Criminal Court of the City of New York, Kings County, November 2, 2023

Brooklyn Defender Services, Brooklyn (Laurice Pearson of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Taylor Lupi of counsel), for the People.

On May 1, 2023, defendant filed a motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30. On May 8, 2023, the People filed their opposition to defendant's motion. On May 12, 2023, defendant filed his reply to the People's opposition to his motion. On May 26, 2023, the court issued its decision and order, denying defendant's motion in its entirety. On September 15, 2023, defendant served and filed the instant motion to renew. On October 3, 2023, the People filed their opposition to defendant's motion.

On November 6, 2022, defendant was arraigned on an accusatory instrument charging him with three misdemeanors and a violation, specifically: assault in the third degree, Penal Law § 120.00 (1); attempted assault in the third degree, Penal Law §§ 120.00 (1); 110.00; menacing in the third degree, Penal Law § 120.15; and harassment in the second degree, Penal Law § 240.26 (1). The People alleged, in pertinent part, that defendant headbutted complaining witness, T.H., and then hit T.H.'s head against the nightstand with his hands. This caused T.H. to suffer a chipped tooth, a laceration to the nose and eye, and substantial pain.

On January 27, 2023, the People served and filed an off-calendar certificate of compliance (COC)/statement of readiness (SOR), an inventory of discovery provided under CPL article 245, and notice/disclosure form for initial discovery (NDF).

On May 1, 2023, defendant filed a motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30. Specifically, defendant argued that the People's COC was invalid{**82 Misc 3d at 187} for, among other things, failure to provide underlying impeachment information for testifying officers. The People opposed defendant's motion.

On May 8, 2023, the People filed an amended NDF listing the following officers as testifying witness: (1) Officer Maxime Muller (Officer Muller), (2) Officer Gregory Antoine (Officer Antoine), and (3) Officer Chrisopher Lillis (Officer Lillis).

On May 26, 2023, the court issued its decision and order denying defendant's motion. Pursuant to the court's decision, the People were ordered to provide disciplinary records of the substantiated allegations for testifying witnesses to the defense in their entirety within 30 days of receipt of this decision.

On July 13, 2023, the Appellate Term, Second Department issued its decision People v Hamizane (80 Misc 3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). In Hamizane, the Appellate Term rejected the People's argument that they need only disclose disciplinary records related to the subject matter of the charges as "the disciplinary records of a potential police witness which were created in relation to a different case go to the weight of the credibility of the witness and can be used for impeachment purposes" (id. at 11 [citation omitted]). The court therefore held that "with respect to every listed potential police witness, it was the People's obligation to disclose [1] whether or not disciplinary records exist, and [2] to provide the defense with copies of any existing records" (id.). As "the People had [failed to demonstrate any] attempt[ ] to obtain any police disciplinary records, or attempt[ ] to find out whether any such records existed, prior to the filing of these CoCs," the People's efforts to obtain discovery could not be said to be made in good faith and reasonable under the specific circumstances of the case (id. at 12).

On September 15, 2023, defendant served and filed the instant motion to renew.

On October 3, 2023, the People filed their opposition to defendant's motion.

Defendant, citing the Hamizane decision, argues that, upon renewal, his motion to dismiss pursuant to Criminal Procedure Law § 30.30 should be granted. Specifically, defendant argues that the People's initial COC was invalid because, among other things, the People failed to disclose impeachment material for testifying officers prior to filing their initial COC and SOR. As{**82 Misc 3d at 188} a result, the People have exceeded the applicable CPL 30.30 time period and the charges should be dismissed. Defendant cites multiple nonbinding trial court decisions as authority for this [*2]contention.^[FN1]

The People first respond that defendant's attempt to reargue^[FN2] represents an improper attempt by defendant to again argue the very same issues that were previously correctly decided by this court. The People next respond that the issue of disclosure of impeachment material has already been determined by the court. Additionally, the People urge the court to disregard Hamizane and follow the Fourth Department's holding in People v Johnson (218 AD3d 1347 [4th Dept 2023]). Finally, the People argue that, in any event, Hamizane is distinguishable from the instant case.

For the following reasons, defendant's motion for leave to renew is denied.

The court first notes that the New York Criminal Procedure Law is silent as to motions to reargue or renew, but such motions are incorporated through case law (People v Merly, 51 Misc 3d 858, 860 [Sup Ct, Bronx County 2016] [Since "there are no applicable provisions in the CPL concerning (motions to reargue or renew), those provisions of the CPLR that address the issue may be applied in a criminal action"], citing People v Davis, 169 Misc 2d 977 [Westchester County Ct 1996]; People v Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992]; People v Cortez, 149 Misc 2d 886 [Crim Ct, Kings County 1990]).

Civil Practice Law and Rules § 2221 (e) governs motions to renew. A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." (CPLR 2221 [e] [2].)

In reviewing defendant's motion to renew, the court first finds that Hamizane settled the issue of the scope of disclosure under CPL 245.20 (1) (k) (iv) as it relates to testifying police officers. The Appellate Term, Second Department court rejected the People's argument that they need only disclose disciplinary records related to the subject matter of the charges and held{**82 Misc 3d at 189} that "the disciplinary records of a potential police witness which were created in relation to a different case go to the weight of the credibility of the witness and can be used for impeachment purposes" (Hamizane, 80 Misc 3d at 11 [citation omitted]). As a result, the court held that "with respect to every listed potential police witness, it was the People's obligation to disclose [1] whether or not disciplinary records exist, and [2] to provide the defense with copies of any existing records" (id.). Regarding the People's argument that the court should disregard Hamizane as it was not decided by the bench that hears appeals from the Second Judicial District, the Judicial District for Kings County, the court finds that since that bench has not ruled, Hamizane is binding. Similarly, in light of the conflicting determination by Hamizane that is binding on the court, the court rejects the People's argument that the court should follow the Fourth Department's holding in Johnson.

This determination, however, does not resolve the instant motion as the court must determine whether to retroactively apply the Hamizane decision, which was issued after the court found the People's COC valid in the instant case and after the People served and filed their COC.[*3]

In its determination, the court finds instructive the Court of Appeals' decision, People v Baret (23 NY3d 777, 782 [2014]). In Baret, the Court of Appeals examined whether to retroactively apply the Sixth Amendment requirement that criminal defense counsel advise noncitizen clients about the risk of deportation arising from a guilty plea provided for in Padilla v Kentucky (559 US 356 [2010]). In holding that Padilla did not apply retroactively, the Court of Appeals first concluded that Padilla was not a watershed rule of fundamental fairness that should be applied retroactively because it was not "central to an accurate determination of guilt or innocence [and did not] safeguard[ ] the fundamental fairness of [a] trial" (Baret, 23 NY3d at 798 [internal quotation marks omitted]). Moreover, the Court applied the three-part test established in People v Pepper (53 NY2d 213 [1981]) and found that the Padilla rule did not need to be applied retroactively (Baret, 23 NY3d at 799-800). Specifically, the Pepper test examines "[1] the purpose to be served by the new standard; [2] the extent of the reliance by law enforcement authorities on the old standard; and [3] the effect on the administration of justice of a retroactive application of the new standard." (Id. at 793.) Applying that test, the Baret court held that retroactivity was inappropriate because:{**82 Misc 3d at 190} (1) "Padilla has nothing to do with a reliable determination of guilt or innocence"; (2) the prior "reluctan[ce] [for defense attorneys] to volunteer advice in an often complex area of law outside their legal specialty" and (3) "the sheer volume of prosecutions disposed of by guilty plea" (People v Baret, 23 NY3d 777, 799-800 [2014]). While the court notes that Baret concerned a case upon appeal—that is, after a final judgment was entered—the court finds that the reasoning applied in Baret is applicable to the instant case.

The court first notes that the People, on May 24, 2023, disclosed the underlying Giglio materials for Officers Antoine and Lillis (People affirmation ¶ 19). The People then filed a supplemental COC on that day reflecting the additional disclosures (id.). The People state that they have no documents to disclose for Officer Muller as there are no disclosures in Officer Muller's Giglio or CCRB (Civilian Complaint Review Board) letter (id.). These disclosures, which were made prior to both the court's May 26, 2023 decision and order and the Hamizane decision, establish compliance with the requirement that the People disclose underlying records.

In its analysis of the instant case, the court concludes that the ruling in Hamizane is far from the type of "watershed rule" that requires a retroactive application. The amended discovery statute was an attempt by the legislature to address prior shortcomings of the previous discovery law such that the defense would be provided with timely and comprehensive discovery. By holding in Hamizane that underlying impeachment records must be disclosed, the Appellate Term did not fundamentally alter rules pertaining to the determination of guilt or innocence, but clarified statutory discovery rules that allow a defendant to properly prepare for trial. While the ruling in Hamizane may be considered a "change in the law" for the purposes of the motion to renew, the holding in the appellate case is consistent with this court's holding in the case at bar, finding that the People are required to turn over the underlying disciplinary records under CPL 245.20 (1) (k) (iv).

Furthermore, following the Pepper test, Hamizane should not be afforded retroactive application. Here, the People have provided underlying impeachment material for testifying prosecution witnesses well in advance of trial, providing the defense with adequate time to review it. The People have relied on this and other court rulings that the failure to disclose underling material does not invalidate a COC. The effect on the administration{**82 Misc 3d at 191} of justice would be significant where numerous cases, which were decided upon the lack of consistent authority, would be dismissed based upon a subsequent ruling.[*4]

Indeed, the statute was not to be weaponized against the prosecution in circumstances where the material has been turned over, consistent with the existent statutory precedent and well in advance of trial. To apply the ruling retroactively here, when the defense is already in possession of the material, would be contrary to the principles of fundamental fairness.

Accordingly, the rule set forth in Hamizane is not to be applied retroactively. As such, defendant's motion to renew is denied.