Recitation of the papers considered: Defendant’s n/m, aff. Marissa Balonon-Rosen, Esq., dated August 26, 2022 People’s aff. in opposition, aff. Marline Paul, Esq., dated September 23, 2022 Reply aff. Marissa Balonon-Rosen, Esq., dated October 27, 2022 Joint letter to Court, dated August 2, 2022, Marissa Balonon-Rosen, Esq. and ADA Marline Paul Court minutes dated August 2, 2022, for a discovery compliance conference Additional documents: Court File AMENDED DECISION AND ORDER1 Walmer Paulino Taveras, hereinafter “defendant,” is charged by information with one count of operating a motor vehicle while under the influence of alcohol or drug (Vehicle and Traffic Law §1192 [3]), an unclassified misdemeanor, and one count of operating a motor vehicle while under the influence of alcohol or drug (Vehicle and Traffic Law §1192 [1]), a traffic infraction. By motion dated August 26, 2022, the defendant moves inter alia to dismiss the instant matter pursuant to CPL §30.30, arguing that the People have failed to provide all required discovery in violation of CPL §245.20. For the reasons articulated below, the People’s COC and SOR dated May 11, 2022, are deemed invalid but defendant’s motion to dismiss is denied. Relevant Facts and Procedural History The People allege that on February 28, 2022, the defendant was observed driving at a high rate of speed and drifting in and out of lanes. NYPD Highway Officer Dmitriy Lyubchenko, listed in the People’s Automatic Disclosure Form (“ADF”) as their sole testifying witness, indicated that he observed the defendant to have an “odor of an alcoholic beverage” emanating from his breath, bloodshot watery eyes, and was swaying. In response to police questioning, the defendant is said to have stated, “I HAD A CORONA. I’M COMING FROM A RESTAURANT WITH MY WIFE.” Chemical analysis indicated a presence .067 of one per centum by weight of alcohol in the defendant’s blood, under the per se intoxication limit indicated by statute. Given the defendant’s limited proficiency in the English language, additional routine physical tests were not conducted. While three NYPD highway officers are listed as witnesses with relevant information, the People later revealed that only two, PO Lyubchenko and PO Johan Hernandez, were actually present. PO Lyubchenko was inadvertently wearing PO Carlos Montoya’s body worn camera. PO Montoya “was not involved in the arrest” at all. (People’s Aff. in Opp, p.7) Defendant was arraigned on March 20, 2022, and the case was adjourned to May 19, 2022, for the People to file and serve a Certificate of Compliance (“COC”). On May 11, 2022, the People filed a COC ADF and Statement of Readiness (“SOR”). On May 20, 2022, the People filed a supplemental COC and SOR. On June 6, the defendant reserved objections to the People’s COCs and the parties were ordered to diligently confer with respect to discovery. On August 2, 2022, an extensive discovery conference was held. The above referenced motion practice followed. Discussion The defendant contends that the People’s COC and SOR are invalid as several items of discovery were not disclosed. These items include underlying documents for allegations of misconduct filed with the NYC Civilian Complaint Review Board (“CCRB”); testimony, court rulings and additional underlying materials in a sealed criminal case in which a Bronx County judge found PO Lyubchenko incredible; Officer Montoya’s memo book; a roll call log; an updated health permit; calibration reports as well as information related to certification, inspection, repair and maintenance of the breath analysis machine. The People counter that their COC is valid as it was filed in good faith and is reasonable under the circumstances. The prosecution contends that it is not required to disclose any underlying impeachment materials; assuming that underlying materials are discoverable, the People maintain they need not acquire CCRB records as they are outside of the People’s custody and control; the People are not required to seek an unsealing order from the court; PO Lyubchenko mistakenly wore Officer Montoya’s body worn camera; and all related roll call logs were disclosed as were all calibration reports. Given all facts adduced and arguments considered, this Court’s analysis is focused primarily on impeachment materials, namely underlying documents related to prior incredible testimony and CCRB complaints (CPL §245.20 [1][k]). CPL §245.20 (1)(k) — Standard CPL §245.20 (1)(k) not only codifies the People’s minimum obligation to disclose information favorable to the defendant under Brady v. Maryland, (373 US 83 [1963]), Giglio v. United States, (405 US 150 [1972]), and their progeny, as well as Rule 3.8(b) of the New York State Rules of Professional Conduct, and the New York State Unified Court System’s Administrative Order of Disclosure (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Criminal Procedure Law §245.10), but goes beyond the constitutional minimum set forth in this jurisprudence. The statute mandates disclosure of “all information” that “tends to…mitigate the defendant’s culpability…support a potential defense…impeach the credibility of a testifying prosecution witness…provide a basis for a motion to suppress evidence” (CPL §245.20 [1][k]). This material must be made available “irrespective” of whether the prosecutor credits the information (CPL §245.20 [1][k]). Furthermore, the statute omits any reference to the complicated analysis of “materiality” required by Brady (People v. McKinney, 71 Misc 3d 1221[A] [Crim Ct, Kings County 2021]; People v. Castellanos, 72 Misc 3d 371 [Sup Ct, Bronx County 2021]).2 CPL §245.20 (1)(k) is direct and to the point: if the material exists and it tends to support one of the enumerated subsections identified in the statute, the prosecution must disclose such information to the defendant, regardless of materiality. The People are required to provide all underlying materials for misconduct allegedly committed by their testifying witnesses. (People v. Rodriguez, 2022 NY Slip Op 22393 [App Term, 1st Dept 2022]; Matter of Jayson C., 200 AD3d 447 [1st Dept 2021]; People v. Polanco-Chavarria, 160 NYS3d 562 [Rockland County Ct 2021]; People v. Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]; People v. Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U] [Nassau Dist Ct 2021]; People v. Perez, 71 Misc 3d 1214[A], 2021 Slip Op 50374[U] [Crim Ct, Bronx County 2021]; Castellanos, 72 Misc 3d 371; People v. Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021]; People v. Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U] [Crim Ct, NY County 2021]; People v. Salters, 72 Misc 3d 1219[A], 2021 NY Slip Op 50800[U] [Nassau Dist Ct 2021]; People v. Portillo, 73 Misc 3d 216 [Sup Ct, Suffolk County 2021]; People v. Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]); People v. Sozoranga-Palacios, 73 Misc 3d 1214 [A], 2021 NY Slip Op 51036[U] [Crim Ct, NY County 2021]; People v. Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021]; People v. Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U] [Crim Ct, Bronx County 2022); People v. Alvia, --NYS3d--, 2022 WL 3023372 [Crim Ct, Bronx County 2022]; see also People ex rel Ferro v. Brann, 197 AD3d 787 [2d Dept 2021]). Impeachment evidence and/or information should not be filtered through the prosecution (see Jayson C., 200 AD3d 447; People v. Cooper, 71 Misc 3d 559 [Erie County 2021]; Castellanos, 72 Misc 3d 371; Portillo, 73 Misc 3d 216). While many of the forecited decisions have ruled that “substantiated” and “unsubstantiated” administrative findings constitute impeachment materials, while “exonerated” findings do not, this Court does not read these rulings to limit discovery only to complaints resulting in “substantiated” and “unsubstantiated” determinations, as the People argue here. Unless specifically restricted by statute, city and state agencies are free to modify their administrative regulations, altering applicable definitions and standards so long as such modifications do not run afoul of the law. Unlike defined standards of proof in formal criminal and civil law proceedings, there is no universal standard which governs the administrative proceedings or internal investigations of different city, county and state law enforcement or ombudsman agencies. Thus, an unsubstantiated finding in Albany County might be an exonerated finding in New York City and vice versa. The CCRB may use the term unsubstantiated today but, later, may substitute that term for another. Limiting discovery to categories which are not governed by standards that are universal across New York State and/or are subject to change when the individual agency deems appropriate could result in potentially arbitrary rulings. This Court also remains persuaded by the more expansive reasoning articulated in Portillo, 73 Misc 3d 216. As such, this Court finds that the underlying documents for the CCRB complaints in question are discoverable as is PO Lyubchenko’s prior incredible testimony. People’s Obligations under CPL §245.20 (2) The People are mandated to disclose discoverable items in their actual and constructive possession, which includes everything held by law enforcement agencies. The statute also imposes a secondary obligation which the People appear to overlook. Prior to certifying compliance, the prosecution must 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 [2], emphasis added). Given that the CCRB and the Unified Court System are outside of the People’s control and are not law enforcement agencies the underlying materials at issue here are not in the People’s actual or constructive possession. The remaining question, then, is whether the People have made the required diligent, good faith effort to verify the existence of and make these materials available to the defendant. This Court finds that the People have not. CCRB Records There are two CCRB files for PO Lyubchencko — #201808789 and #202004591. One file contains two allegations of misconduct and the other contains three allegations of misconduct. Of the five total allegations, PO Lyubchencko was exonerated on one (abuse of authority — seizure of property) while the others (discourtesy word, gun pointed [on two occasions], threat of arrest) resulted in the following CCRB dispositions: complainant uncooperative, victim unidentified, and unfounded. In response to a direct inquiry by this Court regarding what efforts were made to secure the underlying materials for these CCRB complaints prior to certifying compliance, the People indicate: It was the People’s information, from the Discovery Compliance Bureau [hereinafter 'DCU'] that we do not turn over the allegations that have dispositions as mentioned above, but after the discovery conference on August 2nd, Judge Morales noted that the underlying documents are not in the People’s custody or control but ordered the People to make an effort to retrieve them. After said conference, the People sent their Discovery compliance unit a request for these items on August 9th and did not receive anything. The People made a follow up request on September 19th, 2022 for the closed reports. The People have not yet received it but did receive an email from a liaison from the DCU noting that “It is the People’s information that CCRB does not respond to requests. They provide quarterly updates of CCRB histories with closing reports for cases that closed as either substantiated or other misconduct.” (Affirmation in Support of People’s Opposition, p.4) Prior to certifying compliance, it appears that the People made no effort to obtain the underlying documents. Subsequent to this Court inquiry, the People appear to have contacted an internal unit with the exception potentially of one “follow up” request to an unidentified party on September 19, 2022. The prosecution offers no information identifying exactly when or how the CCRB was contacted and by whom. Instead, the People appear to rest on a vague unattributed statement that the CCRB will not respond to requests. Although what constitutes a “diligent, good faith effort” is not specifically defined in CPL §245.20 (2), the People’s failure to demonstrate any attempt to make such documents available prior to certifying compliance falls far short of what can reasonably be described as diligent. Rodriguez, 2022 NY Slip Op 22393. Therefore, this Court finds that the COC is improper. Prior Incredible Testimony PO Lyubchenko was found incredible by the Hon. Linda Poust-Lopez in a Bronx County case identified by case name and docket number. Given the identifying information, it was not clear to this Court or to the assigned assistant, for that matter, that the identified case was sealed. In fact, the People did not disclose that the case was sealed until the defendant raised a COC objection, demanding underlying documents and testimony (People’s Affirm. in Opp., p.6.). In response, the prosecution asserted: The People did not receive and still do not have any transcripts, summaries or writings to provide over to the Defendant. The People reached out to a supervisor in the DCU to inquire as to why the documentation was not included in the Giglio folder provided over to the People, the People were told “You did not receive the XXX3 files because that case is sealed. You should have only received the attached word document with the case information. Defense can seek an unsealing order if they want to.” The case information is what the People provided over to the defense. Here is another example where the People made an effort to try and obtain the material but were unable to do so. (People’s Aff. in Opp., p.6) The prosecution again asserts the bewildering argument that it has satisfied its CPL §245.20 (2) obligations by requesting of itself documents outside of its possession, custody or control. The People go on to summarily note that they are not required to unseal the convictions of testifying witnesses, providing incomplete citations to unpublished cases. Nonetheless, the remaining question for this Court is whether the prosecution, in order to establish the “diligent, good faith effort” required by CPL §245.20 (2), must seek the unsealing of criminal cases in which a testifying witness was found incredible. For the reasons detailed below, it is this Court’s position that the People are required to seek unsealing. Unsealing of prior criminal actions terminated in favor of the accused is governed by the provisions of CPL §160.50, which strictly limits who may apply for unsealing.4 The first step in this Court’s analysis requires determining whether the People are prohibited by statute from seeking unsealing to provide otherwise discoverable materials. Addressing the same issue, regarding exactly the same officer, another Bronx County Court found that the People were legally barred from moving to unseal (People v. Davis, 67 Misc 3d 391 [Crim Ct, Bronx County 2020]). The court in Davis determined that, given binding precedent, there was “no exception that would permit the prosecutor…to access the information and evidence from the sealed case” and “even if the potentially impeaching evidence in the sealed case constituted evidence that must be provided to the defense under the new discovery statute” the People could not fulfill that obligation and could “not be compelled to do that which they are forbidden to do by the statute” (Davis, 67 Misc 3d 391 at 398). As considered by Davis, the Court of Appeals has determined that “the Legislature has limited a court’s authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the singular circumstance delineated in CPL 160.50(1)(d)(i) — where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade, a benefit that an accused may obtain only once.” Matter of Katherine B. v. Cataldo, 5 NY3d 196, 205 (2005); see also People v. Anonymous, 34 NY3d 631 (2020). In Katherine B., defendants, found guilty after trial, challenged the unsealing of their prior criminal records for the trial court’s consideration in determining sentence. The accused were the same individuals both in the past criminal cases and the present proceedings. The prejudicial effect of employing the sealed records in that context clearly contradicted the intendment of the statute, which the Court of Appeals found was to lessen “‘the adverse consequences of unsuccessful criminal prosecutions’” and the “‘detriment to one’s reputation and employment prospects.’” Id., citing Matter of Harper v. Angiolillo, 89 NY2d 761 at 766 and Hynes, 63 AD 2d at 662. This Court, though, is not persuaded that the Court of Appeals’ holding in Katherine B. forecloses a prosecutor from ever seeking unsealing in a criminal proceeding. Instances where the sealed criminal records do not involve the same individual subject to new criminal accusations is different in kind. Similarly distinguishable, are cases where unsealing is sought for reasons other than to support an argument for enhanced sentencing or some other related penalty. This Court draws the same conclusion from the decision in People v. Anonymous. In that case, the Court of Appeals again found reversible error in permitting the unsealing of a prior criminal case for the “noninvestigatory purpose of presenting a sentencing recommendation and determining defendant’s sentence” noting that there was “no analytically meaningful distinction between the respective prosecutors’ intended use of the sealed records in Katherine B” (Anonymous, 34 NY3d 631 at 639, 641). The factual circumstances of defendant’s case here are very different in an “analytically meaningful” way from both Katherine B. and Anonymous, which leads this Court to find that those holdings would not preclude this Court from granting nor forbid the People from seeking an unsealing order. Yet, even assuming arguendo, that the People may not move to unseal under CPL §160.50, this Court’s analysis does not end there. Outside of CPL §160.50, a court may, only by affirmation indicating “‘extraordinary circumstances’, a specific grant of power, or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records” employ its inherent authority over its own files to unseal in the interests of justice (New York State Com’n on Judicial Conduct v. Rubenstein, 23 NY3d 570, 581 (2014) [internal citations omitted; emphasis added); Anonymous, 34 NY3d 631, 644-645; see also Matter of Dondi, 63 NY2d 331, 338 [1984] ["Such discretionary power may be invoked, however, only upon a compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline of an attorney cannot be accomplished"] [emphasis added]; Matter of Hynes v. Karassik, 63 47 NY2d 659 [1979]). In Davis, the court ultimately unsealed the prior record for in camera inspection “‘in service of fairness and justice’” noting extraordinary circumstances (Davis, 67 Misc 3d 391 at 399 citing Hynes, 47 NY2d 659). The findings of this Court on this second avenue for unsealing again respectfully differ from Davis. First, in this Court’s estimation, the facts at hand do not constitute extraordinary circumstances. The People are legally required to disclose all impeachment evidence in their custody, possession or control and to make a diligent, good faith effort to acquire the same from external sources in every case they prosecute. PO Lyubechenko is a Highway Patrol Officer who testifies repeatedly in cases involving motorists throughout Bronx County. As perhaps best identified by the instant decision and that of the court in Davis, this issue repeatedly arises. Although it is not the frequent occurrence that law enforcement officers are deemed incredible by a court, it is not so rare as to constitute an extraordinary circumstance. Next, there is no specific grant of power that has been issued to either party that would provide the basis for the second articulated ground for unsealing under the Court’s inherent authority. Third, and most importantly, the People are the only party to the criminal proceeding with a “legal mandate the nature of which would be impossible to fulfill without unsealing criminal records” (Rubenstein, 23 NY3d 570 at 581). The People have been directed by law to disclose discoverable material. As indicated above, that material includes information that tends to impeach the credibility of the prosecution’s testifying witnesses. In the instance of prior incredible testimony contained in now sealed proceedings, the People’s legal mandate cannot be fulfilled without unsealing the criminal record. This statutory obligation belongs to the People alone and cannot be shifted to the defendant as an unsealing order which relies on the exercise of the Court’s inherent authority is in no way the functional equivalent of the subpoena referenced in CPL §245.20 (2). The Court of Appeals has expressly limited this inherent authority to the specific instances enumerated above. These limits can be reasonably interpreted to exclude a defendant from applying for unsealing of a criminal action related to another individual (see Nassau Cnty. v. Heine, 80 A.2d 640 [2d Dept 1981]). Thus, the People are the only party that can provide the requisite affirmation under that articulated exception. Given that the People not only can apply for unsealing but are, in this Court’s determination, the only party that can provide the requisite affirmation, this Court holds that the prosecution must, in order to make the required diligent, good faith effort mandated by CPL §245.20 (2), move for unsealing of the prior incredible testimony. The People’s failure to do so prior to certifying compliance constitutes an additional ground for this Court’s determination that the People’s initial COC is not valid. The People’s COC dated May 11, 2022 and Supplemental COCs5 are not valid. Given the foregoing, the Court need not reach defendant’s additional arguments. Motion to Dismiss — CPL §§30.30 (5) and 245.50 The People must be ready for trial within ninety days of the commencement of a criminal action if, as here, the most serious offense is the equivalent of an A misdemeanor punishable by a sentence of imprisonment of more than three months (CPL §30.30 [1][b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (People v. Stiles, 70 NY2d 765 [1987]). In determining whether the People have satisfied their obligation to be ready for trial under CPL §30.30, the court must calculate the time between the filing of the first accusatory instrument and the People’s declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which no statutory exclusions apply (People v. Cortes, 80 NY2d 201 [1992]). Additionally, the People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense. Criminal Procedure Law §30.30 (5) provides that, “[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20….” and “absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30…until it has filed a proper certificate …” (CPL §245.50 [3]). In this instance, the People did not move for a continuance, nor did they indicate any set of facts giving rise to “special circumstances” (CPL §245.50 [3]; see also Guzman, 75 Misc 3d 132[A] at 4, “it is well settled that office failure does not amount to special circumstances.”) Defendant was arraigned on March 20, 2022. The case was adjourned to May 19, 2022, for conversion and discovery compliance. On May 11, 2022, the People filed a COC, ADF and NOR. Given this Court’s finding that the COC was not valid and the absence of any special circumstances indicating otherwise, the People’s NOR is likewise invalid. (CPL §§30.30 [5] and 245.50 [3]). The People are charged with 60 days. On May 19, 2022, the physical court file did not contain the documents filed and served by the People on May 11th and it appears that no confirmation of proper filing was made during the appearance. As such, the case was adjourned for a superseding information/possible disposition/arraignment on superseding information/conference on the certificate of compliance. The defendant argues generally that all adjournments to the date of motion practice are chargeable to the People given the invalidity of the prosecution’s COC. The People assert that their COC and NOR were valid and make no representation with respect to specific adjournments. There is no reason for this Court to conclude that this adjournment is excludable under any of the exceptions outlined in CPL §30.30 (4). Thus, the People are charged with 18 days. On June 6, defendant confirmed receipt of discovery, raised initial COC objections and indicated that he required additional time to review the discovery provided three weeks earlier. The parties were ordered to confer pursuant to CPL §245.35 and the case was adjourned to August 2, 2022 for a discovery compliance conference. Given defendant’s request for additional time to review discovery coupled with the Court’s order to diligently confer with respect to initial objections raised, this Court finds this adjournment excludable (CPL §30.30 [4][a]). On August 2, 2022, an extensive compliance conference was held and a motion schedule was set. The matter was adjourned to October 28, 2022 for decision. This adjournment is excludable (CPL §30.30 [4][a]). On October 28, 2022, the Court adjourned the matter to consider Defendant’s affirmation in reply, filed on October 27, 2022. The matter was thereafter adjourned for decision several more times, until January 20, 2023. The period from October 28, 2022, to January 20, 2023, is excludable (CPL §30.30 [4][a]).”. Based on the foregoing, the People are charged with 78 days of delay which is within the statutorily prescribed period set forth in CPL §30.30. Accordingly, Defendant’s motion to dismiss the accusatory instrument pursuant to CPL §§30.30 and 170.30 is DENIED. The People are instructed to make all necessary efforts to acquire the outstanding discovery outside of their possession, custody or control as indicated herein. The People are also instructed to provide the daily roll call from February 27, 2022 as well as any updated calibration and maintenance reports no later than 14 calendar days from the date of this decision. With respect to defendant’s motion to suppress physical evidence and statements to law enforcement officers, Mapp/Dunaway and Huntley/Dunaway hearings are ordered for findings of fact and conclusions of law. Sandoval/Ventimiglia issues are respectfully reserved to the trial court. The foregoing constitutes the opinion, decision, and order of the Court. Dated: February 3, 2023
