies to provide discoverable material "including, but not limited to, any evidence or information discoverable under [CPL§ 245.20(1)(k)]" (CPL§ 245.55).

The Legislature also imposed on prosecutors the burden of sifting through this material in search of evidence that "tends" to impeach witnesses or otherwise benefit the defendant. The Legislature imposed a similar obligation with respect to tapes and other recordings (CPL §245.20[1][g]). In employing their discretion, prosecutors should be mindful of the presumption in favor of disclosure (CPL §245.20[7]).

In sharp contrast, the Legislature imputes to prosecutors knowledge and possession of all items and information related to the "prosecution of a charge" that is in possession of law enforcement agencies (CPL §245.20[2]). Thus the Legislature created a clear distinction between information that relates to "the subject matter of the case" and information that relates to "the prosecution of the charge." By its plain meaning, the latter focuses on material pertaining to the elements of the charge levied against the defendant, which is imputed to be in the prosecution's possession, as opposed to material that relates to the "subject matter of the case." This reading is further supported by practical considerations: evidence that is related to establishing the elements of an offense is less voluminous, more valuable and more easily identifiable by the parties than information that pertains to the "subject matter" of a case. Further, while a prosecutor may be in compliance with his discovery obligations by making a "good faith effort" to disclose information related to the subject matter of the case, that forgiving standard is unavailable to him with respect to material directly relevant to the elements of the offenses charged.

Defendants argue that all internal disciplinary files of law enforcement officers are related to the prosecution of the charge and thus the existence and content of those files are imputed to the People.

Defendants fail to explain how evidence of an officer's misconduct in an unrelated investigation, which is within the scope of material sought by defendants, could effect the People's trial readiness, much less prove or disprove the specific elements of the charges pending against them. Imputing possession and knowledge of such evidence is at odds with the plain [*3]wording of CPL §§245.20(1)(k) and 245.20(2). If possession of such impeachment material is imputed to prosecutors, it would be unnecessary for the Legislature to mandate disclosure upon the prosecutor's receipt of such material, or for prosecutors to establish a "flow of information" pursuant to CPL§ 245.55.

Additionally, the practical effect of imputing knowledge and possession of all evidence of an officer's misconduct to prosecutors would create the ceaseless "fishing expedition" the Court of Appeals sought to avoid (Garrett at 890-1).

Defendants also suggest the Legislature's recent repeal of NY Civil Rights Law 50-a has some relevance to the People's discovery obligations. While making it possible for the public to obtain a personnel record pursuant to a Freedom of Information Law request will make it easier for defendants and their attorneys to obtain that information, it does not alter the prosecution's discovery obligations imposed by Art. 245 of the Criminal Procedure Law. Simply, if the Legislature had intended to make an officer's entire personnel file discoverable pursuant to Art. 245 of the Criminal Procedure Law, it would have done so, regardless of whether NY Civil Rights Law 50-a was repealed.

In sum, the Legislature intended for prosecutors to treat impeachment evidence of law enforcement witnesses differently from other discoverable material. Rather than relying on the time frame provided by CPL §245.10(1), the Legislature created a separate, specific disclosure requirement for CPL §245.20(1)(k) evidence. The Legislature reinforced this intention by imposing the "flow of information" and continuing duty to disclose requirements ( CPL§§ 245.55 and 245.60).

Therefore, the Legislature expressly provided for the facts at issue here, where the People have made a good-faith effort to disclose all the material required by "automatic discovery," but have yet to furnish any impeachment evidence for prosecution witnesses. In such circumstances, the People may validly answer trial ready and file a certificate pursuant to CPL§245.50, provided they maintain a flow of information with the relevant law enforcement agencies and disclose information that tends to impeach their witnesses expeditiously upon their receipt of it.

Regardless of whether the time for automatic discovery has lapsed, under the obligations imposed by Brady, Giglio and CPL Art. 245, when the People come into possession of impeachment evidence of prosecution witnesses that relates to the subject matter of the case, they must disclose it. Failure to do so may incur one of the many enumerated sanctions of CPL §245.80, which does not include striking a statement of readiness.

Lastly, the court acknowledges that other courts of concurrent jurisdiction have issued rulings suggesting CPL §245.20(1)(k) material is automatically discoverable, thereby requiring disclosure before trial readiness can be announced. For the reasons stated above, this court declines to follow those decisions.

Accordingly, upon consideration of the defendants' motions, the People's response, the oral arguments made and due deliberation having been had thereon, it is hereby

Ordered, that defendants' motion is denied in all respects; and it is further,

Ordered, that the People's declaration of readiness on February 26, 2020 was valid and remains so.

This decision shall constitute the Order of the Court in this matter and no further Order [*4]shall be required.