Papers and Proceedings considered: The People’s Feb 6, 2020 CoC and Feb 20, 27 and Oct 5, 8, 2020 CoC’s and STR’s October 8, 2020 combined suppression hearing transcript Defendant’s Oct 16, 2020 motion challenging the People’s Oct 8, 2020 CoC and STR challenge The People’s Nov 2, 2020 affirmation in opposition to defendant’s Oct 16, 2020 Coc challenge Dec 8, 2020 Aff in Opp of Chief Assistant Attorney David M. Rossi (People v. Rosario, supra) Dec 8, 2020 Memo of Law of Special Counsel Christopher D. Horn (People v. Rosario, supra) The People’s initial and supplemental discovery disclosures Multiple discovery conferences On August 30, 2019, defendant was charged by indictment with burglary in the first degree, a class B felony (Penal Law §140.30 [2]), strangulation in the first degree, a class C felony (Penal Law §121.13), strangulation in the second degree, a class D felony (Penal Law §121.12), assault in the second degree (Penal Law §120.05 [1]), attempted assault in the second degree, a class D felony (Penal Law §§110/120.05 [1]), rape in the first degree, a class B felony (Penal Law §130.35 [1]), and criminal sexual act in the first degree, a class B felony (Penal Law §130.50 [1]). Applicable Procedural History Subsequent to an inquiry and defendant’s written challenge to the People’s February 6, 2020 certificate of discovery compliance (CoC) and statement of trial readiness (STR) (see CPL 245.50 [1]; 30.30 [5]), by decision and order issued on March 11, 2020, Supreme Court (Breslin, J. [Ret.]) found that, because a significant amount of CPL 245.20 (1)(k)(iv) Brady/Giglio law enforcement impeachment materials remained outstanding, the People’s February 6, 2020 STR filed with the CoC was illusory and the People were not ready for trial. For context, the relevant portion of the March 11, 2020 decision and order provides: “Specifically, the defendant asserts that the People have not engaged in a “diligent, good faith effort” to ascertain the existence of Brady/Giglio material for their law enforcement witnesses (see CPL 245.20 [1][k][iv]). The basis for the defendant’s assertion was the People’s service upon him of certain “impeachment material questionnaires” which four of the People’s law enforcement witnesses refused to complete. The People assert that they satisfied their CPL 245.20 (1)(k)(iv) Brady/Giglio obligations merely by providing the questionnaires to their witnesses, regardless of the answers provided. However, in seeming direct contravention of that opinion, the People inform of their intention to provide the complete personnel files for Police Officer Butler, Sergeant Jimm Lewis and Detectives Jason Wilson and Ryan Moore to the Court for in camera review upon receipt. The Court declines the People’s invitation at this juncture, to become involved in what assuredly is the People’s initial Brady/Giglio obligations (see CPL 245.20 [1][k] [iv]; Civil Rights Law 50-a [4][exempting assistant district attorneys from the provisions of Civil Rights Law 50-a who are required to review personnel records for their law enforcement witnesses "in the furtherance of their official functions"]). The Court finds no basis, at this juncture, to become involved in what assuredly is the People’s initial Brady/Giglio obligation. If, after the People review these materials, and further assuming the parties cannot agree after diligently conferring in attempting to reach an accommodation about this discovery dispute (see CPL 245.35 [1]), the parties may then seek a ruling from the Court (see People v. Bonifacio, 179 AD3d 977 [2 Dept 2020][emphasis added]).” Subsequent to the issuance of the court’s March 11, 2020 decision and order, by email dated May 29, 2020, the trial prosecutor notified chambers of her failed attempt to have Judge Breslin sign a judicial subpoena on March 16, 2020, explaining that “[i]n accordance with the Court’s order and decision, our office did reach out to APD in an attempt to review the listed officer’s personnel files, but received no response. Due to that, I have drafted a subpoena for the Court to review and sign.” Additionally, the email provides, “[s]ince we now have an appearance date, and Judge Carter is reassigned the case, I am providing the subpoena for his signature so that we can have the police personnel records reviewed” (see Court’s Exhibit No. 1). The requested subpoena reads in pertinent part: “Pursuant to [former] Civil Rights Law §50-a (4), we are requesting certified copies of all personnel records in the possession of the City of Albany related of the following: 1) Officer Andrew Butler 2) Sergeant Jimm Lewis 3) Detective Jason Wilson 4) Detective Ryan Moore Pursuant to 50-a (1), (2) and (3) the judge will conduct an in-camera review of the file” (emphasis added). Considering the obvious discord between Judge Breslin’s March 11, 2020 decision and order and the trial prosecutor’s May 29, 2020 subpoena request and the language utilized within the proposed subpoena, the court did not issue the requested subpoena but noted it was amenable to considering issuing one made returnable to the People for their review for potential Brady/Giglio materials for their witnesses. The court has not received any further requests from the People for judicial subpoenas for its APD witnesses’ personnel files in this case.1 Supplemental CoC Filings CPL 245.50 (1) provides in relevant part that: “If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article” (emphasis added). CPL 245.60, in turn, provides in relevant part: “If [] the prosecution [] subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article” (emphasis added). Thus, avoidance of sanctions for late service of automatic discovery (which albeit are not requested in this case), the prosecutor must establish that the initial CoC was filed “in good faith and reasonable under the circumstances.” October 5, 2020 Supp CoC and STR On October 5, 2020, the trial prosecutor filed a supplemental certificate of compliance (Supp CoC) and statement of trial readiness (STR) after serving a witness list and additional CPL 245.20 (1)(k)(iv) Brady/Giglio materials pertaining to Detective Sean Perkins and Sergeant Jimm Lewis and indicated: “Our Office reviewed Internal Affairs database called IAPro looking for any citizen complaints, discipline or other things that could affect credibility. Nothing of that nature was found as it relates to Detective Ryan Moore and Jason Wilson.” October 8, 2020 Supp CoC and STR On October 8, 2020, prior to the commencement of a combined suppression hearing, the court acknowledged the People’s October 8, 2020 Supp CoC and STR filing and provided defendant an opportunity to be heard as to whether the disclosure requirements of CPL Section 245.20 had been met.2 After reserving his right to file the instant written CoC challenge, defendant outlined his argument regarding the People’s purported lack of due diligence and good faith efforts in failing to timely provide impeachment materials for the People’s law enforcement witnesses. October 16, 2020 CoC Challenge Defendant maintains and supplements his prior challenge to the validity of the People’s STR as now contained in the People’s October 8, 2020 Supp CoC. Defendant primarily argues that the People’s failure to exercise due diligence and good faith efforts in meeting their CPL 245.20 (1)(k)(iv) Brady/Giglio discovery obligations is established in this case by: (1) The People’s demonstrated unreasonable reliance on prospective law enforcement witnesses self-reporting impeachable acts on questionnaires designed by the Albany County District Attorney’s Office; and (2) The unexplained disparity between the People’s CPL 245.20 (1)(k)(iv) Brady/Giglio disclosures for Sergeant Jimm Lewis in this case as compared to another case being prosecuted by the ACDA; and (3) The unexplained failure to disclose APD Office of Professional Standards Detective Lieutenant Mark Decker’s June 8, 2020 email to Chief Assistant David Rossi wherein Decker reports, inter alia, that OPS’s impeachment review for Sergeant Jimm Lewis, and Detectives Jason Wilson, Ryan Moore, and Sean Perkins found “no issues” to disclose. (4) The undisclosed June 8, 2020 Decker-Rossi email directly contradicting the trial prosecutor’s representations to the court and counsel that Chief Assistant Rossi had personally reviewed these officer’s personnel files in her stead (see Oct 8, 2020 Supp H Tr at 6-7; Def’s Exabits 6 and 9 email communications). Certificate of Compliance: CPL 245.50; 30.30 (5) Unless the court makes an “individualized finding of special circumstances” the People “shall not be deemed ready for trial until [they have] filed a proper certificate [of compliance] pursuant to CPL 245.50 (1) (see CPL 245.50 [3]). Pursuant to CPL 245.50 (1), after the prosecutor provides all automatic discovery (see CPL 245.20 [1][a]-[u]), excepting discovery lost or destroyed (see CPL 245.80 [1][b]) or items subject to a protective order (see CPL 245.70), the prosecutor shall file and serve a certificate of compliance, which: “shall state 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 material and information subject to discovery. It shall also identify the items provided” (CPL 245.50 [1] [emphasis added]). The sole “condition precedent to the prosecutor’s ability to file a [CoC] is the discovery of all material considered [a]utomatic [d]iscovery” (People v. Napolitano, 67 Misc 3d 1241(A), NY Slip Op 50802(U) [Kate Paek, J., Sup Ct, NY, June 11, 2020]). It was recently observed that a CoC “serves only one practical purpose: It is a necessary prerequisite to a valid statement of readiness under C.P.L. §30.30″ (People v. Barnett, 68 Misc 3d 1000, 1002 [Statsinger, J., NY Sup Ct July 20, 2020]). December 8, 2020 ACDA’s Statements re: CPL Article 245 Compliance Since Jan.1, 2020 The bulk of the People’s argument opposing defendant’s CoC challenge relies on a now rejected theory of statutory interpretation concerning the People’s CPL 245.20 (1)(k)(iv) Brady/Giglio impeachment disclosure obligations for their law enforcement witnesses (see People v. Rosario, ____ NYS3d ___ 2020, WL 7085330 2020, NY Slip Op 2032 [Carter, J., Alb Co Ct, Nov 20, 2020]; People v. Adrovic, 69 Misc 3d 563 [Kitsis, J., NY Crim Ct, Sept 3, 2020]). Additionally, as noted in People v. Rosario, ___ NYS3d ___ 2020, WL 7653924 2020, NY Slip Op 20347 (Carter, J., Alb Co Ct, Dec 23, 2020), by affirmation of Chief Assistant David M. Rossi and memorandum of law of Special Counsel Christopher D. Horn, the People concede that the Office of the ACDA’s discovery compliance plan was built upon a legally incorrect understanding of CPL Article 245 and its CPL 245.20 (1)(k)(iv) Brady/Giglio law enforcement impeachment material disclosure obligations. To remediate this problem, by affirmation dated December 8, 2020, Rossi informed that his office was no longer relying on the self-reporting questionnaires from law enforcement witnesses at issue in this case, and instead the Office of the ACDA was opting to review its law enforcement witnesses’ personnel files in-house. While the People’s statements made in the above pending People v. Rosario (supra) prosecution necessarily affect this case, the People have remained silent for nearly one month regarding the impact of their admitted CPL 245.20 (1)(k)(iv) non-compliance upon this, or any other case presently pending before the court. CPL 245.35 (3) and (4) Discovery Compliance Order In finding the People’s October 8, 2020 CoC and concomitant STR invalid and not filed in good faith and reasonable under the circumstances, 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 People have not filed the above Brady CoC, by 10:00 AM, January 12, 2021, at that time they shall file an affirmation updating the court as to the status of ongoing discovery compliance in this case. Accordingly, defendant’s motion challenging the People’s October 8, 2020 CoC as invalid and its STR as illusory, is granted. Motion granted. SO ORDERED: Dated: January 5, 2021
