Supreme Court, Queens County, June 13, 2023

Mahmoud R. Rabah for defendant.

Melinda Katz, District Attorney (Daniel Dapelo of counsel), for the People.

By omnibus motion dated March 10, 2023, defendant moves for the following: (1) inspection and release of the grand jury minutes; (2) dismissal of the indictment as defective; (3) dismissal of the indictment, or alternatively, reduction of the counts as legally insufficient; (4) bill of particulars; (5) motion to invalidate the certificate of compliance (COC); (6) motion to controvert the search warrant; (7) suppression of physical evidence; (8) suppression of statement evidence; (9) court ordered sanctions for destroyed audio/video evidence; (10) Sandoval hearing; and (11) reservation of rights.

Defendant's motion to inspect the grand jury minutes is granted. Upon inspection, defendant's motion for release of the grand jury minutes is denied since defendant has failed to demonstrate any compelling need for such action and the court is able to determine the motion without assistance (see CPL 210.30 [3]). However, the People are reminded of their obligation to disclose all transcript(s) of person(s) who testified before the grand jury, unless subject to a protective order, pursuant to CPL 245.20 (1) (b).[*2]

Defendant's motion to dismiss the indictment, or alternatively, to reduce the counts therein, is denied since the evidence adduced before the grand jury was legally sufficient to sustain the indictment. Moreover, the district attorney properly instructed the grand jury on the relevant law (see People v Calbud, Inc., 49 NY2d 389 [1980]). Lastly, the presentation of the case to the grand jury was not defective as a matter of law. The{**80 Misc 3d at 337} minutes reveal that a quorum of the grand jurors was present during the submission 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]). Additionally, 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 prosecutor and defense counsel (hereafter the parties) are reminded of their continuing duty to diligently confer with each other pertaining to any and all outstanding discovery issues/disputes, excluding protective orders under CPL 245.70.

Pursuant to the Administrative Order of the Chief Administrative Judge and in furtherance of the fair administration of justice, the parties are hereby reminded and directed to uphold their constitutional, statutory, and ethical responsibilities in the above-captioned proceedings as indicated in the attached order to counsel in criminal cases.

Additionally, the People are ordered to comply with their initial automatic discovery obligations outlined in CPL 245.10 and 245.20; their continuing discovery obligations as set forth in CPL 245.60; and their continuing obligation to provide all Brady material. Finally, defendant and/or defense counsel are ordered to comply with their reciprocal discovery obligations pursuant to CPL 245.20 (4) and 245.60.

The People's affirmation in response (at 1-2) satisfies the requirements of CPL 200.95.

Defendant avers that the People failed to meet their automatic discovery obligations pursuant to CPL 245.20 (1) which rendered the statement of readiness (SOR) filed on January 19, 2023, invalid. Specifically, the People failed to disclose the transcripts of testimony for grand jury witnesses and the search warrant affidavit underlying the search warrant executed at defendant's home in connection with this case.

CPL 245.20 (1) provides that "[t]he prosecution shall disclose to the defendant . . . all items and information that relate to {**80 Misc 3d at 338}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." CPL 245.20 (7) directs this court to apply a presumption in favor of disclosure when interpreting the statutory text of CPL 245.10, 245.25, and 245.20 (1). All items and information related to the prosecution of a charge in the possession of the District Attorney's Office and/or any New York State or local police department or law enforcement agency are explicitly deemed to be in the prosecutor's possession, custody, or control (CPL 245.20 [2]). The statute further imposes an automatic and affirmative duty upon the prosecutor to make [*3]diligent, good-faith efforts to determine the existence of material or information to be made available for discovery "where it exists but is not within the prosecutor's possession, custody or control" (CPL 245.20 [2] [emphasis added]). Where, despite such diligent, good-faith efforts and reasonable inquiry, the People are unable to secure and disclose mandated discoverable material that is not in their possession, custody, or control within the statutorily allotted time periods, the law prescribes that the People make an application to the court to enlarge the time to comply with their disclosure requirements (see CPL 245.10, 245.70 [2]).

Upon enacting Criminal Procedure Law article 245, the legislature replaced the former discovery by demand statutory scheme (former CPL art 240) by imposing an automatic and ongoing duty on the People to obtain and disclose material and information subject to discovery (see CPL 245.20 [1]; 245.60). With respect to the timing of discovery, the People's disclosure obligations commence at the arraignment on an accusatory instrument and the statute directs that discovery be provided "as soon as practicable" within specified time periods depending on defendant's custody status (CPL 245.10 [1] [a] [i], [ii]). With respect to the People's substantive disclosure obligations, the statute expressly outlines a non-exhaustive list of materials and information subject to automatic discovery (CPL 245.20 [1]) and mandates that the People certify full compliance with their discovery obligation by filing a certificate of compliance upon completion (see CPL 245.50 [1]). Moreover, the new law now directly links the People's satisfaction of their substantive automatic discovery obligations, as a condition precedent, to their trial readiness.

In order for the People to file a valid SOR, the People must first: (1) file a COC upon satisfaction of their discovery obligations{**80 Misc 3d at 339} under CPL 245.20 (1), except for discovery that is lost or destroyed, or any items or information that are the subject of a protective order pursuant to CPL 245.70; (2) affirm that they have disclosed and made available all known material and information subject to discovery after having exercised due diligence and making reasonable inquiries to ascertain the existence of such material and information; and (3) include a list identifying the discovery materials provided (CPL 245.50 [1]). Similarly, CPL 30.30 (5) requires that any statement of trial readiness must be accompanied or preceded by a certification of good-faith compliance with the disclosure requirements of CPL 245.20.

If, however, after filing a proper COC and SOR, the prosecution "subsequently learns of additional material or information which it would have been under a duty to disclose . . . had it known of it at the time of a previous discovery obligation . . . , it shall expeditiously notify the [opposing] party and disclose the additional material [or] information" (see CPL 245.60 [emphasis added]). In such case, the statute provides for a supplemental certificate which shall be served upon the defendant and filed with the court identifying the additional material and information provided (see CPL 245.50 [1]). The statute further prescribes that 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 CPL 245.80.

To be sure, CPL 245.50 (3) provides that, notwithstanding the provisions of any other law, absent an individualized finding of special circumstances by the court before which the charge is pending, the prosecution shall not be deemed ready for trial pursuant to CPL 30.30 until it has filed a proper COC pursuant to CPL 245.50 (1). Hence, the legislature anticipated a circumstance where the prosecutor may be deemed ready for trial, despite noncompliance with its automatic discovery obligations; and recognized that unavoidable delays may prevent a [*4]diligent prosecutor from attaining full compliance despite its best efforts to obtain all relevant material in a timely manner (People v Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021]; People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020]; People v Diaz, 75 Misc 3d 314 [Crim Ct, Bronx County 2022]; People v Henry, 74 Misc 3d 1230[A], 2022 NY Slip Op 50265[U], *3 [Sup Ct, Richmond County 2022] {**80 Misc 3d at 340}["(t)he only purpose of a certificate of compliance is to serve as a necessary prerequisite to a valid statement of readiness (for purposes of) CPL 30.30" (internal quotation marks omitted and emphasis added)]). In such case, amongst the available statutory options, the People may seek a judicial ruling authorizing their filing of an SOR based on an individualized finding of special circumstances pursuant to CPL 245.50 (3) (id.).

Transcripts of Grand Jury Witness(es)' Testimony

Clearly, the transcripts of witness testimony before the grand jury are automatically discoverable pursuant to CPL 245.20 (1) (b); and the People are required to disclose such materials to the defendant in order to satisfy their obligations under CPL 245.20 (1). Despite the clear mandate of the statute, the People filed a COC on January 19, 2023, wherein the People affirm that they had "disclosed . . . all existing known material and information subject to discovery, except . . . items or information subject to a protective order under section 245.70 of the Criminal Procedure Law" (People's COC filed Jan. 19, 2023, at 1-2 [emphasis added]).

The People erroneously posit that the grand jury transcript did not exist at the time of their COC filing, and therefore was not yet subject to disclosure pursuant to the automatic discovery statute. The People's reasoning is substantially flawed in this regard. First, unlike a lab test or DNA analysis that had yet to be conducted or completed at the time of a COC filing, the People are aware that the minutes of a witness(es)' grand jury testimony are recorded in real time and exist upon the conclusion of the presentment. That the grand jury minutes had not yet been transcribed does not negate the veracity of their existence. Second, unlike a test or report conducted by an entity outside of the People's control, as in the Office of the Chief Medical Examiner for example, grand jury stenographers throughout New York City are employed by the prosecutor's office (see Judiciary Law § 321). As such, the grand jury minutes and the timing of their transcription are exclusively in the prosecutor's possession and directly under the prosecutor's complete custody and control (People v Aguayza, 77 Misc 3d 482 [Sup Ct, Queens County 2022]; People v Naula, 75 Misc 3d 1205[A], 2022 NY Slip Op 50386[U] [Sup Ct, Queens County 2022]). For example, under the former discovery by demand scheme, courts routinely charged the People with speedy trial time for unreasonable delays occasioned by their failure to produce and submit grand jury minutes to a court for inspection{**80 Misc 3d at 341} (see People v Burwell, 260 AD2d 498, 499 [2d Dept 1999] [People charged with delay where grand jury minutes taken by stenographer, who "worked exclusively for the Westchester County District Attorney's Office," were not transcribed within a reasonable period of time, and record devoid of evidence that People attempted to expedite the production of said transcript]; People v Sutton, 199 AD2d 878 [3d Dept 1993] [the People are obliged to produce grand jury minutes within a reasonable period of time and reasonableness is dependent on District Attorney's ability to exert control over the stenographer], appeal after remand 209 AD2d 878 [3d Dept 1994] [delay resulting from stenographer's failure to produce transcript of grand jury minutes was chargeable to prosecution for speedy trial purposes]).

In promulgating CPL article 245, the legislature expressly intended that the People produce and disclose the "transcript" of witness testimony before the grand jury as a prerequisite to the filing of both a proper COC and a valid SOR (see CPL 245.20 [1] [b]; 30.30 [5]; People ex rel. Ferro v Brann, 197 AD3d 787 [2d Dept 2021] [the People's filing of a certificate of compliance pursuant to CPL 30.30 (5) cannot be complete until all material and information subject to discovery was actually disclosed to defendant pursuant to CPL 245.50 (1)], lv denied 38 NY3d 909 [2022]). Indeed, before the advent of CPL article 245, in People v McKenna (76 NY2d 59 [1990]), the Court of Appeals charged the People with delay for their unreasonable failure to provide grand jury minutes to the court for inspection upon defense motions to dismiss the indictment as defective. In so doing, the Court recognized that

"the People's omission did not merely impair defendant's ability to proceed to trial. Rather, because the trial could simply not go forward until the CPL 210.30 motion was decided, the People's dilatory conduct in failing to provide the minutes necessary to that decision was a direct, and virtually insurmountable, impediment to the trial's very commencement. As such, the prosecutorial failure here must be deemed to be one having a direct bearing on the People's readiness [for trial]" (People v McKenna at 64 [citation omitted]).

Nonetheless, by affirmation in response, the People appear to conflate their obligation to provide ongoing discovery "as soon as practicable" with their substantive obligation to provide complete discovery. The People's misguided reliance on CPL{**80 Misc 3d at 342} 245.25 in support of their claim that a proper COC, and by extension a valid SOR, may be filed pre-indictment at a time when no testimony before the grand jury has been taken contravenes both the new discovery statute and well settled law. First, while a felony complaint can serve to commence the prosecution of a felony offense, it cannot serve as the basis for such prosecution which necessarily renders trial readiness an impossibility (see CPL 1.20 [8]; People v England, 84 NY2d 1 [1994] [since a defendant could not be brought to trial on a felony offense before arraignment on an indictment, that is an elemental prerequisite to trial readiness]; cf. CPL 1.20 [3]);^[FN*] and second, a proper COC requires that the People disclose the transcript of witness testimony before the grand jury prior to or in tandem with their COC filing.

In this case, the People failed to move the court for "an individualized finding of special circumstances" (CPL 245.50 [3]) to file an SOR despite their awareness of the existence of the minutes of witness testimony before the grand jury and their duty to transcribe and disclose same. Nor have the People demonstrated any impediments or obstacles to having the grand jury minutes transcribed for disclosure that might constitute an exceptional circumstance under CPL 30.30 (4) (g). Further, the People do not allege that the grand jury minutes were either lost or destroyed and not available for transcription; or that the transcribed witness testimony was the subject of a protective order pursuant to CPL 245.70. Instead, in an apparent effort to halt the speedy trial clock, the People filed a COC and SOR erroneously affirming that they "have disclosed and made available all existing known material and information subject to discovery" (emphasis added), while simultaneously conceding that they had not yet produced or disclosed a transcript of witness testimony before the grand jury as mandated by CPL 245.20 (1) (b).[*5]

For the reasons stated above, I find that at the time the People filed the COC in this case, they knew that the minutes of grand jury witness(es)' testimony were taken in real time and, in fact, existed; that said minutes were in their exclusive possession, custody, and control; and that it was their duty to transcribe and disclose the testimony of witnesses before the{**80 Misc 3d at 343} grand jury in order to satisfy their discovery obligations under the statute. To accept the People's SOR under these circumstances would, in effect, vitiate the underlying legislative intent of the statute which mandates full compliance with discovery as a prerequisite to the People's declaration of readiness for trial. Accordingly, whereas here, the People cannot point to a statutory exception exempting nondisclosure of the transcript of witness(es)' testimony before the grand jury or a court ruling authorizing their declaration of readiness for trial in spite of such missing mandatory discovery, this court finds the People's COC filed on January 19, 2023, was neither accompanied with and/or preceded by the requisite good-faith certification of compliance with the disclosure requirements of CPL 245.20 (1) and is therefore improper (see CPL 245.50 [3]; 30.30 [5]).

Search Warrant Affidavit

Defendant also moves to invalidate the People's COC due to the People's failure to disclose a search warrant affidavit underlying the search warrant authorizing entry and search of defendant's home in connection with this case. The People concede that they did not disclose the search warrant affidavit prior to filing their COC in this case. However, the People represent that the search warrant application authorizing a search of defendant's home in Queens County was made by police officers assigned to the Nassau County Police Department before a justice of the County Court in Nassau County (J. Tammy Robbins).

A search warrant application made by out of county police officers before an out of county judge could not be deemed within the People's possession, custody, or control, although the People were aware of its existence. The People further outlined the numerous steps they took to obtain the search warrant affidavit from Nassau County police officers which included numerous and consistent conversations with multiple representatives of the Nassau County Police Department. After exercising the requisite diligence to obtain the search warrant affidavit, the Nassau Police Department forwarded same to the assigned assistant district attorney on March 21, 2023. Upon receipt, the district attorney disclosed the search warrant affidavit to defendant via the electronic discovery portal on March 22, 2023. Under these circumstances, this court finds that the People exercised due diligence to obtain and make said affidavit available for disclosure (cf. People v Daley, 265 AD2d 566 [2d Dept 1999] [People charged with unreasonable delay resulting from{**80 Misc 3d at 344} unexcused failure to provide redacted search warrant affidavit in possession of local police department]). Hence, invalidation of the People's COC filed on January 19, 2023, is not warranted on this ground.

A defendant seeking to controvert a search warrant has the initial burden of establishing, by a preponderance of the evidence, that a deficiency in the warrant exists (see Franks v Delaware, 438 US 154 [1978]). Where a search warrant has previously been reviewed by the issuing court, it shall be entitled to a presumption of validity (People v Castillo, 80 NY2d 578, 585 [1992]; People v Traymore, 241 AD2d 226 [1st Dept 1998], lv denied 92 NY2d 907 [1998]; People v Ortiz, 234 AD2d 74, 75-76 [1st Dept 1996]). In determining whether probable cause exists, the Court of Appeals cautions that there is "no infallible formula," and search warrants should not be read in a "hypertechnical manner" (People v Hanlon, 36 NY2d 549, 559[*6][1975]). As such, the suppression court's review of the validity of a search warrant is limited to the issue of whether the issuing court, based on the search warrant affidavit and/or testimony of a confidential informant, reasonably determined that probable cause existed (People v Castillo at 585).

In this case, a review of the search warrant, the search warrant affidavit, and the sworn allegations contained therein reveals that the deponent's basis of knowledge for the information he imparts was derived from a confidential informant and confirmed by his own observations of the subject location. I find that said allegations are not perjurious on their face and otherwise satisfy the Aguilar-Spinelli "two pronged test" of reliability and credibility (Aguilar v Texas, 378 US 108 [1964]; Spinelli v United States, 393 US 410 [1969]; People v Griminger, 71 NY2d 635 [1988] [Aguilar-Spinelli test applicable to a court's review of the validity of search warrants in New York State]). Accordingly, the issuing judge reasonably concluded that probable cause existed for authorizing the search warrant in this case.

Nonetheless, defendant's motion to controvert the search warrant is granted to the extent that a Darden hearing is ordered since the confidential informant referenced in the search warrant affidavit did not physically appear before the issuing judge. Such hearing is limited to the issue of whether the confidential informant exists, and whether he/she, in fact,{**80 Misc 3d at 345} provided the information described in the search warrant affidavit to the deponent named therein (People v Darden, 34 NY2d 177 [1974]; cf. People v Edwards, 95 NY2d 486, 493 [2000] [informant need not be produced for a Darden hearing if he/she previously appeared before the issuing judge]).

The defendant's motion to suppress physical evidence is granted to the extent that a Dunaway/Mapp hearing is ordered for all the property seized from the detached garage.

The defendant's motion to suppress statement evidence is granted to the extent that a Dunaway/Huntley hearing is ordered.

The People are directed to notify the defendant of any prior uncharged criminal, vicious or immoral conduct which the People intend to use on their direct prior to the commencement of jury selection.

Defendant's motion to preclude the People from introducing evidence of his prior bad acts/convictions upon cross-examination at trial is reserved to the trial court.

Defendant's motion to reserve his right to make further motions is granted to the extent permitted by CPL 255.20 (3).