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The PEOPLE of the State of New York v. Marcel SIMMONS, Defendant.
The defendant is charged with two counts of Assault in the Second Degree (PL § 120.05 ), three counts of Burglary in the First Degree (PL §§ 140.30 -), two counts of Menacing in the Second Degree (PL § 120.14 ), and other related charges.
By omnibus motion dated December 12, 2022, the defendant seeks, among other things, an order invalidating the People's Certificate of Compliance (“COC”) and Statement of Readiness (“SOR”), both dated September 20, 2022. The People filed their response and the grand jury materials on January 13, 2023. They oppose the defendant's motion.
The People have an obligation to provide automatic discovery. This includes “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” (CPL § 245.20). As relevant to the decision at hand, the People must disclose “[a] complete record of judgments of conviction for ․ all persons designated as potential prosecution witnesses” (CPL § 245.20  [p]). CPL § 245.20 (2) provides that the People have a duty to make a “diligent, good faith effort to ascertain the existence of material or information” (id.).
After discharging their initial discovery obligation, the People are required to certify their compliance by filing and serving a COC (CPL § 245.50 ). The People cannot answer ready for trial, absent an individualized finding of special circumstances, without the “proper” filing of a COC (CPL § 245.50 ).
The defendant challenges the validity of the People's COC and SOR from September 20, 2022. At the core of his motion is the People's failure to provide underlying materials for each of the complainant's criminal convictions such as criminal complaints and any case summaries prepared by the District Attorney's Office (Defense Aff, 10). According to the defendant, CPL § 245.20 (1) (p) “requires automatic disclosure of a ‘complete record,’ which stands in stark contrast to its predecessor CPL § 240.45 (1) (b)’s requirement that the People disclose only a ‘record’ of a witness's conviction at the time of trial” (Defense Aff, 8). He claims that a “complete record” includes the evidence and paperwork generated in preparation for the criminal case that resulted in a conviction.
For this proposition, the defendant relies on People v. Soto, a criminal court case from New York County, in which the court held that the People were required to disclose “the docket number of the case in which the witness was convicted, the particular section of the statute that was the basis for the conviction, the court in which the conviction occurred, the sentence imposed, as well as any other materials concerning that conviction that are in the People's possession, custody or control” (72 Misc 3d 1153, 1157 [Crim Ct, NY County 2021] [emphasis added]). In the case at bar, because the People's disclosure consisted only of a list of the complainant's prior convictions which did not include any of the underlying materials in the People's possession even though the convictions were obtained by the Bronx District Attorney's Office, the defendant contends that the People violated their automatic discovery obligation under CPL § 245.20 (1) (p), rendering their COC and SOR illusory.
On the other hand, the People counter that they have fully discharged their discovery obligation. According to the People, “a complete record of judgments of conviction” in CPL § 245.20 (1) (p) refers to “a list of charges to which a defendant has pled guilty or been found guilty” (People's Aff, 8). To support this claim, they cite an unpublished decision by Justice Denis Boyle in People v. John Apuzzie (Sup Ct, Bronx County, July 11, 2022, Boyle, J., indictment No. 0138-2021). The defendant in Apuzzie argued that the People's failure to disclose the complainant's “RAP sheets, criminal court complaints, case summaries, DD5's, DAS reports, RTRD reports and other records that discuss the allegations against them” constituted a violation of their duty under CPL § 245.20 (1) (p), which invalidated their COC and SOR (id. at 5). The court largely rejected the defendant's motion, with an exception for DAS and RTRD reports,1 and held:
Nor do I conclude that the terms of CPL 245.20 (1) (p), amended now to require the disclosure of “A ‘complete’ record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses” to require the disclosure of the documents which defendant seeks to compel disclosure of. In this respect, I find the change in “the phraseology” of CPL 245.20 (1) (p) from that of since amended Article CPL 240 to reflect a statutory intent to emphasize, as distinct from expanding, the scope of the statute.
(id. at *8-9). The People ask the Court to adopt the Apuzzie Court's interpretation as it better comports with the body of case law that was developed in relation to the statute's predecessor, CPL § 240.25 (1) (b), in which only a list of convictions was required to be disclosed (see e.g. People v. Adeyemi, 32 AD3d 755, 756 [1st Dept 2006], lv denied 7 NY3d 865  [“The People sufficiently complied with CPL 240.45(1)(b) by turning over to defendant a list of a witness's convictions including the Penal Law sections violated and the dates of conviction”]); People v. Graham, 289 AD2d 417, 418 [2d Dept 2001], lv denied 97 NY2 754  [same]; People v. Moore, 244 AD2d 776, 777 [3d Dept 1997], lv denied 91 NY2d 975  [same]).
Having carefully considered well developed arguments advanced by both parties, the Court concludes that the People have discharged their statutory obligation under CPL § 245.20 (1) (p), and consequently, their COC and SOR are valid. Here, it is undisputed that the People disclosed to the defendant a list of the complainant's prior criminal convictions including the date of conviction, penal law section violated, county in which the conviction was obtained, and the docket or indictment number (Defense Exhibit B). This fact alone is sufficient to distinguish the instant matter from Soto, cited by the defense, in which the People's disclosure did not specify the Florida statute that complainant was convicted of, and lacked a docket number, jurisdiction, or sentence imposed, making the disclosure “all but meaningless” (Soto, supra, at 1156).2
In addition, when presented with a question of statutory interpretation, the court's primary consideration “is to ascertain and give effect to the intention of the Legislature” (McKinney's Cons Laws of NY, Statutes § 92; Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653, 660 ). The “old” discovery statute, CPL § 240.45 (1) (b) provided, in relevant part:
1. After the jury has been sworn and before the prosecutor's opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant: (b) A record of judgment of conviction of a witness the people intend to call at trial if the record of conviction is known by the prosecutor to exist.
(id. [repealed by L.2019, c. 59, p. LLL, § 1, eff. Jan. 1, 2020]). The statute further stated that it “shall not be construed to require the prosecutor to fingerprint a witness or otherwise cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness” (id.). In other words, the People were only required to disclose a record of judgment of conviction known to the prosecutor, whether or not there were additional convictions that the witnesses had on their record (see e.g. People v. Griffin, 48 AD3d 894 [3d Dept 2008]).
In contrast, CPL § 245.20 (1) (b) provides that the People must disclose “[a] complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses ․ other than those witnesses who are experts” (CPL § 245.20  [p]). Comparing the statutory language of CPL § 245.20 (1) (b) with its predecessor, CPL § 240.45 (1) (b), makes it clear that in addition to adding the adjective “complete” to modify “record of judgments of conviction,” the Legislature further eliminated the qualifying phrase in CPL § 240.45 (1) (b), which stated, “if the record of conviction is known by the prosecutor to exist” as well as “[t]he provisions of paragraphs (b) and (c) of this subdivision shall not be construed to require the prosecutor to fingerprint a witness or otherwise cause the division of criminal justice services or other law enforcement agency or court to issue a report concerning a witness.”
When this change in the statutory language is read in conjunction with the presumption in favor of more disclosure, codified in CPL § 245.20 (7), the Court finds the Apuzzie Court's holding to be persuasive in that the change in language was intended to emphasize that the prosecutor now has an obligation to obtain and disclose a complete list of the witness's judgments of conviction as opposed to a selective list containing only the convictions known to the prosecutor. Put differently, the prosecutor may no longer turn a blind eye to their witnesses’ criminal convictions. Rather, they must affirmatively ascertain their existence and provide such information to the defense.
As the People correctly point out, this interpretation is consistent with the well-established appellate case law that providing a list containing the witness's convictions, Penal Law sections that were violated, and the dates of convictions satisfies the People's discovery obligation (see e.g. People v. Adeyemi, supra; People v. Graham, supra; People v. Moore, supra). It is basic that “[c]ourts must interpret new laws as part of a symmetrical and coherent regulatory scheme; if possible, both old and new parts must be fit into a harmonious whole, rendering them internally compatible” (People v. Weston, 2020 NY Slip Op 20046, *2 [Crim Ct, Bronx County 2020], citing Yatauro v. Mangano, 17 NY3d 4220 ). Certainly, it is difficult to imagine the Legislature attempting to overrule a developed body of decisional law without a clear mandate (People v. Finnegan, 85 NY2d 53, 58 ; People v. Tychanski, 78 NY2d 909, 911 , citing Pajak v. Pajak, 56 NY2d 394, 397 ).
Furthermore, to construe the adjective “complete” to include the “underlying documents,” as the defense contends, would inevitably lead to unfruitful arguments over what paperwork must be disclosed by the People. To adopt the defense's interpretation would require the court to determine, for each conviction listed on the People's disclosure, whether the People must produce the arrest report, DD5s, memo book entries, laboratory reports, ballistics reports, DNA reports, surveillance camera footages, body worn camera footages, crime scene photographs, or officer's disciplinary records, just to name a few. The People and, consequently, the court would have to further determine whether a protective order or some other legal impediments exist for disclosing any of the relevant documents. Even worse, the problem would be exacerbated where the conviction was obtained in a different state, or, as in the case at bar, obtained almost 30 years ago. It would be very difficult, if not impossible, for the People to comply with such onerous discovery requirement in the timeframe specified in CPL § 245.10, which is as short as twenty days from the defendant's arraignment when the defendant is in custody (CPL § 245.10  [a] [i]). This could not have been the Legislature's intent in enacting the statute, which was aimed at improving basic fairness and openness in discovery, and not opening a Pandora's box.
Finally, CPL § 245.20 (2) provides that “the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain” (id.). As criminal convictions are in the domain of public information, the defendant may attempt to obtain any relevant and material records on his own once he has knowledge about the witnesses’ criminal convictions. Thus, the Court finds that the defendant's statutory interpretation is inconsistent with the overall legislative intent behind the reformed discovery statute.
For these reasons, the Court concludes that the People have satisfied their discovery obligation by providing a list of the complainant's criminal convictions to the defense. The defendant's motion to invalidate the People's COC and SOR is denied.
This constitutes the decision and order of the court.
1. DAS and RTRD reports are search results from the NYPD's Domain Awareness System (“DAS”) and Recidivist Tracking and Reporting Database (RTRD). DAS is “’a central platform used by [the NYPD] to collect data’ about criminal defendants (or, in some cases, witnesses) which searches, among other police department resources, crime reports, license plate readers, and ‘a network of cameras’ ” (People v. Lustig, 68 Misc 3d 234, 239). RTRD “tracks personal information and prior arrests of suspects and defendants” (id.).
2. Similarly, People v. Webb (77 Misc 3d 1202 [A] [Crim Ct, Queens County 2022]) is also distinguishable because the People did not disclose the criminal convictions of the complainant and two alleged witnesses until over 350 days after commencement of the criminal action.
Tara A. Collins, J.
Response sent, thank you
Docket No: Ind. No. 73645-22
Decided: January 19, 2023
Court: Supreme Court, Bronx County, New York.
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