Papers and Proceedings considered: November 29, 2020 Affirmation of Matthew C. Hug, Esq., on behalf of defendant in support of sanctions for bad faith discovery compliance failure December 8, 2020 Affirmation in Opposition of Chief Assistant Attorney David M. Rossi December 8, 2020 Affirmation in Opposition of Assistant District Attorney David J. Szalda December 8, 2020 Memorandum of Law of Special Counsel Christopher D. Horn December 12, 2020 Reply Affirmation of Matthew C. Hug, Esq., on behalf of defendant. By indictment filed on August 14, 2020, defendant was arraigned on murder in the second degree, a class A-I felony (Penal Law §125.25 [1]) and criminal contempt in the second degree, a class A misdemeanor (Penal Law §215.50 [3]). By decision and order issued on November 20, 2020, this court found the People’s September 16, 2020 certificate of discovery compliance (CoC) and concomitant statement of trial readiness (STR) (see CPL 245.50 [1]; 30.30 [1], [5]) invalid and not filed “in good faith and reasonable under the circumstances” (CPL 245.50 [1]), adjourned the matter for argument on sanctions, and issued the below discovery compliance orders, pursuant to CPL 245.35 (3) and (4): “In finding the People’s September 16, 2020 CoC and concomitant STR invalid, in addition to potential discovery sanctions, to facilitate compliance with CPL Article 245 and to reduce or streamline further litigation or future disputes about discovery, pursuant to CPL 245.35 (3) and (4), the court hereby issues the following discovery compliance order: The prosecutor is to file an additional certificate of compliance containing sufficient facts from which a due diligence determination can be made, stating that the prosecutor “and/or an appropriate named agent” has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article, including such evidence or information that was not reduced to writing or otherwise. If the Office of the ACDA continues to utilize the APD Office of Professional Standards as their agent to meet their CPL 245.20 (1)(k)(iv) Brady/Giglio obligations, sufficient facts and arguments should be submitted to permit a judicial determination as to whether the APD Office of Professional Standards is an “appropriately named agent” (see CPL 245.35 [3]), as they are essentially policing themselves, to assist the Office of the ACDA in meeting its CPL 245.20 (1)(k)(iv) discovery obligations.” By affirmation filed November 29, 2020, defendant argues that dismissal of the indictment or preclusion of law enforcement testimony is warranted as an appropriate CPL 245.80 (2) sanction for the People’s willful refusal to comply with CPL Article 245′s self-effectuating court order that mandates the disclosure of Brady/Giglio law enforcement impeachment materials (see CPL 245.20 [1][k][iv], [5]).1 On December 14, 2020, defendant also filed a reply to the People’s December 8, 2020 opposition discussed below. Opposition to Sanctions: Failure to Comply with CPL Article 245 Since January 1, 2020 The memorandum of law in support of the affirmations of Chief Assistant District Attorney David M. Rossi and Assistant District Attorney David J. Szalda, submitted by Special Counsel Christopher D. Horn opposes the imposition of sanctions, arguing defendant has failed to establish prejudice, as statutorily required by CPL 245.80 (1)(a). This memorandum of law, as well as the affirmation of Chief Assistant Rossi, concedes that the Office of the ACDA has failed to comply with CPL Article 245 generally, resulting in its failure to comply with, at least, its CPL 245.20 (1)(k)(iv) Brady/Giglio obligations in this case. The People also concede that, absent prejudice, where a court finds, as this court did on November 20, 2020, that the People’s CoC and STR were not filed in “good faith and reasonable under the circumstances,” CPL 245.80 (2) sanctions are available as well as the potential for the imposition of “adverse consequences” against “the prosecution” and/or an individual “prosecutor” (see Horn Memo at 2; CPL 245.50 [1]). The People claim that their discovery violation was based on a good faith misinterpretation of its court-ordered (see CPL 245.20 [5]) CPL Article 245.20 (1)(k) obligations. Regarding the imposition of sanctions, the court agrees with the People that based on their December 8, 2020 memorandum of law, supplemental disclosure of over 100 pages of CPL 245.20 (1)(k)(iv) impeachment materials and reported ongoing efforts to bring this case into compliance with CPL 245.20 (1)(k), the assessment of discovery sanctions — requiring a showing of prejudice or not — is premature. Accordingly, the court will hold defendant’s motion for sanctions in abeyance until the People comply with this court’s November 20, 2020 CPL 245.35 (3) and (4) discovery orders. Defendant may supplement his arguments for sanctions in conjunction with his challenge to the People’s forthcoming Brady CoC (see CPL 245.35 [3]; 245.50 [3]; 30.30 [5]), at which time, defendant should be in possession of all information necessary to ascertain, inter alia, what, if any prejudice was sustained from the People’s discovery violations. Motion for sanctions held in abeyance, with leave to supplement. ACDA’s Remedial Efforts After acknowledging the court’s pending CPL 245.35 (3) and (4) discovery compliance orders 2 the People inform that they are currently — approximately one year and nine months after the enactment of CPL Article 245 — diligently working to bring Albany County into compliance with CPL Article 245. The court acknowledges the People’s efforts and appreciates the length of time spent examining law enforcement witness personnel records for potential impeachment material, as outlined in the affirmation of Chief Assistant Rossi. This court is very familiar with the tedious nature of this process having performed it many times over the years at the request of defendants because the People refused to exercise their authority to review personnel records under former Civil Rights Law §50-a (4) “in the furtherance of their official function.” Supplemental Discovery Disclosures Contemporaneous with the filing of its December 8, 2020 opposition papers, the People served defendant with over 100 pages of supplemental CPL 245.20 (1)(k)(iv) Brady/Giglio impeachment materials uncovered as a result of recent changes made to the Office of the ACDA’s discovery compliance process. The People explain that, when faced with the refusal of Albany Police Chief Hawkins to provide the ACDA access to the APD’s personnel files, instead of having a difficult but necessary conversation with him (and possibly Corporation Counsel and the Mayor) to explain what CPL Article 245 now required for prosecutions in this state, Chief Assistant Rossi developed the unsworn, self-reporting questionnaire procedure discussed at length in this court’s November 20, 2020 decision and order and upon which the People no longer rely.3 Furthermore, rather than establishing through sufficient facts and argument that the APD Office of Professional Standards is “an appropriate agent” as that phrase is used in CPL 245.35 [3]), to assist the Office of the ACDA in meeting its CPL 245.20 (1)(k) Brady/Giglio obligations, the People inform they have now opted instead to review law enforcement personnel files in-house — a process that is ongoing and under development. Lastly, in his December 8, 2020 affirmation, Chief Assistant Rossi informs that his Office’s CPL 245.20 (1)(k) review of APD files applicable to this case was nearing completion and estimated that discovery compliance would be completed by December 11, 2020 and the ordered CPL 245.35 (3) Brady CoC filed shortly thereafter. As of the date of the issuance of this decision and order, no Brady CoC has been filed in this case and the court has not received any communication from the Office of the ACDA regarding discovery compliance. Good Faith Statutory Interpretation of CPL Article 245 and 245.20 (1)(k)(iv) Obligations After acknowledging that CPL Article 245 sanctions attach to a finding of bad faith, Special Counsel Horn explains that the ACDA’s discovery compliance failure resulted from his Office’s post-November 20, 2020 realization that its theory of statutory construction — developed after protracted study and consultation with the District Attorneys Association of New York’s Best Practices Committee (DAASNY) and relied upon to develop its county-wide discovery compliance process to facilitate lawful prosecutions in Albany County by January 1, 2020 — is akin to a rookie police officer unfamiliar with the law who makes a mistake in the heat of the moment. This comparison is inapt as the interpretation of CPL Article 245 was a matter of law researched by the most experienced lawyers in the Office of the ACDA. Rather than having to make an uninformed, split second decision, the People were given nine (9) months-notice by the Legislature to prepare for this sea change in criminal discovery. With the enactment of the 2019 Criminal Justice Reforms and by the repeal of Civil Rights Law §50-a, the people of this state mandated that individual and institutional participants in the criminal justice system — judges, prosecutors and defense counsel, as well as the persons and institutions that support them — do more to safeguard the constitutional rights of defendants prosecuted in New York State. This latest legislative attempt to “even the playing field” in the criminal justice system commenced January 1, 2020 and Civil Rights Law §50-a, which formerly protected the personnel records of law enforcement officers, among others, from public disclosure, but not prosecutorial review (see Civil Rights Law §50-a [4]), was repealed June 12, 2020. That said, the law set forth in this court’s November 20, 2020 decision and order is not solely the law according to an “outlier” court as inferred in the People’s memorandum of law. Rather, it is the law according to the people of this state, who passed CPL Article 245 in response to the “government’s failure, whether through negligence or by design, to uphold our constitutional obligations to defendants” (Justification to Senate Bill S8707). Prosecutorial gamesmanship surrounding Brady/Giglio obligations is well-documented and has worked to frustrate the fair administration of justice for years (see Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 531 (2007) [identifying and examining well-documented prosecutorial Brady/Giglio techniques, that have, over time and with the aid of a prosecution-friendly bench, worked to assist prosecutors in regularly avoiding Brady/Giglio compliance --- and which, in this court's opinion, the statutory scheme of CPL Article 245 and associated amendments, by their plain terms, are designed to counterbalance]). Special Counsel Horn’s concluding remarks suggest that this court’s November 20, 2020 decision and order was the first time in 2020 that the Office of the ACDA was informed of its misapprehension of its Brady/Giglio obligations by a court either before or after January 1, 2020. Since the policies and procedures as detailed in the People’s memorandum of law and its attachments necessarily involve other cases pending before this court and throughout Albany County, the court must take note that since January 1, 2020, in addition to this court, several other courts have addressed the Office of the ACDA’s misapprehension of its CPL 245.20 (1)(k)(iv) obligations (see People v. Dimitrius Smith, Ind. No. 22-8560 [Lynch, J., Alb Co Sup Ct, Sept 8, 2020]; People v. Hector Gomez, Ind. No.18-1-8272 [Lynch, J., Alb Co Sup Ct, July 2, 2020]; People v. Johnson, 2020 WL 6073779 [Breslin, J. (Ret.), Alb Sup Ct, March 11, 2020]). Lastly, Special Counsel Horn explains that after careful study, his office determined that CPL 245.20 (1)(k) codified existing Brady obligations as those obligations were understood by his office (see Horn Memo at 3). The court has difficulty reconciling this statement with the contrary representations made by Assistant District Attorney Vincent Stark in a July 2020 CPL 440.10 proceeding before the Hon. Peter J. Lynch, JSC stemming from a January 2020 CPL 245.20 (1)(k)(iv) Brady/Giglio disclosure by the New York State Police (NYSP) of three professional censures of the People’s expert trial witness, NYSP Investigator Samuel Mercado. By memorandum of law, ADA Stark acknowledged, that: “In fact, the new discovery law demands more than the courts still do under the Constitution” and that “‘the new law demands more of the People than the Courts have in the past’ under the Constitution [quoting Aff of Steven M. Sharp, Esq. at 19]. It forces the People to make a probing inquiry into non-case related wrongdoing by the police (CPL 245.20[1][k]), which could then trigger the preexisting constitutional Brady obligation to turn over favorable impeachment material (Strickler, 527 US at 281). That’s how Trooper Mercado’s records came to the attention of the People in January of this year, and that’s why those records immediately came into the hands of the defendant in that case” (Stark June 29, 2020 Memo of Law, People v. Gomez, supra at 11 n3, 11-12 [emphasis added]).4 Consideration of ADA Stark’s candid acknowledgement of the People’s affirmative duty to make inquiry of their law enforcement witnesses in order to satisfy CPL 245.20 (1)(k)(iv) and their concomitant constitutional obligations, the People’s admissions, combined with this court’s knowledge of the legal acumen possessed by the Office of the ACDA’s working group, requires the court to adhere to its November 20, 2020 decision and order finding the People’s CoC and STR were not filed in “good faith and reasonable under the circumstances.” SO ORDERED: Dated: December 23, 2020
