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The People of the State of New York, v. Malcolm Wedderburn, Defendant.
Defendant is charged with reckless endangerment in the second degree (PL § 120.20), leaving the scene of an accident with personal injury (VTL § 611 [a]), and reckless driving (VTL § 1212).
The police responded to a 911 call of a suspicious man, later identified as the defendant, underneath a vehicle. On their approach, officers observed defendant driving the vehicle at a high speed, running a stop sign and colliding with three other moving vehicles before coming to a stop, whereupon defendant attempted to run away. Several occupants of the vehicles with which he collided were injured and transported to hospitals to receive medical treatment.
Defendant was arraigned on October 23, 2022. On January 4, 2023, the 73rd day after arraignment, the People served and filed a statement of trial readiness ("SOR") and a document captioned "Statement of Trial Readiness" which is instead clearly a certificate of discovery compliance ("COC").
On January 30, 2023, defense counsel emailed the prosecutor with a list of allegedly missing items; the next day, the ADA replied that she would investigate. On February 24, 2023, defendant filed the instant omnibus motion seeking orders of the court invalidating the People's COC for insufficient discovery compliance and dismissing the information for the People's failure to be ready within the speedy trial period, or in the alternative, suppressing defendant's statements, the witness identification, and evidence of any prior bad acts. Defendant asserted that the following items of required discovery were missing from the material shared on January 4: i) memo books of five of the responding officers; ii) 911 call and radio runs; iii) aided report; and iv) impeachment material for Officer Nieves.
On March 13, 2023, the People filed a supplemental COC sharing: i) five additional memo books for responding officers Oliva 1 , Quinones, Hirschman, Lopez; ii) body-worn camera videos ("BWC") for additional responding officers Rozon and Ortiz; and iii) the impeachment information for officer Nieves. The prosecutor opposed defendant's motion and detailed her efforts at obtaining discoverable material as follows: i) she had made two requests for memo books prior to filing her January 4 COC; ii) she had made three requests for Officer Nieves' impeachment material prior to filing her January 4 COC; iii) aided reports are not generated after motor vehicle accidents; and iv) two requests for any 911 calls made yielded two responses of "no records."
CPL Article 245
The cohesive legislative scheme of discovery under article 245 and trial readiness under CPL § 30.30 is a remedial measure to increase fairness and efficiency in the criminal discovery process. Remedial statutes are designed to correct imperfections in the prior law, and as such they are to be liberally construed to spread their beneficial results as widely as possible. (Mlodozeniec v Worthington Corp., 9 AD2d 21, 23 [3d Dep't 1959], affd 8 NY2d 918 , cert denied, 364 US 628 ). As a remedial measure, it "must be emphasized that the new discovery framework is not meant to be a game of 'gotcha' with the prosecution." (People v Ferrer, 72 Misc 3d 1212(A), at *7 [Crim Ct Bronx County 2021]). In constructing article 245, the Legislature understood that the prosecution may be unable for a variety of reasons to supply all discovery materials within the first set of timeframes -- for example, as here, when discovery is not yet known to the prosecution (the 911 audio, radio runs and sprint reports), or materials are so voluminous that it is not possible to retrieve and disclose them in the prescribed time (BWC).
In multiple ways, CPL article 245 underscores the statute's flexibility to accomplish its remedial purpose. For example, the article contains no less than eight references to reasonableness, including that "[n]o adverse consequences . . . shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances" (§§ 245.20 [f], [o], [u][iv]; 245.20 [c]; 245.50 , , ); supplemental COCs are permitted (§ 245.60); § 245.50  permits courts to validate COCs and SORs despite missing or delayed discovery if the People have demonstrated due diligence in their efforts; further, it includes a myriad of discretionary, appropriate, and proportionate remedies and sanctions — short of dismissal - if a defendant demonstrates prejudice at the time of trial because of any delayed or missing discovery. (CPL §§ 245.55 [b], 245.80). In addition, options for extended time limits in various situations are provided. (CPL §§ 245.50[a], [a][iv][B], and [b]; 245.20 [b], [k]).
Most significant for this case, CPL §§ 245.10 [a] and 245.20 [u][iv] contain automatic extensions of time for voluminous or electronic evidence, and sections 245.50 , , 245.55 [b], and 245.80 [b] and  permit courts to find the People ready for trial and instead of dismissing the case, impose an appropriate sanction for missing or delayed disclosure.
As required, the court must construe this remedial statute to harmonize its provisions and give effect to every word. (Statutes §§ 97, 98, 231). Article 245 clearly intends that "fidelity to an absolute, uncompromising and inflexible disclosure standard, for both the prosecution and the defense, is neither required nor desirable." (People v Erby, 68 Misc 3d 625, 630-631 [Sup Ct Bronx County 2020]). Like the legislature, the court is mindful of the herculean task prosecutors face in accomplishing discovery compliance with a mountainous caseload.
This court rejects as unsupported by its express terms, legislative intent, and pre-existing jurisprudence, the strict liability position that article 245 prohibits continuing discovery beyond the speedy trial period even if grounded upon due diligence and good faith; the court is loath to dismiss an information under those circumstances. Recent appellate decisions clarify that the cornerstone of sufficient discovery compliance and a valid statement of trial readiness is good faith filing of a COC after diligent efforts at substantial compliance which is reasonable under the circumstances. (People v Gaskin, 2023 NY Slip Op 01415 [4th Dep't 2023]; Matter of Jayson C., 200 AD3d 447 [1st Dep't 2021]; People v Rodriguez, 77 Misc 3d 23 [App Term 1st Dep't 2022]).2 If that is the case, courts may deem the People ready for trial even if some items are "otherwise unavailable." (CPL §§ 30.30 ; 245.50  and ).
Validity of the COC in this case
The People assert that a "no records" response was received after the ADA twice requested all 911 calls identifying the case by the arrest number. Notably, 911 records are not catalogued according to arrest number. This is clearly the source of the mistaken negative response. The prosecutor timely shared the three-page "ICAD" on January 4, 2023, which is a summary of all radio transmissions from a police incident, and which is provided to prosecutors by the arresting officer, not retrieved from the NYPD tapes and records website. The ICAD indicates that 911 calls were placed to initiate police involvement. The court draws a logical inference that the prosecutor did not intentionally withhold evidence, nor abandon her responsibility for diligence in gathering the required records, but simply put, is unaware of the information needed to properly request 911 records. The court finds that the prosecutor demonstrated the bare minimum of due diligence in her attempts to retrieve the 911 records and acted on the good faith, although mistaken, belief that no such records exist for this incident. The court also observes that better guidance and training of new prosecutors in discovery compliance are necessary to ensure that Bronx prosecutors can successfully fulfill their statutory and constitutional discovery obligations.
Under the circumstances at bar and in view of the foregoing discussion of the legislative intent and provisions for extensions of time to provide electronic records, the prosecutor's failure to timely provide the 911 records, BWC, and memo books does not compel a finding that the ADA failed to be diligent or acted in bad faith, nor that the COC is invalid. This finding notwithstanding, 911 calls were made, and radio runs and a sprint report were generated. The People are directed to retrieve and disclose these items using the proper information within 15 days of receipt of this decision. The court will consider an application for a sanction that is appropriate and proportionate to any demonstrated prejudice defendant has suffered at the time of trial. In any event, the court finds that the sanction of dismissal of the charges for delayed disclosure of these items would be a draconian one unwarranted by the facts.
The court finds that the People's COC was filed after due diligence in the ADA's gathering and sharing the required discovery and that the SOR was filed in good faith based thereon. The court finds the COC valid and the SOR proper to toll the CPL § 30.30 period as of its filing on January 4, 2023, the 73rd day after defendant's arraignment. Defendant's motion to dismiss on speedy trial grounds for an invalid COC is denied. Defendant's motion for an Allard hearing on the denial of the speedy trial motion is denied, as the court finds sufficient documentary evidence on which to base its decision.
Suppression and Other Motions
The court finds that defendant has alleged sufficient facts to warrant a pre-trial hearing on the issues of the voluntariness of his statements (Huntley/Dunaway); and whether there was a suggestive, police-arranged identification procedure requiring suppression of the identification (Wade/Crews). The Court also grants a pre-trial hearing to determine the admissibility of any of Defendant's prior convictions or bad acts. (Sandoval/Ventimiglia/Molineux). Defendant's application to file a memorandum of law or other additional motions is denied subject to CPL § 255.20  for leave to file upon good cause shown.
The court finds the People exercised due diligence in their discovery compliance. The COC and SOR were timely filed in good faith. Defendant's motion to dismiss is denied in its entirety. Defendant's suppression motions are granted only to the extent that pre-trial hearings are ordered pursuant to Huntley/Dunaway/Wade/Crews, and Sandoval/Ventimiglia.
MICHAEL J. HARTOFILIS, J.C.C.
Bronx, New York
March 31, 2023
1. The name "Oliva" here is presumed to be a typographical error meant to be "Ortiz," as Oliva's memo book was earlier shared on January 4, 2023.
2. The court finds that People ex rel. Ferro v Bran, 197 AD3d 787 [2d Dep't 2021] is distinguishable on several grounds. First, it addresses a habeas corpus petition and the parameters for a defendant's release from custody, not the People's readiness for trial. Second, it spurns the due diligence and good faith analysis which CPL § 245.50 requires courts to undertake. Third, it neglects to acknowledge the remedial nature of the statute and the additional time frames prescribed by the legislature. Finally, it misstates the People's obligations as having to "actually produce" discoverable material although CPL § 245.10  clearly states that the People "shall disclose" material to defendants, from which a different inference can be drawn.
Michael J. Hartofilis, J.
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Docket No: Docket No. CR-018912-22BX
Decided: March 31, 2023
Court: Criminal Court, City of New York.
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