The Defendant, David Gonzalez, has submitted an omnibus motion, dated June 26, 2024, seeking: invalidation of the People's certificate of compliance and dismissal of the indictment; a Bill of Particulars; inspection of the Grand Jury minutes and reduction or dismissal of the indictment; suppression of statement evidence; a voluntariness hearing; preclusion of statement evidence; preclusion of identification evidence; the preservation and production of recordings; any and all Brady material; disclosure of vicious or immoral acts and a Sandoval hearing; and the reservation of rights to make further motion. The People's response, dated July 24, 2024, provides a Bill of Particulars but otherwise opposes the relief sought. The Court decides the motion as follows:

The Defendant has moved to invalidate the People's certificate of compliance (which was served and filed on June 17, 2024) because he argues that there are two categories of discovery which have not been disclosed and are therefore in dispute: 1) activity logs for Police Officers Dallis, Batkiewicz, Gresh, Burrell, Cristino, and Nunez and 2) underlying disciplinary records and updated Civilian Complaint Review Board (CCRB) document sheets for Police Officers Dallis, Batkiewicz, Gresh, Burrell, Cristino, Nunez, Rodriguez, Matthews, and Moongamakal. [*2]The Court's staff held a discovery conference on July 25, 2024 to discuss these matters with the attorneys. The Court will now address each category in dispute:

The Defendant argues that the People's certificate of compliance was not valid because the People did not disclose underlying disciplinary records for nine police officers and because the CCRB document sheets which they did provide for many of the officers had not been updated in several years.

As there is no appellate authority from either the New York Court of Appeals or the Appellate Division, Second Department regarding the breadth of disclosure required for law enforcement disciplinary records, this Court has considered relevant statutes and appellate decisions from other departments. Criminal Procedure Law §245.20(1) provides:

The Prosecution shall disclose to the 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, including but not limited to . . . [21 categories of discovery]

Furthermore, CPL §245.20[1][k][iv] requires the People to provide "all evidence and information that tends to . . . impeach the credibility of a testifying prosecution witness." In People v Johnson, the Appellate Division, Fourth Department, held that the "defendant was not automatically entitled to the entirety of a police officer's personnel file as impeaching material under CPL § 245.20(1)(k)(iv), but rather only to the extent that the information 'related to the subject matter of the case'" (218 AD3d 1347 [4th Dept 2023], quoting CPL §245.20[1]). Therefore, the Fourth Department did not require the prosecution to disclose any disciplinary records from unrelated matters in order for their certificate of compliance and statement of readiness to be valid. Additionally, in People v McCarty, the Appellate Division, Third Department, found that a defense argument that the prosecution must disclose the entire disciplinary record for each and every law enforcement officer involved with a case was "belied by a plain reading of the automatic disclosure statute, which requires the People to disclose 'all items and information that relate to the subject matter of the case" (221 AD3d 1360, 1362 [3rd Dept 2023]). The Third Department noted that their decision was "consistent with the balancing of interests espoused by the Court of Appeals in People v Garrett, 23 NY3d 878, 888-91 (2014)" (id.). Although decided before Criminal Procedure Law article 245 was enacted, in Garrett, the Court of Appeals held that "the People have no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witness . . . This would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefit defendants would enjoy from the information ultimately disclosed on account of the People's efforts" (Garrett at 890).

The Court is aware that other trial courts have opined that this view ofCPL § 245.20(1)(k)(iv) is too restrictive a view and could not possibly fit the Legislature's intent when initially passing this discovery reform. However, because there is no authority from the New York Court of Appeals or the Second Department on this issue, this Court must accept the precedents set by the Third and Fourth Departments. Indeed, in Mountain View Coach Lines, Inc. v Storms, the Appellate Division, Second Department held "[t]he Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, [*3]the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule" (102 AD2d 663 [1984]).

The People have provided LEOW letters for all of the police officers listed in their certificate of compliance and there is no dispute for this category of discovery. Accordingly, the Court finds that the People have complied with their discovery obligations under CPL §245.20(1) regarding law enforcement disciplinary records, and their failure to disclose the additional material requested by the Defendant at the time they filed their certificate of compliance did not invalidate the People's certificate of compliance. The Court notes that "this ruling does not diminish a defendant's other rights of access to misconduct evidence for potential impeachment of a witness at a hearing or trial. The District Attorney remains obligated, as a matter of due process, to disclose favorable evidence that 'may affect only the credibility of a government witness'" (People v Lewis, 78 Misc 3d 877 [Sup Ct, Kings Cty 2023], quoting People v Steadman, 82 NY2d 1 [1993]). The Defendant "may use the subpoena process to seek records underlying police misconduct" (id.).

As to the CCRB document sheets which defense counsel alleges are out-of-date, during the discovery conference, the People argued that the records of the Civilian Complaint Review Board (CCRB) are not in the custody and control of the Queens County District Attorney's Office. Furthermore, the People indicated that CCRB, not the District Attorney's Office, creates the CCRB document sheets and that they have no control over when the document sheets are updated. The People also stated that they provided a hyperlink to CCRB's database for each police officer whom they intend to call as a witness at trial. This database contains all of the CCRB records for each officer ^[FN1] .

The Court finds that the People acted in good faith and with due diligence by providing a link to the CCRB database for each police officer. As noted above, this Court has held that the People need only provide law enforcement disciplinary records which are related to the subject matter of the case. The fact that the People turned over additional records did not create a new obligation, unmandated by statute, to ensure that the records of another agency are up to date.

Finally, the Defendant argues that they did not receive any LEOW letter or disciplinary records for Police Officer Nunez, despite that Officer's name appearing in many DD5s. During the discovery conference, the People stated that Police Officer Nunez took no part in the investigation of this case and that she simply generated reports for the case detectives, almost like an administrative aide. The People indicated that they have no intention of calling Police Officer Nunez as a witness at trial and that she has no relevant information related to the subject matter of this case. Accordingly, the Court finds that the People have acted in good faith and with due diligence with respect to these records (see CPL §245.20[1][k][iv] [requiring the People to disclose the records of a testifying witness]).

The Defendant argues that the People's certificate of compliance was not valid because the People did not disclose police activity logs for Police Officers Dallis, Batkiewicz, Gresh, Burrell, Cristino, and Nunez. In their written response, the People indicate that they requested activity logs for all of the police officer witnesses whom they intend to call at trial and disclosed thirteen activity logs which they received prior to filing their initial certificate of compliance. In an e-mail dated July 26, 2024 (which has been made part of the Court's file), the People state that the NYPD's discovery liaison indicated that all discovery in their possession has been sent to the People. The People argue that this is because the activity logs for Police Officers Dallis, Batkiewicz, Gresh, Burrell, Cristino, and Nunez do not exist.

CPL § 245.20(1) requires the People to disclose to the defendant "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 must disclose this initial automatic discovery within thirty-five calendar days of the Defendant's arraignment where the defendant is not in custody (CPL §245.10[1][a][ii]) unless the discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution," in which case an extension may be granted pursuant to CPL §245.70 (CPL §245.10[1][b]). Furthermore, pursuant to CPL §245.60, both the People and the Defendant have a continuing duty to disclose "additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order".

"[W]hether the People made reasonable efforts to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented" (People v Bay, 41 NY3d 200 [2023]). "Although the statute nowhere defines 'due diligence,' it is a familiar and flexible standard that requires the People 'to make reasonable efforts' to comply with statutory directives (id. quoting People v Bolden, 81 NY2d 146, 155 [1993]).... Although the relevant factors for assessing due diligence may vary from case to case, the courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material might have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of missing discovery" (Bay at 212).

The Court has considered the factors that the Court of Appeals listed in Bay and finds that the People have exercised due diligence in providing discovery for this case. First, considerable efforts have been made by the People to generate the discovery they are obligated to turn over in this and every case. For example, the Queens County District Attorney's Office has established a Discovery Compliance Unit to coordinate with law enforcement agencies in an effort to streamline both interagency communication and the exchange of discoverable information. Additionally, the Queens County District Attorney's Office has also established a Law Enforcement Officer Witness Unit to obtain disciplinary information for their witnesses as well as a Forensic Science Unit to obtain scientific and forensic evidence that may exist in any case. Finally, the Queens County District Attorney's Office has also embedded paralegal discovery liaisons in many of its bureaus, whose duties and responsibilities include interacting with a variety of law enforcement agencies in an effort to oversee discovery compliance and to troubleshoot any outstanding discovery issues. The creation of these additional units and [*5]allocation of resources to generally address their discovery obligations under CPL Article 245 support a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

Second, in comparing the amount of discovery turned over to the amount of discovery outstanding, it is clear that the People have exercised due diligence. It is not in dispute that the People have turned over voluminous discovery, including 301 total sets of files, which contained over 1,000 pages of material and attachments including at least 15 body-worn camera videos, police disciplinary records, and medical records. In contrast, the outstanding discovery consists of six activity logs. It is self-evident that the comparison of the discovery turned over to the discovery outstanding supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

Third, in analyzing the complexity of this case, all indications provided to this Court is that the instant case is a somewhat complex case. During the discovery conference, the People indicated that there were two incident dates, that the complainant was pregnant at the time that the Defendant threw a chair at her (leading to additional medical treatment related to her pregnancy), and that the Defendant had sent more than 300 text messages to the complainant in violation of an order of protection as well as calling her approximately 500 times ^[FN2] .

Fourth, it does not appear to this Court that the People missed any discoverable material in this case. The People indicate that they made six requests for the activity logs on March 19, 2024, April 3, 2024, April 22, 2024, April 25, 2024, May 6, 2024, and July 21, 2024. The first requests were from the assigned ADA directly to the arresting officer. After time, the People made "elevated" discovery requests, such as having the District Attorney's discovery paralegals make those requests. The final requests involved paralegals calling designated discovery liaisons at the police precinct in order to request the activity logs. On July 26, 2024, the NYPD indicated that they had already shared all discovery which existed in connection with this case. The Court finds that the People have exercised due diligence by making six requests, with increasing intensity, for the six outstanding activity logs. Apparently, these six activity logs were never created and do not exist. Accordingly, the Court finds that the People have complied with their discovery obligations with respect to this category of discovery.

Fifth, there is currently no explanation for any error regarding discoverable materials. The People initially requested activity logs for nineteen police officers. In addition to receiving and disclosing the thirteen activity logs they did receive, the People then made the aforementioned elevated requests on five additional dates (the most recent occurring one week before this decision). Because it seems that the six activity logs do not exist, this supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligations in this case.

Finally, the response by the People when they learned of the missing discovery (six activity logs) further indicates an exercise of due diligence. As mentioned, the People have repeatedly sought to obtain these records and have learned that they apparently do not exist. The [*6]People have timely and repeatedly pursued all discovery corrections in this case, and that also supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligations in this case.

In total, the People have exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their certificate of compliance in this case. Accordingly, the Defendant's motion to invalidate the People's certificate of compliance, deem their statement of readiness illusory, and to dismiss the indictment due to a violation of his right to a speedy trial is denied.

The branch of the motion seeking a Bill of Particulars and demand for discovery is granted to the extent provided by the People pursuant to CPL § 200.95 and CPL § 245.20.

The branches of the motion seeking to inspect the Grand Jury minutes and dismiss or reduce the indictment are granted only to the extent that the Court has inspected the minutes of the Grand Jury. "To dismiss [or reduce] an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury" (People v Gaworecki, 37 NY3d 225 [2021], quoting People v Grant, 17 NY3d 613, 616 [2011]). The Court must determine if the evidence adduced before the Grand Jury was legally sufficient, meaning "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL §70.10[1]; People v Castro, 202 AD3d 815 [2d Dept 2022]). The evidence must provide prima facie proof of each offense, rather than proof beyond a reasonable doubt (People v Hulsen, 150 AD3d 1261, 1262 [2d Dept 2017]; see also People v Jessup, 90 AD3d 782, 783 [2d Dept 2011]). The reviewing court's inquiry is limited to "whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference" (Gaworecki, supra, quoting Grant, supra).

The Court finds that the evidence adduced before the Grand Jury was legally sufficient to support all counts of the indictment. The People "maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (People v Thompson, 22 NY3d 687 [2014]; People v Mitchell, 82 NY2d 509, 515 [1993], citing People v Lancaster, 69 NY2d 20, 25 [1986]).

Moreover, the District Attorney properly instructed the Grand Jury on the relevant law (People v Tunit, 149 AD3d 1110 [2d Dept 2017], citing People v Calbud, Inc., 49 NY2d 389 [1980]). To the extent that the Defendant alleges defects in the presentation of the case to the Grand Jury, the Court finds that the presentation was not defective as a matter of law. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time that the District Attorney instructed the Grand Jury on the law. No unauthorized person within the meaning of CPL §190.25 was present at any time during the proceedings (see People v Sayavong, 83 NY2d 702 [1994]). Also, no irregularity that would impair the integrity of the Grand Jury occurred (see People v Adessa, 89 NY2d 677 [1997]; People v Huston, 88 NY2d 400 [1996]). The release of additional Grand Jury minutes beyond what has been turned over by the People pursuant to the discovery provisions of Article 245 of the Criminal Procedure Law is denied since defense counsel has failed to demonstrate any compelling need for such [*7]action and the Court is able to determine the motion without assistance (see CPL §210.30[3]).

The branch of the motion seeking to suppress statement evidence is granted to the extent that a Huntley / Dunaway hearing shall be held prior to the trial of this indictment.

The branch of the motion seeking a voluntariness hearing is reserved for the trial court (see Jackson v Denno, 378 US 368 [1964]; Mincey v Arizona, 437 US 385 [1978]; People v Clemons, 166 AD2d 363 [1st Dept 1990]).

The branch of the motion seeking preclusion of unnoticed statements made by the Defendant to members of law enforcement is granted. Absent a showing of good cause, the People are precluded from the use of any unnoticed statements on their direct case (see People v O'Doherty, 70 NY2d 479 [1987]).

The branch of the motion seeking to preclude identification testimony is granted. Absent a showing of good cause, the People are precluded from the use of any unnoticed police-arranged identifications on their direct case (People v McMullin, 70 NY2d 855 [1987]).

The People are directed to make every effort to preserve Rosario material as well as all 911 calls, radio runs, sprint reports, surveillance footage, and any other recordings that are relevant to this case and make them available to the Defendant at the appropriate time as prescribed by CPL § 245.10 and CPL § 245.20(1)(g) (see People v Rosario, 9 NY2d 286 [1961]; People v Consolazio, 30 NY2d 446 [1976]).

The branch of the motion seeking all Brady material is granted to the extent that the Court reminds the People of their obligations under Brady v Maryland, 373 US 83 (1963).

The branch of the motion seeking the disclosure of Defendant's prior uncharged criminal, vicious or immoral acts is granted to the extent that the People are directed to adhere to the time-period for disclosure pursuant to CPL §245.20(p).

The branch of the motion seeking a Sandoval hearing is referred to the trial court (see People v Sandoval, 34 NY2d 371 [1974]; Luck v US, 348 F2d 763 [DC Cir 1965]; People v Ventimiglia, 52 NY2d 350 [1981]; People v Molineux, 168 NY 264 [1901]).

The branch of the motion reserving the right to make further motions is granted to the extent permitted by CPL §255.20.

This constitutes the decision and order of the Court.