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The PEOPLE of the State of New York v. Matt ALTUG, Defendant.
Considered: Notice of Omnibus Motion and supporting papers; People's Affirmation and Memorandum of Law in Response to the Defendant's Omnibus Motion and supporting papers.
The defendant moves for an order deeming the People's certificate of compliance invalid under Criminal Procedure Law sections 245.20 and 245.50, and the People's certificate of readiness invalid under CPL 245.50(3); suppressing evidence of identification testimony and the defendant's statements; and permitting him to reserve the right to make further motions.
The defendant was arrested on or about May 8, 2020, and was charged, by misdemeanor complaint, with forcible touching (Penal Law § 130.52), and sexual abuse in the third degree (Penal Law § 130.55). He was arraigned on May 9, 2020.
On July 17, 2020, the People disclosed certain information and documents to the defense. Also on that date the People filed and served a certificate of compliance (see CPL 245.50), which stated that the People had disclosed and made available “all known material and information that is subject to discovery,” except for material and information subject to a protective order.
On October 7, 2020, the defendant served his own certificate of compliance (see CPL 245.20, 245.50[2[), and, on October 8, 2020, the People filed a certificate of readiness under CPL 30.30(5) and (5-a).
By notice of motion dated October 21, 2020, the defendant moved for the relief summarized above. With respect to the branches of his motion regarding the People's certificates of compliance and readiness, the defendant contends that the People have not complied with their discovery obligations under CPL 245.20 and 245.50 and that their certificates of compliance and readiness were, accordingly, invalid. The defendant contends that the People failed to disclose the following information: 1) personnel/disciplinary records of Police Officer Clark, whom the defendant characterized as an “intended witness” (Affirmation of Bernadette Rabuy, at 4); 2) the name of and adequate contact information for the complainant's manager, who, the defendant said, “has information about the offense charged” (id.); and 3) information about the complainant which, the defendant alleged, was improperly redacted (id.). Specifically, the defendant alleged, the prosecution had improperly redacted: the complainant's date of birth, home address, and email on the ADA Datasheet; the complainant's date of birth, age, home address, and email address on the NYPD Complaint Report; the complainant's date of birth, age, home address, and email address on the NYPD “aided card”; all information about the complainant except his name on a police officer's Activity Log; and the complainant's date of birth, age, and address on the ADA Packet (Defense motion at 4).
The relevant substantive provisions, contained in Criminal Procedure Law 245.20, provide:
“1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover 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, including but not limited to:
(c) The names and adequate contact information for all persons other than 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.
(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: (iv) impeach the credibility of a testifying prosecution witness.”
Further, CPL 245.20(2) provides:
“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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, 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(7) contains a “[p]resumption of openness”: “There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article.”
Once the People have complied with the requirements of CPL 245.20(1), they are permitted to serve a certificate of compliance, which “shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery” (CPL 245.50). The People “shall not be deemed ready for trial” under CPL 30.30 until they have filed “a proper certificate” under CPL 245.50(1) (CPL 245.50).
The defendant's contentions about the adequacy of disclosure about the complainant and about his supervisor are without merit. The People provided the defendant with adequate contact information with respect to the complainant in their July disclosures. Further, there is no reason to question the People's assertion that they learned that the complainant's supervisor had relevant information only later; and the People disclosed information about the supervisor in their subsequent disclosure.
Next, the defendant, in contending that the People's certificate of compliance is invalid (Affirmation at 3), asserts that “the prosecution has failed to provide any of Officer Clark's personnel or disciplinary records,” and he demands that the People disclose “the full personnel/disciplinary records previously but no longer confidential pursuant to Civil Rights Law Section 50-A.” The defendant contends that the People's Certificate of Compliance “is invalid because the prosecution has neither made any such disclosure nor asserted that the sought material as been searched for in good faith but does not exist.” (Affirmation at 10). In opposition, the People assert that CPL 245.20 does not require them to “disclose underlying police disciplinary records or conduct a disciplinary inquiry into the general conduct of an officer” (Affirmation at 2). They contend instead that they are required to make disclosures that relate to the “subject matter of the case.” (id.). Essentially, the People argue that impeachment material discoverable under CPL 245.20(1)(k)(iv) is limited to impeachment material directly pertaining to the case, rather than material that would impeach the general credibility of the witness.
The defendant overstates the People's disclosure obligations with respect to impeachment material. Nothing in CPL 245.20(1) requires disclosure of a police officer's full personnel or disciplinary records (see People v Randolph, 69 Misc 3d 770, 772 [Sup Ct Suffolk County 2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] *2 [Sup Ct Kings County 2020]; People v Davis, 70 Misc 3d 467, 473-474 [Crim Ct, Bronx County 2020]; People v Suprenant, 69 Misc 3d 685, 693 [City Ct Glens Falls 2020]), and the defendant has cited no authority to the contrary.
The People, however, construe their impeachment disclosure obligations too narrowly. The statute requires that the People exercise due diligence and make reasonable inquiries into the existence of discoverable material or information before certifying that they have complied with their obligations. Acceptance of the People's contention that they are not required to examine a police officer's personnel and disciplinary files to ascertain whether they contain discoverable material would insert an exclusion into the statute that the statute does not contain. First, the People's contention that the police internal files are not within their control is untenable in light of the recent repeal of Civil Rights Law § 50-a (see People v Randolph, 69 Misc 3d at 771-772). And, although the People are not required to conduct generalized disciplinary inquiries into every officer working on a case (see People v Garrett, 23 NY3d 878, 890 ), CPL 245.20, fairly read, is not limited to impeachment material directly pertaining to the defendant's own case, but to general credibility as well (see e.g. People v Randolph, 69 Misc 3d at 772; People v Lustig, 68 Misc 3d at 242-243). The People are required to ascertain whether there is discoverable information in a police officer's personnel and disciplinary files — where such information is likeliest to be found — before certifying that there is none (see People v Lustig, 68 Misc 3d 234, 243 [Sup Ct Queens County 2020]; People v Rosario, 2020 NY Slip Op 20347, *3-*4 [County Ct Albany County 2020]; People v Suprenant, 69 Misc 3d at 693 [the People's discovery obligation is satisfied where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the material or information to be made available to defense counsel]). Additionally, if there is doubt as to whether certain information must be disclosed, the People may seek a protective order (see People v Randolph, 69 Misc 3d at 773; People v Johnson, 2020 NY Slip Op 33154[U] *3 [Sup Ct Albany County 2020]).
The People have not stated that they examined Officer Clark's personnel and disciplinary files (if indeed a disciplinary file exists). It is possible that those files do not contain discoverable material, but the People must look at the files before they can be considered to have complied with their obligations to disclose impeachment material. Instead, they have referred to publicly available information sources, but did not state whether any publicly available database is exhaustive as to disciplinary matters. The People correctly state that where information is public, they are not required to provide the records containing it to the defendant (see People v Lustig, 68 Misc 3d at 243-244).
In the circumstances of this case, the People's failure to state that they have actually examined the officer's disciplinary file (or whether there is one), means that they cannot be found to have exercised due diligence in determining the existence of discoverable impeachment material that might be in a disciplinary or personnel file.1 The People's certificates of compliance are therefore invalid, and, consequently, so is their statement of readiness (see People v Quinlan, 2021 NY Slip Op. 21020 *4-*5 [Crim Ct, Bronx County 2021]; People v Mashiyach, 70 Misc 3d 456, 458 [Crim Ct, Kings County 2020]).
The branches of the defendant's motion seeking Huntley, Dunaway, and Wade hearings to determine whether evidence of his statements and the identification procedures should be admitted at trial are granted, as is his request to reserve further motions.
1. Accordingly, it is premature to attempt to determine what material found in such a file may qualify as “evidence and information ․ that tends to ․ impeach the credibility of a testifying prosecution witness” (CPL 245.20[k]).
Jay L. Weiner, J.
Response sent, thank you
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Docket No: CR-009552-20NY
Decided: February 09, 2021
Court: Criminal Court, City of New York,
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