PEOPLE v. CASHWELL (2023)

Defendant moves to invalidate various Certificates of Compliances (COCs) filed by the People on the grounds that certain ShotSpotter materials, and memo books from various Police Officers, were not turned over prior to the COC being filed. The Court has reviewed all submissions by both parties and, for the reasons stated below, the motion is denied.

 Procedural History

Charged with Attempted Murder in the Second Degree and related charges, the defendant was arraigned on this indictment December 13, 2022, and entered a plea of not guilty. The case was adjourned to January 31, 2023, for an update on discovery compliance and to set a motion schedule. The People filed a COC on December 20, 2022. On January 31, the defendant asserted that he was missing discovery in the form of body-worn camera footage of the detective interviewing the complainant. Counsel consented to one adjournment to work out discovery issues and the case was adjourned to March 7, 2023. On February 17, 2023, the People filed a supplemental COC.

On March 7, 2023, the Court set a motion schedule, adjourning the case to April 25, 2023, when it rendered a decision finding the grand jury minutes to be sufficient and ordering hearings. On that day, counsel for defendant complained that the Court had not specifically addressed its motion to compel various items of discovery and that he was missing items of discovery. The case was adjourned to May 2, 2023, to flesh out discovery issues. Specifically, defendant complained that it had not received in depth reports regarding the ShotSpotter evidence that had been noticed in the automatic discovery form. The Assistant District Attorney (ADA) assigned to the case explained that she had turned over the existing ShotSpotter reports and that no other reports would be generated unless and until she decided that she planned to use ShotSpotter evidence in her case in chief -- as opposed to introducing the evidence to explain police response to the scene. Defendant explained that he planned to challenge the scientific validity of any ShotSpotter evidence the People would seek to introduce prior to being ready for trial.

At the conclusion of the May 2, 2023, proceeding, the Court found that there had been no discovery violation since an enhanced report that the defendant wished to obtain did not exist. However, for the sake of expediency, the Court suggested to the ADA that she should decide whether or not she would seek to introduce ShotSpotter evidence as part of her case at trial. A week later, On May 9, the ADA informed the Court and the parties that she would, in fact, seek to introduce ShotSpotter evidence at trial and had requested a full report be prepared.

The case was adjourned to June 20, 2023, for control, at the defendant's request. On June 7, 2023, the People provided the defendant with the ShotSpotter detailed report, the name of their expert and filed a supplemental COC. On June 20, 2023, the defendant argued that he had still not received all discovery pertaining to the ShotSpotter evidence and the People responded all discovery was turned over. The Court set a schedule for defendant to file a motion challenging the COCs and adjourn the case for decision to August 8, 2023, for decision.

 Motions

In his motion, defendant acknowledges that on January 7, 2023, the People provided him with a detailed summary report regarding the ShotSpotter activation related to this matter as well as the name of the expert whom they intend to call at trial, along with a supplemental COC.¹ Defendant contends, however, that the supplemental disclosure does not satisfy the People's obligation and, in paragraph 16 of his motion, lists 18 items which he submits ought to have been turned over to him by the People as part of discovery but were not. Of those, 17 relate to ShotSpotter and one lists memo books of police officers whose body-worn camera footage has been turned over to the defense. The People counter that they have disclosed all relevant ShotSpotter reports in their possession and that the memo books of the officers at issue are not discoverable as they “are not the subject matter of this case” and, in any event, duplicative of information that already appears in the body-worn camera footage.

 Discussion

ShotSpotter

In support of his continued claim that the People's COC is invalid because they failed to disclose 17 items of discovery pertaining to ShotSpotter, defendant relies heavily on People v. Gutierrez, 78 Misc 3d 411 (NY Sup. Ct. Bronx County 2023); specifically, for the proposition that all materials from ShotSpotter are (a) within the control of the prosecution and (b) subject to mandatory disclosure by the People. In this Court's opinion, the defendant misreads and improperly extends the holding and applicability of Gutierrez.

The relevant issue in Gutierrez, supra, was the CPL§ 30.30 chargeability of a time period in which the People “did not provide ANY ShotSpotter materials” in direct violation of a court directive to “determine, among others, what, if any, ShotSpotter materials existed and to disclose them to defense.” Id. at 415 emphasis added). There, the defendant challenged the validity of a COC filed by the People without any ShotSpotter records after being specifically directed by the court to locate and provide them to the defense. The People defended the validity of the COC by claiming that documents or tapes generated by ShotSpotter are not discoverable because they were created and maintained by an agency that was not under the control of NYPD and, by extension, the Bronx District Attorney's office. It was in that context that the Gutierrez court analyzed the applicability of the discovery laws to ShotSpotter records and found that “while gunshot records are generated and maintained by ShotSpotter, the New York City Police Department has wide access to such records and, as such, they are deemed to be in the prosecutor's custody and control under CPL § 245.20(2).” Id. at 419.

To be clear, the Gutierrez court did not opine on the particular ShotSpotter records that might be subject to discovery beyond citing to CPL § 245.20 and affirming its requirement that records relevant to an offense charged or a defense thereto, including those germane to “determine whether the police intrusion was justified at its inception.” Id. at 421-422. Importantly, the Gutierrez court focused on the fact that these records were likely within the “custody and control” of the NYPD and therefore discoverable as they were maintained by a law enforcement agency. The Gutierrez court did not make any finding as it related to general materials within the custody and control of ShotSpotter material that were not turned over to the NYPD.

Of particular relevance, the ShotSpotter materials ultimately turned over and deemed sufficient in that case were a “multi-page document titled ‘Investigative Lead Summary’ ” which contained the “incident number, longitude and latitude of the alleged shooting including the street address, rounds fired, and incident audio picked up by four different sensors.” Id. at 416-417. In other words, had that those particular documents been disclosed in a timely manner, the COC would not have been invalidated.

This Court respects, but neither adopts nor disputes the conclusion reached by the Gutierrez court; that most ShotSpotter records deemed to be in the prosecutor's custody and control in that these documents are likely disclosed to the NYPD. That question need not be explored or reached here since this the facts at issue in case differ from Gutierrez in every relevant respect. First, the People did promptly turn over whatever ShotSpotter materials were automatically generated and provided to them. Second, once the defendant requested that a more extensive report be prepared, the People immediately requested one and turned over the report as soon as it was generated. There has been no unexplained delay nor any departure from a court directive by the People. And, of course, the reports which were ultimately provided in Gutierrez, have already been provided to the defense here. Thus, even if its conclusion were to be accepted by this Court, Gutierrez does not mandate invalidation of the COCs filed in this case.

Specific requests

A: Discoverable

The Court finds that — subject to qualifications noted below - the items requested in defendant's motion, paragraph 16, are subject to the People's discovery obligations:

(a): disclosures regarding any expert who will be testifying about the use of ShotSpotter technology.

(b): all relevant examinations, reports, written and recorded statements including copies of NYPD's ShotSpotter notifications in connections with this case. However, the Court deems it unreasonable to expect the People to track down notifications received via ANY officer's mobile phone applications with corresponding identification numbers and location information.

(c): copies of incident audio files generated in relation to this case.

(d): copies of “Detailed Forensic Reports” or similar reports generated in relation to this case.

(e): copies of any location information related to this case including any “kml files” available to the People.

(f): copies of communications between NYPD and ShotSpotter related to this case, if accessible to the People.

(l): audio files and data used by ShotSpotter sensors and devices for this case and generated by sensors and devices in relation to this case. Absent more specific definition of “environmental data,” that component of this request is rejected as unduly vague.

(h): reports, notes, calculations, reclassifications, work product, comments and communications pertaining to this case by any analyst or ShotSpotter employee, to the extent that this information was provided by Shot Spotter to the NYPD as data that was relevant to this investigation.

(m): information identifying all analysts involved in this case and documentation of their training and any proficiency/performance information to the extent that this information was provided by Shot Spotter to the NYPD as data that was relevant to this investigation.

To the extent that any material falling in those categories has not yet been disclosed or if the People obtain new materials or new materials in those categories, are generated, the People are directed to promptly disclose them to the defendant.

B: Not Subject to Discovery by the People

The Court finds that absent any specified showing, the following items requested in paragraph 16 of defendant's motion are not relevant to this particular case and do not fall within the People's discovery obligations.

(g): copies of documentation of any testing of the ShotSpotter system, software code, and devises used in this case.

(i): the location of all ShotSpotter sensors and devices located at and within a mile radius of the location of this incident.

(j): maintenance information, calibration information, operational status, repair information and activation logs for sensors and devices within a mile radius of the location of this incident.

(k): copies of intermediate reports and attachments generated by ShotSpotter in relation to this case.

(n): copies of ShotSpotter training materials for police departments including such training materials for NYPD.

(o): copies of documents describing the types of services ShotSpotter provides and their costs to the NYPD, including “Forensic Services Order Forms.”

(p): the underlying source code, algorithms and data used by ShotSpotter.

Notably, the People are not required to obtain by subpoena any material or information which the defendant may thereby obtain. CPL § 245.20(2). While the specific investigative lead reports generated by Shot Spotter in relation to a particular incident are clearly related to the subject matter of the case, generalities such as those in this category are not. Shot Spotter is a private company and there is nothing that precluded the Defendant from sending a subpoena to Shot Spotter to obtain these documents themselves for the purposes of a Frye hearing.

C: Not Subject to Discovery

In paragraph 16(q), defense demands any facts or information relating to the scientific reliability of the technology underlying ShotSpotter, including but not limited to any studies, data, internal testing and/or analyses, or other information tending to show its level of acceptance in the scientific community. This request is denied as being entirely accessible to the defense and, in fact, within the responsibility of defendant to obtain should he wish to mount a challenge to the scientific reliability of ShotSpotter technology.

In conclusion, with respect to ShotSpotter discovery requests, the Court accepts the People's affirmance that they have made satisfied their obligations. To the extent that any of this information was not provided by Shot Spotter to the NYPD, it would not be deemed to be within the People's custody or control and would therefore be properly obtained by the defense by submitting a subpoena to Shot Spotter pursuant to CPL § 245.20(2).”

Memo Books

The People submit that their failure to provide defendant with memo book entries by Police Officers who played no significant role in this case other than responding to the ShotSpotter alert does not invalidate their COC. They contend that any notes in those memo books would not be relevant to the subject of this case and would anyway be duplicative of their body-worn camera footage which has been provided to defendant. Moreover, the ADA has subpoenaed the memo books and indicated that she will turn them over to the defense when they are received.

Invalidating a COC based on the delayed disclosure of an inconsequential piece of evidence is clearly not the sanction nor the remedy that the Legislature intended. In fact, the “good faith and reasonable under the circumstances” and “continuing duty to disclose” language contained within the discovery statute rebukes that notion. CPL § 245.50 (1). The People are not required to turn over the memo book of each and every officer that could have possibly responded to an incident, but rather the People have an obligation to turn over discovery that “relates to the subject matter of the case.” § 245.20 (1).

Here, upon the defendant raising this issue, the People promptly requested the memo books and have agreed to provide them to the defendant. Upon disclosure of the memo books, should there be any new and material evidence contained within the memo books that is not duplicative in that it is not contained within (1) the body worn camera of the officers that has already been disclosed, (2) the memo books of other officers present that have already been disclosed, or (3) any other discovery that has already been disclosed to the defendant, the defendant may renew his motion. At this time, the defendant has failed to show how, if at all, the defendant was prejudiced by this slightly late disclosure, therefore there is no basis for any remedy or sanction. CPL § 245.80 (1)(a).

For the reasons stated above, defendant's motion to invalidate the COR filed by the People on February 17, 2023, is denied with leave to renew if and only if defendant uncovers items within the People's possession, that pursuant to this decision ought to have been disclosed but were not.

This shall constitute the decision and order of the Court.

FOOTNOTES

1.   Notably, the Court finds defendant's complaint that the People “did not detail any basis for the delayed disclosure” to be disingenuous given that extensive discussion between the parties and the Court had preceded the generation of this supplemental material; defendant is well aware that there had been no “delayed disclosure” but rather supplemental disclosure of newly obtained information.

Ann E. Scherzer, J.