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The PEOPLE of the State of New York, Plaintiff, v. Erin NESBITT, Defendant.
Defendant Erin Nesibtt (hereinafter, “Defendant”), by his counsel Dominique Tauffner, Esq., moves this court, inter alia, for an order (i) invalidating the People's certificate of compliance because certain discoverable body worn camera videos were not disclosed to the Defendant; (ii) dismissing the accusatory instrument for facial insufficiency and jurisdictional defects. The People, by Assistant District Attorney Ryan Fortuna, Esq., oppose the Defendant's instant motion, alleging that this Court does not lack jurisdiction, that “the [P]eople have done their due diligence, complied with our continuing discovery obligations, and filed our certificate of compliance and declared ready in good faith” (affirmation of Ryan A. Fortuna, Esq. at 4).
On May 1, 2023, Defendant was arraigned on a misdemeanor complaint of one count of violation of VTL § 1192 (3), driving while intoxicated; one count of VTL § 5111A, aggravated unlicensed operation of a motor vehicle; one count of VTL 401 (1A), operating an unregistered vehicle; one count of VTL § 1227 (1), one count of operating an unregistered vehicle; one count of VTL § 1227 (1), consumption of alcohol in a motor vehicle; and one count of VTL § 1229C3, not wearing a seatbelt.
On July 31, 2023 the Defendant, by his counsel, emails the Assistant District Attorney requesting all body worn camera footage. This request is particularly pertinent because VTL § 1192 (3) is a common law intoxication charge, which requires the police to make a determination of the Defendant's level of intoxication based upon physical symptoms without any blood alcohol level testing or breath test. On August 22, the Assistant District Attorney turns all discoverable notes over to the Defense, but claims protection on all attorney work product as non-discoverable, which they appear to be. On August 25, 2023, Defendant serves a motion to dismiss pursuant to CPL § 30.30 for delay of prosecution. The CPL § 30.30 time would lapse on July 29, 2023. As it turns out, there were two discoverable body worn camera videos that were not turned over within the CPL § 30.30 speedy trial time as prescribed by statute. The People, when they received an email from defense counsel for all body worn camera footage, called the Buffalo Police Department that day to confirm whether outstanding body worn camera footage existed. On August 4, 2023 the Buffalo Police Department uploaded two videos without notifying the People. The Assistant District Attorney became aware of the video on September 19, 2023.
Where, as here, a defendant does not waive the People's CPL 245.20 discovery requirements, the People are not deemed ready for trial unless their statement of readiness is “accompanied or preceded by a certification of good faith compliance with the disclosure requirements of CPL § 245.20 and, importantly, the defense has been afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met (CPL 30.30 ; CPL 245.50 ). If the people are not actually ready for trial, the People's declaration of readiness is a nullity (People v Brown, 28 NY3d 392 ). The People are deemed ready for trial only where they have done all that is required to bring the case to the point of immediate trial (People v Robinson, 171 AD2d 475, 477 [1st Dept 1991]; People v England, 84 NY2d 1, 4 ; People v Kendzia, 64 NY2d 331, 337 ).
In 2020, the New York State legislature amended the Criminal Procedure Law to condition the People's readiness upon good faith fulfillment of its CPL § 245 discovery obligations. Under CPL, the People's statement of readiness must be accompanied by a certificate of compliance with the discovery obligations; an invalid certificate of compliance leads to the People not actually being ready for trial within the meaning of CPL § 30.30. CPL § 245.20 (1) requires that the People must 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.” Moreover, “The People's possession includes discoverable material that is in the possession of the police” (People v Cartagena, 76 Misc 3d 1214[A], [Crim Ct, Bronx County 2022], citing CPL 245.20 ).
Under the statute, the People must file a corresponding and accompanying certificate of compliance “that certifies, in good faith, that: (1) they have made all known material and information subject to discovery (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021]); and (2) they have exercised “due diligence” and made “reasonable inquiries” to “ascertain the existence of discoverable material” (People v Kennedy, 2023 NY Slip Op 23152 [Crim Ct Kings County 2023]).
A certificate of compliance found wanting, lacking the touch of good faith and falling short of reasonableness in the given circumstances, inexorably begets a spurious proclamation of readiness. This result transcends the realm of mere academic musings; it directly entangles itself with a defendant's sacred constitutional entitlement to a swift trial—a hallowed right at the very core of our constitutional structure. A defendant ought not to be subjected to the throes of uncertainty stemming from an unsupported assertion of preparedness.
In the matter presently before this honorable Court, the pivotal question under consideration pertains to the validity of the certificate of compliance issued by the People. It is noteworthy that various courts within the jurisdiction of New York have, in the past, maintained the position that delayed disclosures ought not to vitiate the efficacy of a compliance certificate. However, in espousing this view, such tribunals have implicitly relied upon the presumption of good faith and reasonableness in the People's actions at the juncture when they declared their readiness.
The People's adherence to their discovery duties is, by statutory command, inextricably interwoven with the reckoning of speedy trial time as prescribed in CPL 30.30. This statute necessitates that the People assert, “after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery” (CPL § 245.50 ). It is further provided in CPL § 30.30 (5) that “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.” Accordingly, the assertion of the People's preparedness for trial assumes an illusory guise whenever the adjudication of a compliance certificate is adjudged as inappropriate (see CPL 30.30; People v Barnett, 58 Misc 3d 1000, 1002 [Sup Ct, NY County 2020]).
CPL § 245 exacts from the People the obligation of due diligence in the issuance of their certificate of compliance. The statutory text, however, remains conspicuously silent on the precise contours of due diligence, leaving the task of definition to the discernment of New York's courts. In this pursuit, this Court has embraced the methodology of the “best reading of the statute,” a mode of interpretation that takes into account the historical underpinnings of the term, its contextual application, and the pertinent canons of statutory elucidation. The denouement of this analytical endeavor crystallizes into what is essentially a negative proof 1 that term:due diligence”, whatever the eventual composition of this term may be, cannot by any measure encompass the course of action undertaken by the People in the instant case.
Here, the crux of this case hinges upon whether the People exercised due diligence in the issuance of their certificate of compliance. What constitutes “due diligence” is undefined by statute. The process of adjudication invariably demands that courts undertake the task of construing and applying the significations of terms left undefined. In his Keynote Address delivered to Notre Dame Law School in the year 2017, Justice Kavanaugh succinctly encapsulated the objective of statutory interpretation as the pursuit of the “best reading” of the statute.
“In my view, judges should strive to find the best reading of the statute, based on the words, context, and appropriate semantic canons of statutory interpretation To be sure, the hallmark of common-law judging is that legal tests, however difficult to apply in the abstract, acquire meaning as courts apply them with greater frequency. Precedent develops over time, and precedent allows judges to develop the meaning of phrases like “compelling interest” or “narrowly tailored” in a particular area. Nevertheless, (Kavanaugh J., Keynote Address: Two Challenges to the Judge as Umpire, 92 Notre Dame L Rev 5, 1912, 1915-1916).
In order to breathe substantive import into the “due diligence” exacted from the People in their issuance of a certificate of compliance, this Court commences its deliberation by delving into the historical lexicon surrounding the phrase “due diligence.” The etymology of the phrase “due diligence” traces its lineage back to the mid-fifteenth century, signifying, quite literally, “requisite exertion.” Through the passage of centuries, this expression transformed from a general usage into a specialized legal terminology, and subsequently evolved into a ubiquitous business term. This evolution can be traced, in no small part, to the enactment of the United States Securities Act of 1933, which enshrined “due diligence” as a methodical process termed “reasonable investigation.” (“Due Diligence” Merriam Webster Entry https://www.merriam-webster.com/dictionary/due% 20diligence [Accessed October 18, 2023]
In the context of New York criminal law, due diligence is measured against a party's available resources and the practicalities of a particular situation (People v Page, 115 AD3d 1067 [3d Dept 2014]; People v Tankleff, 49 AD3d 160 [2d Dept 2007]; see also People v Maynard, 183 AD2d 1099 [3d Dept 1992]). Inasmuch as due diligence embodies the essence of investigative inquiry, this Court finds it incumbent upon itself to enunciate a guiding precept for the evaluation thereof. It is paramount, indeed, that regardless of the specific contours attributed to due diligence, the mere performance of a solitary, perfunctory inquiry concerning discernible matter cannot serve as the foundation upon which due diligence stands. This Court proceeds upon the assumption that the legislature, in its proactive intent, sought to endow the accused with substantial disclosure. Substantive disclosure necessitates that the People undertake a sincere endeavor, far removed from a mere mechanistic and lackluster adherence to formalities.
The timeline of events brings into sharp focus a glaring oversight. While the People made a single attempt to ascertain the existence of the relevant footage upon the Defendant's request, it is manifestly evident that such efforts fell short of the mark. An axiom of the law, old as the hills, insists that actions must rise above mere form to the realm of substance. While our jurisprudence does not precisely define “due diligence,” a mere single email issued to obtain discoverable material made towards the end of the statutory time period allotted for the People to turn over discoverable material to the Defendant, in the vast expanse of the legal universe, can hardly be deemed sufficient effort constituting due diligence. To hold otherwise would render the notion of due diligence devoid of any meaningful content.
For the purposes of logical rigor, this Court turns to an analysis of the People's contention that their certificate of compliance was issued with due diligence (affirmation of Ryan A. Fortuna, Esq. at 4, 19-21]). The technique of proof by contradiction, properly applied here, shows this to be not the case. Let us entertain the inverse proposition: that deeming a solitary email entreaty to the Buffalo Police Department as sufficient “due diligence” in meeting the CPL § 245 discovery requisites is a sound premise. In the event that a solitary email dispatch were deemed a fitting standard for “due diligence,” it inevitably follows that any superficial or perfunctory entreaty for evidence would be deemed as complying with the requirements. Such an interpretation would, however, pose a challenge to the very essence of the law, which fundamentally seeks to compel the People to demonstrate a bona fide and earnest endeavor in procuring and disclosing pertinent evidence. To suggest that the legislature contemplated such a meager threshold for “due diligence” in the realm of discovery would be patently unreasonable, contradicting the legislature's intent of making discoverable evidence more readily available to criminal defendants. Thus, assuming the People's position in their opposition to the instant motion is true, we have derived an untenable and contradictory conclusion that runs afoul of the very essence and intention of the Criminal Procedure Law, and the People cannot possibly have exercised due diligence in the issuance of their original certificate of compliance, quod erat demonstrandum.
This Court notes other troubling assertions in the People's affirmation in opposition to the Defendant's motion; paragraph 21 of the affirmation of Ryan A. Fortuna, Esq. makes the bold claim that “The People cannot turn over what we do not possess.” Such claim is a direct contradiction of New York statute, which clearly and unequivocally states that “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 possession of the prosecution (CPL § 245.20 ). Thus, paragraph 21 of the People's opposition affidavit gives strong weight to the unmistakable conclusion that the People here are not taking their discovery obligations seriously and acting with due diligence.
Consequently, the presumption that a solitary email request constitutes “due diligence” culminates in a most untenable conclusion, thereby running afoul of the very essence and intention of the law. As a natural consequence, we are compelled to acknowledge that the initial premise must be unfounded, and the act of sending a single email to the Buffalo Police Department prior to their issuance of their certificate of compliance cannot be regarded as constituting “due diligence” within the purview of CPL § 245. In light of this, this Court finds that the People did not discharge their obligation of due diligence in fulfilling their CPL § 245 discovery mandates.
Upon a careful review of the entire record, this Court finds that the People failed to exercise due diligence in the issuance of their certificate of compliance in the instant action. The People's submission provides this Court virtually zero guidance as to how it exercised its investigation of what material was discoverable to the Defendant. In light of this, the People's contention that they were unaware of the existence of the body worn camera footage due to the Buffalo Police Department's independent actions is of no moment. Their duty is not solely to await evidence but to actively seek it out; such is the intent of the New York legislature in amending CPL § 245 to provide meaningful pre-trial disclosure to the accused. The People's mere cursory attempt at compliance, as demonstrated herein, cannot and does not satisfy this heavy burden of due diligence.
Since the People failed to exercise due diligence in issuing their original certificate of compliance, this Court finds that the certificate of compliance is invalid and the People's statement of readiness is therefore illusory. As the CPL § 30.30 time has lapsed, the instant criminal proceeding is dismissed for delay of prosecution.
The Court holds the People's duty of disclosure in the gravest regard, for when there is a lapse in issuing a valid certificate of compliance, the declaration of readiness is but a mirage. An illusory declaration of readiness runs counter to the accused's entitlement to a prompt trial—a right inherent to every human and one sanctified by the United States Constitution. This right, embraced and applied to the states via the Due Process Clause of the Fourteenth Amendment trial (Klopfer v North Carolina, 386 US 213 [Warren, C.J.] [holding that the Sixth Amendment's right to a speedy trial is incorporated against the states through the Due Process Clause of the Fourteenth Amendment]), stands as a cornerstone of our legal framework.
One must tread carefully when navigating the waters of jurisprudence, for the lure of various theories can sometimes lead one astray from the steadfast bedrock of the rights enshrined in the United States Constitution. Yet, even within the diverse field of legal theory, there are those whose approach holds a harmonious balance with the Constitution's original ideals, encased in more than two centuries of history and traditions. Such is the case with a natural rights approach to jurisprudence.
In the words of Lon Fuller, “law is the enterprise of subjecting human conduct to the governance of rules (Lon Fuller, Morality of Law, rev. ed. New Haven: Yale University Press p. 106 ). Law, therefore, is inherently a process involving practical reasoning that in virtually every recognized legal system begins with reasoned elaboration from statutory text. Reasoned elaboration, first described in the seminal work The Legal Process by Henry Hard and Albert Sacks is the idea that judicial actions give effect to the normative values, purposes, goals, and policies that are immanent within the authoritative legal materials. (Lawrence Solum, Legal Theory Lexicon: Reasoned Elaboration June 18, 2017, https://lsolum.typepad.com/legaltheory/2017/06/legal-theory-lexicon-reasoned-elaboration.html Last Accessed October 18, 2023) See Legal Theory Lexicon).
It is impossible to give any import to the constitutional safeguards afforded to the accused without giving an effect to the understanding of the natural rights the Constitution was written to protect. These natural rights do not owe their existence to societal functions or legislative grace but are ingrained within the very fabric of our human condition, and they are the basis upon which American jurisprudence and its conventions are built.
There can be no dispute that the Framers of the Constitution intended to incorporate the concept of natural rights into the document itself. The approach taken by Laurence Trie and Michael Dorf to deducing the core value of a constitutional provision illustrates clearly why this is so:
“One way to go about identifying the central value or values implicit in a specific constitutional clause is to locate that clause within the overall structure of the Constitution — to ask whether the practices that are either mandated or proscribed by the Constitution presuppose some view without which these textual requirements are incoherent.” (Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution, § 3 Judicial Value Choice in the Definition of Rights.)
On this approach, it is plain to see why Tribe and Dorf argue that constitutional value choices cannot be made without recourse to a system of values that is at least part external to the constitutional text “(id.). Thus, the liberty interests enshrined in the Fourteenth Amendment which incorporates the Sixth Amendment's right to a speedy must pre-exist the state itself given that liberty is never defined within the text of the Constitution itself.
To fathom the depths of natural rights jurisprudence one must embark on a journey into the heart of classical Greek thought. With the measured step of a seasoned traveler, this Court treads the path once walked by ancient Greek thinkers. Aristotle, in his Nichomachean Ethics, asserts that every being and thing has a specific function, or telos (Aristotle, Nichomachean Ethics § 1.7 [c. 335 BC]).It is through realizing this function that a thing or being achieves its full potential or “good” (id.). Put differently, every being and thing has a “characteristic activity which acts as a built in standard of evaluation; anything that helps an entity function excellently according to its characteristic activity helps that entity or individual achieve eudaimonia, often translated as “flourishing” (id.). The human being has a rational component, and therefore the good of human beings is found in our “capacity to guide ourselves by using reason (Richard Kraut, Aristotle's Ethics, The Stanford Encyclopedia of Philosophy [May 1, 2001, substantive revision July 2, 2022], available at https://plato.stanford.edu/entries/aristotle-ethics[accessed October 18, 2023]).
Greek philosophers beginning with Plato defined justice as “realizing one's potential whilst not overstepping it by doing what is contrary to one's nature.” (Chris Wright, Plato's Just State, Philosophy Now vol. 90 [May/June 2012]). As a result, justice is “the having and doing of one's own and what belongs to oneself (Plato, The Republic 434a [c. 375 BC]). If we position Aristotle's function argument within this tapestry, we can perceive that the telos of humans is not arbitrary. Instead, it is ingrained in the very fabric of nature itself. Thus, for humans living according to their natural function, or rather, their essential human interests, aligns with the ancient principles of natural rights and justice.
To glean the influence of Aristotelian thought on the Framers of the Bill of Rights, one must cast their gaze back through he corridors of time, to the birth of democracy in ancient Athens. The tendrils of Aristotle's thought have, in ways both direct and indirect, woven themselves into the tapestry of American constitutional thinking. Aristotle's Politics is a monumental work that laid the foundational ideas of governance, citizenship, and justice. While he primarily wrote about the polis, his considerations on the nature of power and its limits, the role of law, and the idea of a constitution are deeply relevant. The Framers, highly educated people, well-read in the classics, were unquestionably familiar with Aristotle's ideas.
To be sure, the Framers were influenced by a myriad of sources — the English constitutional tradition, Enlightenment thinkers, and their own experiences. However, the shadow of classical antiquity does loom over their collective wisdom, a testament to the timelessness of these insights. Importantly, the authors of the Federalist Papers were heavily influenced by Aristotelian thought. James Madison, in Federalist No. 10, directly reflected Aristotle's concerns about the shape of government. Likewise, the Nichomachean Ethics and Politics were foundational to James Madison and Thomas Jefferson during the crafting of the Bill of Rights, and both extensively discussed the concept of inherent rights reflected in ancient Greek thought. One simply cannot, then, view the basic human rights contained in the United States Constitution in a way that does not presuppose the natural rights tradition that began with Plato and Aristotle.
Viewed through this lens, the People's violation of speedy trial provisions constitutes both a Sixth and Fourteenth Amendment violation of a constitutionally enshrined natural human right. The instant motion demands our most deliberate attention to the intersection of the prosecutorial duty of disclosure and a defendant's right to a speedy trial, as outlined under New York's Criminal Procedure Law. In the facts presented, they paint a tale of missed obligations and a total failure of the People to explain how they exercised due diligence in compliance with their discovery obligations.
It is a principle long embedded in our jurisprudence that the scales of justice require a balance. But balance is not simply the absence of weight on either side; it is the affirmative act of providing each side that which it is due. When a defendant is charged with a crime, the prosecution's obligations are not simply to secure a conviction, but to ensure justice is done. In this respect, CPL § 245.10 (1) (a) (I) was enacted, obliging the prosecution to perform its initial discovery obligations posthaste, specifically within twenty calendar days of the defendant's arraignment.
Such a statutory obligation, as any obligation of the law, is not a mere formality but a substantive requirement. New York courts have been clear in their stance, as elucidated in People v. ex rel. Ferro Brann, 197 AD3d 787 (2d Dept 2021) that the People must provide the listed discovery “automatically within the deadlines established.” Such a mandate recognizes the inherent power dynamics at play during a criminal proceeding, where the might of the State stands opposite an individual defendant.
The right to a speedy trial is not a mere procedural nicety, conjured from the ether. It is a right rooted deeply in the annals of history, echoing the sentiments of jurists from time immemorial who recognized the profound human cost of detention without redress. This right, ensconced in the Sixth Amendment to our hallowed Constitution, finds resonance in our Fourteenth Amendment, ensuring no state deprives any person of life, liberty, or property without due process of law. Such provisions are not mere ink on parchment. They form the bedrock upon which our Republic stands.
In the realm of natural human rights, the right to a speedy trial is unquestionably grounded in basic human interests. This right to a speedy trial can be comprehended within this framework as it directly pertains to the preservation of “the social and biological prerequisites for human beings leading a minimally good life.”2 Delayed justice not only prolongs uncertainty but also curtails the accused's participation in life and their pursuit of other goods. A protracted trial, hanging like the sword of Damocles, invariably truncates the flourishing of the human spirit. Insofar a unnecessary prosecutorial delay harms human flourishing and well-being, which all people necessarily share, the People's interference with the speedy trial requirements pursuant to CPL § 30.30 constitute a violation of the Defendant's natural and constitutional rights.
Viewing the analysis of this motion through this lens, viewing human rights from an interest-based approach 3 , further magnifies the gravitas of this lapse. The failure to exercise due diligence in this matter goes beyond statutory non-compliance. The Sixth Amendment of the United States Constitution, brought to bear upon the states through the Fourteenth Amendment, guarantees the accused the right to a speedy trial. This is not a mere procedural formality but a foundational principle reflecting the broader liberty interests at stake. A neglect, intentional or otherwise, of one's duty under the statute constitutes a prima facie violation these liberty interests, which stand as a bedrock of our democratic society.
Guided by the principles enunciated in our jurisprudence and the statutes in place, and with the aforementioned reasons in view, this Court finds that the People's failure to comply with their discovery obligations within the CPL § 30.30 speedy trial timeframe necessitates the granting of the Defendant's motion to dismiss pursuant to CPL § 30.30.
The pages of history are filled with instances of the powerful imposing their will upon the powerless. The pendulum of justice, while often erring, aims to balance this equation. Before us today is the case of the Defendant, charged with a violation of VTL 1192-3, driving while intoxicated. What remains in dispute is not the Defendant's behavior on that day, but the very foundation of our criminal justice system: the obligation of the State to ensure the rights of the accused are preserved.
It is this Court's solemn duty to ensure that the scales of justice, while occasionally faltering, do not remain askew. This Court finds that the People's certificate of compliance is invalid due to its failure to disclose discoverable body worn camera videos prior to filing the certificate of compliance and failure to exercise due diligence in ascertaining whether discoverable material existed. Consequently, the People's statement of readiness was illusory. The applicable statutory period to announce readiness for trial has expired and the accusatory instrument must be dismissed. The Court has considered other arguments raised by counsel and deemed them moot as this case has fallen dead for delay of prosecution. Accordingly, Defendant's motion to dismiss is GRANTED and the accusatory instrument is DISMISSED.
It is so ordered.
1. A negative proof, also known as an impossibility proof, a technique drawn from logic and mathematics, which demonstrates that a particular problem cannot be solved as described in the claim. Chiefly, two methods are used in such an endeavor: First, there is proof by contradiction; that is, assuming the proposition to be proved, P, is false (i.e., assume ~P) and show that such assumption implies falsehood by deriving two contradictory statements Q & ~Q; by the law of noncontradiction, such derived statements are mutually exclusive. Since ~P leads to a contradiction, P must be true. Second, the method of proof by infinite descent works by assuming that a statement to be proved is possible, and thus there must be a smallest solution, appealing to the well-ordering principle. From there, it is shown that a smaller solution exists, contradicting the original statement to be proven and showing that such must be false. In the case of natural language legal situations as is the case here, this Court confines its analysis to proof by contradiction. (Jay Cummings, Proofs: A Long-Form Mathematics Textbook, 293-326 .)
2. For a detailed discussion of interest based theories of rights, see Andrew Fagan, Human Rights, Internet Encyclopedia of Philosophy, available at https://iep.utm.edu/hum-rts/ [accessed October 18, 2023]).
3. Properly understood, interest-based rights are natural rights, since the interest at stake is inherent to a person's condition as a human, and not (wholly) derived from social constructs.
Rebecca L. Town, J.
Response sent, thank you
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Docket No: Docket No. CR-02676-23
Decided: October 20, 2023
Court: City Court, New York,
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