| People v Seymour |
| 2023 NY Slip Op 23120 [79 Misc 3d 615] |
| March 3, 2023 |
| Hennessey, J. |
| District Court of Suffolk County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, August 2, 2023 |
| The People of the State of New York v Kevin Seymour, Defendant. |
District Court of Suffolk County, March 3, 2023
Legal Aid Society, Central Islip (Frieda Haerter of counsel), for defendant.
Raymond A. Tierney, District Attorney, Central Islip (Priyanka Seth of counsel), for the People.
It is ordered that this omnibus motion by the defendant is decided as follows: The defendant's motion to strike the certificate of compliance/statement of readiness (CoC/SoR) is denied. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is [*2]denied. The defendant's motion to dismiss the accusatory instrument as jurisdictionally defective and facially insufficient is denied. The defendant's motion for discovery is granted. The defendant's motion for Sandoval and Ventimiglia/Molineux hearings is granted.
On March 20, 2022, the defendant was charged under docket No. CR-006967-22SU with one count of criminal trespass in the second degree in violation of New York State Penal Law § 140.15 (1), a class A misdemeanor. He was arraigned on April 8, 2022.
By motion dated September 15, 2022, the defendant now moves this court for an order: (1) striking the People's CoC/SoR as invalid; (2) dismissing the accusatory instruments based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instrument as both jurisdictionally defective and facially insufficient; and (4) for various discovery. Each argument is addressed in turn, below.
CPL article 245 requires the People to file a CoC/SoR with the court prior to announcing readiness under CPL 30.30 (see CPL 245.50 [3]). In order for the People to be ready for trial, "[the People] must: (1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." (People v Ramirez-Correa, 71 Misc 3d 570, 572 [Crim Ct,{**79 Misc 3d at 617}Queens County 2021]; see also People v Hall, Suffolk Dist Ct, Apr. 13, 2021, Kerr, J., CR-013437-20SU.)
The defendant first contends that the People's CoC/SoR, filed on July 5, 2022, is invalid due to the fact that the People failed to comply with their automatic discovery obligations pursuant to CPL 245.20 (1) inasmuch as they failed to disclose (a) names and contact information for purported witnesses, (b) officer memo books, (c) a purported video in police custody, (d) civil lawsuit information for a testifying law enforcement officer, and (e) complete records of convictions for potential witnesses. (See defendant's affirmation, Point III.A, B, C, D & E ¶¶ 55-63.)
1. Adequacy and Timeliness of the Defendant's Motion
a. Adequacy of the Defendant's Motion
This court first notes that the defendant failed to comply with the requirements of CPL 245.50 (4) (b) prior to filing the instant motion.
CPL article 245 was amended in May 2022 in several respects. One amendment requires a defendant to notify the People of alleged deficiencies related to the CoC "as soon as practicable" (CPL 245.50 [4] [b]) and to "confer to attempt to reach an accommodation as to any dispute concerning discovery." (See CPL 245.35 [1].)
The defendant has submitted no evidence that he notified the People of the alleged deficiencies related to any of the CoCs prior to filing his motion.
Accordingly, this court denies the defendant's motion to strike the CoC/SoR for failure to [*3]comply with the requirements of CPL 245.50 (4) (b).
b. Timeliness of the Defendant's Motion to Strike the CoC/SoR
This court further finds that the instant motion is untimely pursuant to CPL 245.50 (4) (c).
After amendments to CPL article 245, effective May 9, 2022, the governing statute now provides that "[c]hallenges related to the sufficiency of a certificate of compliance or supplemental certificates of compliance shall be addressed by motion as soon as practicable." (CPL 245.50 [4] [c].)
Here, the People's CoC/SoR was filed on July 5, 2022, and the instant motion was filed 72 days later, on September 15, 2022.{**79 Misc 3d at 618}
This court is aware of no decisions interpreting CPL 245.50 (4)'s directive that motions be filed "as soon as practicable." However, this court finds that the 72-day delay in this case was unreasonable. Thus, the court denies the defendant's motion as untimely pursuant to CPL 245.50 (4) (c).
2. Merits of the Defendant's Challenges to the CoC/SoR
a. Names and Contact Information for Purported Witnesses
The defendant first contends that the People failed to provide the names and contact information for purported witnesses. (See defendant's affirmation at A ¶¶ 68-71.)
CPL 245.20 (1) (c) requires the People to provide the names and contact information for persons whom the prosecutor knows to have evidence or relevant information. In addition, CPL 245.20 sets forth several discovery obligations with respect to individuals deemed testifying witnesses. In their CoC/SoR dated July 5, 2022, the People provided a list of names of civilians and law enforcement personnel with relevant information. However, they did not designate which of those individuals would be testifying witnesses. However, in this case, it is unclear when the People determined which individuals with relevant knowledge would be testifying witnesses. Therefore, it is not clear that the People had failed to comply with their discovery obligations under CPL 245.20 at the time they filed their initial CoC/SoR. The People designated testifying witnesses in their supplemental CoC/SoR and discovery responses, dated November 2, 2022. Accordingly, this ground for finding the CoC/SoR invalid is rejected.
b. Officer Memo Books
Next, the defendant argues that the People failed to disclose memo books for arresting Officer Ryan Johnston, Sergeant Liam Kelly, and Sergeant Brian Nortillo. (See defendant's affirmation at B ¶¶ 72-74.)
It is undisputed that officer memo books are required to be disclosed pursuant to CPL 245.20 (1) (e). Here, the People turned over all existing memo books (for Officer Johnston and Sergeant Kelly, as none existed for Sergeant Nortillo) in their supplemental disclosures on [*4]November 2, 2022. Thus, the defendant has not been prejudiced by any late disclosure.
Accordingly, the defendant's motion to strike the CoC/SoR for failure to disclose the officer memo books as required by CPL 245.20 prior to filing their initial CoC/SoR is denied.{**79 Misc 3d at 619}
c. Video
The defendant next argues that the People failed to disclose video footage from a Ring doorbell camera from the incident location. (See defendant's affirmation at C ¶¶ 75-55.)[FN*]
It is undisputed that such material is automatically disclosable pursuant to CPL 245.20 (1) (g), if it is in the possession of the prosecution.
Here, it is undisputed that the video footage was in the police department's possession. However, the People contend that they did, in fact, disclose such footage in their initial compliance package on July 5, 2022. (See People's affirmation in opp at 7/17.) In response, the defendant argues that only PDF files were disclosed with the initial CoC/SoR, and the actual video files were not disclosed at all (at least as of the date of the defendant's reply brief on Dec. 21, 2022). (See reply brief at 12/14.)
Although the People apparently turned over PDF files rather than video files in their July 5, 2022 disclosures, this court cannot conclude that doing so was anything more than an inadvertent error. In addition, this court notes that the People stated in their supplemental disclosures dated November 2, 2022, that they had requested the Ring camera footage CD from the SCPD and would disclose it once they had received it.
Accordingly, this court finds that the People have satisfied the good-faith requirement, and declines to strike the CoC/SoR on this ground.
d. Civil Lawsuit
The defendant next contends that the People failed to disclose the underlying records in a civilian lawsuit brought against a testifying law enforcement officer in this case. (See defendant's affirmation at D ¶¶ 56-60.)
Pursuant to CPL 245.20 (1) (k) (iv), the People are required to disclose "[a]ll evidence . . . known to police or other law enforcement . . . that tends to . . . impeach the credibility of a testifying prosecution witness." Pursuant to CPL 245.20 (2), "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 prosecutor is under an obligation to
{**79 Misc 3d at 620}"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" (CPL 245.55 [1]) and, "upon request by the prosecution, each New York state and local law enforcement agency shall make [*5]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 [2]).
Consequently, "[r]egardless of whether the People have actual possession of discoverable material and information from law enforcement, such material and information is statutorily deemed to be in the People's possession." (People v Haymon, 71 Misc 3d 1203[A], 2021 NY Slip Op 50267[U], *2-3 [Albany County Ct 2021] [emphasis omitted]; accord People v Pennant, 73 Misc 3d 753, 764 [Nassau Dist Ct, 1st Dist 2021] [possession of law enforcement records is imputed to the People]; People v Rosario, 70 Misc 3d 753, 765 [Albany County Ct 2020] [same].)
It is the opinion of this court that records pertaining to civil lawsuits, although not generated by state or local law enforcement agencies, are nevertheless disclosable to the extent in the possession of the prosecution or the law enforcement agency. Thus, while the law enforcement agencies (and the People) are not under an obligation to obtain such records from third parties, they must disclose such records to the extent they have such records in their possession. (See People v Francis, 74 Misc 3d 808, 824 [Sup Ct, Monroe County 2022] [People's disclosure obligation fulfilled where the People referred the defendant to public filings in federal civil lawsuits in which police officer witnesses are named as defendants; holding that "if in fact the . . . (p)olice (d)epartment possesses documents relating to such lawsuits, they shall hereafter be provided to the defendants in automatic discovery under CPL 245.20"].)
This court notes that the People turned over the name of the relevant civil lawsuit on July 5, 2022, with their initial disclosures, and they have represented that they have no further records in their possession. (See People's affirmation in{**79 Misc 3d at 621} opp at 19/77 ["(t)he People have turned over all civil suit information in their possession related to Officer Singh"].) This court holds that the disclosure of the name of the lawsuit is sufficient under these circumstances.
e. Complete Records of Convictions for Potential Witnesses
Finally, the defendant contends that the People failed to provide complete records of convictions for potential witnesses. (See defendant's affirmation at E ¶¶ 61-63.)
It is uncontroverted that the People's initial CoC/SoR attached disclosures that included a statement that civilian witness J.M. had no known convictions. (See July 5, 2022 disclosures.) In addition, it is further undisputed that the People's supplemental CoC/SoR attached disclosures that included a statement that civilian witness D.M. had no known convictions. (See Nov. 2, 2022 disclosures.)
It is this court's opinion that the People complied with CPL 245.20 (1) (p), which required them to disclose "[a] complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses." Since no civilian witness had a judgment of conviction, the People complied with the statute. Contrary to the defendant's contention, the statute does not require the People to disclose the absence of such record.
For these reasons, the defendant's motion to strike the CoC/SoR for failure to comply with the automatic disclosure requirements of CPL 245.20 is denied.
The defendant next moves to dismiss on the grounds that the People have violated his speedy trial rights. (See defendant's affirmation, Point IV ¶¶ 64-91.)
Pursuant to CPL 30.30 (1) (b), with respect to the class A misdemeanor charge, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all excludable time periods. The within criminal action was commenced on April 8, 2022. The People turned over discovery to the defendant and filed their CoC/SoR on July 5, 2022. In addition, the People filed a supplemental CoC/SoR on November 2, 2022.
The gravamen of the defendant's speedy trial motion is that the People's initial CoC/SoR is invalid. Thus, the CoC/SoR filed{**79 Misc 3d at 622} on July 5, 2022, failed to stop the running of the speedy trial clock with respect to the charge; rather the defendant contends that the time elapsed from the date of the defendant's arraignment (Apr. 8, 2022) until the date the motion schedule was set with respect to the instant motion (Aug. 11, 2022), or 125 days, is chargeable to the People.
To the extent the defendant's motion to dismiss on speedy trial grounds is predicated upon the argument that the People's CoC/SoR is invalid for failure to comply with disclosure requirements, this court has concluded that the People's initial CoC/SoR is valid for the reasons discussed above.
Accordingly, this court concludes that there are a maximum of 89 days (from Apr. 8, 2022, until July 5, 2022) chargeable to the People. Thus, the defendant's motion to dismiss based upon a speedy trial violation is denied.
The defendant next contends that the accusatory instrument is (1) jurisdictionally defective because it does not support each and every element of the charge (see defendant's affirmation, Point I ¶¶ 14-35) and (2) facially insufficient because it does not contain nonhearsay allegations (see defendant's affirmation, Point II ¶¶ 36-54).
Pursuant to CPL 100.40 (1), an information is sufficient on its face when, inter alia, "[t]he allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information" and "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." (CPL 100.40 [1] [b], [c].)
1. Jurisdictional Sufficiency
The defendant first argues that the accusatory instrument is insufficient because the allegations do not provide reasonable cause to believe that the defendant committed the offense charged. (See defendant's affirmation, Point I ¶ 19.)
In this case, the defendant is charged with criminal trespass in the second degree in violation of New York State Penal Law § 140.15 (1). To support a charge of criminal trespass [*7]in the second degree, the People must prove that the defendant{**79 Misc 3d at 623} (1) knowingly, (2) entered or remained, (3) in a dwelling, (4) unlawfully. (Penal Law § 140.15 [1].)
Here, the accusatory instrument states: "The defendant . . . did enter or remain unlawfully in a dwelling by entering through the unlocked front door at the above location without permission or the authority to do so as described in the attached sworn statement." (Court file, misdemeanor info.)
In addition, the supporting deposition states:
"On Friday, February 18, 2022 at approximately 5:10pm I was at my residence . . . I heard mumbling coming from downstairs . . . I then left my bedroom and walked to the staircase when I then saw my neighbor . . . standing on my staircase. I asked him '. . . are you okay, do you need any help' . . . [defendant] did not respond to me and just continued to stand there at which point I became alarmed. I then said '[defendant] leave my house now, I'm calling the police.' [Defendant] then left my house." (Court file, supporting deposition.)
Here, the defendant contends that the supporting deposition is insufficient because it fails to allege (1) that the defendant knowingly entered a property he did not have permission to enter, or (2) that the complainant had a possessory interest in the property. (See defendant's affirmation, Point I ¶ 28.)
It is this court's opinion that the supporting deposition is sufficient in this case. The complainant states that the defendant "entered my residence without permission or authority to do so." This statement ("my residence") is sufficient to claim a possessory interest in the property on the part of the complainant, however temporary. Moreover, the statement is sufficient to allege that the complainant did not give the defendant permission to enter the residence. Insofar as the defendant contends he had permission from another resident, such is an argument for the trier of fact.
2. Facial Sufficiency
The defendant next contends that the accusatory instrument fails to contain nonhearsay allegations that support every element of the offense charged. (See defendant's affirmation, Point II ¶¶ 45-46.)
As noted above, the accusatory instrument in this case states: "The defendant . . . did enter or remain unlawfully in a dwelling by entering through the unlocked front door at the above location without permission or the authority to do so as{**79 Misc 3d at 624}described in the attached sworn statement." (Court file, misdemeanor info.)
[*8]The accusatory instrument is alleged to have been based upon the statement of the complainant. The complainant's statement is based upon personal knowledge.
Accordingly, the accusatory instrument, along with the supporting deposition, sets forth nonhearsay allegations that support every element of the charged crime, and is facially sufficient; to the extent the defendant contends the accusatory instrument is insufficient due to deficiencies in the complainant's supporting deposition addressed above (i.e., failure to set forth a possessory interest, and failure to establish the defendant's lack of knowledge), such arguments are denied for the reasons set forth above.
Thus the defendant's motion to dismiss the accusatory instrument on the basis of jurisdictional defect and facial insufficiency is denied.
Finally, the defendant moves this court for an order that the People comply with their obligations pursuant to Brady v Maryland, People v Rosario, People v Sandoval and/or People v Molineux/Ventimiglia. (See defendant's affirmation, Point V ¶¶ 92-99, Point VI ¶ 100, Point VII ¶¶ 101-104, Point VIII ¶¶ 105-106.)
The defendant's motion for disclosure of Brady materials is granted to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover any exculpatory materials, then the People are required to promptly disclose such exculpatory materials to the defendant to the extent they have not already done so.
The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Rosario and its respective progeny is granted, to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover disclosable materials, the People are directed to provide such notice to the defendant no later than 15 business days prior to the trial date of this action.
The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Sandoval and/or Ventimiglia/Molineux and their respective progeny is granted to the extent that, in the event that, in exercising its obligation{**79 Misc 3d at 625}of due diligence, the People obtain or discover disclosable materials, the People are directed to provide such notice to the defendant no later than 15 business days prior to the trial date of this action.
The defendant's motion for Sandoval and Ventimiglia/Molineux hearings is granted.
Based upon the foregoing, the defendant's motion to strike the CoC/SoR is denied. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is denied. The defendant's motion to dismiss the accusatory instrument as jurisdictionally defective and facially insufficient is denied. The defendant's motion for discovery is granted. The defendant's motion for Sandoval and Ventimiglia/Molineux hearings is granted.