DECISION AND ORDER Defendant Mohamed Fittahy, charged with three counts of Forcible Touching [PL §130.52(1)], and three counts of Sexual Abuse in the Third Degree [PL §130.55], moves, by notice of motion dated February 28, 2020 for an order compelling compliance with CPL 245.20 and deeming the prosecution’s certificate of compliance dated January 29, 2020 invalid. Defendant’s motion is DENIED. For the reasons stated below, the court finds that the people have complied with their discovery obligations. Background and Procedural History The defendant is charged with Forcible Touching and Sexual Abuse in the Third Degree relating to an incident that occurred on July 24, 2019, at 2:00 AM, inside of 2546 7th Avenue, New York, New York, where he is accused of forcibly touching the intimate parts of the 16-year-old complainant without her consent. The defendant was arrested following the incident and arraigned the next day. The prosecution filed a superseding information on September 5, 2019 along with a certificate of readiness, and the case was adjourned for motion practice. On October 24, 2019, pretrial hearings were granted and the case was adjourned for hearing and trial to December 5, 2019. On January 29, 2020, the people filed a certificate of compliance, pursuant to CPL 245.50(1), stating that they had fully complied with their discovery obligations under the newly-enacted criminal discovery statute.1 As part of their discovery, the people filed various police paperwork, including a domestic violence phone contact form and copies of the arresting officer’s memobook, both of which contained redacted information. On February 28, 2020, defendant filed the instant motion, and the people filed a written response electronically on August 26, 2020. Between March 4, 2020 and October 29, 2020, the case was administratively adjourned several times due to the pandemic. On October 29, 2020, the court gave the defendant leave to reply to the people’s response, and the defendant filed his reply on January 14, 2021. Therefore, in consideration of the instant motion, the court has examined all three submissions, including any attached exhibits. Discussion On January 1, 2020, the newly-enacted criminal discovery statute at issue in the instant case, CPL 245, took effect. The purpose of the statute is to facilitate the truth seeking process with the speedy disclosures of required information “and permit the defendant to discover, inspect, copy, photograph and test, 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…” CPL 245.20(1). The statute also requires the prosecutor to “make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control;” CPL 245.20(2), When the people have provided such discovery, they “shall serve upon the defendant and file with the court 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.” CPL 245.50(1). Defendant asserts that the people unlawfully redacted information from portions of the discovery that they turned over, in violation of CPL 245.20. In support, he argues that CPL 245.20(1)(c) and CPL 245.20(6) are explicit and all-inclusive as to what information may be redacted from discovery materials, absent a protective order. In further support, he also cites People v. Tychanski, 78 N.Y.2d 909 (1991) for the proposition that when interpreting a statute, the doctrine of “expression of the one is exclusion of the other” applies. Defendant contends that the people have not complied with their discovery obligations and argues that the people only provided duplicate NYPD body worn camera footage, and challenges the validity of the certificate of compliance. The defendant attached two exhibits to his motion: a copy of the redacted police paperwork that the people turned over to the defense, and a copy of the body worn camera checklist provided by the people, which lists the various police officers involved in the case and whether their body worn cameras were activated. In response, the people argue that the redactions they made to materials turned over to the defense, which consisted of the complainant’s home address, school address and date of birth, as well as the complainant’s mother’s home address, cell phone number and date of birth, were lawful and did not violate CPL 245.20. They argue that the redacted information is not discoverable under CPL 245.20(1)(c), and that the information does not relate to the subject matter of the case, within the meaning of CPL 245.20(1). Regarding the missing police body worn camera footage, the people argue first, that due to a police paperwork error, one of the videos that was not turned over actually did not exist as previously thought, and second, that as soon as the defense raised the issue of footage duplicity, they immediately rectified the situation by providing the missing video. Therefore, the people acted in good faith and fully complied with their discovery obligations under CPL 245.20. Finally, the people argue that the defendant has not demonstrated prejudice within the meaning of CPL 245.80, and therefore the court should not grant any remedies or sanctions for any purported discovery violations. *** Redacted Materials In accord with discovery compliance, the people filed an NYPD form labeled “DV Phone Contact,” which appears to contain pedigree information about the complainant and briefly summarizes a phone conversation between the complainant and a police officer who was investigating the case. The people redacted the complainant’s date of birth, physical address and home telephone number from this form. The people also delivered to the defense a copy of Police Officer Michael Carolan’s memobook, which also contained redacted information, specifically the complainant’s home address, date of birth and school address, as well as the complainant’s mother’s cell phone number, home address and date of birth. The people state that the redacted information does not relate to the subject matter of the case and is also not otherwise discoverable under CPL 245.20(1)(c). The defense objects to the redactions under a theory that the discovery statute expressly delineates that which may law fully be redacted, absent a protective order. CPL 245.20(1)(c) states, in pertinent part: “The prosecution shall disclose to the defendant…[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto…. Nothing in this paragraph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address.” Pursuant to this part of the statute, the people are not required to disclose the physical addresses of their witnesses absent good cause and subject to court order. The defendant provides no good cause, nor an order to specifically disclose these physical addresses.2 Therefore, the court finds that the people have not violated the statute when they redacted the physical addresses for the complainant and her mother, as well as the complainant’s school address. As to the telephone numbers of the complainant and her mother, the defendant does not argue that he has not been provided adequate contact information for these witnesses. Therefore, the redaction is not challenged. Turning to the issue of the complainant’s and her mother’s dates of birth, and whether this information was lawfully redacted from the police paperwork before it was turned over to the defense, the defendant points to two parts of the new discovery statute to support his argument. The first, CPL 245.20 (1)(c) states, in pertinent part: “Information under this subdivision relating to a confidential informant may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article;…” (emphasis added). The second, CPL 245.20(6) states, “Redactions permitted. Either party may redact social security numbers and tax numbers from disclosures under this article.” The defendant argues that because these two statutes expressly provide examples of information that may be redacted from discovery materials, this means that they are all-inclusive, and that the types of information listed are the only types of information that may be redacted. The court disagrees. As a threshold issue, the people state that the complainant’s and her mother’s dates of birth do not relate to the “subject matter of the case,” within the meaning of CPL 245.20(1) and are therefore not subject to discovery. On its face, the court views this information as nothing more than pedigree information, unlikely to be relevant to the subject matter of the case, which involves an allegation that the defendant forcibly touched the complainant’s intimate parts without her consent. The complainant’s mother’s date of birth appears to bear even less relevance to the subject matter of the case. Therefore, because the defendant has not put forth any reason why he believes this information does bear on the subject matter of the case, the court is not inclined to conclude that the people are required to disclose it. The fact that they redacted the information indicates to the court that the people were merely attempting to protect the privacy of their witnesses, just as they routinely do with social security numbers, tax ID’s and personal phone numbers.3 Defendant relies on People v. Tychanski, 78 N.Y.2d 909 (1991) and the doctrine of statutory interpretation that “expression of the one is exclusion of the other.” In other words, the defendant argues that because the legislature specifically provided examples of information that may be redacted from discovery materials, that this means no other information may be redacted. Defendant’s argument, however, is flawed. The court notes that there is a significant distinction between the language in CPL 245.20 governing the prosecution’s discovery obligations and the statute governing the defendant’s reciprocal discovery obligations. CPL 245.20(4) is entitled, “Reciprocal discovery for the prosecution” and states, in pertinent part, that: “(a) The defendant shall, subject to constitutional limitations, disclose to the prosecution…any material and relevant evidence within the defendant’s or counsel for the defendant’s possession or control that is discoverable under…subdivision one of this section, which the defendant intends to introduce at trial or a pre-trial hearing, and the names, addresses, birth dates, and all statements, written or recorded or summarized in any writing or recording, of those persons other than the defendant whom the defendant intends to call as witnesses at trial or a pre-trial hearing” (emphasis added). The legislature left out this specific language regarding addresses and birth dates from CPL 245.20(1), (2) and (3), yet chose to include it here, in the reciprocal discovery section, demonstrating that “expression of the one is exclusion of the other.” In other words, had the legislature wanted to require the people to disclose addresses and birth dates of their witnesses to the defense, they would have explicitly said so, and because there is no express requirement that the people disclose this information, the court finds that the people may lawfully redact this information if it does not relate to the subject matter of the case. It also stands to reason that if the people redact information from discovery materials that is not otherwise discoverable under CPL 245.20(1), the people have committed no violation of the statute by redacting this information just because it was not expressly included in the statute as an example of that which may be redacted. Therefore, the court finds that the people have not violated their discovery obligations in redacting the complainant’s and her mother’s dates of birth from the discovery materials turned over to the defense. Body Worn Camera Footage As part of their discovery disclosure, the people turned over several videos to the defense containing body worn camera footage of the police officers involved in the case. The arresting officer, Michael Carolan, had completed a form entitled, “Manhattan County District Attorney Body Worn Camera checklist” in which he listed that there was body worn camera footage from another officer, Christopher Wintermute. When defendant did not receive this video, the people were notified and upon further review, it was determined that Officer Wintermute did not activate his body worn camera for this case. Additionally, the court finds that the people immediately provided any other missing video to the defense.4 For these reasons, the court finds that the people have acted in good faith regarding the body worn camera footage and have complied with their discovery obligations under CPL 245.20(1)(e) and (1)(g). Conclusion It is the court’s finding that the people have complied with their discovery obligations under CPL 245.20, and have not unlawfully redacted any information from the discovery materials they disclosed to the defense. As such, the court deems the people’s certificate of compliance filed on January 29, 2020 valid. In conclusion, and pursuant to CPL 245.35(1), the court orders the parties to diligently confer with each other should any additional discovery disputes arise, prior to seeking any further ruling from the court. This opinion constitutes the decision and Order of the Court. Dated: February 24, 2021
