Defendant is charged with Assault in the Third Degree, Penal Law § 120.00(1), and related charges.

By motion dated July 26, 2013 ("Defendant's Motion"), Defendant moves for an order precluding the introduction of, and any testimony relating to, a recorded 911 call concerning the instant allegations (the "911 Recordings"). The People were directed to respond to Defendant's Motion by August 9, 2013, but failed to file any such response. In deciding the instant motion, the Court therefore relies on defense counsel's sworn Affirmation ("Aff.") and the Court's records.

For the reasons that follow, Defendant's motion to preclude is GRANTED.

Defendant was arraigned on January 31, 2013, and the case was adjourned to February 19, 2013, for trial. Defense counsel timely served a demand for discovery, specifically requesting any and all 911 recordings. (Aff. 2-3, ¶ 5.) By the next adjourn date, defense counsel had not received [*2]any such recordings. (Id. at 3, ¶ 6.) This prompted the Honorable Harold Adler to order the immediate production of all 911 recordings. (Id.) In open court, an Assistant District Attorney stated that no such recordings existed. (Id.) The People declared their readiness to proceed to trial and maintained this position through all subsequent adjournments. Several adjournment periods elapsed when, on the evening before the case was scheduled to go to trial (and after additional assurances along the way that all discovery had been disclosed), the People reported that a copy of a 911 recording would be provided to defense counsel on the next day, prompting this motion to preclude.

Under section 240.20(1)(a) of the Criminal Procedure Law, defendants are entitled to all "electronic recordings which the prosecutor intends to introduce at trial." If the People object to disclosure, they must refuse to comply with the demand to produce in writing "within fifteen days of the service of the demand or as soon thereafter as practicable." Id. § 240.80(2), (3). "The purpose of pre-trial discovery is to allow the defendant to prepare for trial and avoid trial by ambush.'" People v. Irons, 20 Misc 3d 1127(A), 2008 NY Slip Op. 51644(U), at *2 (Kings Co. Crim. Ct. 2008) (citing People v. Robinson, 53 AD3d 63, 67 (2nd Dep't 2008)).

When confronted by the government's dilatory discovery practices, a court is empowered by both controlling case law and the discovery statutory framework to impose appropriate sanctions. When the People fail to comply with a request made pursuant to section 240.20, courts "may order such party to permit discovery of the property not previously disclosed, grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action." Id. § 240.70(1) (emphasis added). "It is for the trial court, in the exercise of its discretion, to choose a remedy . . . ." People v. Williams, 7 NY3d 15, 19 (2006) (citing People v. Jenkins, 98 NY2d 280, 284 (2002)); see also People v. Kelly, 62 NY2d 516, 520-21 (1984) ("[T]he choice of appropriate' action is committed to the sound discretion of the trial court."). Among the spectrum of available sanctions are case dismissal, reduction of convictions, preclusion of evidence, and preclusion of witnesses' testimony, in addition to unique remedies that a court may tailor to particular discovery violations. See Kelly, 62 NY2d at 520-21 (citing various cases in which different methods were used to remedy different types of discovery violations); see also People v. Douglass, 60 NY2d 194, 206 (1983) (noting dismissal appropriate C.P.L. § 240.70 sanction in prior case); People v. Jones, 238 AD2d 153 (1st Dep't 1997) (preclusion).

In fashioning an appropriate sanction, while "the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society," id. at 520; see also Jenkins, 98 NY2d at 284, courts consider myriad factors, including the following: (1) prosecutorial fault, Kelly, 62 NY2d at 521; see also People v. Wong, 16 Misc 3d 1139(A), 2007 NY Slip Op. 51759(U), at *6 (Kings Co. Sup. Ct. 2007) ("Not only must a court consider the prejudice caused to the defendants in fashioning an appropriate sanction, but it should weigh the degree of prosecutorial fault."); (2) bad faith, People v. Aquevareno, 17 AD3d 171, 172 (1st Dep't 2005) (upholding refusal to grant adverse inference where "there was no bad faith on the part of the prosecution or prejudice to defendant"); (3) lack of due diligence, People v. Bonet, 176 AD2d 641, 643 (1st Dep't 1991); (4) surprise to [*3]defendant, People v. Miller, 92 AD3d 520, 521 (1st Dep't 2012), lv. denied, 18 NY3d 996 (2012);^[FN1] People v. Benjamin R., 103 AD2d 663, 670 (4th Dep't 1984) (holding preclusion not warranted since "defendant as the author of the letter [evidence] could not claim surprise or prejudice"); and (5) whether a sanction will compromise the truth-seeking function of the court, Jenkins, 98 NY2d at 284.

This Court has considered the range of available sanctions and finds that preclusion is appropriate.^[FN2] Here, in response to a specific request from defense counsel and a direct court order, the People unequivocally stated that the 911 Recordings did not exist and then failed to ascertain the existence of such recordings until five months later. Such conduct establishes the People's failure to exercise due diligence. Sanctions are thus warranted under section 240.70.

Jenkins, supra, where the Court of Appeals held preclusion an inappropriate remedy, is distinguishable. There, defense counsel had demanded the production of a ballistics report and was aware of its existence. The report was critical to the central defense theory that defendant's was not the only gun fired at the scene. Rather than file a motion to compel its production, defense counsel proceeded to trial without having first reviewed the ballistics report. During the opening statement, defense counsel propounded a multiple gun theory that ultimately was undercut by the ballistics report in question. The People argued, though it could not be proved conclusively, that they had provided the report in a voluminous discovery packet disclosed prior to trial. Thus, because the ballistics report may have been timely disclosed, the Court of Appeals held that precluding the report was inappropriate.

In contrast, here, after an explicit request for the recordings by defense counsel and a direct order of the court to turn over the same, the People stated unambiguously that the 911 Recordings did not exist, only to discover, five months later and on the eve of trial, that they were wrong. Preclusion is therefore appropriate. See Santucci v. Rotker, 110 AD2d 842 (2nd Dep't 1985) (finding that repeated failures to comply with a discovery order justified an order of preclusion pursuant to C.P.L. § 240.70(1)).

In short, on these facts, where the People have consistently denied the existence of evidence—even in the face of a specific request and in contravention of a court order to produce the specific evidence—preclusion is appropriate.

This constitutes the Decision and Order of the Court. [*4]

Dated: September 12, 2013

Bronx County, New York

SO ORDERED:

___________________________

Jeanette Rodriguez-Morick

Judge of the Criminal Court