DECISION AND ORDER Defendant by notice of motion filed December 19, 2019, moved to compel discovery of several attachments to the police report in this case. The People have opposed such motion by the filing of an affirmation filed on December 31, 2019. For the reasons set forth below, the defendant’s motion to compel discovery is granted. Factual Allegations and Background of the Motion Defendant is charged with Assault in the Third Degree (PL §120.00[1]), two counts of Criminal Possession of a Weapon in the Fourth Degree (PL §265.01[1] and [2]), and Harassment as a violation (PL §240.26[1]). The charges stem from an incident which occurred on February 23, 2019 at about 5:00 PM, inside of 1682 Morris Avenue in the Bronx. The superseding misdemeanor information, a first-party complaint, alleges that Defendant slid a knife across the complainant’s neck and cut her on the elbow, causing injuries for which she received medical treatment. The motion and opposition papers were filed during the last weeks of December, 2019, during much of which time the courts were closed for holiday recess. The parties’ arguments here are grounded in the now-repealed Article 240 of the Criminal Procedure Law, which has been replaced by the new sweeping discovery reform statute, Article 245, effective as of January 1, 2020, and which applies to new and pending cases. Neither Defendant’s motion nor the People’s opposition describe what or when the required discovery was provided. Defendant specifically requests an order compelling the People to turn over the attachments to the “DD-5″ report prepared by the assigned detective, Gustavo Blain: and email to Detective White; color photographs; EJustice check; DALL check; DIR search results; the wanted flyer; and DAS LITE for both parties. Without moving for a protective order under the new CPL §245.70, the People oppose Defendant’s motion, arguing that the material sought to be compelled either has already been turned over, doesn’t exist, or is not related to the subject matter of the case. Disclosure of Potential Brady, Giglio or Rosario Material Effective January 1, 2020, the Legislature substantially expanded the disclosure requirements of both parties to criminal cases. A statutory scheme for pre-trial disclosure in a criminal case “evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pre-trial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence.” (People v. Copicotto, 50 NY2d 222, 226 [1980]). In pursuit of the goal of reducing gamesmanship, delays, and uninformed defense decisions in criminal trials, the new statute provides for prompt, automatic disclosure, by both sides, of evidence and information relating to the case. The automatic disclosure obviates the need for the formerly-required demands or motions to compel such disclosure. The People’s obligation under the current statute is so broad as to make “open file” discovery the recommended course of action to assure compliance. (see, generally, William C. Donnino, Practice Commentary, McKinney’s CPL §245.10). Built into the statute is the edict that there “shall be a presumption in favor of disclosure when interpreting” the disclosure provisions. (CPL §245.20[7]). Specifically, the prosecution must disclose “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 including but not limited to” the items specified in CPL §245.20 [a] through [u]. Moreover, for purposes of automatic discovery, CPL §245.20 [2] broadens the definition of material in the possession of the People to include all items and information related to the case which are in the possession of any law enforcement agency. Thus, the People can no longer avoid sanctions for their failure to comply with the disclosure obligation by arguing, as in People v. Santorelli, 95 NY2d 412 [2000], that they could not obtain reports from law enforcement. Notably absent from the new statute is any requirement that the material to be disclosed must be relevant or material to the People’s or the Defendant’s case. This normative determination is left to the party entitled to receive the disclosures, and so they must be provided with all items relating to the subject matter of the case. The addition of the clause “including but not limited” indicates the legislature’s determination that henceforth, dispositions of criminal cases, either by plea or trial, will be predicated on openness, and full knowledge by both sides of all the facts of the alleged offenses. To this end, Article 245 specifically exempts from disclosure only very limited categories of information such as attorney work product and confidential identity information of informants and law enforcement officers, (CPL §245.20[1][c] and [d]), as well as any information that is the subject of a protective order issued upon a showing of good cause. (CPL §245.70). Turning to the particular items demanded herein, CPL §245.20 [1][e] requires automatic disclosure of “[a]ll statements, written or recorded or summarized…of persons who have evidence or information relevant to [the case or a potential defense] including all police reports, notes of police and other investigators, and law enforcement agency reports.” Further, SPL §245.20 [1][u][i][B] mandates automatic disclosure of “[a] copy of all electronically created…information…obtained by or on behalf of law enforcement from…a source other than the defendant which relates to the subject matter of the case.” There is no provision in the new statute that exempts disclosure if Defendant already has the “sum and substance” of evidence or information, as the People argue. The Court finds that the email to Detective White is contemplated in the requirement to disclose “notes of police and other investigators” under §245.20 [1][e]. Additionally, the EJustice check, DALL check, DIR search results, and DAS LITE, are required to be disclosed because these are all electronically created records obtained by the police from an outside source, under §245.20 [1][u][i][B]. The Court draws the reasonable inference that if these records did not relate to the subject matter of the case, they would not have been attached to the police report of this matter. Considering the stated purpose and spirit of the new reforms, and the express mandates to disclose “all police reports” and “all electronically created information obtained from a source other than the defendant,” the Court finds not a peppercorn of doubt that the legislature intended the People to turn over the attachments to the DD-5 of this case prepared by Detective Blain. Therefore, the People must turn over to Defendant any attachments which have not already been provided. Conclusion For the foregoing reasons, Defendant’s motion to compel the People to provide to Defendant the attachments to the police report is hereby granted, unless any such items have already been disclosed. This constitutes the decision and Order of the Court. Dated: January 10, 2020 Bronx, New York
