The People of the State of New York v. Nigel Wilkins, Defendant. (2025)

Defendant Nigel Wilkins ("defendant") moves for an order deeming the people's Certificate of Compliance("COC") invalid due to the People's failure to disclose discoverable materials under CPL § 245.20(1), and dismissal pursuant to CPL §§ 170.30(1)(e) and 30.30 for failing to file a valid COC and Statement of Readiness ("SOR") within the 90 day statutory limit. For the reasons set forth below, defendant's motion to dismiss is granted.

On January 13, 2025, defendant was arraigned on a misdemeanor complaint charging him with VTL 1192(1) and (3). A person is guilty of violating VTL 1192(1) when they "operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." A person is guilty of violating VTL 1192(3) when they "operate a motor vehicle while in an intoxicated condition." The complaint alleges that the deponent PO Perry was informed by PO Damico ("informant") (presumably the responding officer), that on January 12,2025, at approximately 9:20 PM at 312 Osborn St, County of Kings, "which is a public roadway," the informant observed defendant behind the wheel of a double parked vehicle and that defendant "turned the vehicle on before then turning it back off." Deponent further states that he observed defendant "exhibiting signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait."

At arraignments, the People served the court with a Police Department Report of Refusal to Submit to a Chemical Test, which was appended to the accusatory instrument. Section B of the Report, which asks for "details" of the impairment or intoxication "such as poor coordination, alcohol beverage odor," was completed as follows: "IMPAIRMENT OF ALCOHOLIC BEVERAGE AND BLOODSHOT EYES." PO Perry was listed as the arresting officer, and PO Foisal was listed as the officer giving warning and witnessing the refusal. On the one hand, PO Foisal signed the report on 1/12/25, and on the other hand, PO Perry signed the Report on 1/13/25. The People also filed a CPL 710.30(1)(a) notice wherein defendant stated to PO Perry in sum and substance, "I was not driving and did not drink".

On January 24, 2025, the People sent a discovery request email to the 73rd precinct requesting: (1) Finalized January 13, 2025, activity logs all known related officers (2) any and all colored photos, (3) the vouchers for all safekeeping, (4) Zfinest searches  ¹ , (5) the vehicle seizure form, (6) the vehicle report worksheet, (7) the vehicle stop report, (8) the vehicle voucher, (9) the vehicle inventory search, and (10) towing paperwork. Notably missing was a request for Giglio materials. On February 18, 2025, the people served initial discovery upon defense counsel. On April 3, 2025, the People emailed PO Perry and PO Damico (the responding officer) and the 73rd precinct discovery liaisons, requesting discovery that was still outstanding.

On April 9, 2025, the people filed the supporting deposition of PO Damico, dated 4/4/25, stating under penalty of perjury: "I, David Damico, have read the accusatory instrument filed in this action. The facts in that instrument stated to be on information furnished by me are true to my personal knowledge." On April 10, 2025, the People filed their COC and SOR.

On April 24, 2025, defense counsel informed ADA Malloy that the activity logs and PO Perry's body worn camera ("BWC") footage that the People produced were from 1/13/25, a day after the alleged incident. On May 15, 2025, the People received updated activity logs from PO Perry and provided them to defense counsel but did not file a supplemental COC. On May 20, 2025, defense counsel sent another conferral email requesting additional discovery, including Giglio material for PO Perry. The People's COC states that Giglio letters for certain law enforcement officers, including PO Foisal, had been served on defendant on April 10, 2024 via OneDrive, but does not indicate that any had been produced for PO Damico and PO Perry. The COC noted that the People had a request pending in the NYPD for exculpatory material regarding other law enforcement officers. However, to date, the People have not produced Giglio materials for PO Damico and PO Perry.

CPL 245.20(1)(k) provides that the prosecutor has a duty to disclose "all evidence and information that relate to the subject matter of the case," including that which "tends to impeach the credibility of a testifying prosecution witness." People v. Coley, 232 N.Y.S.3d 173, 178 (2d Dept. 2025); .People v. Jawad, 84 Misc 3d 31, 34 (App. Term 2d Dept. 2024), The use of the words "all evidence and information" in this subparagraph supports that the Legislature intended to provide the broadest discovery possible to defendants in the area of impeachment material.

People v. Coley, 232 N.Y.S.3d 173, 183

A person is considered to be "operat[ing] a motor vehicle" pursuant to Vehicle and Traffic Law § 1192 (3) even if the vehicle is not moving, where the driver is asleep at the wheel with the key in the ignition [***8] and the engine running (see People v Prescott, 95 NY2d 655, 662, 745 NE2d 1000, 722 NYS2d 778 [2001]; People v Alamo, 34 NY2d 453, 458, 315 NE2d 446, 358 NYS2d 375 [1974]; People v Cunningham, 274 AD2d 484, 711 NYS2d 909 [2000]; People v Morales, 54 Misc 3d 137[A], 54 NYS3d 611, 2017 NY Slip Op 50139[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Cross, 52 Misc 3d 133[A], 41 NYS3d 720, 2015 NY Slip Op 50621[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ["It is well settled that a person in the [****4] driver's seat of a vehicle with the engine on and the keys in the ignition can be found to be operating a motor vehicle, without the need for proof that the person ever put the car in motion" People v. Garcia, 61 Misc 3d 14, 18 (App. Term 2d Dept. 2018)

This case raises the following issues: (1) whether the people's inadvertent error when turning over Activity Logs for January 13, 2025 when the defendant was arrested on January 12,2025 and processed overnight invalidates the COC; (2) whether the people can rely on information from NYPD that certain materials do not exist. (3) whether the people's failure to filed a supplemental COC, when they provided additional discovery, impacted the validity of the COC; (3) whether dismissal is an appropriate remedy for not providing Giglio materials for testifying officers.

In determining the validity of the peoples COC filed on April 10, 2025, the main question is "whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery." People ex rel. Nieves v. Maginley-Liddie, 232 AD3d 568, 569-570, 221 N.Y.S.3d 176 (2d Dept. 2024); People v. Drayton, 231 AD3d 1057, 1059, 221 N.Y.S.3d 163(2d Dept. 2024). In People v. Bay, 41 NY3d 200, 211-212, 208 N.Y.S.3d 490, 232 N.E.3d 168 (2023) the court held that "due diligence" is a flexible standard that requires the people "to make reasonable efforts" to comply with statutory requirements. The courts determination is case and fact specific and the court must consider factors including but not limited to: "the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the people's response when apprised of any missing discovery."(Id.)

VALIDITY OF THE COC

Activity Logs

"Activity logs are books in which officers record all their work-related activities, including assignments received, tasks performed, and information relating to suspected violations of law. The Police Department issues activity logs to all its officers, who are required to maintain these memo books in the course of their regular duties" (Gould v NY City Police Dept., 89 NY2d 267 [1996])

In this case the people first requested activity logs for all officers involved on January 24, 2025, by emailing the discovery liaisons at the 73rd PCT. On April 3, 2025, the prosecutor emailed the arresting officer, Officer Perry, as well as responding officer, David Damico, and the 73rd discovery liaisons, Michael Conforti and Beatrice Blisset, requesting the finalized activity logs. In both requests the prosecutor specifically asked for the memo books for January 13,2025. The COC that was filed on April 10,2025 included all the memo books for January 13,2025 despite the time of the alleged incident being 9:20PM on January 12,2025. On April 14,2025 the defense requested the activity logs for January 12, 2025. After multiple emails to the arresting and responding officers, the people received the activity logs for January 12,2025 and sent them to defense but did not file a supplemental COC.

The activity logs are automatically discoverable pursuant to CPL 245.20(1)(e), which provides that "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports" are automatically discoverable.

The people's affirmation states that turning over the activity logs for January 13,2025 was an inadvertent error due to the defendant's arrest being processed overnight. Thus, the issue is whether this inadvertent error renders the people COC invalid.

"Inadvertent errors or omissions will not automatically invalidate a COC and SOR." People v. Pondexter, 76 Misc 3d 349, 353, 173 N.Y.S.3d 420 (Crim. Ct. NY Cnty. 2022). In Bay, 41 NY3d at 212, the Court of Appeals emphasized that under CPL 245, "[t]here is no rule of strict liability,'; that is, the statute does not require or anticipate a 'perfect prosecutor.' "

The people in this case sent multiple requests to obtain activity logs, they brought the arresting officer into their office before filing the COC to ensure that all discovery was obtained and when they were notified that the memo books that were turned over did not include information for January 12,2025, they reached out to the officers to obtain the discovery. Due to the prosecutor's reasonable efforts to comply with statutory requirements, the volume of discovery provided, and the people's response when apprised of any missing discovery this court holds that the people acted with due diligence, therefore this error does not invalidate the COC.

Defense Body Worn Camera for Arresting Officer and Two Other NYPD Officers on Scene

In this case the people provided thirteen officers body worn camera. Defense council has argued that there were other officers on scene who appear in the body worn cameras, but no body worn camera was provided for them. After being notified of this the prosecutor reached out to the arresting and responding officer. The responding officer, David Damico, told the people "All BWC is already attached to this case. Not sure why defense counsel doesn't have it. As far as the two unidentified cops, most likely they are assigned to PSA2. No idea who they are and if they didn't activate their cameras, it would be impossible for me to find out."

The people made multiple discovery request and before filing their COC brought in the officer to confirm that all discovery was obtained.

The people relied on the officer who informed them that all BWC was provided and there would be no way to find out who these officers were if they didn't active their cameras. Here, "reliance on [information from the arresting officer] was reasonable under the circumstances" (People v Philogene, 83 Misc 3d 1229[A], 2024 NY Slip Op 50836[U] [Crim Ct, Kings County 2024])

Pursuant to CPL 245.20(2), the duty of the prosecutor is to "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." "It is axiomatic that the People cannot disclose materials that do not exist" [People v. Haggan, 85 Misc 3d 1224[A], 227 N.Y.S.3d 917, 2025 NY Slip Op 50266[U], 2025 NY Misc. LEXIS 1070, *7 [Sup. Ct. NY Co. 2025]] [*17], since they are not within their custody and control [People v Gonzalez, 68 Misc 3d 1213[A], 130 N.Y.S.3d 262, 2020 NY Slip Op 50924[U], 2020 NY. Misc. LEXIS 4462, *3 [Sup. Ct. Kings Co. 2020]], and their failure to disclose these items does not render their COC invalid [People v. Roman, 85 Misc 3d 1210[A], 226 N.Y.S.3d 542, 2025 NY Slip Op 50132[U], 2025 NY Misc. LEXIS 626, *1 [Crim. Ct. Bronx Co. 2025].

Because the BWC that defense claims is missing not existing the people are under no obligation to turn this over.

Giglio Letters, CCRB History and any Relevant Misconduct Documents

The automatic discovery statute specifically provides that "[t]he prosecution shall disclose to the defendant . . . [a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness" (CPL 245.20[1][k][iv]). For impeachment purposes, all that is required for impeachment material to be "related to the subject matter of the case" is that it relates to the credibility of a witness in the case. (People v Coley, AD3d, 232 NYS3d 173, 2025 NY Slip Op 01945 [2025])

In the people NDF they list eight (8) NYPD affiliated potential witness. Therefore, the people should have provided all evidence and information that tends to impeach the credibility of all 8 potential witnesses. The people however only provided Giglio letters for six (6) officers. The two officers that they did not provide Giglio records for are the arresting officer and the responding officer, the two key witnesses in their case. The people only provided CCRB records for four officers and again fail to provide the CCRB for the arresting officer. On May 20,2025 defense notified the people that they had not received any Giglio material for Officer Brier, any CCRB reports for officer Hans of officer Lito, and no underlying documents for Officer Damico's civil suits. The people's affirmation does not detail any efforts that they made to obtain Giglio records or explain their failure to not turn over materials required by CPL 245.20[1][k][iv]. By not providing even a Giglio letters, detailing any possible allegations or complaints against the arresting officer or the observing officer the people failed to meet their obligations to turn over automatic discovery.

CPL 30.30

Since CPL 30.30 limitation periods are calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action (People v. Cooper, 98 NY2d 541, 543, 779 N.E.2d 1006, 750 N.Y.S.2d 258 (2002)). In this matter, the top counts, VTL § 1192(3) operating a motor vehicle while under the influence of alcohol or drugs ") are misdemeanors punishable with a term of imprisonment of not more than 1 year Pursuant to CPL 30.30(1)(b), the People were required to announce their readiness for trial within 90 days of the commencement of the criminal action. This action commenced on January 13, 2025, when defendant was arraigned. On April 10, 2025 the people filed their COC. CPL § 245.50 dictates that the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a valid certificate pursuant to subdivision one of this section. Due to the people's failure to provide automatic discovery under 245.20[1][k][iv] the people never filed a valid COC and therefore were not ready for trial. Subsequently, the people failed to meet their speedy trial deadline and the defendant's motion to dismiss under CPL § 170.30(1)(3) is GRANTED.

This constitutes the Decision and Order of the court.

Dated: September 02, 2025

Kings County, New York

Hon. Tehilah H. Berman

Judge of the Criminal Court

FOOTNOTES

1.   ZFINEST "is a database maintained by the New York Police Department, and whose records are made in the regular course of said business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." People v. Rowe, 82 Misc 3d 821, 823 (Crim. Ct. Queens Co. 2024)

Tehilah H. Berman, J.