Supreme Court, Erie County, January 24, 2024

Francis C. Amendola for defendant.

John J. Flynn, District Attorney (Hilarie L. Henry and Bethany Solek of counsel), for the People.

The defendant has filed a motion dated January 22, 2024, seeking: (1) to preclude the testimony of Amanda Wesolowski, (2) to suppress identification testimony, (3) to strike the People's certificate of compliance and statement of readiness, and (4) to dismiss the indictment. The People have opposed the defendant's motion in an opposing affidavit dated January 24, 2024. Arguments were heard on the morning of January 24, 2024.

The defendant was indicted on four counts of robbery in the first degree pursuant to Penal Law § 160.15 (4) and one count of criminal possession of stolen property in the fifth degree pursuant to Penal Law § 165.40. A jury trial commenced on January 8, 2024, and is ongoing at the time of this motion as the People are still in the process of presenting their case.

On January 18, 2024, during the course of the trial, the People filed an eighth supplemental certificate of compliance and statement of readiness concerning a witness by the name of Amanda Wesolowski. The information provided by the People includes contact [*2]information for the witness, a video recorded interview of Ms. Wesolowski with the Cheektowaga Police which occurred between January 16th and 17th, a photo-array identification and Ms. Wesolowski's criminal history.

The defendant has argued that the People knew of Ms. Wesolowski since at least the time of the grand jury presentment in 2021 due to recorded jail calls that occurred between the defendant and Ms. Wesolowski. Ms. Wesolowski was not listed as a witness in the People's initial or supplemental certificates of compliance and statements of readiness until January 18, 2024. Based on this, the defendant is seeking to preclude the testimony of Ms. Wesolowski as there would only be a few days notice between the disclosure of her name as a potential witness and her testimony which would be prejudicial.{**82 Misc 3d at 919} Further, if Ms. Wesolowski was permitted to testify, the defendant argues that she be precluded from identifying the defendant.

Finally, the defendant argues that due to the People's failure to disclose the identity of Ms. Wesolowski in their initial certificate of compliance their certificate of compliance is insufficient and their statement of readiness is illusory. The defendant further argues that if the initial (and supplemental) certificates of compliance are stricken, then the People were not ready for trial and the indictment should be dismissed pursuant to CPL 30.30.

Criminal Procedure Law § 245.20 (1) (c) orders that the People provide,

"The names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Nothing in this paragraph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address. Information under this subdivision relating to the identity of a 911 caller, the victim or witness of an offense defined under article one hundred thirty or section 230.34 or 230.34-a of the penal law, any other victim or witness of a crime where the defendant has substantiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law, or a confidential informant may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown."

"In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL 245.20, 'it shall expeditiously notify the other party and disclose the additional material and information{**82 Misc 3d at 920} as required for initial discovery under this article.' (CPL 245.60.)" (People v Perez, 73 Misc 3d 171, 174 [Sup Ct, Queens County 2021].)

Once the People became aware that Ms. Wesolowski had information relevant to the case and provided a statement and completed a photo-array, they were required to immediately disclose that information to the defendant. The People have an ongoing duty to disclose as they become aware of information that they were previously unaware of or was not in their possession. It appears, based on the information in the parties' submissions as well as the [*3]arguments of counsel, that the information was "generated" on January 16, 2024, and provided to the defendant on January 18, 2024. Once the People became aware of the information, it was promptly provided to the defendant as required.

The People clearly met their statutory burden of disclosing the material generated on January 16th in a timely manner. This information (specifically the statement and photo-array) did not exist prior to that date. The question turns then to whether the People should have disclosed Ms. Wesolowski as outlined under CPL 245.20 (1) (c). The People argue that other than jail calls initiated by the defendant to Ms. Wesolowski they had no information that she may possess any relevant information. In fact, the defendant was questioned about his relationship with Ms. Wesolowski when he elected to testify before the grand jury. The defendant was asked about an address or phone number for Ms. Wesolowski which he did not provide. The defendant was further asked about a call he made to Ms. Wesolowski in which he stated (in relevant part),

"call my nephew. He got out on Friday. Tell him that I go to court Monday. And don't go crazy on the tickets. He got a bunch of tickets at the house. We scanned them all. Half is good. Half ain't. He got about a thousand tickets over there to cash."

There is nothing there to suggest Ms. Wesolowski had any knowledge of the events other than the statements the defendant was making to her. This leads to the issue of the jail calls themselves between the defendant and Ms. Wesolowski.

It is well established that calls an inmate makes from jail are admissible provided a proper foundation is laid. See People v Ely (68 NY2d 520, 527-528 [1986]):

"Admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the{**82 Misc 3d at 921} tape by 'clear and convincing evidence' establishing 'that the offered evidence is genuine and that there has been no tampering with it' (People v McGee, 49 NY2d 48, 59, cert denied sub nom. Waters v New York, 446 US 942). The necessary foundation may be provided in a number of different ways. Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered . . . or of a witness to the conversation or to its recording, such as the machine operator, to the same effect . . . are two well-recognized ways. Testimony of a participant in the conversation together with proof by an expert witness that after analysis of the tapes for splices or alterations there was, in his or her opinion, no indication of either . . . is a third available method.

"A fourth, chain of custody, though not a requirement as to tape recordings . . . , is also an available method . . . It requires, in addition to evidence concerning the making of the tapes and identification of the speakers, that within reasonable limits those who have handled the tape from its making to its production in court ' "identify it and testify to its custody and unchanged condition." ' "

Also, People v Cisse (149 AD3d 435, 436 [1st Dept 2017]), "[t]he admission of incriminating, nonprivileged phone calls that [a] defendant [chooses] to make while incarcerated, after receiving multiple forms of notice that [the defendant's] calls may be monitored and recorded, [does] not violate . . . [the] defendant's . . . due process right to participate in the preparation of his [or her] own defense."

The somewhat unique issue presented in the defendant's motion is whether a party to a [*4]phone call made by an incarcerated defendant is a witness which must be disclosed pursuant to CPL 245.20 (1) (c). As outlined above, there are numerous ways in which a proper foundation may be laid providing for the admission of a jail call during the course of trial. Practically, this is rarely through the testimony of the other party to the phone call. Logic would dictate that the individual an incarcerated defendant is calling would likely be a family member, significant other or friend. These are generally not individuals who would be "friendly" witnesses for the People. Further, as it is a defendant themselves making the phone{**82 Misc 3d at 922} calls, they would be aware of who they contacted and what they discussed. In many cases, a defendant would have more information on who they were contacting and speaking with than the People.^[FN1] As long as the jail call recordings are provided pursuant to CPL 245.20 and a proper foundation is laid at trial, a jail call would be admissible. It does not seem necessary, or feasible in most cases, that the People provide the names or recipients of jail calls from an incarcerated individual under CPL 245.20 (1) (c). That is unless the People plan on calling that individual to testify either to the content of the call or to provide authentication and lay a proper foundation. In that situation, the individual is clearly a witness the People must disclose. Here, in this case, the jail calls were expeditiously disclosed to the defense as well as information they planned to introduce certain calls into evidence at trial. The People clearly met their burden in providing this evidence to the defendant in a timely manner.

In the instant case, based on submissions by the defendant and the People, as well as the arguments of both parties, the witness in question only became a potential witness during the course of the trial when interviewed by the police and completing a photo-array. The People were not required to list Ms. Wesolowski on their certificate of compliance as at the time it was filed, her only known connection to the case was as a recipient of jail calls from the defendant. The calls were provided in discovery. Further, the People did exercise due diligence in attempting to investigate Ms. Wesolowski. This included questioning the defendant himself as to their relationship as well as contact information for Ms. Wesolowski. The discovery that Ms. Wesolowski had additional information was not known to the People until she was arrested on a warrant on January 16, 2024.

The People's certificate of compliance was filed in good faith and their statement of readiness was not illusory. The defendant's motion to strike the People's certificate of compliance and statement of readiness is denied. Therefore, as the People filed a valid certificate of compliance and statement of readiness, the defendant's motion to dismiss the indictment is denied.{**82 Misc 3d at 923}

Finally, the court turns to the issue of whether to preclude the testimony of Ms. Wesolowski, or if not precluded, whether to suppress the identification testimony of the witness.

The defendant argues that if the witness is allowed to testify, the identification testimony be suppressed as the short turnaround would be unduly prejudicial to the defendant. As previously noted, the out of court identification did not exist until January 16-17, 2024. The short notice was not due to the People's conduct. It should be noted as well that it would appear, [*5]based on the information before the court, that Ms. Wesolowski is someone well known to the defendant (and potentially, based on the grand jury testimony, a prior significant other of the defendant). It would also stand to reason that based on their prior relationship and as the defendant initiated multiple jail phone calls to Ms. Wesolowski he would be the individual with the most information on what information Ms. Wesolowski would have to offer through her testimony. In real world practice, information comes to light and evidence is developed as a case proceeds, during trial and many times new information comes to light after the completion of a trial.^[FN2]

While the court acknowledges there is a brief turnaround from when the People filed their supplemental certificate of compliance with the information pertaining to Ms. Wesolowski and the time during which she may potentially testify later in this trial, the People disclosed the information in a timely manner and due to the nature of the testimony as well as the relationship between the defendant and the potential witness, there is no undue prejudice to the defendant and the People would be permitted to call Ms. Wesolowski as a witness.

With regards to the specific testimony concerning identification, while the defendant has requested a Wade hearing, the People responded a Rodriguez hearing is more appropriate. Having reviewed the submissions as well as the grand jury testimony, it appears there was some type of relationship between the defendant and Ms. Wesolowski. During arguments on this motion, the defendant claimed he did not know who Ms. Wesolowski was. Further, it was noted the defendant, through his attorney, would be filing an affidavit to that effect in support of a Rodriguez hearing (will be forthcoming). The defendant did state in grand jury when asked about Ms.{**82 Misc 3d at 924} Wesolowski that "we used to see each other." Ultimately, a police arranged photographic identification was conducted. The defendant now claims he does not know the individual; however there is sufficient proof that they were known to each other. Therefore, the defendant's request for a Wade hearing is denied; however, a Rodriguez hearing is granted and will be conducted prior to Ms. Wesolowski's testimony.