Criminal Court of the City of New York, Bronx County, December 18, 2023

Darcel D. Clark, District Attorney (Taber Lee Lucchese, Nicole Mortorano and Ryan Thompson of counsel), for the People.

The Bronx Defenders (Joanne Choi of counsel) for defendant.

Summary

1. Defendant's motion to deem invalid the People's certificate of compliance dated May 24, 2023, and supplemental certificates of compliance dated, respectively, May 30, June 6, June 9 and June 22, 2023, is granted.

2. Defendant's motion to dismiss the information on statutory speedy trial grounds is granted.

3. The remaining branches of defendant's omnibus motion are denied as moot.

4. The People's motion to restrict discoverable material on legal grounds is denied.

5. The court reserves decision on the People's motion to restrict discoverable material on factual grounds and orders a hearing thereon in accordance with this decision and order; the court stays this order as the information is dismissed on statutory speedy trial grounds.

6. Sealing of this matter is ordered stayed for 30 days from the date of this decision and order.

Defendant, Samuel A. Urena Vallejo, stands charged in an information with per se driving while intoxicated (Vehicle and Traffic Law § 1192 [2]); common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]); reckless endangerment (Penal Law § 120.20); reckless driving (Vehicle and Traffic Law § 1212); criminal mischief in the fourth degree (Penal Law § 145.00 [3]); and driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192 [1]). On June 23, 2023, during the course of the proceedings, an omnibus motion schedule was set at the request of the defense. In the midst of motion practice, the People, with the court's leave, served and filed a protective{**82 Misc 3d at 584} order motion dated July 17, 2023. On July 19, 2023, the court granted a joint request by the parties for an enlargement of time for the parties to cross-respond [*2]and cross-reply to their respective motions. A superseding, consolidated motion schedule was set, and this decision and order concerns the court's review of all the parties' papers and exhibits relating to the People's protective order motion and defendant's omnibus motion.

In one branch of a protective order motion dated July 17, 2023, the People submit that impeachment material for non-testifying law enforcement officials is per se not automatically discoverable under CPL 245.20 (1).^[FN1] The court disagrees. "It is not magical reasoning to perceive that Giglio disclosures could be of significant consequence to negate a defendant's guilt, provide a basis to suppress evidence, or support a potential defense even if the prosecution decided not to call the officer in question as a witness" (People v Peralta, 79 Misc 3d 945, 953 [Crim Ct, Bronx County 2023]; see People v Jackson, 79 Misc 3d 832, 840 [Crim Ct, NY County 2023] ["(T)he (non-testifying) lieutenant was integral to the investigation and arrest of defendant, and the (impeachment material) includes serious allegations that could bear on the lieutenant's conduct in defendant's arrest and the overall investigation of this case. Accordingly, underlying records concerning the lieutenant's misconduct could tend to negate defendant's guilt or support a potential defense"]; Matter of E.S., 79 Misc 3d 681, 686 [Fam Ct, NY County 2023] ["limiting the disclosure obligation in the manner advocated by the presentment agency would allow the presentment agency to avoid disclosure of disciplinary records for officers who participated in an arrest, collected evidence and witness statements, or were otherwise assigned to a case, simply by declining to call those officers to testify"]; People v Figueroa, 76 Misc 3d 888, 895-896 [Crim Ct, Bronx County{**82 Misc 3d at 585} 2022] ["This case presents a clear example of why disclosure of prior misconduct is not limited to witnesses whom the People choose to call to testify"]).

Additionally,

"[p]ractical consideration of the interests of judicial economy also counsels for the early disclosure of discovery material for non-testifying law enforcement officials. A party's witness list is not infrequently subject to change, even—or especially—at the last minute. If the People turn over discovery material for a non-testifying official to the defense early on, then, should the People later conclude that the official's testimony is necessary, proceedings will not be needlessly delayed as the People work to locate, procure and turn over to the defense the impeachment material" (People v Vaillant, 80 Misc 3d 856, 864-865 [Crim Ct, Bronx County 2023]).

The second legal branch of the protective order motion—in which the People argue that defendant is required to first "allege . . . facts that would trigger the People's [o]bligations under any subsection of CPL § 245.20 (1) (k)"—is rejected as contrary to the discovery statute schema. All 21 categories of material delineated under CPL 245.20 (1)—including the "dreaded" paragraph (k)—are collectively termed "[a]utomatic discovery." Nothing about the phrase [*3]"automatic discovery" supports the People's viewpoint that the State Legislature intended for the defense to "earn" receipt of this material by first presenting evidentiary support or argument therefor (see People v Bay, 41 NY3d 200, 211 [2023] ["In resolving questions of statutory interpretation, our primary consideration . . . is to ascertain and give effect to the intention of the Legislature" (internal quotation marks omitted)]).

The court reaches the People's unnoticed, third legal argument, that law enforcement impeachment material the "NYPD categorizes" as "unsubstantiated," "unfounded" or "exonerated" is not automatically discoverable under CPL 245.20 (1), and rejects it as unavailing.

"[P]ursuant to CPL 245.20 (1) (k) (iv), this court finds that broad and all-inclusive discovery was the intent of the Legislature when it enacted CPL article 245, and that all personnel and employment records and substantiated or unsubstantiated{**82 Misc 3d at 586} complaints must be provided to the defense. This necessarily flows from the express language of CPL 245.20 (1) (k) (iv)—which mandates the disclosure of '[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness'—and also the repeal of Civil Rights Law § 50-a—which now makes available to the public all law enforcement disciplinary proceedings. All said, in order to comply with CPL article 245—and while it is not up to a District Attorney to decide if a particular item in a disciplinary record may be admissible or may impeach a witness—the plain language of the statute requires the DA be provided with all allegations" (Hudson Police Local 3979, N.Y. State Law Enforcement Officers Union, Council 82, AFSCME, AFLCIO v Bower, 73 Misc 3d 1063, 1068 [Sup Ct, Columbia County 2021]; see People v Rugerio-Rivera, 77 Misc 3d 1230[A], 2023 NY Slip Op 50069[U], *4 [Crim Ct, Queens County 2023] ["The court will not be bound by civilian terms of art such as 'unfounded, substantiated, or unsubstantiated' nor give those labels full legal weight to withhold underlying records from the discovery process"]).

The Court of Appeals has

"repeatedly recognized [that] in matters of statutory . . . interpretation, legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [Legislature]. To that end, ascertaining legislative intent involves considering the spirit and purpose of the act and the objects to be accomplished" (Matter of Sedacca v Mangano, 18 NY3d 609, 615 [2012] [internal quotation marks and citations omitted]; see Bay, 41 NY3d at 211).

The State Legislature made crystal clear its intent concerning the treatment of purported discovery in the black letter of the law itself: "There shall be a presumption in favor of disclosure when interpreting . . . [CPL 245.20 (1)]" (CPL 245.20 [7] [emphasis added]). Furthermore, automatically discoverable material "includ[es] but [is] not limited to" the 21 categories delineated in the discovery statute (CPL 245.20 [1] [emphasis added]; see Bay, 41 NY3d at 208 ["disclosure obligations include, but are not limited to, these categories"]).{**82 Misc 3d at 587}

Material need not fit perfectly within any of these statutory categories to be deemed automatically discoverable. Rather, material is presumably automatically discoverable if its description and "relat[ion] to the subject matter of the case" (CPL 245.20 [1]) are reasonably congruous with any of the statutorily denoted "automatic discovery" categories when read "in light of the instruction to interpret CPL 245.20 (1) in favor of disclosure" (People v Rahman, 79 Misc 3d 129[A], 2023 NY Slip Op 50692[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], citing CPL 245.20 [7]; see People v Edwards, 74 Misc 3d 433, 438-439 [Crim Ct, NY County 2021] ["The legislature's intent to require broad disclosure under Criminal Procedure Law [*4]article 245 is manifest. 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" (citations omitted) (quoting CPL 245.20)]; People v Preston, 70 Misc 3d 355, 357 [Cohoes City Ct 2020] ["CPL 245.20 (1) lists several categories of items that are to be disclosed. However, disclosure is not limited to items contained within these categories and thus incumbers the prosecution with a greater discovery burden" (citations omitted)]).

Common to all of the People's legal arguments is their consistent, yet mistaken, championing of a narrow-lens evaluation and application of CPL 245.20 (1). These arguments in favor of constricted interpretations of the discovery statute "betray the People's incorrect mindset regarding article 245" (People v Payne, 79 Misc 3d 827, 831 [Crim Ct, Bronx County 2023]), a product of the State Legislature's "sweeping reforms that expanded and restructured disclosure obligations in criminal cases" (Bay, 41 NY3d at 204). Accordingly, the branches of the People's protective order motion moving the court to deny, restrict, condition or defer defendant's receipt of automatically discoverable material (see CPL 245.70 [1]), based upon the legal arguments made, are denied.

The protective order motion also contains fact-based arguments in support thereof (see CPL 245.70 [1]; Peralta, 79 Misc 3d at 953 ["This court posits that (the question of discoverability of officer Giglio disclosures) is a case-specific inquiry and should be decided based upon the specific circumstances presented and because of, necessarily, a substantial nexus between the police officer in question, or law enforcement agency actions made on the government's behalf, to the arrest and/or investigation"]; Jackson, 79 Misc 3d at 840 ["The inquiry as to {**82 Misc 3d at 588}whether underlying records are discoverable under CPL 245.20 (1) (k) . . . is fact-specific, based on the officer's particular involvement in the case and the nature of the misconduct allegations against him"]). The People explain that the "officers in question arrived at the scene after the Defendant was detained," and one officer's "only involvement was arriving at the scene and driving the Defendant's vehicle to the precinct."

Defendant counters that the People's protective order motion should be denied as effectively an unnoticed motion to reargue the court's oral rulings made during a discovery conference held on June 23, 2023. This argument is unavailing, as the court did, at the conclusion of the discovery conference, permit the People to move for a protective order, as they now do. As a more complete record is needed before a decision can be made on the fact issues presented, the court reserves decision, and orders a hearing to be scheduled expeditiously, on the limited question of whether there exists a "good cause" basis for denying, restricting or otherwise limiting disclosure to the defense of otherwise automatically discoverable law enforcement impeachment material (CPL 245.70 [1], [4]). However, as the information in this matter must be dismissed on statutory speedy trial grounds (see post), the order is stayed.

Defendant was arraigned on March 5, 2023. The People served and filed a certificate of compliance (CoC) and statement of readiness (SoR) for the first time on May 24, 2023. The People subsequently served and filed four supplemental CoCs (SCoCs) and corresponding SoRs on, respectively, May 30, June 6, June 9 and June 22, 2023. On June 23, 2023, a discovery conference was held before the court (see CPL 245.35 [2]), which ordered the People to make certain discoverable material available to the defense.

The court on June 23, 2023, also set an omnibus motion schedule at the request of the defense. During the omnibus motion practice period the People served and filed the now-[*5]addressed protective order motion dated July 17, 2023 (see ante). On July 28, 2023, defendant served and filed an omnibus motion. In one branch thereof defendant asserts and argues that the CoC and all four SCoCs served and filed by the People are invalid. Upon a thorough review of the factual and procedural history of this matter (see Bay, 41 NY3d at 215 ["Due diligence is a mixed question of{**82 Misc 3d at 589} fact and law"]), the court concludes that defendant's argument is meritorious.

A. The Initial Certificate of Compliance Dated May 24, 2023, and the First and Second Supplemental Certificates of Compliance Dated, Respectively, May 30 and June 6, 2023

According to the initial CoC dated May 24, 2023, the People

"requested the [p]risoner movement slip, any additional photographs taken, as well as memo books for [named police officers] multiple times. The People were notified by the 46th precinct [sic] that the documents are not available to the [People]. All officers have been sent emails in regard to the outstanding materials" (emphasis added).

The CoC contains no explanation for the nonavailability of these items at the time of its service and filing. It is left unstated whether the People even made the query.

On May 30, 2023, the People served and filed upon the defense the memo book for a named police officer, along with the first of four SCoC/SoR pairs. The People state in the SCoC that the "memo book was not previously within the People's actual possession." On June 6, 2023, the People served and filed upon the defense the memo book for another named police officer, as well as a property clerk invoice, police accident reports and another SCoC/SoR pair. In the SCoC the People state once again that "[t]hese items were not in the People's actual possession." Importantly, "the People again made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed, nor did they explain why some discovery was initially missing or how it came into their possession" (Bay, 41 NY3d at 215).

The all-but-axiomatic statement of no actual possession, repeated in the People's first two SCoCs, does not, alone, demonstrate that the People were duly diligent in their attempts to procure this automatically discoverable material (see CPL 245.20 [1] [e]; 245.50 [1]). Although the People were, obviously, not initially in actual possession of this material, the NYPD has always been. And, "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" (CPL 245.20 [2] [emphasis added]). Therefore, the People were obligated in their SCoCs to explain their deleteriousness in making material in their possession{**82 Misc 3d at 590} available to the defense (see People v Santos, 79 Misc 3d 1233[A], 2023 NY Slip Op 50778[U], *4 [Crim Ct, Bronx County 2023] ["The People have attempted to justify their non-disclosure by characterizing the missing materials as 'unavailable' within the meaning of CPL § 245.50 (3). But under CPL § 245.20 (2), all items and information in the NYPD's possession that 'relate to the prosecution of a charge' are deemed to be in the possession of the prosecution. For this reason, the People were not relieved of their obligation to disclose to the defense the (discoverable NYPD material) simply because they were not in actual possession of those items"]; People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *3 [Sup Ct, Queens County 2021] ["the assertion that known discovery materials are not in their physical possession does not in any way excuse (the People's) failure to provide them"]).

Something more than the People's perfunctory "no actual possession" comment was needed at the time the CoC and respective SCoCs were served and filed to demonstrate their claimed "due diligence and . . . reasonable inquiries to ascertain the existence of material and [*6]information subject to discovery" (CPL 245.50 [1]). The added commentary in the June 6th SCoC—"[N]umerous requests were made to the NYPD for these items. These items were disclosed as soon as practicable upon receipt"—does not show satisfactory compliance with the discovery obligation either (People v Pondexter, 76 Misc 3d 349, 353 [Crim Ct, NY County 2022] ["(I)t is incumbent upon the People to demonstrate that they operated in good faith, exercised due diligence and expeditiously provided any missing materials"]).

The People have, at best, failed to "make a proper record permitting . . . review of the issue" of discovery compliance (People v Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022]; see Peralta, 79 Misc 3d at 949 ["If the defense alleges that the People's COC is invalid because they have failed to discharge their discovery obligations, the People must demonstrate their efforts to comply with CPL § 245.20 (1)"]; People v Higgins, 75 Misc 3d 1232[A], 2022 NY Slip Op 50713[U], *2 [Yonkers City Ct 2022] ["The People must indicate their efforts to obtain the discoverable material through reasonable inquiry, good faith and due diligence"]). The explanatory lapses in the SCoCs in turn call into question the validity of the initial CoC. "While the People provided supplemental discovery, the People did not demonstrate, or even try to show, that they had previously{**82 Misc 3d at 591} exercised due diligence to obtain the supplemental material, or that such material did not exist or was not previously in the People's possession or control" (People v Long Is. Tree & Landscape Serv., Inc., 79 Misc 3d 130[A], 2023 NY Slip Op 50695[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]; see CPL 245.50 [1-a] ["Any (SCoC) shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the (CoC)"]). "Because the People did not establish that they exercised due diligence prior to filing the initial COC, the . . . court should . . . determine[ ] that the COC was improper" (Bay, 41 NY3d at 216).

B. The Third Supplemental Certificate of Compliance Dated June 9, 2023

Defendant, in a letter dated June 8, 2023, provided the People with a list of purportedly still-outstanding discovery (see CPL 245.50 [4] [b]), to which the People responded by email the next day, June 9, 2023. Also on June 9th, the People served on the defense gas chromatography and simulator solution reports for the simulator lot number used during defendant's chemical breath test,^[FN2] and served and filed SCoC/SoR pair number three. The People explain in the SCoC that, after "[d]efense counsel contacted the [People] about the non-disclosure of these items[,] [t]he [People] immediately requested the reports," as they clearly had been generated within "the period of six months prior and six months after [the breathalyzer] test was conducted" on defendant (CPL 245.20 [1] [s]). Left unexplained was why, apparently, prodding by the defense was needed before the People obtained, in a per se DWI prosecution, these automatically discoverable "reports, documents, records, data, calculations or writings" (CPL 245.20 [1] [j]) pertaining to the "perform[ance of] any scientific tests and experiments, including but not limited to any test of a person's breath" (CPL 245.20 [1] [s]; see 245.50 [1-a]), especially when the report at issue concerns the very testing of the breathalyzer device corresponding with its use on defendant.{**82 Misc 3d at 592}[*7]

C. The Fourth Supplemental Certificate of Compliance Dated June 22, 2023

On June 22, 2023, the People served on the defense impeachment material for the same named police officer whose memo book was disclosed belatedly on May 30, 2023. This same police officer is the deponent on the information in this matter who (1) received the radio run for the incident; (2) spoke with the complainant at the scene; and (3) was present for defendant's chemical breath testing. The People also served and filed their fourth and final SCoC/SoR pair. In a turn for the worse, the SCoC contains absolutely no explanation for this late disclosure, contrary to the Court of Appeals' recent, and unremarkable observation

"that the discovery provisions empower—and indeed, require—the trial court to facilitate compliance on the record with these new discovery obligations. To this end, a trial court should analyze the People's readiness after they file a COC and statement of readiness, and it must ensure that inquiries from defense counsel regarding discovery obligations are meaningfully addressed and that a record is made of the People's efforts to secure and disclose any responsive discovery. . . . We also note that nothing prevents the People from detailing their efforts to exercise due diligence within the COC itself" (Bay, 41 NY3d at 212-213 [citations omitted]).

D. Discovery Compliance Analysis

"[W]hen a COC is challenged, it is incumbent upon the People to demonstrate that they operated in good faith, exercised due diligence and expeditiously provided any missing materials. They must sufficiently articulate their efforts to comply with the statute and explain how the error occurred and was detected, and when it was remedied" (People v Pondexter, 76 Misc 3d 349, 353 [Crim Ct, NY County 2022]).

Importantly, the time for the People to provide clear explanation for any delay is at the time of the filing of the CoC and each SCoC (see CPL 245.50 [1-a] ["Any (SCoC) shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the (CoC)"]; People v Long Is. Tree & Landscape Serv., Inc., 2023 NY Slip Op 50695[U], *2).{**82 Misc 3d at 593}

These requirements were not met by the People in any appreciable way here, despite the fact that discoverable material remained inexplicably outstanding as of the filing of the CoC and every SCoC. The People's monthslong delay is made even more inexcusable by the fact "that the People statutorily co-possess[ed]," from the outset of this prosecution, the missing NYPD material (People v Chimborazo, 81 Misc 3d 442, 445 [Crim Ct, Bronx County 2023]; see CPL 245.20 [2]). In their written communications throughout the discovery process, the People have, at best, "simply asserted that [the People] had checked without any elaboration as to what efforts were made to verify whether there was any outstanding discovery" (Bay, 41 NY3d at 215 [internal quotation marks omitted]). The repetitious, bare-boned, cut-and-paste non-explanations found in the CoC and each SCoC—save the last SCoC which contains no explanation at all—do "not establish that [the People] exercised due diligence prior to filing the initial COC," and thus "the . . . court should . . . determine[ ] that the COC was improper" (id. at 216). The same applies to each SCoC, all of which were served and filed within one month's time.

Accordingly, the branch of defendant's omnibus motion moving the court to deem invalid the People's CoC dated May 24, 2023, and SCoCs dated, respectively, May 30, June 6, June 9 and June 22, 2023, is granted.

E. Remainder of Defendant's Omnibus Motion

"The legislature tethered the People's CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements, through both the enactment of CPL 245.50 (3) and [*8]amendments to CPL 30.30 itself" (Bay, 41 NY3d at 209-210; see CPL 30.30 [5] ["Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter"]; CPL 245.50 [3] ["the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper (CoC)"]). Thereby, the "New York State Legislature crafted a compulsory interplay between the discovery and speedy trial statutes whereby the People must first verify that they have fulfilled their obligations in satisfaction of the former (via a valid CoC) before they may declare themselves ready to proceed to trial pursuant to the latter (via a valid SoR)" (People v Diallo, 78 Misc 3d 1218[A], 2023 NY Slip Op 50255[U], *2 [Crim Ct, Bronx County 2023]).{**82 Misc 3d at 594}

As the CoC and each of the four SCoCs served and filed in this matter are invalid, the SoRs that accompanied them are illusory. The People's assertion in their responsive papers that "[d]efendant has not shown or alleged prejudice and is not entitled to any remedy" is rejected. "Contrary to the People's contentions, a defendant need not demonstrate prejudice to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations" (Bay, 41 NY3d at 213). Therefore, all time from the day after defendant's March 5, 2023 arraignment (see General Construction Law § 20; People v Stiles, 70 NY2d 765, 767 [1987]) to the June 23, 2023 discovery conference date is chargeable against the People. This 109-day time period is beyond the People's 90-day statutory "clock" (see CPL 30.30 [1] [b]). Accordingly, the branch of defendant's motion seeking dismissal of the information on statutory speedy trial grounds is granted.

The other branches of defendant's omnibus motion are rendered academic, and the court declines to address them. The court stays sealing of this matter for 30 days from the date of publication of this decision and order (see CPL 160.50).