Criminal Court of the City of New York, Bronx County, September 6, 2022

William John for defendant.

Darcel D. Clark, District Attorney (Marita Williams of counsel), for plaintiff.

Tyrek Goggins, hereinafter defendant, is charged by information with operating a motor vehicle while under the influence of alcohol, unclassified misdemeanors pursuant to Vehicle and Traffic Law § 1192 (2) and (3); operating a motor vehicle while under the influence of alcohol, a traffic infraction pursuant to Vehicle and Traffic Law § 1192 (1); and aggravated unlicensed operation of a motor vehicle pursuant to Vehicle and Traffic Law § 511 (1) (a).

Party Submissions

Defendant asserts that the certificate of compliance (COC) dated April 6, 2022, is invalid for four reasons. First, defendant contends that disclosure of body worn camera footage was defective because the People initially failed to forward accessible links. Second, the People [*2]failed to provide the underlying documents for civil claims involving Officer Marksberry, a testifying witness. Third, the People provided redacted copies of underlying documents for allegations of misconduct made against testifying officers without seeking a protective order. These records included complaint logs from the Internal Affairs Bureau (IAB) and determinations by the Civilian Complaint Review Board (CCRB). Lastly, the People failed to provide underlying documents for allegations of misconduct issued against non-testifying officers.{**76 Misc 3d at 900}

The People counter that the initial service of the body worn camera footage was proper, as they used a standard disclosure method which has been effective and has not been previously contested. Once aware of defendant's inability to access the files, the People subsequently shared the body worn camera footage through a different mechanism. The People also argue that their obligation under CPL 245.20 (1) (k) was satisfied when they disclosed redacted IAB and CCRB records as well as the names and index numbers of all civil claims involving allegations of police misconduct. With respect to non-testifying witnesses, the People assert that those allegations of misconduct are not discoverable.

CPL 245.20 (1) (k) not only codifies the People's minimum obligation to disclose information favorable to the defendant under Brady v Maryland (373 US 83 [1963]), Giglio v United States (405 US 150 [1972]), and their progeny, as well as rule 3.8 (b) of the Rules of Professional Conduct (22 NYCRR 1200.0), and the New York State Unified Court System's Administrative Order of Disclosure (see William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10), but goes beyond the constitutional minimum set forth in this jurisprudence. The statute mandates disclosure of "[a]ll evidence and information" that "tends to . . . mitigate the defendant's culpability . . . support a potential defense . . . impeach the credibility of a testifying prosecution witness . . . provide a basis for a motion to suppress evidence" (CPL 245.20 [1] [k] [ii], [iii], [iv], [vi]). This material must be made available "irrespective" of whether the prosecutor credits the information (CPL 245.20 [1] [k]). Furthermore, the statute omits any reference to the complicated analysis of "materiality" required by Brady (People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; People v Castellanos, 72 Misc 3d 371 [Sup Ct, Bronx County 2021]).^[FN2] CPL 245.20 (1) (k) is direct and to the point: if the material exists and it{**76 Misc 3d at 901} tends to support one of the enumerated subparagraphs identified in the statute, the prosecution must disclose such information to the defendant, regardless of materiality.

The People are required to provide all underlying materials for, at minimum, substantiated, unsubstantiated and pending allegations of misconduct for their testifying witnesses (Matter of Jayson C., 200 AD3d 447 [1st Dept 2021]; People v Polanco-Chavarria, 74 Misc 3d 1210[A], 2021 NY Slip Op 51297[U] [Rockland County Ct 2021]; People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]; People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U] [Nassau Dist Ct 2021]; People v Perez, 71 Misc 3d 1214[A], 2021 NY Slip Op 50374[U] [Crim Ct, Bronx County 2021]; Castellanos, 72 Misc 3d 371; People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021]; People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U] [Crim Ct, NY County 2021]; People v Salters, 72 Misc 3d 1219[A], 2021 NY Slip Op 50800[U] [Nassau Dist Ct 2021]; People v Portillo, 73 Misc 3d 216 [Sup Ct, Suffolk County 2021]; People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]; People v Sozoranga-Palacios, 73 Misc 3d 1214[A], 2021 NY Slip Op 51036[U] [Crim Ct, NY County 2021]; People v Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021]; People v Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U] [Crim Ct, Bronx County 2022]; People v Alvia, 76 Misc 3d 704 [Crim Ct, Bronx County 2022]; see also People ex rel. Ferro v Brann, 197 AD3d 787 [2d Dept 2021]). Courts have ruled time and again that case summaries prepared by the People are insufficient to satisfy the mandates imposed by CPL 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witnesses, should not be filtered through the prosecution (see Jayson C., 200 AD3d 447; People v Cooper, 71 Misc 3d 559 [Erie County Ct 2021]; Castellanos, 72 Misc 3d 371; Portillo, 73 Misc 3d 216). "As the Court of Appeals has long recognized, the best judge of the impeachment value of evidence is the 'single-minded counsel for the accused' " (Edwards, 74 Misc 3d at 443, citing People v Rosario, 9 NY2d 286 [1961]).

The scope of the People's impeachment disclosure obligations must also be viewed in light of the June 2020 repeal of Civil Rights Law § 50-a, resulting in public access to police misconduct files (People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]). The repeal "further erodes asserted claims of {**76 Misc 3d at 902}confidentiality in relation to police personnel files" (People v Porter, 71 Misc 3d 187, 190 [Crim Ct, Bronx County 2020]). This does not mean, though, that the prosecution is without recourse for protecting sensitive information. In addition to permitting specified redactions, "if the files contain any material which should not be disclosed, the People have the availability to seek a protective order" under CPL 245.70 (Randolph, 69 Misc 3d at 773).

In this case, the People disclosed redacted copies of the records underlying disciplinary complaints without seeking a protective order under CPL 245.70. The redactions were made to both IAB logs and CCRB records. The redacted information varies across documents and includes identifying information for both police officers and civilian complainants, CCRB determinations, and the geographic locations of alleged misconduct. The defendant argues that the People have failed to disclose discoverable information that was impermissibly withheld, given that the People never applied for a protective order. He asserts that the People's COC cannot be deemed valid given this missing discovery.

The People respond by continuing to assert that they are not mandated to provide underlying documents for disciplinary matters despite voluminous case law to the contrary and the prior decisions of this very court. During the discovery compliance conference held by this court on June 30, 2022, the assigned assistant indicated that she received the documents in redacted form from the Discovery Compliance Unit at the Bronx District Attorney's Office. Even though she had not seen some of the redacted information, she argued that, in any event, the redacted components are not automatically discoverable as they do not constitute impeachment evidence. Further, in subsequent correspondence, the assigned assistant indicated that she was told the unredacted underlying documents "would have to be ordered" and that "precincts turn over copies of files that were already redacted, specifically if they were before the year 2018 [*3]when items became digitized and as such, other versions either may not exist, or may be house [sic] in warehouse out of state" (People's email to court and defense counsel, Aug. 3, 2022).

The People's position is premised on a faulty foundation comprised of elements that, when taken individually and collectively, discord with the law. First, as indicated above, underlying documents are discoverable (Jayson C., 200 AD3d 447).{**76 Misc 3d at 903}

Second, all items and information related to the prosecution of a charge in the possession of the New York City Police Department (NYPD) are "deemed to be in the possession of the prosecution" (CPL 245.20 [2]). Whether the IAB logs are redacted by the NYPD or by the People is of no consequence. If the NYPD has the redacted information, for purposes of CPL 245.20, the People also have that information and, in this instance, are withholding it. Furthermore, it is a definite dereliction of the People's statutory duty to accept redacted disciplinary records for testifying officers without immediately requesting or, at the very least, inquiring as to the missing information.

Third, "[i]t is not for the People to decide, in the first instance, if a particular item from a disciplinary record might be admissible or might impeach a witness. The clear scope of the statute removes that discretion from the People" (Salters, 2021 NY Slip Op 50800[U], *4). Just as summaries are insufficient to satisfy the People's obligations under CPL 245.20 (1) (k), so too are impermissibly redacted disciplinary records. "The People may redact the officer's Social Security numbers and tax identifying information (CPL 245.20 [6]; Public Officers Law § 89 [2] [b]). Permission for any additional redactions must be sought by court order, pursuant to CPL 245.70" (Williams, 2021 NY Slip Op 50743[U], *6).

Fourth, the statute is not silent with respect to redactions. It specifically enumerates what information may be withheld or redacted by the prosecution without first seeking a protective order (CPL 245.20 [1] [c], [d], [g], [u] [iv]; [6]). The mandate to seek a protective order for redactions not expressly permitted is clear: "[p]ortions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70" (CPL 245.10 [1] [a] [emphasis added]). The People cannot validly certify compliance with their discovery obligations when they withhold information "claimed to be non-discoverable" without seeking a protective order. Such constitutes a failure to disclose and make available "all known material and information subject to discovery" (CPL 245.50 [1]). Furthermore, in order for a COC to be complete, the People must actually turn over the items listed therein, not an impermissibly redacted iteration of such items (People ex rel. Ferro, 197 AD3d 787).

Given the People's failure to comply with their discovery obligations, their COC dated April 6, 2022, is not valid.{**76 Misc 3d at 904}

In light of the foregoing, the court need not reach defendant's remaining arguments.

Motion to Dismiss—CPL 30.30 and 170.30

The People must be ready for trial within 90 days of the commencement of a criminal action if, as here, the most serious offense is the equivalent of an A misdemeanor punishable by a sentence of imprisonment of more than three months (CPL 30.30 [1] [b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (People v Stiles, 70 NY2d 765 [1987]).

In determining whether the People have satisfied their obligation to be ready for trial under CPL 30.30, the court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable [*4]periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which no statutory exclusions apply (People v Cortes, 80 NY2d 201 [1992]).

Additionally, the People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense. Criminal Procedure Law § 30.30 (5) provides that "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20" and "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for [the] purposes of section 30.30 . . . until it has filed a proper certificate" (CPL 245.50 [3]).

Defendant was arraigned on January 16, 2022. The case was adjourned to February 23, 2022, for conversion and a COC. The People are charged with 38 days.

On February 23, 2022, the People did not file the required abstract from the New York State Department of Motor Vehicles (DMV) or COC. The case was adjourned to March 31, 2022, for both. The People are charged with 36 days.

On March 31, 2022, the People filed and served the DMV abstract, and the complaint was deemed an information. The case was adjourned to April 26, 2022, for COC. On April 6, 2022, the People filed and served a COC and a notice of readiness{**76 Misc 3d at 905} (NOR). Because the People failed to file a proper COC, their NOR is likewise invalid (CPL 245.50 [3]; 30.30 [5]). Accordingly, the People are charged with the entire adjournment (26 days).

On April 26, 2022, defendant objected to the People's COC and requested a motion schedule. The case was adjourned to July 13, 2022, and again to August 4, 2022, for decision. These adjournments are excludable (CPL 30.30 [4] [a]).

Based on the foregoing, the People are charged with 100 days of delay which is beyond the statutory period under CPL 30.30.

Accordingly, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 and 170.30 is granted.