Criminal Court of the City of New York, Queens County, May 9, 2023

Stoll Glickman & Bellina LLP (Andrew B. Stoll of counsel) for defendant.

Melinda Katz, District Attorney (Leanna J. Samson of counsel), for the People.

Defendant, a NYC schoolteacher, is accused of making inappropriate physical/sexual contact with a female student on school grounds—taking her hand and brushing it against his groin outside his pants. This purportedly happened on September 22, 2022.

Complainant reported the incident to her school principal who, on September 23, 2022, submitted an online complaint form of the incident with the Office of the Special Commissioner of Investigation for the New York City School District (SCI),^[FN1] at Online Complaint Form—The Special Commissioner (nycsci.org), which triggered the opening of a case at the SCI and the creation of records kept by that agency—submitted as exhibits to this motion.

On November 11, 2022, defendant was charged with endangering the welfare of a child (Penal Law § 260.10 [1]), sexual abuse in the third degree (Penal Law § 130.55), and harassment in the second degree (Penal Law § 240.26 [1]). The People filed the required CoC/SoR (certificate of compliance/statement of readiness) on January 20, 2023. (CPL 245.50.){**79 Misc 3d at 933}

Citing New York City Executive Order No. 11 of 1990,^[FN2] the enabling authority establishing the SCI and conferring upon it investigative authority through chapter 34, section 803 of the New York City Charter, defendant asserts that the SCI is a state or local law enforcement agency under CPL 245.20 (2), whose records are deemed in the possession of the prosecutor and must be produced as part of their CPL article 245 obligation. The assigned ADA represents that they endeavored to obtain the relevant records from the SCI but that the agency would only comply via subpoena. And, because the SCI would only comply via subpoena, the records were equally available to the defendant, thereby relieving the People of the obligation to produce the records before [*2]announcing ready for trial. (CPL 245.20 [2].) Defense counsel likewise described similar experiences in prior unrelated cases when attempting to obtain case records from that agency.

The exact moment NYPD became involved in this case is not clear, but it appears that multiple agencies and departments, the SCI and NYPD included, initially opened parallel cases unaware of the others' involvement. A "Case Form" produced by the SCI under the People's subpoena contains the following entry:

"On 10/5/22, the Director of Employee Relations—[name omitted]—was informed by the Superintendent of the Queens South High Schools—[name omitted]—that Weiss rubbed the student's hand on his crotch, which was not what was previously reported. This matter was referred to OSI who then referred it to OEO.^[FN3] SCI complaint 2022-7018, originally referred to OSI and subsequently referred to OEO, was recalled and reclassified to a Monitor{**79 Misc 3d at 934}case (M), since the Superintendent of Queens South High Schools indicated that NYPD was involved."

The "Case Form" does not identify an author and according to the exhibits to the motion, the SCI simply monitored the progress of the NYPD's investigation via telephone, and the progress of this case in this court via WebCrims. What is obvious from the record is that the September 23, 2022 online complaint triggered the response of multiple agencies and departments within the NYC School District, one of which being the SCI. The question here is whether the SCI qualifies as a state or local law enforcement agency within CPL 245.20 (2). It is clear from this record, SCI agency history, and its stated purpose, that the SCI, in some circumstances, is a state or local law enforcement agency under CPL 245.20 (2)—but not here. On this record, the court concludes that in this case the SCI was not acting in a capacity that brought it within article 245, and the application to strike the CoC/SoR and dismiss the information based upon the belated disclosure of the SCI records in this case is, respectfully, denied.

There are many state agencies with investigative divisions that, at times, refer the product of their investigation to law enforcement or work in conjunction with the local prosecutor. Those divisions largely provide intra-agency oversight and non-law enforcement functions, like the SCI, predominantly outside the criminal justice system. Not all such agencies' records can be deemed in the possession of the local prosecutor under People v Rosario (9 NY2d 286 [1961]) or CPL 245.20 (2) simply because the agency sometimes performs a law enforcement role or refers a case out for prosecution. A closer examination of an agency's involvement in the case, if any, is necessary before its records can be deemed in the People's control under Rosario or article 245.

In its 2022 Annual Report (Anastasia Coleman, Annual Report of the Special Commissioner of Investigation for the New York City School District for Calendar Year 2022 [Mar. 29, 2023], https://nycsci.org/wp-content/uploads/2023/03/SCI-2022-ANNUAL-REPORT.pdf) published on its website, the SCI reported conducting 351 investigations in 2022 involving a myriad of issues—employee misconduct, failure to report, unsupervised children, conflicts of interest of school employees, financial recovery actions, waste/mismanagement investigations,{**79 Misc 3d at 935} disciplinary matters and allegations of sexual abuse or misconduct by NYC School District personnel.

The 2022 Annual Report lists, by name, the four SCI investigations that led to criminal prosecutions last year. Consistent with the information contained in the "Case Form"—that the SCI simply monitored this case because the NYPD had taken over without SCI involvement—this case was not listed as one of the SCI's four 2022 prosecutions. On this record, it is clear the SCI did not work up this case and deferred to the NYPD which had taken the lead.

Dealing with this issue in People v Kelly (88 NY2d 248 [1996]), the Court of Appeals decided:

"The records at issue in these cases were initiated and created by parole officers assigned to supervise the released individuals. This role is independent of the police investigations that ensued and supported new criminal charges against the defendants. As such, the parole interview records were 'in the possession of a State administrative agency,' which is not 'within the control of a local prosecutor' (People v Flynn, 79 NY2d 879, 882, supra; see, Executive Law §§ 259-a, 259-d). . . .

"While both primarily serve agency functions (respectively, the supervision of parolees and prison inmates), they are also charged with respective, ancillary 'law enforcement' tasks, but only when individuals under their actual or constructive custodial supervision violate governing rules or commit new crimes. These agencies, thus, do not represent 'The People' in the distinctive and customary usage of that term for prosecutorial purposes. Despite their incidental law enforcement function, we decided in Howard not to impute possession of correctional department records to the local prosecutor because of the lack of prosecutorial control. That was the legally dispositive issue there, and it is here as well.

"In sum, the prosecutors' failure to provide these defendants with Division of Parole records does not violate the Rosario rule." (Kelly at 252-253.)

The SCI's website and press releases reveal many instances when the SCI has worked in tandem with or referred matters, discovered within the scope of its authority, to law enforcement for prosecution. In those instances, the agency would apparently{**79 Misc 3d at 936} fall squarely within article 245 and its records should be deemed in the prosecutor's possession under both Rosario and CPL 245.20 (2). That did not happen here, and, in this instance, the SCI's records cannot be deemed in the prosecutor's control or constructive possession under either analysis. (People v Kelly, 88 NY2d 248 [1996]; People v Flynn, 79 NY2d 879 [1992]; People v Tissois, 72 NY2d 75 [1988].)

However, despite being beyond the prosecutor's control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness (CPL 245.20 [7]), the duty to maintain the flow of information (CPL 245.55), the continuing duty to disclose (CPL 245.60), and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps, as the assigned ADA here did, to obtain [*4]those records notwithstanding the fact the information may be available to the defendant by equivalent process. (People v Ranghelle, 69 NY2d 56 [1986]; People v Consolazio, 40 NY2d 446 [1976].)

In this court's opinion, these circumstances are contemplated by the discretionary discovery provisions of CPL 245.30 (3) and the provisions of CPL 245.35 (4) granting the court authority to adopt measures to carry out the goals of article 245. Here, the assigned ADA diligently, and in the furtherance of the goals of article 245, obtained the information via subpoena and shared it with defendant, notwithstanding their correct assertion the information was also available to defendant and not within their control. Under the authority of CPL 245.35 (4), the court deems this process to be the analog of motion practice calling for discretionary relief under CPL 245.30 (3)—available to either side—and will exclude this time for speedy trial purposes under CPL 30.30 (4) (a).

The court finds that the belated delivery of the SCI records had no impact on the propriety of the CoC (CPL 245.50 [1-a]). The People's SoR dated January 20, 2023, was a valid announcement of readiness.

Regarding the Brady information contained within the above-quoted excerpt of the "Case Form," to wit: "which was not what was previously reported," based upon the exhibits submitted, there is no indication how this information made it{**79 Misc 3d at 937} to the "Case Form," whether the complainant, in fact, gave an inconsistent version of the event, whether the information is attributable to a poorly drafted initial online complaint, or to whom this statement was made, if at all. Since neither side raised the issue in their submissions, and, confident the parties are pursuing the matter without court intervention, the court will not interfere in those efforts but will entertain any request for sanction or other remedy under CPL 245.80 at any time in the proceedings.

The top count of the information is a class A misdemeanor. The applicable CPL 30.30 (1) time is 90 days. On January 20, 2023, the People filed a CoC/SoR—day 71.

Defendant moves to strike the CoC/SoR and, thereby, sequentially dismiss the information pursuant to CPL 30.30 (1)—that the People's noncompliance with their CPL article 245 obligations renders the CoC/SoR illusory and insufficient to stop the speedy trial clock and that the People's readiness time has expired. Defendant claims dismissal is warranted based upon the belated delivery of the records from the SCI. The People contend that they have met their CPL article 245 obligations and, having made "diligent good faith efforts" that were "reasonable under the circumstances"; and, having made "reasonable inquiries to ascertain the existence of material and information," "related to the subject matter of the case" and/or "related to the prosecution of a charge"; and, having "endeavored to ensure the flow of information between law enforcement and the prosecution," their CoC/SoR should be accepted.

CPL 30.30 (5) requires the People certify compliance with article 245 before the People may announce ready for trial. CPL 245.20 (2) states, in pertinent part:

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall [*5]not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain."

Regarding the People's CoC/SoR, CPL 245.50 (1) continues:{**79 Misc 3d at 938}

"The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." (Emphasis added.)

CPL article 245 does not require the impossible before the People may certify their compliance under CPL 245.50 and announce ready for trial. (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. (People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021].)

Had the legislature intended dismissal of the information based upon the People's failure to deliver a single item of qualifying material, it would have made such strict liability intent plainly clear in the statute. If that were the case, there would be no need for the discretionary and remedial provisions found in article 245. Interpreting article 245 in strict liability fashion reduces several of its provisions to surplusage and deprives the court of the discretion to utilize the remedial provisions of the statute. In People v Galindo (38 NY3d 199 [2022]), the Court of Appeals recently instructed:

" 'The primary consideration of courts in interpreting a statute is to "ascertain and give effect to the intention of the Legislature" ' (Riley v County of Broome, 95 NY2d 455, 463 [2000], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a]). Generally, 'the plain meaning of the statutory {**79 Misc 3d at 939}text is the best evidence of legislative intent' (People v Cahill, 2 NY3d 14, 117 [2003], citing Riley, 95 NY2d at 463). Indeed, '[a]s a general rule, unambiguous language of a statute is alone determinative' (Riley, 95 NY2d at 463, citing Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565 [1984])." (Galindo at 203-205.)

"Indeed, '[a] construction that would render a provision superfluous is to be avoided' (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]). . . . '[W]e cannot impute to the lawmakers a futile and frivolous intent' (Matter of Rouss, 221 NY [*6]81, 90 [1917]). Therefore, we 'decline to read the amendment in such a way as to render some of its terms superfluous' and, as a consequence, hold it a legal nullity (Matter of OnBank & Trust Co., 90 NY2d 725, 731 [1997]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 144 ['Statutes will not be construed as to render them ineffective'])." (Galindo at 205-206.)

It is clear from the record that the ADA made a diligent good-faith effort, reasonable under the circumstances, to provide all material called for under CPL 245.20. The assigned ADA was attentive to their article 245 obligation and took the additional step of producing relevant information not in their actual or constructive possession.

The court finds that the original CoC/SoR dated January 20, 2023, was filed in good faith.

The People's CoC/SoR of January 20, 2023, is accepted.

Defendant's motion to strike the CoC/SoR is, respectfully, denied.

The court calculates that 71 days of chargeable time have accrued in the case.

Defendant's motion to dismiss the instrument on speedy trial grounds is, respectfully, denied.

If not already filed, defendant will file a defense CoC, forthwith. (CPL 245.10 [2]; 245.20 [4] [a].)