Papers considered in review of this motion: People’s n/m affirmation to reargue and for special circumstances, filed February 29, 2024, Michael Castrovilla, Esq., Assistant District Attorney Defendant’s affirmation in opposition, filed March 14, 2024, Donald Cameron, Esq., for defendant Court file DECISION AND ORDER Tahrabia Gonzalez, hereinafter “defendant,” is charged by information with two counts of Assault in the Third Degree (Penal Law §§120.00 [1] and [2]), one count of Aggravated Harassment in the Second Degree (Penal Law §240.30 [4]), one count of Attempted Assault in the Third Degree (Penal Law §110/120.00 [1]), and one count of Harassment in the Second Degree (Penal Law §240.26 [1]). The People move to reargue the validity of their Certificates of Compliance (“COCs”), which this court deemed improper and invalid following a discovery compliance conference. For the reasons indicated below, the People’s motion to reargue is DENIED. The People further petition this court to find special circumstances excusing their failure to comply with statutory discovery mandates and to accept all statements of readiness, whether made in court or by off-calendar certificates. This court finds no such special circumstances and therefore rejects all previous statements of readiness as invalid. Relevant Procedural History On December 28, 2023, the 90th day following the commencement of this criminal case, the People filed and served a COC and Certificate of Readiness (“COR”). On January 8, 2024, upon filing a superseding information, the People filed and served a Supplemental COC and COR, restating their readiness when appearing before the court the same day. During that appearance, the court inquired as to the People’s present readiness, as mandated by CPL 30.30 (5).1 The defendant reserved objections to the People’s COCs and CORs, requesting additional time to review disclosed discovery. The court granted this request, reserving decision until the defendant’s objections could be fully heard, and issued the following instructions: 1) defense counsel was ordered to reach out to the assigned assistant with any objections to discovery compliance no later than January 19, 2024; 2) the parties were ordered to diligently confer as of that date to determine whether an agreement could be made without court intervention (CPL 245.35 [1]); 3) if, following such diligent exchange, the parties were unable to reach an agreement, they were to submit a joint letter (CPL 245.35 [4]). In the joint letter, the defense was directed to memorialize its objections to the People’s COC and the parties were ordered to indicate their respective positions on each missing item of discovery. The joint letter would serve as the basis for a discovery compliance conference during which the court would hear oral argument and rule on the validity of the People’s COC, assessing whether it was filed in good faith after having made the necessary inquires, which are not infinite but must be reasonable under the circumstances of this specific case (CPL 245.32 [2]; 245.50 [1]; People v. Bay, ___ NY3d ___, 2023 NY Slip Op 06407 [2023]). The parties filed a joint letter on January 31, 2024. The People filed and served a Supplemental COC and COR on the same date, disclosing for the first time certain redacted disciplinary records for a testifying police witness. A discovery compliance conference was held on February 15, 2024. Following a full hearing of each party’s arguments, this court found the People’s certificate of compliance improper and invalid for knowingly withholding discoverable materials in the prosecution’s possession and for failing to make the required diligent, good faith efforts to ascertain and disclose discoverable material (CPL 245.50 [1]; Bay, __ NY3d __, 2023 NY Slip Op 06407). The court’s decision rested on two fundamental defects in disclosure: 1) the People’s impermissible redaction of underlying police disciplinary records and of a related internal email, and 2) the failure to make the reasonable inquiries required to obtain and disclose adequate contact information for civilians known to have relevant information (People v. Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U] [Crim Ct, Queens County 2022]; People v. Goggins, 76 Misc 3d 898 [Crim Ct, Bronx County 2022]; CPL 245.20 [1] [c]). Following the court’s decision, the People were afforded an opportunity to file a written submission articulating any special circumstances the court might consider before ruling on the validity of the People’s CORs (CPL 245.50 [3]). The People filed the instant motion on February 29, 2024. Defendant responded on March 14, 2024. Special Circumstances The limited appellate authority available on this issue has not defined what special circumstances are, but rather what they are not. In People v. Rahman (79 Misc 3d 129[A], 2023 NY Slip Op 50692[U] [App Term, 2d Dept 2023]), the Appellate Term, emphasizing the statute’s presumption in favor of disclosure (CPL 245.20 [7]), upheld a trial court finding of no special circumstances where the People did not request, obtain, or disclose automatically discoverable materials prior to filing their COC. In People v. Guzman (75 Misc 3d 132[A], 2022 NY Slip Op 50445 [U] [App Term, 2d Dept 2022]), the Appellate Term similarly affirmed no special circumstances where the People failed to disclose NYPD “dash camera” video and could not identify sufficient efforts made to obtain the video prior to certifying compliance. Here the People assert that they are entitled to a finding of special circumstances because, in good faith, they reasonably believed they were “permitted by law to unilaterally redact nondiscoverable material as it related to underlying disciplinary material for testifying officers.” (People’s mot 15.) The People advance an argument, now made quite frequently to this court, that CPL 245.20 requires that the prosecution disclose only “information” related to the subject matter of a given case, not necessarily the “documents” within which that relevant information is contained. The People maintain that the statute affords them the authority to redact what the prosecution determines is nondiscoverable information from within underlying disciplinary records, without seeking a protective order from the court. Yet, both published and unpublished decisions, including those of this very court, have rejected this position, indicating quite clearly that underlying disciplinary records must be disclosed in their entirety unless and until the People seek a protective order limiting disclosure: The People are without authority to determine unilaterally, by themselves, what ‘tends to’ or does not tend to go towards the impeachment of a witness. Such a determination — whether those records can be used for impeachment or further investigation at trial — is a matter for defense counsel to review and for the trial court to determine. But the disclosure of such records must be automatic, absolute and without redaction, adulteration, or censorship by the People, except as allowed in CPL 245.20 (6). (Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *6; see also Goggins, 76 Misc 3d 898.) The People are again reminded that just as summaries are insufficient to satisfy their obligations under the statute, so too are impermissibly redacted records (People v. Rodriguez, 77 Misc 3d 23 [App Term, 2d Dept 2022] [finding summary list of civil lawsuits against testifying police officers insufficient to discharge discovery obligations when underlying impeachment materials were withheld]; Matter of Jayson C., 200 AD3d 447 [1st Dept 2021] [applying CPL discovery requirements to Family Court proceeding, noting deprivation of equal protection of law when petitioner withheld underlying impeachment materials and simply summarized NYPD disciplinary allegations]). Favoring interpretations of the statute crafted internally by the District Attorney of New York over the court’s statutory construction is a gamble. While there certainly are courts that have accepted COCs as valid despite redactions similar to those made here by the prosecution, the People are mistaken in asserting that special circumstances are present anytime they rely on conflicting rulings by courts of concurrent jurisdiction. Strategic decisions, presumably informed by caselaw, are made in litigation every day in different courtrooms throughout this state. Sometimes these strategies are successful and sometimes they are not. There is nothing special about a failed legal strategy. It is the proverbial par for the course in adversarial proceedings. As such, this court finds no special circumstances excusing the People’s noncompliance with their discovery obligations. Motion to Reargue A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion…” (CPLR 2221 [d] [2]). The People move this court “to reconsider the facts and the law as it pertains to the People’s good faith and diligent efforts pertaining to the People collecting the full names and adequate contact information of individuals working in the dental office during the time of the assault.” (People’s mot 16.) The People’s principal points are that 1) they disclosed the first names of the eight individuals working in the dental office before filing their December 28, 2023 COC and COR; 2) no further information was in their constructive or actual possession; 3) the People had no reason to believe that these eight individuals had any information related to the subject matter of the case, despite indications by the complainant that they were present in the dental office at the time of the alleged assault; 4) the People gathered and disclosed full information for six of the eight individuals pursuant to this court’s February 15, 2024 ruling.2 Having reviewed the People’s motion to reargue, this court finds no basis to entertain it. The facts and law briefed by the People were carefully considered and duly ruled upon at the February 15, 2024 discovery compliance conference during which this court analyzed each party’s respective positions, as memorialized in the previously submitted joint letter; permitted further elaboration and argument by both sides; and took account of all additional caselaw submitted during the appearance. The People’s motion to reargue is therefore DENIED. Given that this court finds no special circumstances that would render the People’s statements of readiness valid in the absence of discovery compliance, the People’s CORs filed on December 28, 2023, January 8, 2024, and January 31, 2024, along with all on record statements of readiness, are invalid (CPL 30.30 [5]). The foregoing constitutes the opinion, decision, and order of the court. Dated: April 2, 2024
