Criminal Court of the City of New York, Bronx County, August 14, 2024

The Bronx Defenders, Bronx (Tyriek Mack of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Grace Lee of counsel), for the People.

Defendant Ndakala Siame moves to invalidate the People's{**84 Misc 3d at 972} certificate of compliance (COC) pursuant to CPL 245.50 (1), 245.50 (4) and 245.20 (1) and to dismiss the misdemeanor charges against him pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e), or, in the alternative, for an Allard hearing on the underlying facts. For the reasons set forth below, the motion to invalidate the COC and dismiss charges, or, in the alternative, for an Allard hearing is denied. To the extent that the text messages that are the subject of this motion are in the People's custody or can readily be obtained from the complainant, the People are directed to turn over these messages within 20 days of this decision and order.

Defendant is charged with three misdemeanor counts of (i) forcible touching (Penal Law § 130.52 [1]), (ii) sexual abuse in the second degree (Penal Law § 130.60 [2]), and (iii) endangering the welfare of a child (Penal Law § 260.10 [1]), as well as (iv) harassment in the second degree, a violation, stemming from a January 3, 2024 incident where he is alleged to have "rubbed informant's front inner thigh with his hand under informant's clothes without her consent" and to have "grabbed [her] buttocks with his hand under [her] clothes without her consent" (complaint at 1). The informant was 12 years old at the time of this incident (complaint at 2).

On January 9, 2024, defendant was arraigned and released on his own recognizance.

On March 29, 2024, the 80th day following arraignment, the People filed an off-calendar supporting deposition dated March 4, 2024, a COC, and a statement of readiness (SOR). The COC noted that the activity log for a certain police officer, Angela Polancobrito, was outstanding despite the People having requested it on multiple occasions from both the precinct and the officer (COC ¶ 5).

On April 4, 2024, the People filed a supplemental COC (SCOC), which indicated that the activity log for Officer Polancobrito was produced (SCOC ¶ 4). The SCOC explains that this information was previously requested "multiple times" and only received on April 3, 2024 (id.).

On April 10, 2024, the parties appeared in court and the case was adjourned to May 3, 2024, for a discovery conference.

On April 17, 2024, defense counsel sent the People a notice of improper certificate of compliance, outlining several items that defense counsel believed to be outstanding, including, as relevant to this motion:{**84 Misc 3d at 973}

• Text messages sent by the complainant shortly after the alleged incident;

• Activity logs for two police officers (Deleon and Summa) on January 8, 2024;

• Results of a Medical Screening Exam that took place at Montefiore Hospital on January 3, 2024 (Mack affirmation, exhibit B).

The People responded by email dated April 29, 2024, stating, as relevant, that "[t]he text messages are not within the People's custody or control" and that the activity logs were in the discovery packet (Mack affirmation, exhibit C).

Following a discovery conference on May 3, 2024, the instant motion schedule was set.

On May 7, 2024, the People also filed and served a second COC (SCOC 2), indicating that they turned over certain activity logs on May 6, 2024 (Lee affirmation, exhibit D). SCOC 2 states that the People previously turned over these documents for the wrong date (Jan. 9, 2024, instead of Jan. 8, 2024); that defense counsel informed the assigned ADA that the previously shared activity logs were shared for the wrong date on May 3, 2024, at the discovery conference; and that the People thereafter requested and received the materials for the correct date. According to SCOC 2, this was "an inadvertent error on the People's part."

Defendant moves to invalidate the COC because it was filed when discovery remained outstanding, some of which purportedly remains outstanding to date. Namely, defendant argues that the People failed to timely produce: (1) text messages sent by the complainant; (2) activity logs for the arresting officers; and (3) certain medical reports for the complainant.

In opposition, the People counter that the COC was filed in good faith after the exercise of due diligence; that, in any event, the text messages at issue did not relate to the subject matter of this case; that the failure to turn over the activity logs for the correct date was the result of inadvertent error that should not be a basis to invalidate the COC; and, finally, that the specific medical records sought (i.e., the results of tests for "sexually transmitted infections and signs of inappropriate intercourse") do not relate to the subject matter of the case because defendant is not charged with intercourse, but only forcible touching and other related charges.{**84 Misc 3d at 974}

Defendant contends that the COC should be invalidated because the People failed to disclose certain text messages sent by the complaining witness, a minor, to her aunt and mother. According to defendant, "the complaining witness told detectives that she sent written statements to another testifying witness directly after the alleged incident" (defendant's moving mem § A). Specifically, the complainant, a minor, texted her mother asking for her aunt's phone number so she could ask her aunt when she would be home, and then sent another text message [*3]to her aunt to see when she would be home. According to the People, the complainant did not make any other written statements in the form of text messages that she either made or sent.

Defendant contends that these text messages constitute written statements, which are automatically discoverable pursuant to CPL 245.20 (1) (e), which states that the People

"shall disclose . . . all items and information that relate to 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, including but not limited to: . . .

"(e) All statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto" (emphasis added).

The People dispute that these text messages are subject to automatic discovery because they contend that (i) the complainant is not a person under their "direction and control," and, in any event, that (ii) the text messages do not relate to any offense charged or defense thereto.

Although there does not appear to be any appellate authority from either the New York Court of Appeals or the Appellate Division on the issue of whether a complaining witness is a person under the "prosecution's direction or control" for purposes of CPL 245.20 (1) (e), prior to the enactment of this statute, both the Court of Appeals and the Appellate Division have held that "[t]he People's obligation to produce the pretrial statements of prosecution witnesses is limited to that material which is in the People's possession or control" (People v Young, 113 AD3d 799, 799 [2d Dept 2014] [emphasis added], citing{**84 Misc 3d at 975} People v Tissois, 72 NY2d 75 [1988] [holding People not required to turn over complainant's statement to social worker in sexual assault case]).

Indeed, while no appellate authority exists for any bright-line rule deeming a complaining witness to be within the People's direction or control, the Court of Appeals has held in a number of cases that statements by a prosecution witness did not need to be disclosed where the People did not have possession or control of the statements (e.g. People v Reedy, 70 NY2d 826 [1987] [complainant's personal written version of an alleged rape made shortly after the event did not need to be turned over]; People v Flynn, 79 NY2d 879 [1992] [complainant's motor vehicle accident report filed with DMV not required to be produced]; People v Howard, 87 NY2d 940 [1996] [statements by prosecution witness made during defendant's transcribed prison disciplinary proceeding not within People's custody or control]).

Inasmuch as defendant relies on People v Diaz, a Bronx County Criminal Court case holding that a "complainant is under the prosecution's direction and control" because "the complainant has signed the supporting deposition and is by all measures essential for the prosecution," this is not binding authority (75 Misc 3d 314, 320 [Crim Ct, Bronx County 2022]). To the extent that Diaz would require this court to reach a different conclusion here, this court respectfully disagrees with the rationale put forth in that decision. A complaining witness in a criminal case is not the same as a plaintiff in a civil case. While a criminal case complaining witness is often cooperative with the prosecution, that is not always the case, particularly in cases where a complaining witness has an emotional stake in the prosecution of a particular defendant, such as, for instance, in cases involving a rival gang member determined to get revenge by their own hand, a sexual assault survivor desperate to forget what happened, or a domestic violence victim living in fear of reprisal for calling the police.

It simply cannot be assumed that the interests of a complaining witness coincide with those of the prosecution. Nor can the mere fact that at one point a complaining witness may have signed a supporting deposition (or testified before a grand jury) mean that they are continuing to cooperate with the prosecution on the case going forward. Similarly, the fact that the prosecution may choose to dismiss a case where the complaining witness has become uncooperative if the prosecution does{**84 Misc 3d at 976} not believe that they can prove the case beyond a reasonable doubt at trial without such witness's cooperation does not mean that they are required to drop every case that has an uncooperative complainant. To suggest otherwise would lead to a significant number of serious cases (whether for sex crimes or public shootings, among others) being unprosecuted and would create a perverse incentive for witness intimidation.

Inasmuch as the People have text messages from the complainant to her mother and aunt in their possession, or can readily obtain same from the complainant, they are ordered to turn those over to the defendant within 20 days of this decision and order. However, the court declines to hold that the People were required to obtain a copy of these text messages here and will not invalidate the COC on this basis here (see People v Flynn, 79 NY2d at 882; People v Reedy, 70 NY2d at 827; see also People v Hutchinson, 80 Misc 3d 678, 686-687 [Crim Ct, Bronx County 2023] [collecting cases and noting "New York courts are reluctant to expand the People's discovery obligations"]).

Activity Logs for Arresting Officers

There is no question that activity logs for arresting officers are subject to automatic discovery and are required to be turned over by the People (CPL 245.20 [1] [e] [requiring disclosure of "all police reports, notes of police and other investigators, and law enforcement agency reports"]). The issue is whether the People exercised due diligence and acted in good faith in turning over activity logs for the arresting officers here (People v Bay, 41 NY3d 200, 212 [2023]). The People shared activity logs for two of the arresting officers as part of their discovery production, as indicated in the initial COC. They shared another officer's activity log as soon as they were able to obtain it and filed a SCOC immediately. The People maintain that it was "inadvertent error" that the activity log for two of the officers was shared for the wrong date—i.e., January 8th and not January 9th. Defense counsel first brought this to the People's attention on April 17, 2024—19 days after the COC was filed—by stating only that defense was "not in receipt of activity logs for Officer Deleon and Officer Summar for 1/08/2024." Defense counsel did not state that the activity logs that were shared were for the wrong date and it was not unreasonable for the People to misunderstand that statement, as evidenced by the People's response on April 29, 2024, that the activity logs for these officers "are in the discovery packet." {**84 Misc 3d at 977}On May 2, 2024, the People emailed defense counsel about "any other issues to resolve ahead of the discovery conference." Defense counsel did not respond. Thus, the People contend they only learned of the date mix-up during the court discovery conference on May 3, 2024. At that point, the People promptly obtained and shared activity logs for the correct dates on May 6, 2024, just three days later. Thus, inasmuch as defendant contends that the People fail "to explain the gap between April 17, 2024 and May 3, 2024," this is simply not an accurate characterization of the People's position. The People provided over 200 pages of discovery and mistakenly provided activity logs for the wrong date. As the Court of Appeals has recently observed, the discovery "statute does not require or anticipate a 'perfect prosecutor' " (Bay, 41 NY3d at 212). Here, the People promptly corrected their error and provided the correct information as soon as they understood what actually happened. Thus, they have met their burden to establish they [*5]exercised due diligence, in good faith, prior to filing the COC despite the "belated or missing disclosure" (Bay, 41 NY3d at 213).

Medical Reports of Complaining Witness

Defendant also argues that the COC should be invalidated because the "complaining witness went to Montefiore [Hospital] on January 3, 2024[,] to be screened for sexual[ly] transmitted infections and signs of inappropriate intercourse" (defendant's moving mem § C). According to defendant, "the complaining witness was instructed to do this on their own accord, and at the direction of both law enforcement and another testifying witness" (id.). It is unclear from defendant's papers who in "law enforcement" may have directed the complainant to undertake these tests, but presumably the other "testifying witness" refers to the complainant's mother. Defendant further states that, "[w]hile the People have provided some documents related to the initial visit, the People have failed to provide defense with the results of any of those tests" (id.). Defendant does not allege that the People are in actual possession of the results of these exams, only that they "did not act with due diligence to ascertain the existence of these results" (id. [emphasis added]). The People maintain that the medical test results for "sexually transmitted infections and signs of inappropriate intercourse" are not relevant because that conduct is not charged in this case.

CPL 245.20 (1) (j), on which defendant relies here, requires the People to disclose to the defendant{**84 Misc 3d at 978}

"all items and information that relate to 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, including but not limited to: . . .

"All reports, documents, records, [or] data . . . including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations . . . relating to the criminal action or proceeding . . . which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or pre-trial hearing" (emphasis added).

Defendant does not allege that the People intend to call the person who performed the medical exam at issue here (i.e., the person who "made" the records) either at trial or a pretrial hearing. Likewise, defendant does not allege that the People intend to introduce these records either at trial or a pretrial hearing. Thus, CPL 245.20 (1) (j), on which defendant relies, is inapplicable to these facts and does not require disclosure of the documents sought.

Additionally, defendant does not allege that these particular medical records are even in the People's custody or control. Despite suggesting that the complainant obtained these tests at the "direction" of "law enforcement," defendant also concedes—in the same sentence—that the complainant did this "on their own accord." The medical records belong to the complainant, and, here, are of a particularly sensitive nature for the complainant, who is also a minor. Inasmuch as nothing in the record before the court indicates that the People have these records, if defendant wishes to obtain them, he can seek a so-ordered subpoena to do so. Under CPL 245.20 (2), the People are not required to obtain by subpoena anything that "the defendant may [*6]thereby obtain."

In a misdemeanor case, the People must be ready for trial within 90 days of the time a criminal court action is commenced, less any excludable time (CPL 30.30 [1] [b]; People v Brown, 28 NY3d 392, 403 [2016]). The day of arraignment is excluded from the speedy trial calculations (People v Stiles, 70 NY2d 765 [1987]). The "speedy trial clock" is next tolled when {**84 Misc 3d at 979}the People declare ready for trial (People v Labate, 42 NY3d 184, 190 [2024]). To be deemed ready for trial, the People must file their SOR and "serve upon the defendant and file with the court a certificate of compliance," certifying that they have complied with their discovery obligations (CPL 245.50 [1], [3]).

Here, the arraignment took place on January 9, 2024, and the COC and SOR were filed on March 29, 2024. As such, 80 days are chargeable to the People.

Accordingly, it is hereby ordered that the defendant's motion to invalidate the certificate of compliance and statement of readiness pursuant to CPL 245.50 (1), 245.50 (4) and 245.20 (1), and dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e) is denied, and it is further ordered that the People's certificate of compliance and statement of readiness filed on March 29, 2024, are deemed valid, and it is further ordered that the defendant's request for an Allard hearing is denied, and it is further ordered that the People are directed to turn over the text messages referenced within this decision 20 days from the date of this decision and order, and it is further ordered that all other issues are respectfully referred to the trial court.