Defendant is charged by information with violating Penal Law §130.52(1), Forcible Touching, and Penal Law §130.55, Sexual Abuse in the Third Degree. Defendant moves pursuant to Criminal Procedure Law §§245.20 and 245.50 to invalidate the People’s Certificate of Compliance (COC) and Certificate of Readiness (COR) for the People’s failure to disclose material and information required by CPL 245.20 (1)(k), and to release the defendant pursuant to CPL 30.30 (2)(b). Defendant also moves to suppress identification and statement evidence, requests a bill of particulars, and reserves the right to make any further motions. Defendant’s request that the COC be invalidated is granted. The People are directed to disclose to the defense the records of the substantiated allegations of misconduct against the police witness. Because the COC is invalid, the People were not ready for trial more than 30 days since the commencement of defendant’s commitment to custody. Accordingly, defendant’s motion pursuant to CPL 30.30 (2)(b) is granted. Additionally, Wade/Dunaway and Huntley/Dunaway hearings are granted and defendant’s Sandoval and Ventimiglia motions are referred to the trial court. Introduction Defendant was arrested on May 4, 2021, and charged with one count of Forcible Touching, Penal Law §130.52 (1), and one count of Sexual Abuse in the Third Degree, Penal Law §130.55. Defendant was arraigned on May 5, 2021 and bail was set. On May 11, 2021, and May 18, 2021, the People served discovery on defendant including a District Attorney’s Office form entitled “Disclosure Advisory” (“DAF”), listing the date and nature of two allegations against Detective Alfred Ortiz, whom the People may call as a witness in this case, that had been substantiated by the New York City Police Department (NYPD). On May 19, 2021, the People filed a certificate of compliance and a certificate of readiness. On May 25, 2021, the People served supplemental discovery (shelter incident reports) and filed a supplemental COC and COR. On June 10, 2021, the People answered ready for trial. Defendant argued that there defendant was entitled that had not been disclosed. This included personnel files and disciplinary records for the police officer witness. As directed by the court, pursuant to CPL 245.35 (1), the parties conferred concerning the disputed discovery items. Ultimately, the People informed the defense of their position that their “DAF” “contains sufficient information to satisfy our discovery obligations.” In the instant Omnibus Motion, dated June 24, 2021, defendant contends that the People have not complied with their discovery obligations pursuant to CPL 245.20 and 245.50, as they have not provided personnel and disciplinary records for their police witness, and therefore, the COC and COR are invalid. The People filed an Affirmation in opposition on July 8, 2021. Defendant filed a reply Affirmation on July 14, 2021. Discussion Effective January 1, 2020, the New York State Legislature significantly broadened the prosecution’s discovery obligations, enacting Criminal Procedure Law Article 245 and repealing former Article 240. In addition to expanding the types of material and information that must be disclosed by the prosecution and establishing an expeditious discovery schedule, Article 245 contains an express “presumption of openness,” favoring disclosure when interpreting the discovery provisions (CPL 245.20 [7]; see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Criminal Procedure Law §245.10 ["the prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance. Thus, a prosecutor who fails to engage in 'open file' discovery (except for 'work product' and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution"]). Criminal Procedure Law §245.20 (1) provides a non-exhaustive list of items that the People must automatically disclose to the defendant. Pursuant to CPL 245.20 (2), the People must make a diligent, good faith effort to ascertain the existence of those items and cause them to be made available for discovery, even if the material is not within their possession, custody or control. In addition, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the People’s possession. When the People have provided the automatic discovery required, they shall serve and file a certificate of compliance, stating 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]). The People cannot be deemed ready for trial until a proper COC is filed (CPL 30.30[5] [statement of trial readiness must be accompanied by a COC]; CPL 245.50[3] [but for special circumstances, People not ready for trial absent COC]). Police Officer Disciplinary Records Concerning its police witness’ disciplinary records disclosure, the prosecution provided its “DAF” — a list containing summaries of two allegations against their police witness that had been substantiated by the NYPD.1 The People did not provide any documents or records related to those findings. Defendant requests an order deeming the COC invalid due to the People’s failure to provide the personnel and disciplinary files of the police witness. In opposition, the People argue that they are not required to provide records of substantiated disciplinary allegations. According to the People, defendant is “not entitled to receive full copies of every officer’s personnel or disciplinary records,” and “the People have satisfied their discovery obligation by disclosing the substance of the substantiated allegations in the DAF and are not further obligated to turn over the underlying records.” The People argue also that they need not provide disciplinary records because the substantiated allegations are not related to the subject matter of the charges against defendant. And, the People argue that disclosure of the disciplinary records “would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefits defendants would enjoy from the information ultimately disclosed.” The People have offered nothing to indicate any burden that was, or might have been, borne in disclosing the disciplinary records of the single police witness in this case or that they are unable to ascertain the existence of, obtain, or disclose the records concerning the substantiated disciplinary allegations despite diligent efforts made in good faith. Defendant’s interpretation of the discovery statute is overbroad. The statute does not require disclosure of the officer’s entire personnel file (see People v. Altug, 70 Misc 3d 1218[A][Crim Ct, NY County 2021]; People v. Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]). The People’s disclosure is insufficient, however, and their arguments are unpersuasive. Criminal Procedure Law §245.20 (1)(k)(iv) requires the People to provide to the defense: [a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to impeach the credibility of a testifying prosecution witness. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form. The plain meaning of “all evidence and information that tends to impeach the credibility of a testifying prosecution witness. [w]hether or not in tangible form” encompasses all allegations, as well as the files, records and other materials “in tangible form” on which substantiated disciplinary findings against the People’s officer witness are based. (People v. Kelly, 71 Misc 3d 1202[A] [Crim Ct, NY County 2021]; People v. Perez, 71 Misc 3d 1214[A] [Crim Ct, Bronx County 2021]; People v. Herrera, 71 Misc 3d 1205 [A][Dist Ct, Nassau County 2021]; People v. Cooper, 71 Misc 3d 559 [Erie County Ct, 2021]; People v. McKinney, 71 Misc 3d 1221[A] [Crim Ct Kings County 2021]; People v. Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020]; People v. Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v. Rosario, 70 Misc 3d 753 [Albany County Ct, 2020]).2 Impeachment evidence and information is that which concerns the credibility of the officer witness — regardless of the subject matter of the charges against the defendant (People v. Smith, 27 NY3d 652 [2016] [cross-examination concerning any immoral, vicious or criminal act which may affect witness' character and show unworthiness of belief]; People v. Beal, supra [same]; People v. Altug, supra). The ability to test — to confront — an adverse witness’ credibility through impeachment is a fundamental right. The People’s argument that required disclosure is limited to that which is related to the subject matter of the case fails to acknowledge the purpose and express language of CPL 245.20(1)(k)(iv), requiring disclosure of “all evidence and information” recorded “in tangible form,” and otherwise, that “tends to impeach” the officer witness. Records of substantiated charges of failure to follow procedures, dishonesty, or other improper conduct are tangible evidence and information that bear directly on an officer’s credibility as a witness in any case, regardless of what might be the particular crime charged. Several courts considering the scope of CPL 245.20(1)(k) have found that there can be a good faith basis to cross-examine police witnesses about substantiated allegations that are clearly supported by facts — and even as to unsubstantiated allegations when sufficient evidence is available (see People v. Kelly, 71 Misc 3d 1202[A] [Crim Ct, NY County 2021]); People v. Kayjon Yizar, Ind No. 2105/19 [Crim Ct, Bronx County 2021]); People v. Randolph, (69 Misc 3d 770 [Sup Ct, Suffolk County 2020]). Indeed, underlying disciplinary records may well be necessary to establish a good faith basis for cross-examination about specific disciplinary matters. Thus, impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case. Rather, it includes evidence recorded in tangible form and otherwise that “tends to impeach” the officer’s credibility and would serve as a basis for confrontation and impeachment of the police witness.3 The People offer also that the burden of disclosing disciplinary records is “unacceptable” as it likely outweighs “the potential benefit” to defendant. It is not for the People to condition compliance on a balancing test of their own devise. Further, that argument is inapposite in this case, which concerns a lone police officer witness with three disciplinary findings. This case, like most cases in courts of criminal jurisdiction, involves a limited number of police witnesses and a small number of disciplinary findings. That the People have not described any difficulty obtaining or disclosing records in this case strongly suggests that the burden (if any) caused by having to disclose the disciplinary records here would be minimal. Thus, general arguments concerning burdens of disclosure are unpersuasive. It bears noting also that in cases in which the volume or complexity of disciplinary records is so great that disclosure may indeed be difficult, the People’s compliance with its discovery obligations, including production of those underlying records, is that much more critical.4 For these reasons, defendant’s request for disclosure of police officer’s disciplinary files is granted. The People are directed to disclose the underlying NYPD disciplinary records. Validity of the Certificate of Compliance In their opposition to defendant’s motion, the People state that “in producing the DAF and summarizing the substantiated allegations, the People exercised due diligence in reviewing NYPD records to ascertain whether there is discoverable information in a police officer’s personnel and disciplinary files.” Nevertheless, the People did not provide any disciplinary records for its police officer witness. Nor have the People described their efforts to obtain those records or explained why they were unable to disclose them (CPL 245.20 [1], 245.50). The People’s reliance on “good faith” and “due diligence” to avoid invalidation of the COC for failure to disclose these records is misplaced. In the context of the discovery statute “good faith” and “due diligence” concern the People’s effort to ascertain the existence of discoverable material (as set out in CPL 245.20 [1]) and to make that material available to the defense (CPL 245.50 [1]). The People have not shown efforts in that regard. They have failed to make available to the defendant the disciplinary records that are required by CPL 245.20 (1)(k)(iv). That the People might have applied good faith and due diligence in making their own determination that disciplinary records do not — or should not — fall within the statute is of no moment. That is not the People’s determination to make. CPL Article 245 relieves the People of having to define what is or is not discoverable. The list of what types of evidence must be disclosed was determined by the Legislature. And to the extent necessary, that list may be refined or interpreted by the court. It is for the People to diligently ascertain the existence of and disclose the items on the list — not to determine what categories of evidence should be included on it. In CPL Article 245, the Legislature provided numerous opportunities for the People to seek accommodation or relief regarding untenable discovery difficulties in any particular case. For example, CPL 245.10 (1)(a) allows for extension of time to provide initial discovery where materials are exceptionally voluminous. In some circumstances, CPL 245.50 (3) allows for trial readiness when discoverable evidence is unavailable. CPL 245.70 (2) allows for modification of discovery periods for good cause shown. CPL 245.70 (1) allows for protective orders that might deny, restrict, condition, or defer disclosure of any discovery. In addition, CPL 30.30 (4)(g) allows for exclusion of time chargeable to the People for delay caused by unavailability of evidence that the People have diligently attempted to obtain and disclose. Here, however, the People failed to disclose the officer’s disciplinary records, rather than show due diligence or request assistance or relief from the court. For these reasons set out above, the People cannot be found to have exercised due diligence in making available discoverable impeachment material. The People’s certificate of compliance is therefore invalid, as is their certificate of readiness.5 Release Pursuant to CPL 30.30 (2)(b) Forcible Touching is a misdemeanor, punishable by a sentence of imprisonment of more than three months. Accordingly, pursuant to CPL 30.30 (2)(b), defendant must be released on his own recognizance “if the people are not ready for trial within thirty days from the commencement of his or her commitment.” In computing time that is chargeable pursuant to CPL 30.30, the court must calculate the time between the commencement of commitment and the People’s statement of readiness, and then subtract any time which is excludable (CPL 30.30; People v. Cortes, 80 NY2d 201, 208 [1992]). Defendant must demonstrate the existence of a delay in excess of the statutory time period. The People may then identify the excludable basis for any requested adjournment, provided on the record (People v. Erby, 68 Misc 3d 625 [Crim Ct, Bronx County 2020]; citing People v. Santos, 68 NY2d 859, 861 [1986]). Here, defendant’s motion papers include a request for release pursuant to CPL 30.30 (2)(b), alleging that 49 days elapsed between the commencement of defendant’s commitment and the filing of his omnibus motion, which tolled the chargeable time. The People offered no opposition to defendant’s request for release. On May 5, 2021, defendant was arraigned, bail was set, and the case was adjourned to May 10, 2021, for conversion of the complaint to an information. This time period is chargeable to the People. (4 days charged/4 days total) On May 10, 2021, the People filed a supporting deposition, meeting their CPL 170.70 requirement to maintain defendant’s incarceration. The People did not file a COC or a COR. The matter was adjourned to June 10, 2021 for trial. On May 19, 2021 the People filed a COC and a COR. On May 25, 2021, off calendar, the People served additional discovery and filed a supplemental COC and COR. As discussed above, all of those are deemed invalid. Thus, the entire time period is chargeable to the People. (31 days charged/35 days total) On June 10, 2021, the People announced that they were ready for trial. Defendant’s oral request for bail was denied. The parties were ordered, pursuant to CPL 245.35 (1), to confer regarding the discovery disputes. The case was adjourned to June 25, 2021, for trial. Again, as no valid COC or COR had been filed, this entire time period is chargeable to the People. (14 days charged/49 days total) On June 24, 2021, defendant filed the instant discovery and CPL 30.30 (2) release motion. The time since that date is excludable for motion practice (CPL 30.30 [4][a]; LaBrew v. Vance, 192 AD3d 645 [1st Dept 2021]). This case is scheduled for August 2, 2021 for decision on the motion. (0 days charged/49 days total) Accordingly, the People are charged with 50 days, exceeding the 30-day allowable time frame. Thus, defendant’s motion for release pursuant to CPL 30.30(2)(b) is granted. Motion to Suppress Identification and Statement Evidence The defendant’s motions to suppress identification and statement evidence are granted to the extent that a Wade/Dunaway and a Huntley/Dunaway hearing are ordered pursuant to CPL 710.60 (4). Sandoval / Ventimiglia Motion Defendant’s motion to preclude introduction of evidence of defendant’s prior convictions and prior uncharged criminal, vicious or immoral acts for the purpose of impeaching the defendant’s credibility at trial is referred to the trial court. Motion to Compel Discovery and a Bill of Particulars Defendant’s motion to compel compliance with discovery and his request for a Bill of Particulars are granted to the extent of the information provided in the People’s ADF. The People are reminded of their continuing obligation under Brady v. Maryland (373 US 83 [1963]). Reservation of Rights Defendant’s request to reserve his right to file further pre-trial motions is granted to the extent that any such motion is based on new facts or law that “defendant could not, with due diligence, have been previously aware or which, for other good cause, could not reasonably have been raised” within 45 days after defendant’s arraignment and before trial (CPL 255.20 [3]). Conclusion For these reasons: The People are directed to disclose the NYPD disciplinary records for its testifying officer in this case. The People may redact the officer’s Social Security numbers and tax identifying information (CPL 245.20 [6]; Public Officers Law §89 [2][b]). Permission for any additional redactions must be sought by court order, pursuant to CPL 245.70. Defendant’s motion for disclosure of the testifying officer’s entire personnel file is denied. The People’s COCs and CORs, dated May 19, 2021 and May 25, 2021 are invalid. Huntley/Dunaway and Wade/Dunaway hearings are granted, and the defendant’s Sandoval/Ventimiglia application is referred to the trial court. This constitutes the decision and order of the court. Dated: July 30, 2021
