DECISION AND ORDER The People have filed a motion, dated February 14, 2020, seeking to modify the time period for discovery pursuant to CPL 245.70(2). The defendant’s response, dated February 27, 2020, urges this Court to deny the People’s motion in its entirety. On March 13, 2020, the People filed a Supplemental Affirmation in support of their motion. The Court decides the motion as follows. PROCEDURAL POSTURE On August 6, 2019, the defendant was arraigned on Queens County Indictment 1350/2019, which charged him with one count of Attempted Murder in the Second Degree (PL 110/125.25), one count of Assault in the First Degree (PL 120.10), and two counts of Criminal Possession of a Weapon in the Second Degree (PL 265.03[1][b] and [3]). The People announced ready for trial and the matter was adjourned for the defendant to file an omnibus motion. Before the defendant filed his motion, laws which ushered in sweeping changes to the Criminal Procedure Law went into effect on January 1, 2020.1 Under the new Article 245 of the Criminal Procedure law, the People now had fifteen (15) days to provide the defendant with all discovery items delineated in CPL 245.20. (see CPL 245.10; CPL 245.20). Although the People had previously provided over 3,400 pages of discovery, several videos, and the 911 call for this case, they were suddenly non-compliant with the new discovery law. In a motion dated February 14, 2020, the People move this Court, pursuant to CPL 245.70(2), to extend the time period for discovery until April 2, 2020, arguing that, in spite of diligent efforts, there remains discoverable material under CPL 245.20 that they had been unable to obtain, such as information connected with home visits by the New York City Police Department in this domestic violence case including, but not limited to, body worn camera footage and paperwork. The People also argue that there is a large volume of discovery in domestic violence cases as a whole; at the time of their motion, there were approximately 6,061 body worn camera videos, 872 calls to 911, and 751 radio run recordings in possession of the Domestic Violence Bureau. Those numbers did not include body worn camera footage, 911 calls, and radio runs which had been requested from the NYPD but not yet received. The Bureau Chief of the Domestic Violence Bureau, who actually filed the motion, affirms that she had met with numerous officials from the NYPD and the City of New York in an effort to facilitate the acquisition of outstanding discovery. Finally, the People request that the deadline for discovery be extended to April 2, 2020, at which time they expect to have streamlined parts of the discovery procurement process electronically. The defendant’s response urges this Court to deny the People’s motion for extension. First, the defendant argues that the People’s current contention that every recording needed to be reviewed prior to disclosure was undercut by their September 2019 admission, on the record, that they had not reviewed every phone call made by the defendant before disclosing them to the defendant and his attorney. In addition, the defendant argues that the People’s motion is boilerplate, vague, and lacked specific grounds supporting good cause for this specific indictment. The defendant further emphasizes that the People’s general argument about home visits is inapplicable to this case because there were no home visits to this complainant, who was hospitalized and in rehabilitation facilities for months after this incident. The People’s Supplemental Affirmation, received on March 13, 2020, delineates the discovery items which were outstanding in this particular case, and the reasons why they had not yet obtained those items and disclosed them to the defendant. The People note that in this case, two of the officers who responded to the scene are no longer with the New York City Police Department, requiring the People to subpoena those officers’ personal contact information from the Police Department so that they can interview every officer who was in contact with the defendant to determine if the defendant made any statements. The People allege that the officers having left the department constitutes good cause for delay. In addition, the People argue that they have to obtain and then review all body worn camera footage to see who was present at the scene and whether those persons might have relevant information; they also need to obtain contact information for those persons, interview them, and disclose that information to the defendant. In this particular case, the People allege that they have had difficulty contacting detectives in particular because they are not available through the notification system which is used for uniformed patrol officers; many detectives were also busy meeting with ADAs to go over discovery on other matters during the first two months of 2020 due to the change in the law. The People state that they have requested, but not yet received, the ambulance care report, reports from the Office of the Chief Medical Examiner, computer crimes files, and the TARU companion case paperwork. Also, since obtaining an officer’s memobook may reveal the names of other officers who were at the scene, this generates additional contacts and paperwork to be pursued. Finally, the People argue that in order to determine if they need an expert witness, they have to review all 1,298 pages of existing medical records. In addition, the complainant returned to the hospital in January 2020 in connection with the injuries caused by the defendant. The People had not yet received those new records as of the date of their submission. CONCLUSIONS OF LAW Under CPL 245.20(1)(a), the People are required to provide “any written or recorded statements, and the substance of all oral statements made by the defendant…”. This does not limit disclosure only to statements the People intend to use at trial, but all statements made by the defendant for the many hours that the defendant was in custody. CPL 245.20(1)(c) requires that the People provide the defendant with the names and adequate contact information for all persons other than law enforcement who have relevant information about the case. After both sides had submitted their papers, two significant events occurred which affects this Decision and Order. On March 20, 2020, the Governor of the State of New York signed an executive order which tolled speedy trial time under CPL 30.30 due to the COVID-19 pandemic. (see Governor’s Executive Order 202.8 Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency [March 20, 2020]; see also Chief Judge’s Administrative Order 3/20 [March 17, 2020]). Furthermore, social distancing protocols led to the closure of most parts of Supreme Court and Criminal Court in Queens County and throughout the State of New York. Judges and their staffs, as well as the District Attorney’s Office, public defender agencies, and members of the defense bar ceased making in-court appearances. At first, only essential business was conducted; the Court developed and implemented an electronic system to conduct only essential appearances in an attempt to stop the spread of COVID-19. As of the date of this decision, in-person appearances have not resumed, and attorneys continue to work virtually for time-sensitive or emergency matters. The second major occurrence was the passage of modifications to the bail and discovery laws which had gone into effect on January 1, 2020. The modifications to the discovery laws, which was passed as part of the 2020-21 State Budget, Chapter 56 of the Laws of 2020, went into effect on April 3, 2020. These modifications somewhat relaxed the discovery burden which had been imposed upon the People in January. The newest legislation required the People to comply with their discovery obligations within 20 days of arraignment for an incarcerated defendant and 35 days for a defendant at liberty; these new deadlines expanded the time for discovery compliance from the previous 15-day requirement for each. Significantly, the legislature added CPL section 245.10(a)(iv)(B) which states that for materials that are “exceptionally voluminous” or “despite good faith efforts” are not in the prosecution’s possession, including specifically video footage, surveillance, and dashboard cameras, “the time period…may be extended pursuant to a motion” pursuant to CPL 245.70(2). Prior to this new subsection, it had been somewhat unclear what had constituted “good cause” for an extension of time for discovery compliance under CPL 245.70(2). The legislature has since eliminated some uncertainty by clearly listing video footage, surveillance, and other voluminous recordings as being a basis for an extension of the time for discovery compliance. In the case at bar, the Court agrees with the defendant that the People’s original motion is insufficient to meet their burden of showing good cause.2 The boilerplate arguments made either do not apply specifically to this case, or are contradicted by the actual facts of this case. However, the Court is persuaded to extend the time for discovery based on a number of specific arguments made in the People’s Supplemental Affirmation. First, the Court agrees with the People that there is good cause for an extension of time due to the two officers who responded to the scene of this incident having left the NYPD; these officers must be interviewed and their paperwork provided to the defense, if any. By subpoenaing their personal contact information, the Court finds that the People have made good faith efforts to comply with their discovery obligations. In addition, because the complaining witness had returned to the hospital as a result of the injuries she sustained at the hands of the defendant, these medical records are discoverable, and the People must provide them to the defendant in order to comply with their discovery obligations. To hold otherwise would seemingly set a precedent that whenever new medical treatment was sought and records created, the People would have to obtain those records and disclose them to the defendant within 20 or 35 days or the speedy trial clock would begin to run again. This creates the unconscionable scenario where a defendant could have his case dismissed because his victim necessitated frequent medical treatment as a result of the defendant’s own actions. The Court finds that CPL 245.70(2) is an appropriate remedy for such a scenario. The People’s request for an extension of the time to comply with their discovery obligation is granted. Although the People had originally requested an extension of approximately 45 days in order to comply with discovery, because of the social distancing protocols that came into effect immediately after their Affirmation in Support was filed, preventing Assistant District Attorneys from working from their offices or meeting with police officers in order to comply with discovery, and the Governor’s executive order extending time periods in the Criminal Procedure Law for the last four months, the Court grants the People’s application for an extension of the time for discovery compliance until August 3, 2020.3 This constitutes the decision and order of the Court. Dated: July 8, 2020
