This should not be a controversial statement: if a police officer investigating this case has committed misconduct when investigating previous cases, that information is favorable to the defense. The discovery statute requires that the People exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of favorable information. (See C.P.L. § 245.20[1][k]). Specifically, it asks prosecutors to review their files, and the files of law enforcement, to determine whether anything they have tends to:

(i) negate the defendant's guilt as to a charged offense;

(ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense;

(iii) support a potential defense to a charged offense;

(iv) impeach the credibility of a testifying prosecution witness;

(v) undermine evidence of the defendant's identity as a perpetrator of a charged offense;

(vi) provide a basis for a motion to suppress evidence; or

(vii) mitigate punishment.

(Id.). It also provides special instruction regarding these categories of material. It mandates that "[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form." (Id.). It mandates that it "shall be disclosed . . . irrespective of whether the prosecutor credits the information." (Id.). And it mandates that the People "shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier" than the normal statutory "time period for disclosure." (Id.). After making these inquiries, if the People find that favorable "evidence or information" exists, the statute directs [*2]them to disclose "[a]ll" of it. (Id.).^[FN2]

As revealed during the suppression hearing here, NYPD Officer Scott Edwards was critical in investigating this case. He was one of the three police officers who approached Mr. Davis's car on the street. He was one of the two police officers who forced Mr. Davis out of his car. And he was the police officer who found the purported forged instrument—which underlies a top charge—during a search of that car's glove compartment.^[FN3]

Nonetheless, when the People filed their initial certificate of compliance back in November of 2022, unbeknownst to anybody except themselves, they had categorically refused to make any inquiries into whether Officer Edwards had committed misconduct when investigating previous criminal cases. They neither inquired with the police department nor even with their own office's "LEOW" (or "Law Enforcement Officer Witness") unit, both of which hold official records relating to officers' misconduct. The People explain that they categorically refused to make these inquiries because, at the time, they did not intend to call Officer Edwards as their own witness in court. In June of 2023, the People changed their mind and decided to call him as a witness. They disclosed his misconduct records then.

In People v. Bay, the Court of Appeals reaffirmed that before stating ready, the People must have first, "in fact, exercise[d] due diligence and made reasonable inquiries" to ascertain the existence of discoverable material. (2023 NY Slip Op. 06407, at *7 [2023]). On a C.P.L. § 30.30 motion, the People "bear the burden" of establishing that they, "in fact," made those inquiries. (Id.). Whether the People meet that burden is a question of "[r]easonableness." (Id. at *5). It is "case-specific" and "will turn on the circumstances presented." (Id. at *6). The statute does not require a "perfect prosecutor." (Id.). However, "good faith," standing alone, is "not sufficient." (Id.).

It is unreasonable for the People to wall off an entire category of records from any of their inquiries about favorable information. It is particularly unreasonable when those walled-off records concern an investigating officer's misconduct when investigating other cases. There are myriad ways in which such records could easily be favorable to the defense. For instance, they could allow the defense to undermine the integrity of the investigation that "led to [the instant] arrest[]," like in the collection or handling of evidence or witnesses. (See United States v. Jackson, 345 F.3d 59, 73 [2d Cir. 2003]; see also Longus v. United States, 52 A.3d 836, 849-54 [D.C. Ct. App. 2012] [defense properly sought to question officer involved in the instant investigation, but not called by the prosecution, about coaching witnesses in separate case]; Smith v. United States, 26 A.3d 248, 260-63 [D.C. Ct. App. 2011] [same]). Or they could [*3]be used to impeach the officer's hearsay statements in a suppression hearing—a practice not uncommon in our courts. (See Figueroa, 76 Misc 3d at 895; see also Robert A. Barker & Vincent C. Alexander, New York Practice Series - Evidence in New York State and Federal Courts § 8:96 [2021] [collecting cases allowing impeachment of hearsay declarants]; Prince, Richardson on Evidence § 8-111 [noting the same]; accord F.R.E. 806 [permitting impeachment of hearsay declarants who do not testify]; Jackson, 345 F.3d at 71). As this court has noted before:

[I]f due diligence to ascertain the existence of favorable information means anything, surely it means reviewing police disciplinary records. This is a criminal case in which police officers investigated an alleged crime. Unlike the far-flung records of possible divorce proceedings, police disciplinary files are official documents largely relating to officers' alleged misconduct in investigating crimes. That makes them far more likely to contain information that is useful to the defense in a criminal case. And they are held by the police department and sometimes even by the People themselves. That makes them far easier for the People to practicably access. On the spectrum of what constitutes due diligence to ascertain the existence of favorable material, reviewing official police misconduct records is never the borderline case.

As a result, the court rejects the People's argument that an investigating officer's misconduct in investigating criminal cases is somehow not related to the subject matter of this criminal case. The People may not categorically ignore an officer's disciplinary records simply because they are not calling that officer as their own witness. Such a categorical rule would be at war with the People's statutory burden to address all the subsections of C.P.L. § 245.20[1][k].

The court also rejects the People's argument that they acted in "good faith." "[G]ood faith," standing alone, is "not sufficient." (Bay, 2023 NY Slip Op. 06407, at *6). "Reasonableness" is the touchstone. (Id. at *5). And the court finds neither reasonableness nor good-faith compliance here. The statute commands a "presumption in favor of disclosure," (C.P.L. § 245.20[7]). "Whenever there is any debate . . . the legislature explicitly instructed the People to presume [that] material is discoverable." (People v. Rugerio-Rivera, 77 Misc 3d 1230[A], at *2 [Crim. Ct., Queens County 2023]). "The discovery statute requires the People to engage in information sharing, not information suppression." (People v. Torres, 79 Misc 3d 1204[A], at *8 [Crim. Ct., Queens County 2023]). "And they are to build mechanisms that support the free flow of information, not construct arbitrary walls that block access." (Id.). A critical responsibility of the People is to "diligently ascertain the existence of material" that tends to be favorable and "disclose" it. (People v. Williams, 72 Misc 3d 1214[A], at *5 [Crim. Ct., NY County 2022]; see also C.P.L. § 245.20[1][k]). It is not to conjure up reasons to insulate entire categories of records from this important review—especially police misconduct records.

The court also rejects the People's argument that making reasonable inquiries of an investigating officer's misconduct records would "cause the criminal justice system to come to a screeching halt." Of course, such an extratextual argument has no relevance to the statute's plain commands. A court cannot "apply an artificially restrictive reading just to avoid potentially cumbersome discovery challenges for the People." (Rugerio-Rivera, 77 Misc 3d 1230[A], at *4). Still, the People's claim is not credible. They have an entire department that describes itself as [*4]"devoted to complying with the District Attorney's obligation to disclose evidence of alleged misconduct by members of law enforcement agencies." (Jawad, 78 Misc 3d 1217[A], at *5 n.1). And here, in fact, the People promptly produced Officer Edwards's police misconduct matters without any issues once they changed their mind and decided to call him as a witness.

In any event, the defect here is not that the People did not disclose everything about Officer Edwards's misconduct records. The defect is not even that they did not disclose anything about those records. The defect is that they refused to even inquire about those records to see whether they may contain favorable information. (Cf. C.P.L. § 245.50[1] [requiring the People to exercise due diligence and reasonable inquiries to "ascertain the existence" of discoverable information]). They categorically barred those records from review—presumably, even those in their actual possession—simply because they were not going to bring Officer Edwards to court.

Finally, the court rejects the People's attempts to shift their automatic discovery duty onto the defense. It is the People's burden in the first instance to exercise due diligence and make reasonable inquiries to ascertain the existence of favorable information. (C.P.L. §§ 245.20[1][k], 245.50[1]). The People need not have someone "confer" with them to tell them what they already know: that they had intentionally refused to review Officer Edwards's misconduct records. Nor do they need someone to walk them through the plain text of the statute. Criminal Procedure Law § 245.20[1][k] puts the People on notice that they must ascertain and disclose favorable information. Reason dictates that a police officer's prior misconduct when investigating criminal cases would be favorable when defending against his investigation in this criminal case. That was the People's duty to discharge.

Moreover, the People were presumably aware of the substance of their own case. They knew or should have known that Officer Edwards played a critical part in the investigation: that he was one of the few officers first on scene; that he had forced Mr. Davis out of his car; and that he was the officer who claimed to find the forged instrument. It was the extent of this involvement—which came out during the suppression hearing—that drew into focus the extent of the People's past failure to exercise due diligence.

Thus, what happened here was not, as the People claim, that the defense waited to file a challenge while the C.P.L. § 30.30 clock "ticked loudly in the background." Rather, it was the People who knew that Officer Edwards played a substantial role in this case, and it was the People who nonetheless decided not to review his misconduct records. It was they who induced everyone else to think they had, as their certificate claimed, exercised "due diligence" to "ascertain the existence" of discoverable material. In fact, they had not.

Because the People failed to, in fact, exercise due diligence and make reasonable inquiries to ascertain the existence of favorable information, their certificate of compliance and accompanying statement of readiness were illusory. The People commenced this case on August 20, 2022, and they had ninety days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The People's statement of readiness within that time was not valid and did not toll the clock. It is now the People's burden to prove that any time "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 AD3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 AD2d 1122, 1122 [4th Dep't 1993]). Here, the People do not claim even a single C.P.L. § 30.30[4] exclusion within that time. (See generally Pr. Resp.).

Therefore, the People failed to validly state ready within the relevant ninety days. The case must be dismissed. (See C.P.L. § 30.30[1][b]).

The foregoing constitutes the order and decision of the court.