The People of the State of New York, v. Antwan Dunmeyer, Defendant. (2023)

The defendant stands charged with an attempt to commit the crime of murder in the second degree, pursuant to PL §§ 110/125.25(1) and related charges, for which he was arrested on July 26, 2020. Defendant now moves this Court for an order deeming the People's June 7, 2021 Certificate of Compliance (COC), as well as Supplemental COCs filed by the People on June 24, 2021 and January 3, 2023, invalid because it was not until April 10, 2023, that discoverable materials that were in the People's possession were disclosed and made available to the Defense as required by CPL § 245. Defendant concomitantly moves to dismiss the indictment pursuant to CPL 30.30(1).

The instant indictment arises out of an alleged altercation between defendant and complaining witness, Daishaughn Hodge. It is the People theory of prosecution that on July 25, 2020, Mr. Hodge slashed defendant in the face and defendant retaliated by attempting to kill Mr. Hodge by shooting a firearm at him as he fled the location. Defendant was arrested the next day. Mr. Hodge not was arrested for the slashing until almost nine months later, on April 6, 2021. An indictment was filed against Mr. Hodge on April 13, 2021, and he ultimately pled guilty to Assault in the Second Degree on August 22, 2022. Mr. Hodge was sentenced to a determinate sentence of 2 1/212 years prison followed by 1 1/212 years post release supervision on September 28, 2022, and ultimately released on post release supervision on December 15, 2022.

Although Mr. Hodge had been arrested and indicted by the time the first assigned ADA (who was also assigned to prosecute Mr. Hodge) filed the initial COC on June 7, 2021, this prosecutor failed to provide any discovery regarding Mr. Hodge's arrest and prosecution to defense counsel. This failure continued through the People's filing of Supplemental COCs on June 24, 2021 and January 3, 2023. In fact, it was only when the currently assigned prosecutor was preparing for Mr. Hodge to testify against defendant in April 2023, that he realized that no discovery regarding Mr. Hodge's arrest or prosecution had ever been provided to defense counsel. Notably, the first assigned prosecutor did in fact provide the mandated discovery regarding defendant's prosecution to Mr. Hodge's counsel. According to the current ADA, that former prosecutor informed him that "it was her intention to share the same materials with each cross-complainant (i.e., the materials shared with Mr. Hodge would be shared with the defendant, and vice versa), and that any inconsistency between to the two sets of disclosures was not intentional." (See People's June 7, 2023 response, ¶12). Regardless of the People's intent, the parties agree that the first written notice provided to defendant of Mr. Hodge's prosecution was when the People served Mr. Hodge's Certificate of Conviction on March 28, 2023. The remaining discovery relating to Mr. Hodge's arrest, indictment, prosecution, plea and sentence was served on April 10, 2023, when the current ADA provided the previously undisclosed material along with another Supplemental COC and statement of readiness.

This is not a case where defense counsel delayed challenging the People's declaration of discovery compliance in order to gain a speedy trial advantage. See, e.g., People v. Nova Ceballos, Ind. No. 98-2019 (Supr. Court, NY Co. 2021). Rather, according to defense counsel, he repeatedly requested information regarding the complainant (Mr. Hodge) in the months following defendant's arrest and indictment. In response to this Court's inquiry concerning the timing of the first disclosures to defense counsel about Mr. Hodge's arrest and prosecution, the originally assigned ADA "recalls that she had a discussion with defense counsel" in the April of 2021 when a "take out order" was sought to photograph defendant's facial scars. (See People's October 2, 2023 letter, p.2). While it is clear that defense counsel consented to this application (as evidenced by communications between the ADA and the detective assigned to the "take out" of the defendant), neither the People nor defense counsel are able to recall with any degree of certainty exactly what was conveyed to defense counsel with regard to the arrest of Mr. Hodge or his prosecution. Presented only with the limited substantiation that the People had contacted defense counsel to obtain his permission to have his client photographed, to find more this Court would be required to improperly speculate as to the actual substance of their communications at that time. Accordingly, while this Court can conclude that the ADA informed defense counsel that she needed the photographs for a prospective prosecution of Mr. Hodge, it cannot infer that the ADA actually informed defense counsel regarding Mr. Hodge's arrest and prosecution. The only thing established to this Court's satisfaction is that prior to March 28, 2023, not a single item of discovery was ever provided to defense counsel relating to the prosecution of Mr. Hodge.

"[D]iscovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith, or the absence of bad faith, standing alone, can exempt the People from these requirements." People v. Aquino, 72 Misc 3d 518 (Criminal Court, Kings County 2021). While the People now contend that the failure to disclose the discovery was an oversight, this "oversight" could have been rectified with a modicum of diligence. The People have failed to demonstrate that they exercised the due diligence required prior to filing the certificate of compliance, a failure that continued as they filed two successive Supplemental COCs without providing any of this mandated discovery relating to the prosecution of the complaining witness. See, e.g., People v. Adrovic, 69 Misc 3d 563, 570 (Crim. Court, Kings Co. 2020) (finding the COC invalid where "the People have failed to demonstrate any steps they took to exercise the due diligence the statute requires prior to filing a certificate of compliance). While some of the discovery relating to Mr. Hodge had not yet been generated at the time of the June 7, 2021 COC or the June 24, 2021 Supplemental COC (such as documents relating to his plea, sentence and release to parole, all of which took place in 2022), defense counsel was not provided any discovery relating to Mr. Hodge's arrest or prosecution prior to the filing of those COCs. And no such discovery was provided by the time the People filed the second Supplemental COC on January 3, 2023, after Mr. Hodge had already been released from prison, having served the sentence imposed for his actions related to this case. To put the magnitude of the People's failure to comply with the discovery mandates in perspective, the defendant's case was adjourned for trial on six separate dates in 2022 after the COC and first Supplemental COC were filed, and several more times in the beginning of 2023, after the second Supplemental COC was filed, prior to defense counsel receiving any discovery regarding the arrest and prosecution of Mr. Hodge. Mr. Hodge, who was prosecuted for the assault in which the defendant was the cross-complainant, an assault that precipitated the retaliatory shooting with which defendant is charged, is no mere tangential witness. The undisclosed discovery, which included vital information about Mr. Hodge and his assault on the defendant, involves "critical areas of investigation and preparation, as well as confrontation of adverse witnesses by impeachment." People v. Soto, 72 Misc 3d 1153, 1156-1157 (Crim. Court, NY Co. 2021). Under the circumstances here, the People's failure to comply with their discovery obligations showed a distinct lack of due diligence and was, accordingly, unreasonable.

This Court, having found that the People have not acted with due diligence to satisfy their discovery obligations, accordingly grants the defendant's motion to invalidate the People's June 7, 2021 COC, and the Supplemental COCs filed on June 24, 2021 and January 3, 2023. See, e.g., People v. Adrovic, supra at 574 ("where the prosecutor has failed to demonstrate diligence and reasonableness in obtaining and disclosing required information and, and, as a result of that lack of diligence and reasonableness has failed to make a necessary disclosure, then the Certificate of Compliance is invalid").

Turning to defendant's Motion to Dismiss pursuant to CPL 30.30(1):

This action commenced on July 27, 2020, the date defendant was arraigned in Criminal Court and the case was adjourned for Grand Jury action. Six months from the date of commencement in this case is 184 days. Defendant alleges that 703 days are chargeable to the People. The People contend that 126 days are chargeable to the People.

On July 27, 2020, after defendant was arraigned in Criminal Court, the case was adjourned to October 2, 2020 for grand jury action. On October 2, 2020, there was no grand jury action, and the case was adjourned to October 20, 2020 for grand jury action. On October 20, 2020, there was no grand jury action, and the case was adjourned to October 23, 2020 for grand jury action. On October 23, 2020, an indictment was filed and the case was adjourned to November 10, 2020, for Supreme Court Arraignment. On November 10, 2020, the Court administratively adjourned the case to December 1, 2020, for Supreme Court Arraignment. These periods are excludable as CPL 30.30 was tolled by Executive Order of the Governor (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]; see also Executive Law § 29-a [1]). This CPL 30.30 suspension remained in effect through a series of extensions (see Executive Order [A. Cuomo] Nos. 202.14 [9 NYCRR 8.202.14]; 202.28 [9 NYCRR 8.202.28]; 202.38 [9 NYCRR 8.202.38]; 202.48 [9 NYCRR 8.202.48]; 202.60 [9 NYCRR 8.202.60]) through October 19, 2020 (see Executive Order [A. Cuomo] Nos. 202.67 [9 NYCRR 8.202.67]), and the tolling was extended through arraignment on an indictment until May 2021 (see Executive Order [A. Cuomo] Nos. 202.106 [9 NYCRR 8.202.106]). Accordingly, the period between July 27, 2020 and defendant's arraignment on the Indictment on December 1, 2020, is excludable.

On December 1, 2020, defendant was arraigned on the indictment, a motion schedule was set and the case was adjourned to March 9, 2021, for decision on defendant's motions. This period is excludable due to motion practice. CPL 30.30(4)(a); People v. Worley, 66 NY2d 523 (1985).

On March 9, 2021, this Court issued a decision on defendant's omnibus motion and the People's motion for a buccal swab order was granted. The case was adjourned to June 3, 2021 for DNA results. The period from March 9, 2021, to June 3, 2021, is excludable as an exceptional circumstance attributable to DNA testing. CPL 30.30(4)(g); People v. Clarke, 28 NY3d 48 (2016); People v. Hamilton, 159 AD3d 559 (1st Dept. 2018).

On June 3, 2021, the People had received DNA results and the case was adjourned to July 22, 2021 for discovery compliance. As this Court has found the People's June 7, 2021 COC to be invalid (supra), the entire 49 day period is chargeable to the People.

On July 22, 2021, defense counsel requested an adjournment for possible disposition on consent. The case was adjourned to October 12, 2021. This period is excludable. CPL 30.30(4)(b).

On October 12, 2021, the case was adjourned again to December 14, 2021 for possible disposition on consent of defense counsel. This period is excludable. CPL 30.30(4)(b).

On December 14, 2021, there was no disposition. The case was adjourned to February 7, 2022 for hearing and trial. As the People's June 7, 2021 COC and June 24, 2021 Supplemental COC were invalid (supra), any prior Statement of Readiness was likewise invalid. As no valid COC had been filed by the People (a prerequisite for an adjournment for trial), the Green exclusion on which the People rely is inapplicable. Accordingly, this entire 55 day period is includable.

On February 7, 2022, the People were not ready for hearing and trial. The People requested an adjournment to February 22, 2022 for hearing and trial, but the case was ultimately adjourned to March 22, 2022 for hearing and trial. As no valid COC had been filed, this entire 43 day period is includable.

On March 22, 2022, the People were not ready for trial. The People requested April 28, 2022 for hearing and trial. The case was ultimately adjourned to April 29, 2022 for hearings only. As no valid COC had been filed, this entire 38 day period is includable.

On April 29, 2022, the People determined that they would not use the water bottle that was the subject of the Mapp hearing, so no hearing was conducted. The case was adjourned to June 13, 2022 for trial. As no valid COC had been filed, this 45 day period is includable.

On June 13, 2022, the People were not ready for trial. The case adjourned to July 12, 2022, for trial. As no valid COC had been filed, this 29 day period is includable.

On July 12, 2022, the People were not ready for trial. The case adjourned to September 13, 2022, for trial. As no valid COC had been filed, this 63 day period is includable.

On September 13, 2022, the People were not ready for trial. The case adjourned to October 4, 2022, for trial. On September 26, 2022, defendant filed a motion to dismiss pursuant to New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (2022). As no valid COC had been filed, the 13 day period from September 13, 2022 to the filing of the defendant's motion is includable. The remaining period is excludable due to motion practice. CPL 30.30(4)(a); People v. Worley, 66 NY2d 523 (1985).

On October 4, 2022, the case was adjourned to November 28, 2022, for decision on defendant's motion. This period is excludable due to motion practice. CPL 30.30(4)(a); People v. Worley, 66 NY2d 523 (1985).

On November 28, 2022, defendant's motion to dismiss was denied. The case was adjourned to January 4, 2023 for trial. As no valid COC had been filed by this date, this 37 day period is includable.

On January 4, 2023, the People answered ready for trial, but defense counsel stated that he had a scheduling conflict. The case was adjourned to March 6, 2023 for trial. As a valid COC is required before the People may be deemed ready for trial (see CPL 245.50[3]), and this Court has held that the People's June 7, 2021, COC and Supplemental COCs filed on June 24, 2021 and January 3, 2023, were not valid (supra), this 61 day period is includable.

On March 6, 2023, the People were not ready for trial. The case was adjourned to April 17, 2023 for trial. On April 10, 2023, the People provided the previously undisclosed discovery relating to Mr. Hodge along with a new Supplemental COC and a re-statement of readiness. As the prior COCs have been deemed invalid (supra), the 35 day period between March 6, 2023 and the People's valid COC and statement of readiness filed on April 10, 2023 is includable. The remaining period is excludable.

On April 17, 2023, defense counsel filed the instant motion (to deem the COCs invalid and to dismiss) in response to the discovery disclosures and Supplemental COC filed by the People on April 10, 2023. All further delay is excludable. CPL 30.30(4)(a); People v. Shannon, 143 AD2d 572 (1st Dept. 1988).

In total, 468 days are charged to the People. Defendant's motion to dismiss is granted.

This constitutes the Decision and Order of the Court.

Dated: New York, New York

November 27, 2023

J.S.C.

Curtis J. Farber, J.