DECISION AND ORDER By motion filed January 10, 2023, defendant moves to invalidate the People’s certificate of compliance and to dismiss this case pursuant C.P.L. §30.30(1)(b). Defendant alleges that the People did not file a proper certificate of compliance (“COC”) before stating ready for trial within 90 days of arraignment. Specifically, defendant alleges that the People filed their COC without first disclosing a police witness’s various disciplinary records pursuant to C.P.L. §245.20(1)(k). The People concede that they did not disclose underlying documents concerning the officer’s disciplinary history before filing their COC; nevertheless, they maintain that their COC was proper in an affirmation in opposition filed on January 30, 2023. Defendant, in a reply filed on February 22, 2023, reiterates the argument that the People’s COC is invalid, and that the People have surpassed speedy trial time limitations. After a review of the aforementioned party submissions, the casefile, relevant statutes, and caselaw, defendant’s motion is GRANTED. PROCEDURAL HISTORY Defendant was charged with Assault in the 3rd Degree, and Harassment in the 2nd Degree after allegedly punching a person known to him on September 13, 2022. Defendant was arraigned on a criminal court complaint on September 14, 2022. At his arraignment, the People served notice to defendant that, pursuant to C.P.L. §§710.30(1)(a); 710.30(1)(b), the People intended to use evidence of a statement allegedly made by him against him at his trial, as well as evidence of the identification of defendant by the complaining witness. Both the utterance of the statement, and the identification procedure involved arresting officer Matthew Zotto. After defendant’s arraignment, the case was adjourned to October 24, 2022, for the People to serve and file a supporting deposition and a COC. On October 24, 2022, the prosecution did not file or serve a supporting deposition or a COC, and the case was once again adjourned to December 19, 2022. Prior to the scheduled court hearing of December 19, 2022, on December 13, 2022, the prosecution served and filed, off calendar, a supporting deposition, certain discovery material, a COC, and a statement of readiness. On December 19, 2022, in open court, the defense objected to the People’s COC and statement of readiness, and objected to the court’s imposition of motion schedule, arguing that the case needed to be adjourned for a proper supporting deposition and a valid COC. Over the defendant’s objection, the court adjourned the case for motion practice. Defendant’s motion was due on January 10, 2023, the People’s response was due on January 31st, 2023, and defendant’s reply due on February 15, 2023. After the court’s setting of the motion schedule, on December 27, 2022, the People filed a supplemental certificate of compliance (“SCOC”), indicating that they shared “LEOW, CCRB and underlying material for police officer that the People could call as testifying witnesses at a pretrial hearing or trial including Police office Matthew Zotto.” The People also asserted in its SCOC that the underlying disciplinary material was not under the People’s custody or control, and that only police personnel documents “related to the subject matter of the case” required disclosure. The December 27, 2022 supplemental disclosure listed three misconduct allegations against Officer Matthew Zotto. The first alleged that Officer Zotto failed to respond to a 911 call on August 2, 2019; the second alleged that he failed to activate his body worn camera on October 1, 2022; and the third alleged that he failed to take police action regarding an incident on October 12, 2022. The August 2, 2019 incident was listed as closed, with the “action taken” field labeled “craft entry” and the October 2022 incidents had their status listed as “pending.” The prosecution did not turn over any underlying records related to either of the October 2022 incidents other than the cover sheet indicating the nature of the charges and the notation that they are “pending.” As to the August 2, 2019 entry, the prosecution turned over documents relating to an incident that occurred on July 28, 2019. The records turned over were redacted. The sole document turned over was entitled “Internal Case Management System Worksheet — Internal Affairs Log.” It contained no statements directly from the complainant; and had a police-written summary of a telephone call with a 911 operator and a civilian complainant. The complainant’s name and contact information for the complainant were redacted. The newly provided document indicated that there were two relevant audio recordings related to the incident, but neither recording was disclosed to the defense (the document contains two non-working hyperlinks to the recordings in question) See Defendant’s Aff. In Opp., pg.15-18. No underlying documents relating to the complaint, including any statements relating to the incident by Officer Zotto, were turned over. The document indicated that an “Investigating Supervisor recommends this allegation be closed with a finding of ‘substantiated’ because ‘Officer’s interview and records corroborate with the complainant’s allegation’” but no documents from the investigating supervisor, the officer’s interview, or the corroborating records were disclosed to the defense. There is no indication that these records were the subject of a protective order issued by the court. As to the CCRB paperwork turned over to the defense, it consisted of a document listing five separate complaints related to a single incident that occurred on May 10, 2020 and reported on May 12, 2020. The description of one of the allegations was redacted, as well as its disposition. Of the other four allegations, three were listed as “unsubstantiated,” and a fourth is labeled “Other Possible Misconduct Noted.” There were no underlying or accompanying documents explaining the alleged misconduct; the document contained no factual allegations regarding the complaints in question and did not bear the name or contact information of the complainant. The People do not refute this description of the discovery provided to defendant together with its SCOC dated December 27, 2022. See Defendant’s Aff., Dated 1/10/23, pgs.,15-18. The People indicated, in their SCOC, that it is their position that the underlying disciplinary material are not under their custody or control, and that only police personnel documents “related to the subject matter of the case” must be turned over as part of automatic discovery. The People do not detail the reasons for the delay in the disclosure that they did provide with its SCOC, other than its submission that a computer entry request was made into a database before its December 13, 2022, COC, and a request for the records was registered. See People’s Aff. In Opp., pg. 5. LEGAL DISCUSSION I. Defendant’s Challenge to the Validity of the People’s COC For the People to satisfy its discovery obligations, they must first make good faith and diligent efforts to ascertain the existence of items and information subject to discovery. C.P.L. §§245.50(1), 245.20(2). That includes “all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.” C.P.L. §245.20(1). The “possession, custody or control of the prosecution” includes all such items and information “in the possession of any New York state or local police or law enforcement agency.” C.P.L. §245.20(2). Relevant to the People’s due diligence requirement, the discovery statute mandates that each New York state and local law enforcement agency “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 [Article 245].” See C.P.L. §245.55 [2]. After completing its diligent efforts to ascertain existing discovery material, the People must then actually “disclose[ ]” and make available to the defense “ all known material and information subject to discovery” in their possession, custody, or control. C.P.L. §§245.50(1); 245.20(2); People ex rel. Ferro v. Brann, 197 AD3d 787, 788 (2d Dep’t 2021); see also People v. Spalding, 75 Misc.3d 1219(A) (Bronx Cty. Crim Ct. 2022). Should the People wish to be deemed ready for trial, the People must then file and serve a proper certificate of compliance, truthfully affirming 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 discovery.” C.P.L. §§245.50(1). The People cannot be deemed ready for trial without meeting these requirements, absent an individualized finding of special circumstances, a finding of good cause for discovery omissions, or the issuance of a protective order. C.P.L. §§§30.30(5); 245.50 (3); 245.70 (2). As part of the People’s discovery obligation, C.P.L. §245.20(1)(k) requires the People to disclose all underlying information relating to the misconduct of their police witnesses — mere summaries are not sufficient. See generally, Matter of Jayson C., 200 AD3d 447 (1st Dep’t 2021); see also People v. Polanco-Chavarria, 74 Misc 3d 1210(A), at *4 (Rockland Cty. Cty. Ct. 2021) (analyzing Jayson C.). The plain text of C.P.L. §245.20(1)(k) requires that the People disclose “all evidence and information that tends to impeach the credibility of a testifying prosecution witness…[w]hether or not in tangible form.” “This mandate encompasses the substance of allegations, as well as the tangible files, records, and other materials on which disciplinary findings against the People’s police witnesses are based.” See People v. Spalding, 75 Misc.3d 1219(A), at *2 (Bronx Cty. Crim Ct. 2022). Significantly, C.P.L §245.55 informs the parameters the People’s due diligence when it requires that each New York state and local law enforcement agency “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 [Article 245].” See C.P.L. §245.55 [2]. Since discovery in the “possession, custody or control of the prosecution” includes all such items “in the possession of any New York state or local police or law enforcement agency,” it makes the utmost sense that the prosecution perform diligent efforts to retrieve that which it legally possesses (C.P.L. §245.20[2]); and which the local police must relinquish to the People. See C.P.L. §245.55 [2]; see also People v. Cartegena, 175 N.Y.S. 3d 198, (Bronx Cty. Crim. Ct. 2022). The withholding of this information and documentation which is deemed in the People’s possession, by the People violated their discovery obligations under C.P.L. §245.20(1). The People were acutely aware that Officer Zotto interacted closely with defendant on the day of his arrest. Officer Zotto is listed as deponent on the complaint and was present when defendant allegedly uttered a statement and was identified by the complaining witness. The People’s affirmation in opposition describes Zotto’s request that “the defendant step outside of his apartment to speak with them, when the defendant stepped out into the hallway the Officer’s (sic) placed the defendant in handcuffs. After being placed in handcuffs the defendant began asking ‘what is going on?’” See People’s Aff., Pg. 12. The People further describe officer Zotto’s interaction with defendant, including the exchanging of information concerning the defendant’s familiarity and prior interaction with the complaining witness. See People’s Aff. pg. 15. Clearly, cross examination of Zotto concerning these events and circumstances both at a hearing and a trial would be critical. Material provided which could impeach Zotto’s narrative or cast doubt on his credibility as a witness would be key for the defense in preparing for a hearing and trial, or in considering a possible plea bargain. The People note that they intend to call police officers as their witnesses at a trial, and certainly for hearings. People’s Aff., pg., 11. They affirm that they have disclosed summaries of misconduct, a “LEOW1 letter and CCRB document,” for the officers for whom it exists. Id. at 9. However, they concede, as the defense has alleged, that they have not yet disclosed the underlying documentation or additional information related to two pending incidents, as well as an incident that occurred on May 10, 2022; they also assert that they are not required to disclose information that does not “relate to the subject matter of the case” or “civil cases pending against police officer witnesses.” People’s Aff., 11. Indeed, the people do not deny the defendant’s claim that they have not produced the underlying documentation regarding the NYPD disciplinary records relevant here but argue that the “LEOW letter summary” is sufficient, and that the underlying records do not relate to the subject matter of the case. See People’s Aff., Pg. 11; see also SCOC, EDDS. Considering the facts of this case, the People’s failure to turn over these materials renders their COC invalid. They have not exercised due diligence and turned over all know material and information to the defense, yet they have affirmed that they have. See People v. Androvic, 69 Misc 3d at 574 (N.Y. City Crim. Ct. 2020). Paragraph (k) of C.P.L. §245.20(1) requires disclosure of information that tends to “impeach the credibility of a testifying prosecution witness.” This includes disclosing information regarding police witnesses. With the repeal of Civil Rights Law 50-a on June 12, 2020, the prosecution may no longer withhold police disciplinary records as confidential. This means that the prosecution must ascertain the existence of, and review all police witness disciplinary records for discoverable material as part of its due diligence and fundamental discovery obligation. People v. Herrera, 71 Misc. 3d 1205(A), (Dist. Ct. 2021) (unsubstantiated complaints must be disclosed to defendant). c.f. People v. Herrera, 71 Misc. 3d 1205(A), (Dist. Ct. 2021) (unsubstantiated complaints must be disclosed to defendant). To exempt Zotto’s underlying disciplinary records from disclosure, as the People would have us do here, because they do not “relate to the subject matter of the case,” too narrowly defines impeachment material. This narrow view fails to recognize that, as a general matter, impeachment material relates to the subject matter of the case because it affects witness credibility. Moreover, impeachment material specific to police officers, especially arresting officers, will often relate to witness bias and therefore may be subject to collateral proof at trial, even if the witness denies the conduct (see e.g., Richardson, Evidence (11th ed. Prince), §495). “The plain meaning of ‘all evidence and information that tends to impeach the credibility of a testifying prosecution witness [w]hether or not in tangible form’ encompasses all allegations, as well as the files, records and other materials ‘in tangible form’ on which substantiated disciplinary findings against the People’s officer witness are based” (People v. Soto, 72 Misc. 3d 1153 (N.Y. City Crim. Ct. 2021)). “Records of substantiated charges of failure to follow procedures, dishonesty, or other improper conduct are tangible evidence and information that bear directly on an officer’s credibility as a witness in any case, regardless of what might be the particular crime charged” (People v. Williams, 72 Misc. 3d 1214(A), (N.Y. City Crim. Ct. 2021)). The Legislature intended broad disclosure when it required under C.P.L. 245.55(2) that law enforcement disclose to the prosecutor “a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant” to allow the prosecution to comply with its discovery obligations. Disciplinary records in law enforcement possession that can be used as impeachment material clearly relate to the “prosecution of the defendant” and must be turned over, first to the prosecutor and subsequently to the defendant as part of discovery. In Matter of Jayson C., 200 A.D.3d 447, (1st Dep’t 2021), the First Department held that a mere summary of substantiated allegations is insufficient to comply with C.P.L. §245.20 (1) (k) (iv), “which broadly requires disclosure of all impeachment evidence.” In People v. Rodriguez, 77 Misc.3d 23 (App. Term 2022), the Appellate Term upheld a trial court’s invalidation of the People’s certificate of compliance because “the People failed to provide relevant records to defendant, including underlying impeachment materials pursuant to C.P.L. §245.20(1)(k).” Here, the People here did not exercise the requisite due diligence before filing their COC. C.P.L. §245.50(1) requires that the People exercise due diligence to ascertain the existence of discoverable material; after ascertaining the existence of discoverable material, the People must then make that material available to the defense. The People have failed in both respects. In its opposition papers, the People affirm that they only requested the underlying NYPD Internal Affairs Bureau files on the day that it filed its COC, December 13th, the 90th day of the speedy trial period. The People do not explain why it is justified in filing a COC despite the existence of documents, in their possession per statute, that could impeach the credibility of a testifying prosecution witness. See C.P.L. §245.20(1)(k)(iv). Their bare allegations — establishing a late, sub-optimal effort to ascertain and retrieve discovery material in their constructive possession — do not fulfill the People’s statutory obligation to “ensure that a flow of information is maintained between the police…and [their] office…including, but not limited to, any evidence or information discoverable under [C.P.L. §245.20(1)(k)].” C.P.L. 245.55. Nor did the People apply to a court for an extension of time upon a showing of “special circumstances.” C.P.L. §245.50(3). Nor did they apply to a court for a modification of discovery periods for “good cause.” C.P.L. §245.70(2). And they did not apply to a court for a protective order to prevent disclosure of any materials. C.P.L. §245.70. If the People are aware of outstanding discovery that cannot be disclosed, the discovery statute requires that they make the appropriate application. What they cannot do is file a COC certifying they have turned over all discovery pursuant to C.P.L. §245.20, without performing its due diligence to ascertain and provide outstanding, existing discovery. In sum, the People have not established that they diligently ascertained the existence of discoverable material and disclosed it to the defense. II. The People’s Statement of Readiness is Not Valid Where a COC is invalid and no special circumstances are presented, the statement of readiness is “also invalid.” People v. Guzman, 75 Misc 3d 132(A), at *3 (2d Dep’t, App. Term. 2022); accord Martinez, 75 Misc 3d 1212(A), at *2-*3 (“Trial readiness is contingent on compliance with C.P.L. 245.20″); People v. Perez, 75 Misc 3d 1205(A), at *5 (Bronx Cty. Crim. Ct. 2022) (“Since the COC has been deemed invalid, the People’s statement of readiness…was ineffective to stop the speedy trial clock”); People v. Spalding, 75 Misc. 3d 1219 [A] at 4, (Bronx Cty. Crim. Ct. 2022) (“Criminal Procedure Law requires that the People file a proper COC before validly stating ready for trial.”). III. C.P.L. 30.30 Calculation The defendant is charged with a misdemeanor and a violation. The People must announce ready for trial within ninety days of the commencement of the action, absent a showing of excludable time. “Once a defendant sufficiently alleges that the People were not ready within the statutory period, the People have the burden of showing their entitlement to a statutory exclusion.” People v. Brown, 28 N.Y.3d 392 (2016). On September 14, 2022, the defendant was arraigned in Queens County criminal court and the case was adjourned for a supporting deposition and certificate of compliance until October 24, 2022. A period of 40 days is chargeable to the People. On October 24, 2022, the People were not ready as they did not file or serve a supporting deposition or a certificate of compliance, and the case was once again adjourned for that purpose to December 19, 2022. The prosecution filed a supporting deposition, an amount of discovery, a certificate of compliance, and a statement of readiness on December 13, 2022. As explained in this decision, the People’s COC dated December 13, 2022 was improper. Therefore, the statement of readiness was invalid and did not stop the speedy-trial clock. Accordingly, the entire adjournment from October 24, 2022, to December 19, 2022, a period of 56 days is therefore chargeable to the prosecution. Because the December 13, 2022 COC was invalid, and because this Court also finds that the December 27, 2022 SCOC was also invalid as outstanding discovery was still not provided. See Defendant’s Aff., pg.15. A period of 96 days is chargeable to the People. This amount exceeds the People’s 90-day speedy trial period. C.P.L. §30.30(1(b). Therefore, the defendant’s motion to dismiss is GRANTED. In light of this decision, the defense’s remaining motions are moot. The foregoing constitutes the Decision and Order of the Court. Dated: May 16, 2023
