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The People of the State of New York v. Figueroa, Defendant.
The defense has filed a C.P.L. § 30.30 motion. They allege the People's statements of readiness were illusory because the People never disclosed misconduct records held by the NYPD for this case's police witnesses. In response, the People admit they never disclosed these records, but declare that they believe automatic discovery does not cover misconduct records. They assert that their own written summaries of the various misconduct matters are sufficient.
Appellate courts, as well as trial courts in this borough and across the city, have repeatedly rejected the People's argument. (People v. Rodriguez, 77 Misc 3d 23 [App. Term, 1st Dep't 2022]; Matter of Jayson C., 200 AD3d 447, 448-49 [1st Dep't 2021]; see, e.g., People v. Brown, ind. 73394-22 [Sup. Ct., Queens County 2023] [Wang, J.]; People v. Dowling, ind. 1123-2021 [Sup. Ct., Queens County 2022] [Gopee, J.]; People v. Toussaint, 2023 NY Slip Op. 23025 [Crim. Ct., Queens County 2023] [Licitra, J.]; People v. Quintero, CR-010636-22QN [Crim. Ct., Queens County 2023] [Lentz, J.]; People v. Tamayo, CR-003869-22QN [Crim. Ct., Queens County 2022] [Johnson, J.]; People v. Best, 76 Misc 3d 1210[A] [Crim. Ct., Queens County 2022] [Gershuny, J.]; People v. Guzman, 77 Misc 3d 1223[A] [Crim. Ct., NY County 2023] [Maldonado-Cruz, J.]; People v. Cox, CR-013205-19BX [Crim. Ct., Bronx County 2022] [Chin, J.]; People v. Critten, 77 Misc 3d 1219[A] [Crim. Ct., NY County 2022] [Wang, J.]; People v. Goggins, 76 Misc 3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Darren, 75 Misc 3d 1208[A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People v. Edwards, 74 Misc 3d 433 [Crim. Ct., NY County 2021] [Weiner, J.]; People v. Sozoranga-Palacios, 73 Misc 3d 1214[A] [Crim. Ct., NY County 2021] [Stein, J.]; People v. McKinney, 71 Misc 3d 1221[A] [Crim. Ct., Kings County 2021] [Kitsis, J.]). Accordingly, the People's statement of readiness was illusory. As a result, over 90 days elapsed from arraignment without a valid statement of readiness. That exceeds the People's speedy-trial time, so the motion must be granted. (C.P.L.§ 30.30[b]).
A proper, good-faith certificate of automatic discovery compliance is a prerequisite of a valid statement of readiness. (C.P.L. §§ 245.50, , 30.30). It requires the People to certify two things. (C.P.L. § 245.50). First, the People must certify that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." (Id.). Second, they must certify that "after" doing so, the prosecutor "has disclosed and made available all known material and information subject to discovery." (Id.; see also People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021] [holding that a certificate is not complete until the People "actually produce[ ]" automatic discovery to the defense]).
Automatic discovery includes "[a]ll 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 . . . impeach the credibility of a testifying prosecution witness." (C.P.L. § 245.20[k][iv]). Evidence of "a police witness's prior bad act . . . can be proper fodder" to impeach the credibility of such a witness during cross-examination. (People v. Smith, 27 NY3d 652, 661 ). Such evidence can show that the witness has an "untruthful bent" or a "willingness or disposition . . . voluntarily to place the advancement of individual self-interest ahead of principle or the interests of society." (People v. Walker, 83 NY2d 455 ).
As the Appellate Division has held, the statute does not allow the People to fulfill this mandate by merely supplying summary letters about their police witnesses' misconduct. (Matter of Jayson C., 200 AD3d 447, 448-49 [1st Dep't 2021]; see also People v. Rugerio-Rivera, 2023 NY Slip Op. 50069[U], at *2 [Crim. Ct., Queens County 2023]; People v. Trotman, 77 Misc 3d 1210[A], at *3-*4 [Crim. Ct., Queens County 2022]; People v. Goggins, 76 Misc 3d 898 [Crim. Ct., Bronx County 2022]; People v. Martinez, 75 Misc 3d 1212[A], at *3 [Crim. Ct., NY County 2022]; People v. Polanco-Chavarria, 74 Misc 3d 1210[A], at *4 [County Ct., Rockland County 2021]). That decision is uncontested amongst the Appellate Division's departments and is therefore controlling on all trial courts throughout the state, including this one. (See Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 [2d Dep't 1984] [where another department's decision is the only authority "on point," then a trial court must understand that decision "to be binding authority"]). And as the court has explained before, this holding in Jayson C. was not dicta. (See People v. Toussaint, 2023 NY Slip Op. 23025, at *4 [Crim. Ct., Queens County 2023]; Trotman, 76 Misc 3d 1210[A], at *3-*4).
Moreover, as noted in the introduction, the conclusion that mere summary letters do not fulfill C.P.L. § 245.20[k] accords with the weight of trial court decisions in the city. "Courts have ruled time and again that case summaries prepared by the People are insufficient to satisfy the mandates imposed by C.P.L. § 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witness, should not be filtered through the prosecution." (Goggins, 76 Misc 3d at 901 [collecting cases]).
Nonetheless, the People here argue that they cannot be said to be in constructive possession of misconduct records held by the NYPD.1 In making this argument, they rely upon a trial court case from the Bronx, People v. Marin, 74 Misc 3d 1037 [Crim. Ct., Bronx County 2022]). Their argument from Marin is that C.P.L. § 245.20 only imputes constructive possession to the People where records are "related to the prosecution of a charge." In the People's view—and in the Marin court's view—police misconduct records are not "related to the prosecution" of the current charges. (74 Misc 3d at 1043). Therefore, the People do not have constructive possession over those items when they are solely with the NYPD. (See id.). Both the People and the Marin court believe this interpretation to be consistent with People v. Garrett, 23 NY3d 878 , a case about constitutional due process that pre-dates the 2020 discovery reforms.
Many courts have disagreed with the kind of reasoning articulated in Marin. (See, e.g., Goggins, 76 Misc 3d at 903; Darren, 75 Misc 3d 1208[A], at *3-*4; People v. Francis, 74 Misc 3d 808, 813-14 [Sup. Ct., Monroe County 2022] [Moran, J.]; Edwards, 74 Misc 3d at 441; Sozoranga-Palacios, 73 Misc 3d 1214[A], at *3-*4; People v. Castellanos, 72 Misc 3d 371, 378-79 [Sup. Ct., Bronx County 2021]). This court agrees with them: records that can impeach a police witness are plainly "related to the prosecution of the charge." As Judge Jay Weiner succinctly wrote in People v. Edwards: "Impeachment evidence is 'related to the prosecution of a charge' for the same reason that impeachment evidence relates to 'the subject matter of the case': it directly relates to whether the factfinder should believe the witness's testimony." (74 Misc 3d at 441).
Further, this court—and other courts—do not believe that judges should sow Garrett into the Legislature's discovery statute. (See, e.g., Darren, 75 Misc 3d 1208[A], at *4 n.1 [refusing to apply the Garrett limits to Article 245]; McKinney, 71 Misc 3d 1221[A], at *5-*6 ["Article 245 does away with [Garrett's] distinction."]). Garrett is a judge-made rule about constitutional due process, not the Legislature's new statutory requirements. And the Constitution provides a floor to a prosecutor's duties, not a ceiling. The Legislature is free to build stricter requirements for the People, and they have done so. Under C.P.L. § 245.20[k][iv], the People now have a statutory duty to disclose all evidence and information—including that which is "known to police"—that tends to impeach the credibility of a testifying prosecution witness. Thus, Garrett's constitutional analysis is not applicable here.
In any event, last December, the First Department's Appellate Term erased whatever uncertainty remained about the constructive possession argument. In People v. Rodriguez, the People made the same argument they advance here. (See Appellant's Br. at 15-22, People v. Javier Rodriguez, 570002/22 [App. Term, 1st Dep't Apr. 12, 2022]). Relying similarly on Marin, the People there argued that C.P.L. § 245.20 did not impute onto them the constructive possession of police misconduct files held by the NYPD. (Id.). Therefore, they argued, the records at issue could not be said to be in their possession, and their certificate of compliance was valid. (Id. at 22). The Appellate Term disagreed. It explicitly found that the People failed to provide discoverable material, "including underlying impeachment materials pursuant to C.P.L. 245.20[k]." (Rodriguez, 77 Misc 3d at 25). It thereby rejected any argument that these records were not automatically discoverable because they did not fall within the People's constructive possession. Because the People had failed to produce misconduct records held by the NYPD, the certificate of compliance "was not valid and therefore did not stop the speedy trial clock." (Id.). Appropriately, the Appellate Term cited Jayson C. to support its holding. (Id.).
The People make two other arguments here: (1) that their determination to withhold records evinced "good faith"; and (2) that the defense has failed to show "prejudice" that would justify any C.P.L. § 245.80 sanctions. The court rejects both.2
First, the People cannot in "good faith" withhold police misconduct records. The People cannot disregard Jayson C. and the many lower court decisions following it. Nor may they stake out such limited views of their disclosure obligations. The discovery statute mandates a "presumption in favor of disclosure when interpreting" its sections, including C.P.L. § 245.20[k]. (C.P.L. § 245.20). "Whenever there is any debate about turning over a piece of material, the legislature explicitly instructed the People to presume the material is discoverable." (Rugerio-Rivera, 77 Misc 3d 1230[A], at * 2-*3).
Indeed, the statute does not even allow the People to make a unilateral "good faith" determination that misconduct files do not fall under it. Determining what should be discoverable "is not the People's province." (Darren, 75 Misc 3d 1208[A], at *6). Under Article 245, "the People's responsibility is solely to disclose 'all material and information' that 'tends to impeach' the officer witness." (Id.). That the People claim to have exercised "good faith" in "making their own determination that disciplinary records do not — or should not — fall within the statute is of no moment." (People v. Williams, 72 Misc 3d 1214[A], at *5 [Crim. Ct., NY County 2021]). "That is not the People's determination to make." (Id.).
If, despite the statute's presumption of disclosure, the People wish to withhold disciplinary records, the statute provides a "process" for them to "follow." (Best, 76 Misc 3d 1210[A], at *7). "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Id.). But what the People cannot do is "file a Certificate of Compliance claiming they have disclosed all known discovery if they have not actually done so without the express permission of the court." (People v. Aguayza, 77 Misc 3d 482, 489, 179 N.Y.S.3d 859 [Sup. Ct., Queens County 2022]; see also Sozoranga-Palacios, 73 Misc 3d 1214[A] [the People do not act in "good faith" where they withhold disciplinary records without court permission]). In sum, a unilateral decision to withhold misconduct documents in the face of appellate authority does not constitute "good faith" compliance. (C.P.L. § 30.30).
Second, the People misunderstand C.P.L. § 245.80, "prejudice," and "sanctions"—these are all irrelevant to a C.P.L. § 30.30 motion. Such analyses are for situations where the People only violate the 20- or 35-day discovery deadlines, not where they fail to state ready for trial within the entire 90-day speedy trial timeframe. (People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020]; Darren, 75 Misc 3d 1208[A], at *5; People v. Diaz, 75 Misc 3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc 3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; People v. Quinlan, 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021]). "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Adrovic, 69 Misc 3d at 574). "Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).
Indeed, no appellate court has ever applied a "prejudice" or C.P.L. § 245.80 analysis to a C.P.L. § 30.30 motion challenging a certificate of compliance. (See Rodriguez, 2022 NY Slip Op. 22393 [affirming that a certificate was invalid without discussing prejudice or C.P.L. § 245.80]; People v. Guzman, 75 Misc 3d 132[A] [App. Term, 2d Dep't 2022] [same]; Ferro, 197 AD3d 787 [reversing a lower court and finding that a certificate was invalid without discussing prejudice or C.P.L. § 245.80]; see also People v. Elmore, 2022 NY Slip Op. 07345 [4th Dep't 2022] [discussing C.P.L. § 245.80 sanctions and "prejudice" separately from C.P.L. § 30.30 readiness]).
The People here had ninety days from arraignments to file a proper certificate of discovery compliance and state ready for trial. (C.P.L. § 30.30[b]). This case was arraigned on June 29, 2022. Because the People chose to withhold police disciplinary records, the People never filed a proper certificate of discovery compliance. As a result, the C.P.L. § 30.30 clock ran until the defense requested a motion schedule on October 14, 2022. That is 107 days.
It is the People's burden to prove that any of that time should be excluded. Other than arguing that their statement of readiness was valid, they do not point to any such exclusions. As a result, no time is excluded. Because 107 days of delay exceeds the People's allotment of 90 days, the court must grant the defense's C.P.L. § 30.30 motion to dismiss.
The defense's other arguments are moot.
The foregoing constitutes the order and decision of the court.
March 1, 2023
Wanda L. Licitra, J.C.C.
1. The People heavily imply that they are not in actual possession of the underlying misconduct records, (see Pr. Resp. at 8 n.1 [admitting that they must disclose records in their actual possession]), even though they apparently have sufficient knowledge of the matters to compose summary letters.
2. The People also argue that records concerning "unsubstantiated" disciplinary allegations do not fall within automatic discovery. This argument cannot save their certificate of compliance in this case, where some of the disciplinary allegations at issue were, in fact, substantiated. Even if that were not true, though, at least ten different courts have explained why records regarding "unsubstantiated" allegations also fall within the discovery statute. (Best, 76 Misc 3d 1210[A]; Goggins, 76 Misc 3d 898; People v. Alvia, 76 Misc 3d 704 [Crim. Ct., Bronx County 2022]; Edwards, 74 Misc 3d 433, 442; Castellanos, 72 Misc 3d 371; Polanco-Chavarria, 74 Misc 3d 1210[A]; People v. Soto, 72 Misc 3d 1153 [Crim. Ct., NY County 2021]; McKinney, 71 Misc 3d 1221[A]; People v. Perez, 71 Misc 3d 1214[A] [Crim. Ct., Bronx County 2021]; People v. Cooper, 71 Misc 3d 559 [County Ct., Erie County 2021]). In NYPD discipline, "unsubstantiated" is a term of art—it only means there is an "absence of evidence [that] precludes resolution of the allegation one way or the other." (Edwards, 74 Misc 3d at 442). And as the Court of Appeals has explained, "there is no prohibition against cross-examining a witness about bad acts that have never been formally proved" in another forum. (Smith, 27 NY3d at 661). So, these allegations remain "proper fodder for cross-examination." (Id.).
Wanda L. Licitra, J.
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Docket No: Docket No. CR-015701-22QN
Decided: March 01, 2023
Court: Criminal Court, City of New York.
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