People v. Amir

Article 245 of the Criminal Procedure Law imposes a clear mandate on the People. Before stating ready for trial, the People must disclose “all” items and information in their actual or constructive possession that “relate to the subject matter of the case.” (C.P.L. §§245.20[1], 245.50[3], 245.50[1]). This mandate “virtually constitute[s] ‘open file’ discovery, or at least make[s] ‘open file’ discovery the far better course of action to assure compliance.” (Hon. William C. Donnino, Practice Commentaries, C.P.L. §245.10). “If something is in the prosecutor’s file (or that of the police investigating agency)…it should invariably ‘relate to the subject matter of the case’ and will need to be disclosed.” (People v. Lustig, 68 Misc 3d 234, 239-40 [Sup. Ct., Queens County 2020]). Nonetheless, the People here argue that they were entitled to withhold all sorts of material that was in their actual or constructive possession. The People did not disclose several police reports from officers who followed up with the complainant after the alleged incident. The People did not disclose a police database document about the complainant that investigating officers relied upon and referenced in other reports in this case. The People did nothing regarding prior misconduct records about the officers involved in this case. And the People did not disclose body-worn camera video from this case in a way that allowed the defense to download the files. The People justify failing to disclose these materials with various “expression[s] of policy and desire, rather than anything related to the facts of this case.” (People v. Darren, 75 Misc 3d 1208[A], at *6 [Crim. Ct., NY County 2022]). But these categories of information were plainly related to the case and therefore discoverable. As a result, the People’s failure to disclose these materials before purporting to “certify” discovery “compliance” did not support a valid statement of trial readiness. Because the People did not validly state ready within the speedy-trial period, the Court must GRANT the defense’s C.P.L. §30.30 motion to dismiss.¹ I. The reach of automatic discovery under Article 245 Article 245 of the Criminal Procedure Law requires that the People “actually produce[]” automatic discovery to the defense. (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]; C.P.L. §§245.20[1], 245.20[2]). Actual production requires that the People produce discovery in such a way that “permit[s] the defendant to discover, inspect, copy, photograph and test” it. (C.P.L. §245.20[1]). Automatic discovery covers “all items and information” that “relate to the subject matter of the case” in the People’s actual or constructive possession. (C.P.L. §245.20[1]). The People’s constructive possession includes discoverable material that is in the possession of police. (C.P.L. §245.20[2]). It also includes favorable information that is “known to police.” (C.P.L. §245.20[1][k]). To “ensure” that the People’s constructive possession “becomes true in fact,” Article 245 requires that the prosecutor “‘endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office.’” (People v. Edwards, 74 Misc 3d 433, 441-42 [Crim. Ct., NY County 2021] [Weiner, J.] [quoting C.P.L. §245.55[1]]). For the same purpose, the statute also mandates that, “upon request by the prosecution,” the police “shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article.” (C.P.L. §245.55[2]). Under Article 245, the People’s “obligations to provide discovery” are “so broad” as to “virtually constitute ‘open file’ discovery, or at least make ‘open file’ discovery the far better course of action to assure compliance.” (Hon. William C. Donnino, Practice Commentaries, C.P.L. §245.10). Indeed, the “opening language” of the statute “itself points towards an ‘open file’ discovery policy.” (Id.). It requires the People to disclose “all” items and information in their possession that “relate to the subject matter of the case,” “including but not limited to” a detailed list of items. (Id.). Because of that expansive language, the detailed list “does not define the limits of the material that must be disclosed.” (Id.). Therefore, “[i]f something is in the prosecutor’s file (or that of the police investigating agency) that does not fall within one of the defined items of disclosure, but is information that ‘relate[s] to the subject matter of the case,’ it will need to be disclosed,” unless it is work-product or subject to a protective order. (Id.; see also C.P.L. §245.20[7] [establishing a statutory presumption favoring disclosure]; People v. Lustig, 68 Misc 3d 234, 239 [Sup. Ct., Queens County 2020] ["[T]he Court is disinclined to hold that materials in a police investigative file are not related ‘to the subject matter of the case’ simply because, in the People’s estimation, they appear to be of minimal value.”]; People v. Payne, 75 Misc 3d 1224[A], at *3 [Crim. Ct., Bronx County 2022] ["The Court strains to imagine a situation where material contained within records in the People's case file would somehow not 'relate' to the case."]). II. The People’s failures to disclose The defense alleges that the People failed to disclose various materials from their actual or constructive possession before filing their purported certificate of discovery compliance. This material includes police reports, police misconduct records, and body-worn camera video.² The Court takes each category in turn. A. Police reports The defense alleges that when the People filed their COC on April 28, 2022, the People had not disclosed a variety of police reports related to this case. (Def. Mot. at 7, 13; Def. Mot. Ex. A). These included multiple “DD5s,” (id.), which are “formal write-up[s] of investigative work done by police in a criminal case.”³ “These DD5s included notes about law enforcement interviews of the complainant.” (Id.). They included the fact that the police made a “Safe Horizon referral” for the complainant. (Id.). And they included a “DAS Summary of the complainant,” which the police relied upon during their investigation in this case. (Id.). The “DAS Summary” refers to a report from the NYPD’s “Domain Awareness System” (“DAS”). The DAS is “one of the world’s largest” surveillance systems and maintains reports on individual people in New York City.⁴ The NYPD describes it as including “networks of cameras, license plate readers, and radiological censors [sic],” as well as data from other “NYPD databases,” “911 data,” and “past history of call locations.”⁵ It also includes a person’s arrests, their prior complaints to the NYPD, and whether those complaints resulted in arrests. (See Pr. Resp. at 6; Lustig, 68 Misc 3d at 29).⁶ And it includes information about “emotionally disturbed persons history.”⁷ The defense has submitted an NYPD “Index Sheet” that states that a notification was sent to the People on April 22, 2022 — one week before their COC — regarding these reports. (Def. Mot. Ex. A). The People make two responses to the defense’s arguments. First, they argue that these DD5s are not discoverable because “wellness checks done by DVO officers, post arrest” have “no relation to the subject matter of the case.” (Pr. Resp. at 5). They also argue that the “DAS report” is “not discoverable” because it is made “after the incident and arrest,” is “not relevant to the subject matter of the crime,” and their obligation to turn over impeachment material includes “convictions, not arrests.” (Id. at 6). Second, despite the Index Sheet reporting otherwise, they claim the NYPD did not give them these reports prior to their April 28, 2022, certificate of discovery compliance. (Id. at 5-6). They assert that the Bronx District Attorney’s Office does not “receive notifications through [its] system regarding these DD5 reports,” and so the People “are not informed automatically about DVO updates.” (Id. at 6). They note that the “Bronx DA and the NYPD are separate offices” and “[a]lthough [they] are able to request DVO visits,” those reports are “solely the product of the NYPD, not the District Attorney.” (Id.). “[T]he only way to know if there are new documents and if we have received them,” they explain, “is to go into each case and check if new documents have been added.” (Id.). On all points, the Court rejects the People’s arguments. First, the Court rejects the People’s argument that they can fail to disclose DD5s from this case under their unilateral determination that they are somehow not related to the case. As an initial matter, the People’s opinion that these reports are “not related” to the case is plainly wrong. The People are explicitly required to disclose “all police reports” related to the case. (C.P.L. §245.20[1][e]). The ordinary, commonly accepted, and plain dictionary definition of “relate” means “to have a relationship or connection.” (Relate, Merriam-Webster Dictionary [2022]). If domestic-violence officers visit a domestic-violence complainant after an alleged domestic-violence incident, that is clearly related to the domestic-violence case. The People’s argument that NYPD reports made “after the incident and arrest” are not related to the case creates an exception without basis in statute or common practice. (See Pr. Resp. at 6). Police often continue investigating a criminal matter after the incident and arrest, and the information they learn during those later efforts is no less discoverable than any earlier investigative work. (See Matter of M.R., 67 Misc 3d 385, 388 [Fam. Ct., Bronx County 2020] [noting that "[a]ll NYPD reports, including Domestic Incident Reports, DVO DV Home Visit, DV closing, DV arrest, and Arrest and Complaint Reports” would all fall under the sealing statute as related to a sealed criminal case]). Unsurprisingly, the DD5s in this case that the People failed to disclose before filing their COC, in fact, explicitly relate to the case.⁸ For instance, one such DD5 describes a police interview with the complainant on April 14, 2022, two weeks before the People filed their COC. (See Def. Mot. Ex. A). That interview included whether the complainant had “seen or heard” from Mr. Amir, whether Mr. Amir has “access to firearms,” and that police would “refer[]” the complainant to Safe Horizon, a victim-assistance organization.⁹ (See id.; see also Giglio v. United States, 405 U.S. 150 [1972] [information favorable to the defense includes benefits offered to witnesses by the state]; C.P.L. §245.20[1][k] [requiring disclosure of information favorable to the defense]). Moreover, the Court rejects the People’s arguments that the DAS report for the complainant is not discoverable. As an initial matter, the DD5s convey that the police relied upon the DAS report in their investigation. (See Def. Mot. Ex. A). The defense is entitled to the same documents that the police relied upon in their investigation, as the police’s investigation is plainly related to the case. Additionally, however, the People also have a duty to turn over information favorable to the defense, including information that would “impeach the credibility of a testifying prosecution witness.” (E.g., C.P.L. §245.20[1][k]). It is not true that this mandate is limited to evidence of “convictions.” (See Pr. Resp. at 6). It is fundamental that “prosecution witnesses…may be cross-examined on prior specific criminal, vicious or immoral conduct” that “logically and reasonably” bears on credibility. (People v. Smith, 27 NY3d 652, 660 [2016] [internal quotation marks omitted]). The defense could properly examine a testifying witness about “prior bad acts” underlying an arrest that were never “proved at trial,” (see id.), so long as the case was not resolved favorably for the witness on the merits, (e.g., People v. Francis, 112 AD2d 167, 168 [2d Dep't 1985]). Additionally, given the breadth of the Domain Awareness System, a DAS report may include all sorts of other information bearing on credibility, like a person’s drug use, emotional disturbances, or unsubstantiated complaints to the police. As a result, the DAS report could easily breathe life into cross-examination, the constitutionally mandated method for “testing” a witness’s “reliability.” (Crawford v. Washington, 541 U.S. 36, 61 [2004]). The People cannot categorically refuse to disclose it. In sum, the discovery statute leaves no room for the People to pick and choose which documents in their case file, or the police’s case file, to disclose. Our criminal legal system is not an inquisitorial one. The People do not unilaterally determine that a person is guilty. The People do not choose what the accused’s defense will be. And the People may not decide that “materials in a police investigative file” are “not related ‘to the subject matter of the case’ simply because, in the People’s estimation, they appear to be of minimal value.” (People v. Lustig, 68 Misc 3d 234, 239 [Sup. Ct., Queens County 2020]; see also id. ["If something is in the prosecutor's file (or that of the police investigating agency)…it should invariably 'relate to the subject matter of the case' and will need to be disclosed."]; People v. Payne, 75 Misc 3d 1224[A], at *3 [Crim. Ct., Bronx County 2022] ["The Court strains to imagine a situation where material contained within records in the People's case file would somehow not 'relate' to the case."]; People v. Francis, 75 Misc 3d 1224[A], at *4 [Crim. Ct., Bronx County 2022] ["The People conflate [their estimation of] whether an item is ‘relevant to the charges’ with the discovery standard of whether an item ‘relate[s] to the subject matter of the case.’”]). Second, putting aside the defense’s evidence that the police turned over these reports to the People on April 22, 2022, the Court rejects the People’s arguments that it did not have to disclose them simply because they were with the police and not the district attorney. The discovery statute “deem[s]” “ all items and information related to the prosecution of a charge in the possession of any New York state or local police” as “in the possession of the prosecution.” (C.P.L. §245.20[2]). It also mandates that the People “shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and [their] office.” (C.P.L. §245.55[1]). And to make that efficient, the statute also requires that, “upon request by the prosecution,” the police “shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article.” (C.P.L. §245.55[2]). In other words, to get the police’s file for a case, by law, all the People must do is ask. Under this framework, it is woefully insufficient for the People to simply hope that they “automatically” receive notifications through their “system” every time the police conduct further investigation into a case. (See Pr. Resp. at 5-6). It is not of legal significance that the “Bronx DA and the NYPD are separate offices” or that police reports are “the product of the NYPD, not the District Attorney.” (Compare Pr. Resp. at 6, with C.P.L. §245.20[1][e] [requiring disclosure of "all police reports"]; see also C.P.L. §245.20[2] [deeming documents in the possession of the police as in the possession of the People]). Before certifying discovery compliance, the People must do what they claim in this case to be too much. They must “go into [the] case and check if new documents have been added.” (See Pr. Resp. at 6). Frankly, that is the minimum that the statute requires. B. Police misconduct record The Court next rejects the People’s absolute position that prior misconduct by officers involved in this case cannot, categorically, be discoverable, simply because they are not calling those officers to testify. The People note that the discovery statute requires that they turn over favorable information that would “impeach the credibility of a testifying prosecution witness.” (Pr. Resp. at 7; C.P.L. §245.20[1][k][iv]). They note that an officer’s prior misconduct could be favorable for impeaching that officer’s testimony as a prosecution witness. (See Pr. Resp. at 7). From that, however, they conclude that an officer’s prior misconduct could only be favorable for impeaching that officer’s testimony as a prosecution witness. (Id.). The People’s argument is not valid. The People are required to disclose “all” favorable information. (C.P.L. §245.20[1][k] [emphasis added]). One reason an officer’s prior misconduct could be favorable is for “impeach[ing] the credibility of a testifying prosecution witness.” But that does not mean that is the only reason such records could be favorable — they could, separately, “negate the defendant’s guilt” or “support a potential defense.” The categories of favorable information are not all mutually exclusive. (See People v. Figueroa, 2022 NY Slip Op. 22278, at *4-*5 [Crim. Ct., Bronx County 2022] ["[T]his form of Giglio is a subset of Brady.”]). Hypothetical examples may illustrate the point. Under the People’s theory, if an officer has a history of coaching witnesses to lie, that history would be unrelated to the case unless they call that officer to testify. But that would be wrong. A history of coaching witnesses would, at the very least, be a worthwhile source of investigation. Such information would clearly tend to negate the charged person’s guilt and support a potential defense. It would tend to undermine the integrity of the investigation that “led to [the instant] arrest[],” regardless of whether the People call the officer to testify. (United States v. Jackson, 345 F.3d 59, 73 [2d Cir. 2003]; see Kyles v. Whitley, 514 U.S. 419, 442 n.18 [1995] [recognizing that a non-testifying informant's suspected role in unrelated crimes could be favorable to the defense as a "reason for [him] to ingratiate himself with” and lie to the police]; see also Eric Gonzalez, Reckoning with Wrongful Convictions Lessons Learned from an Examination of 25 Wrongful Convictions in Brooklyn, 35 Crim. Just. 4 [2021] ["In two cases, the [Conviction Review Unit] concluded that the police likely engaged in misconduct by coaching the witness.”]). Disciplinary information about non-testifying officers could also be favorable at trial itself. Such was the case in Longus v. United States, 52 A.3d 836, 849-54 [D.C. Ct. App. 2012]. There, the D.C. Court of Appeals found error where a trial court refused to allow the defense to call and fully question an officer involved in the case, whom the prosecution did not call as their own witness, about the officer’s “alleged witness coaching” in a separate case. (Id.). In another case, Smith v. United States, the trial court wrongly prohibited the accused from cross-examining a detective about allegedly coaching witnesses in another case. (26 A.3d 248, 260-63 [D.C. Ct. App. 2011]). That was error. (Id.). In that case, as well, the prosecution did not call the detective to testify, but the fact that she was alleged to have coached witnesses in another case was nonetheless favorable. (Id.). To be sure, prior misconduct by non-testifying officers could be of varying materiality. But the discovery statute “abandons the requirement that only ‘materially’ exculpatory information need be disclosed.” (NY State Assembly, Memorandum in Support of Legislation, A4360A). New York’s ethical rules do the same. (NY R. Prof. Conduct §3.8; see also NYC Bar Ass’n, Comm. on Professional Ethics, Formal Opinion 2016-3: Prosecutors’ Ethical Obligations to Disclose Information Favorable to the Defense [2016] ["Rule 3.8 on its face is not subject to the same materiality limitation [as Brady/Giglio."]]). Here the People have categorically refused to do anything regarding files about these officers’ prior misconduct. The People have not even “stated that they examined [the officers'] personnel and disciplinary and files.” (People v. Altug, 70 Misc 3d 1218[A], at *3 [Crim. Ct., NY County 2021] [Weiner, J.]). “[T]he People’s failure to state that they have actually examined the [officers'] disciplinary file[s] means that…[their] certificates of compliance are therefore invalid, and consequently, so is their statement of readiness.” (Id.). C. Body-worn camera video On April 28, 2022, the People shared body-camera video with the defense but did not give the defense the ability to download the video. (Pr. Resp. at 2). The People did this because they “do not give defense counsel the ability to download BWC as it is not required nor our policy to do so.” (Pr. Resp. at 2). “After speaking with a supervisor,” the assigned prosecutor changed their mind, and allowed the defense to download the video on June 7, 2022. (Pr. Resp. at 2). This was over one month after filing their COC. The Court concludes that the People’s “policy” violated their discovery obligations and rendered their April 28, 2022, certificate of compliance improper. Criminal Procedure Law §245.20[1] requires that the People “disclose” automatic discovery “and permit” the defense to “copy, photograph and test” the items. In other words, simply allowing the defense to view a discoverable file does not fulfill the statute — the People must also grant the defense sufficient control over the file to “copy, photograph and test” it. Here, by the People’s own admission, they did not provide the defense with the ability to download the files on April 28, 2022. (Cf. People v. Alvia, 2022 NY Slip Op. 22233, at *2-*3 [Crim. Ct., Bronx County 2022] [where neither party explained the difference in the Axon body-camera permissions of "view" and "download"]). As a result, the People did not meet their statutory obligations when they filed their COC. Because the COC “could not be deemed complete” for speedy-trial purposes until the body-worn camera video was “actually produced to the defendant,” it could not support a valid statement of readiness. (See Ferro, 197 AD3d at 788). III. The C.P.L. §30.30 calculation Under Article 245, “a prosecutor who fails to engage in ‘open file’ discovery (except for ‘work product’ and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution.” (Hon. William C. Donnino, Practice Commentaries, C.P.L. §245.10). That is because, absent “special circumstances,” a “proper” certificate of discovery compliance is necessary to stop the speedy-trial clock. (C.P.L. §245.50[3]). The statute defines a “proper” certificate of compliance in “subdivision one” of C.P.L. §245.50. (Id.). Subdivision one, in turn, defines a certificate of compliance as one that is filed ” [w]hen the prosecution has provided the discovery required by subdivision one of section 245.20,” except for materials that are lost, destroyed, or under a protective order. (C.P.L. §245.50[1] [emphasis added]). Indeed, that is also what the statute directs the People to do in their certificate of compliance. They must certify that they have complied — that “the prosecutor has disclosed and made available all known material and information subject to discovery.” (Id. [emphases added]; see also Ferro, 197 AD3d at 787-88 [a COC "[can]not be deemed complete” for speedy-trial purposes until discovery is “actually produced” to the defense]). The People’s reliance on the adverse-consequence clause is misplaced — that clause has no application to trial readiness determinations. (See People v. Vargas, 171 N.Y.S.3d 877, 880-81 [Crim. Ct., Bronx County 2022]; People v. Darren, 75 Misc 3d 1208[A], at *6 [Crim. Ct., NY County 2022]; People v. Aquino, 72 Misc 3d 518, 526-27 [Crim. Ct., Kings County 2021]; People v. Quinlan, 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021]). Indeed, earlier this year, the Legislature rejected an amendment to the adverse-consequence clause that would have applied it to trial readiness. (See People v. Carrillo, 75 Misc 3d 1227[A], at *3 [Crim. Ct., Bronx County 2022]; see also Amer. Airlines Inc. v. State Comm. for Human Rights, 29 AD2d 178, 181 [1st Dep't 1968] ["In addition, the rejection of the Legislature of the amendments…sought by the Commission…is significant circumstance against the construction sought by [them].”]). The People’s arguments about C.P.L. §245.80 sanctions are also incorrect. Trial readiness determinations are “not a sanction” pursuant to C.P.L. §245.80. (People v. Martinez, 75 Misc 3d 1212[A], at *6 [Crim. Ct., NY County 2022]; People v. Darren, 75 Misc 3d 1208[A], at *5 [Crim. Ct., NY County 2022] [same]). Where the People do not comply with their automatic discovery obligations, they do not do what is necessary to stop the speedy-trial clock. “Prejudice,” which is a consideration for C.P.L. §245.80 sanctions, is “not a factor” in a C.P.L. §30.30 analysis. (People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct. Kings County 2020]). “[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.” (Id.). “Therefore, while a defendant must show some prejudice in order to obtain a [pre-30.30] 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.”]). The only way that the People may state ready for trial on an improper COC is if a court finds special circumstances. (C.P.L. §245.50[3]). There are no such special circumstances here. The People’s incorrect policy determinations and office failure to download reports from the NYPD do not constitute special circumstances. (See People v. Guzman, 75 Misc 3d 132[A], at *3-*4 [Sup. Ct., App. Term, 2d Dep't 2022]). The C.P.L. §30.30 calculation commenced at arraignments on February 10, 2022. As explained above, the People’s April 28, 2022, statement of readiness was not preceded by a proper certificate of discovery compliance. (See C.P.L. §245.50[3]). Therefore, it was illusory. Time continued to accrue until the defense requested this motion schedule on May 18, 2022. (C.P.L. §30.30[4][a]). That is 97 days, more than the maximum time allotted by law. (See C.P.L. §30.30[1][b]). Therefore, the defense’s motion to dismiss must be GRANTED. The defense’s remaining motions and arguments are moot. The foregoing constitutes the decision and order of the Court. Dated: September 13, 2022