Criminal Court of the City of New York, New York County, October 8, 2021

New York County Defender Services (Bernadette Rabuy of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Kevin Ryan of counsel), for plaintiff.

The defendant moves for an order deeming the People's certificate of compliance invalid under Criminal Procedure Law §§ 245.20 and 245.50, suppressing certain evidence, and other relief.

After an incident involving a co-resident of his room at a hotel that was being used as a shelter, the defendant was arrested on or about February 20, 2021, and was charged, by misdemeanor complaint, with assault in the third degree (Penal Law § 120.00 [1]), and related offenses. He was arraigned{**74 Misc 3d at 435} later that day. The People turned over various documents and disclosed information to the defense as part of their discovery obligations under Criminal Procedure Law article 245. Included in these materials was a "Disclosure Advisory Form" summarizing allegations made against one of their witnesses, Police Officer Gonzalez. Those allegations, relating to a motor vehicle pursuit in which Officer Gonzalez had been injured, had been found "substantiated" by the New York City Police Department.

On May 24, 2021, the People filed a certificate of compliance under CPL 245.50. By notice of motion dated June 17, 2021, the defendant moved for the relief summarized above. With respect to the branches of his motion regarding the People's certificate of compliance, the defendant contends that the People have not complied with their discovery obligations under CPL 245.20 and 245.50 and that their certificate of compliance was therefore invalid. Specifically, the defendant contends that the People failed to disclose the following information: (1) the names of, and contact information for, two employees of the Department of Homeless Services whom the People know to have relevant information about the case; and (2) disciplinary records in Police Officer Gonzalez's Internal Affairs Bureau file regarding the substantiated allegation, and a list of, and any underlying records related to, any "unsubstantiated" allegations.

As many courts and commentators have pointed out, the legislature's 2020 rewriting of the criminal discovery statute has dramatically changed discovery in criminal cases (see People v Barralaga, 73 Misc 3d 510, 513-514 [Crim Ct, NY County 2021]; People v Mauro, 71 Misc 3d 548, 552 [Westchester County Ct 2021]; People v Porter, 71 Misc 3d 187, 189 [Crim Ct, Bronx County 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct, Queens County 2020]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10).

These are the provisions of Criminal Procedure Law § 245.20 most relevant to this motion:

"1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover . . . , all items and information that relate to the subject matter of the case and{**74 Misc 3d at 436} are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to: . . .

"(c) The names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. . . .

"(k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: . . . (iv) impeach the credibility of a testifying prosecution witness . . . .

"2. Duties of the prosecution. 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 . . . . For purposes of subdivision one of this section, 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. . . .

"7. Presumption of openness. There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article" (emphasis added).

Unlike the old discovery law, no request from the defendant is now needed to trigger the People's discovery obligations (see People ex rel. Ferro v Brann, 197 AD3d 787, 787 [2d Dept 2021]; People v Mashiyach, 70 Misc 3d 456, 458 [Crim Ct, Kings County 2020]). Once the People have complied with the automatic discovery requirements of CPL 245.20 (1), they must serve a certificate of compliance, which "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" (CPL 245.50 [1]; see People v Quinlan, 71 Misc 3d 266, 271 [Crim Ct,  {**74 Misc 3d at 437} [*3]Bronx County 2021]). The People "shall not be deemed ready for trial" under CPL 30.30 until they have filed "a proper certificate" under CPL 245.50 (1) (CPL 245.50 [3]).^[FN1]

1. Disclosure of the Identity of Security Personnel

[1] The defendant's contention that the People violated their discovery obligations under CPL 245.20 (1) (c) with respect to disclosure of information about the security personnel from the Department of Homeless Services is without merit. The People not only stated that they looked for the identity of the two employees, but also detailed their efforts to find the names and contact information for them. As noted by the prosecutor, in addition to the threshold inquiries made by examining the police paper work and asking the arresting officer if he had the information, the People

"serv[ed] a subpoena upon the Department of Social Services requesting a copy of the shelter incident report and the names and contact information of all employees involved in the February 20, 2021 incident at the Help Meyer hotel on May 13, 2021. On May 14, 2021, the People received a copy of the shelter incident report which listed Al Keys as the only employee involved in the incident. The People turned over the name of this employee and contact information for him in the People's ADF. However, as the People did not have the names of the two female employees, the People were unable to provide defendant with their names or contact information despite the People's efforts to gather this information" (affirmation of ADA Kevin Ryan at 6).

The People's thorough efforts in this regard cannot be faulted, and the lack of disclosure as to the names of the employees unknown to the People even after their diligent, good faith effort provides no basis to invalidate their certificate of compliance (see People v Garcia, 72 Misc 3d 1217[A], 2021 NY Slip Op 50791[U], *14 [Sup Ct, Kings County 2021]; People v {**74 Misc 3d at 438}Alvarez, 71 Misc 3d 1206[A], 2021 NY Slip Op 50292[U], *3 [Sup Ct, Queens County 2021]).

2. Disclosure of Alleged Misconduct of Officer Gonzalez

The People's disclosure as to Police Officer Gonzalez is a different matter. The People contend that they are not required to disclose information regarding a substantiated allegation of misconduct by Officer Gonzalez, because that allegation is not related to the subject matter of this case (Ryan affirmation at 8). Nevertheless, in what the People characterize as an "abundance of caution" (id.), they disclosed a summary of the allegations (but not the underlying material). The People have not disclosed any material with respect to any unsubstantiated allegations, and they contend that information and evidence as to unsubstantiated matters are not [*4]subject to disclosure (id. at 9-12).

The core issue concerns the interplay between the phrases "all items and information that relate to the subject matter of the case" and "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [emphasis added]). Attendant to this issue is whether the disputed material, if subject to disclosure, is within the People's possession or control.

The relevant principles of statutory interpretation are familiar. "The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes § 92; see People v Wallace, 31 NY3d 503, 507 [2018]). "The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction" (McKinney's Cons Laws of NY, Book 1, Statutes § 94; see People v Addimando, 197 AD3d 106, 111 [2d Dept 2021]). Finally, "[s]tatutory words must be read in their context, and words, phrases, and sentences of a statutory section should be interpreted with reference to the scheme of the entire section" (see McKinney's Cons Laws of NY, Book 1, Statutes § 97, Comment at 213-214 [1971 ed]).

The legislature's intent to require broad disclosure under Criminal Procedure Law article 245 is manifest (see Mauro, 71 Misc 3d at 552; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 ["the prosecutor's obligations to provide discovery under the current statutes are{**74 Misc 3d at 439} so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance"]). That intent is found throughout article 245: in the detailed list of what must be turned over and the emphasis that that list is "including but not limited to" the items enumerated (CPL 245.20 [1]); in the requirements on the prosecution to look diligently and in good faith to "ascertain the existence of" discoverable material (CPL 245.20 [2]) (and then to certify that they "exercis[ed] due diligence and ma[de] reasonable inquiries" in doing so [CPL 245.50 (1)]); in the prosecution's continuing duty to disclose after initial compliance (CPL 245.60); in the repeated use of "all" (e.g. "all items and information" [CPL 245.25 (1), (2)]; "names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto" [CPL 245.20 (1) (c)]; "[a]ll evidence and information" [CPL 245.20 (1) (k)]); in the presumption of openness (CPL 245.20 [7]); and, not least, in the deeming of material in the possession of the police to be in possession of the prosecution (CPL 245.20 [2]). To interpret article 245 narrowly is to flout the legislature's unmistakable intent that it be interpreted broadly, in favor of disclosure (see People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U], *5 [Crim Ct, NY County 2021]; cf. Matter of Miller v Annucci, 37 NY3d 996, 998 [2021] [legislature's intent regarding CPLR 2103 (b) (2) "is manifest from the statute's language and purpose"]; People v Minor, 111 AD3d 198, 205 [1st Dept 2013] ["(b)y adding words not chosen by the legislature, the court effectively rewrote the statute"]).

The impeachment provision of CPL 245.20 (1) (k)—requiring disclosure of "[a]ll evidence and information . . . that tends to . . . (iv) impeach the credibility of a testifying prosecution witness"—is correctly seen as relating to the People's obligation under Brady v Maryland (373 US 83 [1963]) and Giglio v United States (405 US 150 [1972]) (see People v Cooper, 71 Misc 3d 559, 566 [Erie County Ct 2021]; Porter, 71 Misc 3d at 190; William C. Donnino, Practice [*5]Commentary, McKinney's Cons Laws of NY, CPL 245.10). But, properly analyzed, CPL 245.20 (1) (k) (iv) clearly goes well beyond the People's Brady/Giglio obligations.

The Court of Appeals held in People v Garrett (23 NY3d 878 [2014]) that a Brady/Giglio violation consists of three elements: (1) that the evidence tended to favor the defendant; (2) that the{**74 Misc 3d at 440} People failed to disclose it; and (3) that the evidence was material to the defendant's guilt (23 NY3d at 885). The Court noted, however, that the first element "should be assessed without regard to the 'weight of the evidence' as a whole" (23 NY3d at 886, quoting Kyles v Whitley, 514 US 419, 451 [1995]). "In other words, impeachment evidence may be considered favorable to defendant even if it is not material to the defendant's case" (23 NY3d at 886).

Under the previous discovery statute, the People's discovery obligation with respect to disclosure of impeachment material was coterminous with requirements of the federal and state constitutions: "Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States" (CPL former 240.20 [1] [h]). Thus, it only required disclosure of impeachment evidence that was material. Indeed, in Garrett, the Court recognized that the impeachment evidence at issue was exculpatory, and there was no Brady/Giglio violation because the evidence had not been hidden and because it was not material (23 NY3d at 891-892). Under the new statute, however, there is no materiality requirement; in other words, disclosure is required if the impeachment evidence meets the first prong of Garrett (see People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U], *5 [Crim Ct, Kings County 2021]).

Since impeachment evidence is relevant to whether the factfinder in the case should believe the witness, that evidence necessarily relates to the "subject matter of the case" (see People v Soto, 72 Misc 3d 1153, 1159 [Crim Ct, NY County 2021]; Cooper, 71 Misc 3d at 566). Notably, in Garrett, the Court of Appeals was considering impeachment material that related to the officer's misconduct in an unrelated matter; it was nonetheless relevant, as "favorable to defendant" (23 NY3d at 885).

To hold that impeachment material arising from incidents unrelated to the defendant's case can be withheld runs counter to the plain language of the statute. Such a narrow reading would mean that, in a wholly new discovery article that in all other respects expanded the People's disclosure obligations from the prior law, the legislature narrowed the disclosure requirements with respect to impeachment material. That certainly was not the legislature's intent (see People v Portillo, 73 Misc 3d 216, 225-228 [Sup Ct, Suffolk County 2021]; Cooper, 71 Misc 3d at 566). Indeed, the legislature considered disclosure of impeachment material so important that it{**74 Misc 3d at 441} expressly emphasized its early disclosure. In CPL 245.20 (1) (k) itself, the legislature directed that impeachment material be turned over as soon as possible, even before the general discovery deadlines: "The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in [CPL 245.10 (1)]" (CPL 245.20 [1] [k]).

Moreover, the legislature did not leave in serious doubt whether the People are, as a matter of law, in possession of police disciplinary records. In addressing the relationship between the prosecution and police, the legislature deemed prosecutors to be in possession and control of material known to, and in possession of, the police. First, and most important, CPL 245.20 (2) plainly states that, "[f]or purposes of [CPL 245.20 (1)], all items and information related to the prosecution of a charge in the possession of any New York state or local police or [*6]law enforcement agency shall be deemed to be in the possession of the prosecution." Impeachment evidence is "related to the prosecution of a charge" for the same reason that impeachment evidence relates to "the subject matter of the case": it directly relates to whether the factfinder should believe the witness's testimony.

Further, the legislature mandated that, upon the People's request, the police make their files available to the People: "upon request by the prosecution, each New York state and local law enforcement agency shall make 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]).^[FN2]

Impeachment evidence is undoubtedly "related to the prosecution of" the defendant. Indeed, the statutory scheme repeatedly highlights the importance of acquiring and disclosing impeachment material in the possession of law enforcement:

"The district attorney and the assistant responsible for the case, or, if the matter is not being prosecuted by the district attorney, the prosecuting agency and its assigned representative, shall endeavor{**74 Misc 3d at 442} to 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]).

The provisions of CPL 245.55 (1) are not in tension with CPL 245.20 (2) ("For purposes of subdivision one of this section, 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"). Rather, CPL 245.55 (1) seeks to ensure that what the legislature has provided in law—the prosecution's being deemed in possession of evidence in the police files—also becomes true in fact (see Cooper, 71 Misc 3d at 568).

[2] For all these reasons, the information and evidence as to Police Officer Gonzalez's substantiated allegation of misconduct is subject to discovery under CPL 245.20 (1) (k) (iv) if it would tend to impeach him.

The People's duty to disclose is no different with respect to any "unsubstantiated" allegations of misconduct. There is, to be sure, a split in authority as to whether the People are required to turn over the "evidence and information" relating to unsubstantiated allegations (compare Barralaga, 73 Misc 3d at 515, McKinney, 2021 NY Slip Op 50456[U], *6, Kelly, 2021 NY Slip Op 50264[U], *4, People v Akhlaq, 71 Misc 3d 823, 826 n 4 [Sup Ct, Kings County 2021] [ordering disclosure of unsubstantiated allegations of misconduct, but noting that the law with [*7]respect to disclosure of unsubstantiated allegations of misconduct "remains unsettled"], and People Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020], with People v Perez, 73 Misc 3d 171, 183-184 [Sup Ct, Queens County 2021]).

"Unsubstantiated" allegations of misconduct have not been disproved; they are termed "unsubstantiated" because the absence of evidence precludes resolution of the allegation one way or the other (see Barralaga, 73 Misc 3d at 515-516; Randolph, 69 Misc 3d at 772). Nevertheless, in light of the legislature's express "presumption of openness," and the legislature's requirement that the People disclose impeachment material "irrespective of whether the prosecution credits {**74 Misc 3d at 443}the information," decisions holding that evidence and information regarding unsubstantiated allegations of misconduct must be disclosed to the defense are more consonant with the legislative intent than are the decisions holding otherwise. In this case, it is not clear whether there is in fact anything in Police Officer Gonzalez's file as to "unsubstantiated" allegations, but, if there is, and it would tend to impeach Officer Gonzalez, the People must disclose it.

The People contend that summaries of misconduct allegations are sufficient. That contention runs afoul of the statutory language: The People must disclose "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]). It is self-evident that the underlying records of the Internal Affairs Division relating to police officers testifying in the case are the "evidence"; summaries of that evidence are not evidence (see Soto, 72 Misc 3d at 1158; People v Castellanos, 72 Misc 3d 371, 375 [Sup Ct, Bronx County 2021] ["when the statute explicitly states 'all' information and evidence that tends to impeach credibility, the statute means just that: all underlying records for substantiated and unsubstantiated misconduct complaints must be provided by the People"]; Porter, 71 Misc 3d at 190-191; Cooper, 71 Misc 3d at 568; but see People v Knight, 69 Misc 3d 546, 550 [Sup Ct, Kings County 2020]; Garcia, 2021 NY Slip Op 50791[U], *15).

The disclosure in this case illustrates why summaries are inadequate. Here, Officer Gonzalez was alleged to have acted improperly during a chase of a vehicle after the driver of the vehicle committed a traffic infraction. Nothing in the summary of the incident suggests that Officer Gonzalez did anything that would impact negatively on his credibility. Put another way, nothing in the summary would afford the defendant's attorney a basis for asking the trial court to be able to use this misconduct finding as a basis for inquiry of Officer Gonzalez on cross-examination. But whoever prepared that summary of the evidence certainly was not looking at the evidence through the eyes of a defense attorney. 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" (People v Rosario, 9 NY2d 286, 290 [1961], cert denied 368 US 866 [1961]; see People v Banch, 80 NY2d 610, 615 [1992]; People v Salters, 72 Misc 3d 1219[A], 2021 NY Slip Op 50800[U], *4 [Nassau Dist Ct 2021]). To permit the single-minded counsel for the accused{**74 Misc 3d at 444} to be permitted only to see filtered allegations of misconduct impinges on counsel's ability to represent the accused. That is not what the legislature intended (see Salters, 2021 NY Slip Op 50800[U], *3-4).

Accordingly, summaries of the allegations of substantiated and unsubstantiated misconduct are not in compliance with CPL 245.20 (1); the underlying files must be provided (see Barralaga, 73 Misc 3d at 513-515; Porter, 71 Misc 3d at 190; but [*8]see Knight, 69 Misc 3d at 550).^[FN3]

Nondisclosure is not excused by the People's sincere belief that certain material in their possession, or deemed to be in their possession, is not discoverable: "The list of what types of evidence must be disclosed was determined by the legislature. . . . It is for the People to diligently ascertain the existence of and disclose the items on the list—not to determine what categories of evidence should be included on it" (Soto, 72 Misc 3d at 1162; see Salters, 2021 NY Slip Op 50800[U], *4). If there is any dispute or uncertainty about whether certain information or evidence must be disclosed, the parties may seek the assistance of, including a ruling from, the court (see CPL 245.35; Salters, 2021 NY Slip Op 50800[U], *4). In short, the People's certificate of compliance is not valid simply because it reflects the prosecutor's sincere belief as to what material is discoverable (see Soto, 72 Misc 3d at 1162-1163).^[FN4]

To be valid, the People's certificate of compliance must reflect that, "after exercising due diligence and making reasonable inquiries {**74 Misc 3d at 445}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" (CPL 245.50 [1]). Where, as here, the People admittedly are aware, and in possession, of discoverable material that has not been disclosed, their certificate of compliance stating that they have "disclosed and made available all known material and information subject to discovery" is invalid (see Soto, 72 Misc 3d at 1162-1163; Quinlan, 71 Misc 3d at 272).

The branches of the defendant's motion seeking Huntley, Dunaway, Mapp, and Wade hearings to determine whether evidence of his statements, identification procedures, and physical should be admitted at trial are granted, as is his request to reserve further motions, but only upon a showing of good cause for making the motion out of the statutory time period.

Accordingly, it is ordered that the People's certificate of compliance be deemed invalid; and it is further ordered that Huntley, Dunaway, Mapp, and Wade hearings be held; and it is further ordered that the defendant, only upon good cause shown, be permitted to make further motions.