The People of the State of New York, v. R.W. and M.P., Defendant. (2023)

Defendant R.W.¹ ("W." or "Defendant") hereby moves this Court for an Order (1) requiring the People to provide Counsel for W. ("Defense Counsel" or the "Defense") with all undercover video related to this case regarding alleged undercover sales in un-redacted form. The People filed opposition to the motion, arguing that they are not required to disclose the footage at issue since they have met their discovery obligations pursuant to CPL § 245. Based upon the papers submitted and the arguments of the parties, the Court hereby denies Defendant W.'s motion as described below.

In this matter, the People allege that W. participated in the sale of heroin/fentanyl to an undercover police officer (the "UC") on thirteen separate occasions. According to the People, W. sold directly to the UC nine times. On the other four occasions, W. is alleged to have organized the sales with the UC via cell phone and instructed his co-Defendant M.P. ("P." or "Co-Defendant") to meet and engage in the drug transactions with the UC. The People represent that each transaction is recorded using a covert camera. W. and P. are charged with Criminal Sale of a Controlled Substance in the Second Degree in violation of PL § 220.41(1) and Criminal Sale of a Controlled Substance in the Third Degree in violation of PL § 220.39(1). Of the twenty-two charges contained in the indictment in this matter, W. is charged with thirteen charges.

According to the Defense, the People have failed to provide them with any of the video surveillance regarding the alleged sales. The Defense represents that after they requested the undercover video footage, the People allowed Defense Counsel and W. the opportunity to review the undercover videos at the Office of the Special Narcotics Prosecutor "while a prosecutor or prosecutor's assistant was present in the room." According to the Defense:

When asked for privacy while watching the video in order to speak with Mr. [W.], the prosecutor declined and indicated that a prosecutor or paralegal must be present at all times when the video is being watched so that nothing is recorded. The undersigned offer to provide the prosecutor his and Mr. [W.] phones but the prosecutor indicated that such a compromise was unacceptable.

Eventually, the prosecutor agreed to allow the undersigned and counsel the opportunity to review the video at the Prosecutor's office without a prosecutor or paralegal present in the room but that either the prosecutor or paralegal would be immediately outside of the room. Notably, the prosecutor would not agree to provide the undercover video to defense to review at his office.

The undersigned accepted this compromise and viewed the video at the prosecutor's office. Unfortunately, on this particular day, Mr. [W.] was unable to appear.

As the trial approached, the undersigned endeavored to prepare for trial in the evening hours and on the weekend but realized that it was impossible to actually prepare for the trial because there was no access to the video.

After watching the undercover video in the prosecutor's office, it is apparent that the undercover's face is never on the video. A voice is clearly heard but the undercover's face/identity is not shown on any of the undercover video. Consequently, there cannot be any serious safety issues related to the undercover's identity.

According to the Defense, CPL § 245.20(1)(d) states that the People may withhold or redact information relating to undercover personnel without need for a protective order, but it does not mandate of require that these documents or information be withheld. The Defense argues that because the statute does not bar the disclosure of undercover video footage, the People must provide the Defense with same. The Defense states that the undercover videos are the primary evidence against the Defendant and that because there are more than ten relevant videos, "it is absolutely impossible to adequately prepare for a case of this magnitude without defense being able to review the video during preparation which often occurs well after business hours and also on the weekends." The Defense further states that "counsel cannot be made to be at the whim of the prosecutors for adequate preparation." Rather, the Defense asserts, Counsel must be able to speak with the Defendant about the videos during preparation "well after" business hours and on weekends. The Defense states that in the event that they need to have the videos forensically examined to determine authenticity or whether edits have been made, the Defendant must receive a copy of the undercover videos. According to the Defense, disclosure of the undercover footage is necessary to afford the Defendant effective assistance of counsel.

In opposition, the People maintain that they have diligently served thousands of pages of discovery to the Defense in compliance with CPL § 245.20(1), including a Notice and Disclosure form ("NDF") on July 11, 2021 and a revised NDF on July 15, 2021. The People state they filed a valid Certificate of Compliance ("COC") on July 15, 2021. After learning of additional discovery, the People served Supplemental Certificates of Compliance ("SCOC") on August 16, 2021, January 15, 2022, January 25, 2023, April 28, 2023 and June 5, 2023. The People state that their NDF, which the Defendant has possessed for over two years since July 11, 2021, contains the following language:

Video recordings involving undercover personnel exist. While CPL § 245.20(1)(d) authorizes the People to withhold information related to undercover personnel without motion, the People are making the undercover videos available for viewing by defense counsel. Please contact the assigned Assistant District Attorney to Schedule a time to view the video on site at the Office of the Special Narcotics Prosecutor.

In their affirmation in opposition to the Defendant's motion, the People provide the following account regarding their efforts to make the footage available for Defense Counsel's viewing:

Mr. Donaldson has come in to view the videos approximately four (4) times, including with the Defendant on at least one (1) occasion. The People have made themselves immediately available to accommodate the Defendant's viewing of the videos by reserving a private video viewing room, separate from the public, with a member of the Office of the Special Narcotics Prosecutor in the room. The purpose of having a member of the office in the room is to ensure there are no technical difficulties, to control the video navigations (i.e. to press play, to rewind, etc.) and to ensure that the defense does not take photographs of any undercover(s) visible in the video footage. (Footnote: The Defendant is requesting copies of unredacted undercover videos. When [Defense Counsel] visited the office to view the videos the first time, the People provided him with the unredacted copies of the undercover videos to view. However, when [Defense Counsel]'s client came in to view the videos, the People redacted the undercover's face in at least one (1) of the videos so that the Defendant would not learn the undercover's identity. Moreover, the only redacted video pertains to a drug transaction with the co-defendant, [M.P.], and it does not relate to any charges against the Defendant, [R.W.].)

Additionally, on or about May 31, 2023, the Defendant accompanied [Defense Counsel] to view the videos, the People made it very clear that, should [Defense Counsel] and the Defendant need to speak privately, the People would leave the viewing room with the video equipment, in order for [Defense Counsel] and the Defendant to do so. The People did so willingly and at no time did the People put a time limit on their ability to do so. Each viewing session was approximately over one and a half to two (2) hours long, and at no point in time did the People tell the defense that they needed to leave or that they could no longer use the video viewing room at their leisure. During that viewing, [Defense Counsel] did, in fact, request that he have the room alone to his client, to which the People complied and left the room multiple times. Later in that viewing session, [Defense Counsel] requested that we leave the viewing equipment and allow them to watch the video without representatives from the office in the room. I stated that this was against office policy. After more discussion, I agreed to ask my Bureau Chief[ ] if the office would permit us to leave [Defense Counsel] and his client unaccompanied in the room with the videos. [The Bureau Chief] came to the viewing room, met with [Defense Counsel] and the Defendant, and stated that we would not be able to do so.

During a June 6, 2023 Tap B appearance, which followed the video viewing session described above, [Defense Counsel] stated that he needed privacy while watching the videos with him client in order to further discuss the videos in private and the prosecutor's presence in the room made that difficult to do so. The Honorable Brendan T. Lantry asked the People to speak with supervisors to determine if there would be any possibility of allowing the defense to view the videos privately. The People agreed to do so and to see if it would be possible to make any accommodations.

After conferring with supervisors, on June 14, 2023, I contacted [Defense Counsel] and indicated to him that we would be able to accommodate a private viewing room where [Defense Counsel] and the Defendant would be able to view the videos privately, without myself or any other member of my office present.

On June 20, 2023, [Defense Counsel] came in to view the videos in the private video room. The Defendant was not present. A member of our office was in an adjacent room, separated by a closed door, should [Defense Counsel] have needed any technical assistance while viewing the videos.

On June 26, 2023, [Defense Counsel] sent a letter to the court requesting copies of the undercover videos, arguing that it was insufficient to view the videos at his convenience at the Office of the Special Narcotics Prosecutor.

The People maintain that after providing notice of the undercover videos more than two years ago through the NDF, they have provided "every opportunity to view the videos, provided the defense with still shots of the Defendant in the videos, and defense counsel, along with the defendant, have viewed the footage in a private video viewing on multiple occasions." The People state that CPL § 245.20(1)(d) does not require them to disclose recordings made by undercover officers and, therefore, the filing of the COC without providing the Defense with these recordings was proper. The People argue that the Defense has failed to submit any case law supporting its position that the People are required to disclose the undercover videos since CPL § 245.20(1)(d) does not bar them from disclosing same. The People argue that the facts in this matter are analogous to those in the matter of People v. Hyatt, No. 72982/2021 (NY Sup. Ct., New York County, June 7, 2023), in which this Court found that undercover coverage of the Defendant selling narcotics to an undercover officer were not discoverable under CPL § 245.20(1)(d) and held that the People's willingness to allow defense counsel to view the videos on site at the Office of the Special Narcotics Prosecutor was sufficient to meet the People's burden under CPL § 245.

Here, the People argue, they have not completely withheld the undercover videos from the Defendant, but instead have given him the opportunity to view them as frequently as they would have liked to. The People argue that they have met their burden under CPL § 245.20(1)(d) by notifying the Defense, in writing, that such information was not disclosed. The People assert that providing the videos to the Defendant "would tend to identify the undercover officers involved in this case" and doing so "would put their safety and privacy at risk, and place their ability to continue their work in current and future investigations in jeopardy." The People represent:

Here, the UC in the present case is an active undercover police officer is New York County. She/he currently has a number of open investigations, including in the area where the Defendant sold heroin/fentanyl to the UC. The UC regularly purchases controlled substances in different boroughs in street encounters, inside of vehicles, inside of businesses, inside of buildings, including, but not limited to staircases, apartments, hallways, and courtyards. In addition to acting as a primary undercover, she/he also acts as a "ghost" undercover and shadows other undercover officers making controlled buys of controlled substances. Moreover, as stated in Footnote 3, while the UC's face is not depicted in the videos, the Defendant correctly states in his motion that the UC's voice is "clearly heard" (Def. Mot. at 12). Voices can be identifiable. Should the defense receive copies of the undercover videos, they could disseminate the videos or recordings of the audio and potentially alert others of the UC's identity.

The People aver that the Defense's argument that they "cannot be made to be at the whim of the prosecutors for adequate preparation" is a "clear misrepresentation since the people have been at the whim of defense counsel's schedule and have been more than accommodating," making themselves available the same day or any day that the Defense has requested to view the videos. Having never denied the Defense's request to view the video footage, the People argue that the Court should deny the Defendant's motion based upon the safety risks to the UC and argue that they have exceeded their discovery obligations under CPL § 245.

Discussion

Effective January 1, 2020, the New York State Legislature repealed CPL § 240, which previously governed discovery within criminal cases, and it enacted Article 245 in its place. This statute greatly expanded the automatic discovery that the People are required to disclose to the Defense, all without request, and within the strict timeframes set forth by CPL § 245.10. Pursuant to the provisions of CPL § 245.20(1), the prosecution is required to 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 and control." CPL § 245.20(1) provides a detailed list of the items and information that the People must automatically disclose, which "includes but is not limited to":

. . . [b] all transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant; [e] all statements, written or recorded or summarized in any recording, made by persons who have evidence relevant to any offense charged or to any potential defense, thereto, including all police reports, notes of police and other investigators; and [k] all evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case that 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 or (iv) impeach the credibility of a testifying prosecution witness . . .

CPL § 245.20(2), which governs the duties of the prosecution, states that the prosecutor "shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control " CPL § 245.20(2) further holds 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 the possession of the prosecution." CPL § 245.20[2]." (See People v Rodriguez, 73 Misc 3d 411 [Sup Ct 2021]).

It is clear that CPL § 245 does require the disclosure of "all tapes or electronic recordings . . . made or received in connection with the alleged criminal incident." CPL § 245.20(1)(g). However, as People correctly argue, this rule is not absolute due to the exception made for materials relating to undercover personnel. According to CPL § 245.20(1)(d):

The name and work affiliation of all 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. Information under this subdivision relating to undercover personnel 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. CPL § 245.20(1)(d). (emphasis added).

Here, the footage at issue is the body worn camera footage of the purported drug sales between Defendant and the undercover officers. The People have represented that they have significant safety and privacy concerns about the UC involved in the footage. Based upon the nature of the footage, the discovery clearly falls within the parameters of CPL § 245.20(1)(d). Therefore, the People were entitled to withhold and redact the information relating to undercover personnel without need for a motion under the statute.

The Court also finds that the People complied with the written notice requirement of CPL § 245.20(1)(d) by notifying Defendant through the NDF and Supplemental NDF that it did not serve footage involving undercover personnel. Specifically, the People state in the NDF:

"Video recordings involving undercover personnel exist. While CPL § 245.20(1)(d) authorizes the People to withhold information related to undercover personnel without motion, the People are making the undercover videos available for viewing by defense counsel. Please contact the assigned Assistant District Attorney to Schedule a time to view the video on site at the Office of the Special Narcotics Prosecutor." (Ex. A, People's Affirmation in Opposition, p. 8).

The Court notes that identical language is included in the People's supplemental NDFs. Based upon such written notification served upon the Defendant, the Court finds that the People were entitled to withhold the footage at issue and that they fulfilled their obligations under CPL § 245.20(1)(d) in this regard. See People v. Hyatt, No. 72982/2021 (NY Sup. Ct., New York County, June 7, 2023).

Turning to the Defense's remaining arguments, the Court finds them to be unavailing. Defense's position that CPL § 245.20(1)(d) requires the People to disclose the undercover footage conflicts with the clear language of CPL § 245.20(1)(d). Such argument is also unpersuasive based upon the Court's finding that the footage is not discoverable under CPL § 245.20(1)(d). As this Court previously held in the matter of People v. Hyatt:

In this instance, where the footage involves undercover personnel, the People are permitted to withhold such footage so long as they provided written notice to the Defense, which they did. Furthermore, the record shows that the People are not attempting to withhold the material, as the People have demonstrated a willingness to allow Defense Counsel to view the recordings on site at the Office of the Special Narcotics Prosecutor. In their affirmation in opposition, the People represent that they are willing to have Defense Counsel appear at the Office of the Special Narcotics Prosecutor as many times as Defense Counsel wishes in order to review the footage.

The Court notes that the Defense has failed to demonstrate any evidence of the People denying the Defense's request to view the footage. While the Defense argues that they need the video footage in order to adequately prepare for trial during non-business hours, the Defense has failed to show any time restrictions that the People placed on the Defendant or Defense Counsel in appearing at their office to view the footage. While the Court does not doubt that the Defense's representation that they will be conducting trial preparation after business hours and on weekends, such circumstance does not change the fact that the People have met their discovery obligations under CPL § 245.20(1)(d) or otherwise require the People to provide discovery that is not discoverable under CPL § 245. Despite the Defense's argument that "counsel cannot be made to be at the whim of the prosecutors for adequate preparation," the Court finds that the People have demonstrated good faith in accommodating the Defense Counsel and the Defendant in viewing the footage at their convenience. The People have also shown they accommodated the Defense's request to view the footage outside the presence of a prosecutor or their staff in the Office of the Special Narcotics. Perhaps most significantly, the People placed the Defense on notice of the video footage approximately two years prior to the filing of the instant motion and, therefore, the Defense had ample opportunity prior to this time to view the video footage. The Court further notes that Defense Counsel has failed to demonstrate any statutory authority or case law which requires the People to turn over the undercover footage pursuant to CPL § 245.20(1)(d) based upon the Defense's need to prepare for trial. The Court finds the Defendant's remaining arguments to be unavailing.

Therefore, as the People complied with CPL § 245.20(1)(d) with respect to the footage, the Court denies Defendant's motion in its entirety.

This constitutes the Decision and Order of the Court.

New York, New York

August 23, 2023

Hon. Brendan T. Lantry

Justice of the Supreme Court

FOOTNOTES

1.   The Court has intentionally redacted the names of the Defendant and Co-Defendant in order to protect their anonymity while this matter is pending.

Brendan T. Lantry, J.