Defendant Alfonso Adams moves for an order striking the People’s Certificate of Compliance pursuant to CPL §§245.50, 245.20, and 30.30(5). The following papers were read: Notice of Motion — Affirmation of Orrin A. Fullerton, Esq. — Annexed Exhibits 1-3 Michael K. Purcell, Esq.’s Affirmation in Response — Annexed Exhibits 4-5 DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the defendant’s motion is denied. By Indictment dated December 23, 2020, the defendant was charged with Burglary in the Second Degree, Criminal Mischief in the Fourth Degree, and Criminal Obstruction of Breathing or Blood Circulation. The alleged victims of the charged crimes are Keisha Armwood-Adams and Kamrin Langford. The defendant has supplied an affidavit from Keisha Armwood-Adams (hereinafter “Adams”) in which Adams states that she does “not want to be involved in the prosecution of Alfonso Adams…” (April 30, 2021 Affidavit of Keisha Armwood-Adams, paragraph 3). Adams further states that she does “not have an interest in testifying as a witness for the prosecution…” (April 30, 2021 Affidavit of Keisha Armwood-Adams, paragraph 5). Defense counsel further represents that he has had multiple interviews with Adams, who advised him “she expressed to the People some time ago that she would not testify at trial…” Adams further advised counsel that Mr. Langford has made similar statements to her.1 The defendant, based upon this affidavit and counsel’s affirmation, seeks the striking of the Certificate of Compliance on the ground that the material witnesses are unavailable. It should be noted that the defendant is not otherwise claiming any deficiencies in the form or content of Certificate of Compliance filed by the People under CPL 245.50, nor has the defendant claimed that the People have not fulfilled their discovery obligations under CPL 245.20. The sole argument by defendant is that the People’s statement of readiness was illusory under CPL 245.50 due to the unavailability of material witnesses. The People have represented that “at the time of the filing of the statement of readiness, the People were ready for trial as indicated, and remain ready” (May 18, 2021 Affirmation of Michael K. Purcell, Esq., paragraph 10). Moreover, upon the filing of the Certificate of Compliance, the Court made an inquiry regarding the People’s “readiness” and the People satisfied the Court with their answers and assurances. The defendant’s motion attempts to substitute the witnesses’ desire to testify for the witnesses availability to testify. Both defendant and the People have had recent contact with each of the respective witnesses. There is no indication the witnesses are physically absent or are otherwise not subject to service of a subpoena to secure their attendance at trial. Further, both parties concede that each of the witnesses is a “material” witness. As such, the People may apply for a Material Witness Order under CPL 620.30 to secure the witnesses’ testimony. A witness indicating she has no interest in testifying does not make that witness unavailable, and a prosecution does not necessarily end because a witness may have become reluctant to cooperate. The legislative reforms promulgated under CPL §§245.20 and 245.50 clearly were meant to expand the discovery provided to a defendant, accelerate the timing of disclosure, and to assure the court would scrutinize the People’s statement of readiness. Nonetheless, it would be against public policy to render domestic violence cases essentially unprosecutable by declaring the People’s statement of readiness illusory simply because a witness who is otherwise available has become reluctant to testify.2 The State has a vested interest in prosecuting cases where domestic violence is alleged to have occurred. It is not uncommon for victim’s of domestic violence to become recalcitrant or even to recant prior statements alleging violence due to the complicated nature and dynamics of a domestic relationship. In certain instances, courts have permitted experts to testify regarding syndromes related to domestic violence in order to provide information beyond the Ken of an average juror in order for the jury to better understand the dynamics of the relationship or to provide insights as to the actions of the parties. To strike the Certificate of Compliance in these types of cases simply because a material witness has become uncooperative would render these cases unprosecutable. There are avenues available to the People to secure the testimony. The witnesses are not unavailable under the law, and as such, there is no basis to find the People’s statement of readiness illusory. Accordingly, the defendant’s motion to strike the Certificate of Compliance filed on February 10, 2021 must be denied. The foregoing constitutes the Decision and Order of the Court. Dated: July 14, 2021
