Criminal Court of the City of New York, Queens County, May 2, 2023

The Legal Aid Society (Don Murray of counsel) for defendant.

Melinda Katz, District Attorney (Jairo Z. Coronado of counsel), for the People.

In this CPL 30.30 motion, the defense argues the People's statement of readiness was illusory. Specifically, they assert that the People certified discovery compliance without disclosing an array of impeachment evidence held by the police about this case's complainant. They also note that the People certified compliance without providing the docket numbers for the complainant's criminal convictions, which include a felony and four misdemeanors.

A proper, good-faith certificate of automatic discovery compliance is a prerequisite to a valid statement of readiness (CPL 245.50 [3]). Criminal Procedure Law § 245.50 (1) defines a proper certificate of compliance, and it requires the People to certify, in good faith, two things. First, they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (CPL 245.50 [1]; see also People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U], *5 [App Term, 2d Dept, 9th & 10th Jud Dists 2022] [finding that the People failed to file a certificate in good faith because they had not, in fact, exercised that diligence or made those reasonable inquiries].) Second, they "made available all known material and information subject to discovery." (CPL 245.50 [1]; see also People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021] [holding that a certificate is not complete until the People "actually produce( )" automatic discovery to the defense].) Absent special circumstances, a proper, good-faith certificate of compliance is a prerequisite to a valid statement of readiness. (CPL 245.50 [3]; 30.30 [5]; Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U], *5; Ferro, 197 AD3d at 787-788.)^[FN*]

The statute defines automatic discovery to cover, amongst other things, information that is favorable to the defense. (See{**79 Misc 3d at 906}CPL 245.20 [1] [k].) That explicitly includes "[a]ll evidence and information, including that which is known to police," that "tends to . . . impeach the credibility of a testifying prosecution witness." (See CPL 245.20 [1] [k] [iv].) The statute also requires that the People disclose a "complete record of judgments of conviction for . . . all persons designated as potential prosecution witnesses." (CPL 245.20 [1] [p].)

Impeachment is the process by which a witness's veracity is called into question for the purpose of showing that they lack credibility and that, therefore, their testimony is not worthy of belief. (See generally People v Smith, 27 NY3d 652 [2016].) Broadly, there are several types of impeachment evidence. They include showing that a witness has been convicted of a crime; questioning the witness about prior criminal, vicious, or immoral behavior; and showing that the witness's perceptions at the time of the events to which they testify were unreliable.

Notably, the discovery statute does not discriminate between types of impeachment material. (See CPL 245.20 [1] [k] [iv] [requiring the People to produce "(a)ll" impeachment evidence for their testifying witnesses].) And unlike laxer constitutional standards, the statute jettisons any concern about whether prosecutors, courts, or anyone else believes the impeachment information to be "material." (See id. [the statute says "(a)ll" impeachment evidence]; see also People v Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *3, *5 [Crim Ct, Queens County 2022] [noting that the statute "jettisons the 'materiality' requirement"]; Assembly Mem in Support of 2017 NY Assembly Bill A4360A [noting that the then-proposed statute's{**79 Misc 3d at 907} language "abandons the requirement that only 'materially' exculpatory information need be disclosed"].) Instead, the statute mandates that the People disclose "[a]ll" information that tends to impeach the credibility of a testifying prosecution witness, period. (CPL 245.20 [1] [k] [iv]; see also Matter of Jayson C., 200 AD3d 447, 449 [1st Dept 2021] [correctly observing that the discovery statute "broadly requires disclosure of all impeachment evidence"].) "All," to be very clear, "means all." (People v Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U], *2 n 2 [Crim Ct, Bronx County 2022]; see also People v Bravo, Crim Ct, Queens County, Aug. 17, 2022, Johnson, J., No. CR-002662-22QN, slip op at 7-8 ["The statute requires the production of ALL (impeachment) material"].)

And the statute does not stop there. It also provides special instruction regarding impeachment material (and other favorable information). It mandates that "[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form." (CPL 245.20 [1] [k].) It mandates that it "shall be disclosed . . . irrespective of whether the prosecutor credits the information." (Id.) And it mandates that the People "shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier" than the normal statutory "time period for disclosure." (Id.) It also specifically emphasizes that the People "endeavor to ensure that a flow of information is maintained between the police . . . and [the district attorney's [*3]office] sufficient to place within [the prosecutor's] possession or control . . . any evidence or information discoverable" as impeachment evidence. (CPL 245.55 [1].)

With these principles in mind, the court turns to what happened in the prosecution of this case. The complainant here has four criminal convictions. All of them arose from arrests by the NYPD in New York County. One is a felony conviction for criminal sale of a controlled substance. Three are misdemeanor convictions for criminal possession of a controlled substance. With their certificate of discovery compliance, the People disclosed the fact of the complainant's convictions, the charges to which she pleaded, the dates of conviction, and the sentences. They did not disclose the docket numbers of the cases. They also did not disclose any other information about any of these cases, like what specific criminal behavior the complaints alleged.

Four days after the People claimed to certify compliance, the defense emailed the People protesting that the People had{**79 Misc 3d at 908} withheld information relating to these convictions. First, they noted that the People did not supply any identifying information for the convictions, like docket numbers, indictment numbers, or a NYSID, that would allow them to identify the cases. As a result, they had no way to conduct an independent investigation into those cases to prepare for cross-examination. And should the complainant deny the fact of a conviction on the stand, they noted they would be unable to find a certified judgment to prove it. They also noted that the People had not disclosed any police reports, complaints, or other material from those cases, which would likely provide them a good-faith basis to cross-examine the complainant about the underlying facts of those convictions.

Two months after the defense's email, the People responded with docket numbers for three of the convictions. Three months after that response, the People followed up with the docket numbers for all the cases. The People never disclosed any underlying police material for any of the cases.

The court agrees that if the People actually or constructively possess material relating to a testifying witness's criminal convictions, they must produce all of it under CPL 245.20 (1) (k) (iv). Beyond the mere fact of a conviction, "[k]nowledge of a witness' past judgments of conviction is an essential component of any defense case." (People v Soto, 72 Misc 3d 1153, 1156 [Crim Ct, NY County 2021].) "Convictions—the nature of the crime, the circumstances of the conviction, and the sentence imposed—are critical areas for investigation and preparation, as well as confrontation of adverse witnesses." (Id. at 1156-1157.) And it has long been established that a cross-examiner may question a witness about the acts underlying a criminal conviction, should they bear logically on credibility. (E.g. People v Viger, 53 AD2d 991, 991 [3d Dept 1976] [citing the tradition of cases]; see also People v Allen, 67 AD2d 558, 560-561 [2d Dept 1979] ["Thus, defendant should have been allowed to cross-examine (the witnesses) as to any immoral, vicious or criminal act committed by them which may affect their character and show them to be unworthy of belief"].)

Here, questioning the complainant about her alleged drug use and prior drug convictions would bear on credibility in several ways. First, they are "prior criminal acts" that demonstrate a determination to "further self-interest at the expense of society" and thus go to " 'honesty and integrity.' " (E.g. People v Duffy, 36 NY2d 258, 262 [1975], quoting People v Sandoval,{**79 Misc 3d at 909}34 NY2d 371, 377 [1974]; see also People v Turner, 197 AD3d 997, 999 [4th Dept 2021] [finding a defendant's conviction of drug possession to be "probative of his credibility inasmuch as such acts showed the willingness of defendant to place the advancement of his individual self-interest ahead of principle or of the interests of society" (internal quotation marks, ellipsis and brackets omitted)]; People v [*4]Teen, 200 AD2d 785, 785-786 [3d Dept 1994] [condoning cross-examination of a defendant about a prior drug-related offense and "his past drug addiction"].) And second, information about the complainant's drug habit can call into question the reliability of her perceptions about what happened in this case. (People v Freeland, 36 NY2d 518 [1975] [reversing a conviction where a trial court excluded evidence that an eyewitness was addicted to heroin].) Indeed, even extrinsic evidence of an addiction may be admissible for that purpose. (Id.)

As this complainant's criminal convictions arose in Manhattan, it is uncontroversial to conclude that the NYPD possesses underlying material relating to them. The People do not argue otherwise. Therefore, the People were in constructive possession of that information. (See CPL 245.20 [2] [deeming documents in the police's possession to be in the People's possession]; CPL 245.20 [1] [k] [iv] [requiring the People to disclose all impeachment information that is "known to police"].) However, the People do not suggest that they exercised any efforts—let alone due diligence or reasonable inquiries—to obtain this information. Instead, they disclaim any responsibility to ascertain any of this material at all. They state that "[i]t is the People's position that a list containing all the necessary information of a witness's conviction history is enough to comply with CPL § 245.20[1] [p]." (Prosecution's response at 5.) Of course, this misses the point. Any material relating to a testifying complainant's prior bad acts is impeachment material and must be disclosed automatically under CPL 245.20 (1) (k) (iv). That the People failed to recognize this proves that they failed to, in fact, exercise due diligence and make reasonable inquiries to ascertain the existence of impeachment material known to police. Therefore, their certificate of discovery compliance was not made in good faith. (See Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U], *5 [finding that the People failed to file a certificate in good faith "as the People failed to exercise due diligence and did not make reasonable inquiries to obtain" discoverable material]; see also CPL 245.20 [7] [if there is any{**79 Misc 3d at 910} question, requiring the People to presume that information should be disclosed].)

The court encourages the People to take impeachment information as seriously as the statute requires. Impeachment is not inconsequential. Very often, "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence." (Napue v Illinois, 360 US 264, 269 [1959].) And in the rough-and-tumble of New York's high-volume misdemeanor courts, trials often depend entirely upon a single witness's testimony. Where "the Government's case depend[s] almost entirely on [an individual's] testimony[,] without [which] there could have been no indictment and no evidence to carry the case to the jury[,] [the individual's] credibility as a witness [is] . . . an important issue in the case . . . and the jury [is] entitled to know of it." (Giglio v United States, 405 US 150, 154-155 [1972].)

And fully disclosing impeachment evidence does not only help those accused of crimes. It also helps the city avoid potential liability for wrongful convictions down the line. Where the police know of impeachment evidence and fail to disclose it, they may be held liable for federal civil rights violations—a liability ultimately borne by taxpayers. (See e.g. Fraser v City of New York, 2021 WL 1338795, *7, 2021 US Dist LEXIS 69324, *17-20 [SD NY, Apr. 9, 2021, No. 20-cv-04926, McMahon, C.J.].) Just one month ago, a New York federal court ordered a judgment of $1,500,000 in compensatory damages, and $425,000 in punitive damages, where NYPD witnesses failed to disclose the many lawsuits in which they had been sued, causing someone's wrongful conviction and two-year incarceration. (Fraser v City of New York, US Dist Ct, SD NY, No. 1:20-cv-04926-CM-OTW, Mar. 28, 2023 [judgment].)

The People complain that it would be "onerous" and "very difficult" for them to turn [*5]over "all" impeachment evidence as the statute's plain text mandates. (See prosecution's response at 6.) The court does not discount that prosecuting a criminal case involves a lot of work. However, the discovery statute as written provides the People numerous tools to facilitate their compliance. It permits the People to petition a court for good-cause extensions (CPL 245.10 [1] [a] [iv]); and to submit a request for "special circumstances" to state ready for trial despite outstanding discovery (CPL 245.50 [3]). The court's subpoena power is also available should the People's statutorily mandated "flow of information" between their office and the police {**79 Misc 3d at 911}department fail. (See CPL 245.55 [1] [requiring the police and district attorney to maintain a flow of information between their offices to share discovery, with particular attention to favorable information like impeachment material].) As this court and others have observed, the People rarely, if ever, pursue any of these avenues. The means are there for the People to comply with the statute. All they must do is use them.

The People had 60 days from arraignments to validly state ready on this case. (CPL 30.30 [1] [c].) Their statement of readiness was illusory as they filed a certificate of discovery "compliance" without doing anything regarding impeachment material known to the police. The People did not seek preauthorization to nonetheless state ready upon any showing of special circumstances. Nor do they allege that any pre-readiness time is excludable for any reason under CPL 30.30 (4) (a). The CPL 30.30 clock therefore ran from arraignments on September 17, 2022, until the defense requested this motion schedule on February 17, 2023. That is 153 days, which exceeds the 60-day maximum. Therefore, this case must be dismissed.

The remaining motions are moot.