DECISION AND ORDER Miguel Nieves, hereinafter “defendant,” is charged by information with reckless endangerment in the second degree, a class A misdemeanor (PL §120.20); two counts of leaving the scene of an incident without reporting, unclassified misdemeanors (VTL §§600 [1] [a] and [2] [a]); reckless driving, an unclassified misdemeanor (VTL §1212); operating a motor vehicle while under the influence of alcohol, an unclassified misdemeanor (VTL §1192 [3]); and operating a motor vehicle while under the influence of alcohol, a traffic infraction (VTL §1192 [1]). Procedural History Defendant was arraigned on May 22, 2022, and the case was adjourned to June 10, 2022, for conversion and the People’s Certificate of Compliance (“COC”). On June 10, 2022, the matter was again adjourned for conversion and COC to July 8, 2022. On July 8, 2022, the complaint was deemed an information, as the People filed a supporting deposition off-calendar on May 25, 2022. The case was adjourned to August 24, 2022, for the People to file a COC. On August 12, 2022, the People filed and served a COC and Notice of Readiness (“NOR”). On August 24, 2022, the People answered ready. The parties were ordered to confer with respect to discovery and file a joint letter to the court indicating any discovery disputes which could not be resolved. The People filed a Supplemental COC on August 30, 2022. A joint letter was filed on September 16, 2022, wherein defendant moved this Court to deem the People’s COC invalid. On September 20, 2022, a discovery compliance conference was held, and the Court heard oral argument on defendant’s COC challenges. Discussion The defendant contends that the People’s COC is invalid for failure to disclose the following discoverable items: body-worn camera footage for two officers; the names and contact information of persons interviewed by the police on the scene of the alleged incident; toxicology reports; and the name and contact information for the toxicologist whom the People intend to call as a witness. In response, the People assert that they made diligent, good faith efforts to acquire the missing discovery, much of which was subsequently disclosed. Elaborating further on their efforts, the People indicate that they learned of outstanding body-worn camera footage after filing their COC and immediately took action to locate the missing footage. Information regarding the additional officers was provided by the arresting officer and the missing footage was ultimately turned over on August 30, 2022. With respect to withholding the names of those with pertinent information, the People respond that under CPL §245.20 (c), they are required only to disclose contact information for individuals whom the People plan to call as witnesses at trial. The People concede that officers spoke with individuals present at the scene of the alleged incident. The People not only argue that the names and contact information need not be disclosed prior to certifying compliance but further, as instructed by their own supervisors, assert that they are not bound to reveal this information to the defendant at all and did so eventually only in an exercise of good will. Lastly, during the discovery compliance conference, the People indicated that they had not yet received the blood test results or the litigation packet that is created after toxicology testing is completed. They do not believe that either was required to certify compliance but, upon receipt of said documents in October, the People disclosed them to the defendant. This Court begins and ends with the simplest and most compelling objection raised by the defense — the withholding of witness names and contact information. Names and Contact Information for Persons with Relevant Information To meet their discovery obligations, the People “shall” disclose “ 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.” (CPL §245.20 [1] [c], emphasis added.) The People somehow interpret this language as requiring that they “only have to turn over contact information for those whom we [the People] plan to call as witnesses.” (Discovery Compliance Conference, Transcript, p. 14-15) In this Court’s estimation, the People’s position is a near incredible misreading of an unambiguous statute. In all statutory construction, “‘we begin our analysis with the language of the statute’ because our primary consideration is to ascertain the legislature’s intent, of which ‘the text itself is generally the best evidence’” (People v. Francis, 30 NY3d 737, 740 [2018] citing Beck Chevrolet Co., Inc. v. General Motors LLC, 27 NY3d 379, 389-390 [2016] and People v. Ballman, 15 NY3d 68, 72 [2010]). “[T]he text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning’” (Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012], quoting Matter of DaimlerChrysler Corp., 7 NY3d at 660). CPL §245.20 (1) (c) mandates disclosure of the names and contact information of “all persons…whom the prosecutor knows to have information…including a designation…as to which of those persons may be called as witnesses.” The word “including” is a preposition connecting the initial phrase of the sentence to the final phrase. It serves to emphasize a subsidiary duty of the prosecutor’s greater obligation under the provision — when providing the names and contact information of all persons whom the prosecutor knows to have relevant information, the prosecutor must further specify which of these individuals will be called as witnesses. The statute in no way restricts disclosure to those whom the People select to prove their case in chief. To interpret the word “including” as a limiting term defies basic rules of English grammar, contradicts the core spirit of the statute, and potentially jeopardizes important evidence. The legislature was clear that the People are not gatekeepers of witness contact information. If such information exists, it must be automatically disclosed unless it falls into one of the enumerated exceptions (CPL §245.20 [1] [c]). In this instance, the People admit that the prosecution was in possession of witness names and contact information when filing the COC: “there were multiple officers who spoke to different witnesses and got contact information from those witnesses who described what they saw” (Discovery Conference Transcript, p.9). The People failed to make the names and contact information for these witnesses available to the defendant as mandated by CPL §245.20 (c). The validity of the People’s COC rests on whether they discharged their obligations under CPL §245.20, which are two-fold. The People are mandated to actually disclose everything that is in their possession, including everything held by law enforcement agencies and make a diligent, good faith effort to verify the existence of and make available all discoverable material outside of the People’s possession, custody or control (CPL §245.20 [1] and [2]). To the extent the People rely upon the “good faith, due diligence” standard of CPL §245.20 (2) to excuse the non-disclosure of all discoverable material, that reliance is misplaced, as that standard applies only to those materials outside of the People’s actual and constructive possession. Once the People are sure that they have complied with the mandates of CPL §245.20, then they must file a COC which should be filed and served in accordance with the timeframes set forth in CPL §245.10. Should exceptional circumstances warrant a continuance, the People may make an application for the same (CPL §30.30 [4]). This process is outlined in CPL §245.50: When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance 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. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article. (Emphasis added.) In this case, the People certified compliance while withholding information in their possession, specifically the names and contact information for individuals the prosecution described as “witnesses” (Discovery Compliance Conference, Transcript p.9). The People nonetheless argue that their COC should be deemed valid because they acted in “good faith.” Determining what constitutes “good faith,” like what is “reasonable under the circumstances,” requires an individualized analysis. “Good faith” is not the functional equivalent of “best intentions.” The People must do more than simply mean well and, when in doubt, the statute’s presumption of disclosure controls, especially when the discoverable information is in the People’s actual possession. (See William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Criminal Procedure Law §245.10, ["…the prosecutor's obligations to provide discovery under the current statutes 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.…If 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.”]; People v. Payne, 75 Misc.3d 1224(A) [Crim Ct, Bronx County 2022], ["If the People have material that relates to the case, their obligation is simply to disclose it, unless they can cite specific limited statutory exceptions or claim that it is work product.]) Here, the People withheld discoverable information, asserting an illogical interpretation of clear language. The People offer no additional authority for their untenable position which stands in stark contradiction to the statute and what is well known about the importance of timely investigating eyewitness accounts. Relying on unsupported and rather senseless interpretations of law is not reasonable, cannot serve to abdicate the People’s disclosure obligations and certainly cannot support an alleged good faith basis for believing that the People’s discovery duties were properly discharged. The prosecutor’s obligations as articulated in CPL §245.20 call for care and precision. They ensure that the prosecutor has conducted the type of thorough investigation required when public safety and individual liberty interests are at stake. They also endeavor to guarantee that a defendant’s attorney is equipped with the information needed to properly investigate allegations, counsel defendants in plea bargaining, mount a trial defense and otherwise provide the quality of meaningful representation mandated by fundamental federal and state law. (See Sponsor’s Memo S-1716/A-1431 [Bailey/Lentol] [2018-2019 Session], Justification, indicating the intent of drafting legislators of 2020 Discovery Reform; U.S. Const., 6th Amend; N.Y. Const., art. I, §6; People v. Benevento, 91 NY2d 708 [1998]; Strickland v. Washington, 466 US 368 [1984].) This process relies upon full and fair participation of the prosecutor, a minister of justice and not merely an advocate.1 Statutory mandates aside, the People do not need this Court’s instruction to know and understand that what seems like irrelevant material to a prosecutor may be an important component of a viable defense. This is especially true for witness contact information, regardless of the prosecutor’s individual assessment of that information. Witnesses move and memories fade. Timely disclosure of witness information is essential in all cases and can perhaps mean the difference between taking a plea or putting the People to their burden. Although not necessarily the instance here, in the history of our courts, well-intentioned prosecutors have made significant errors in failing to disclose witness information deemed irrelevant, inapplicable or unreliable. The People need look no further than the exonerated case files of their conviction integrity unit for proof of the same. It is fortunate that the People ultimately disclosed the witness information, but it will not serve to retroactively save a defective certification of compliance.2 In light of the foregoing, the People’s COC dated August 12, 2022, is not valid. The Court need not reach defendant’s remaining arguments. The foregoing constitutes the opinion, decision, and order of the Court. Dated: December 5, 2022
