The following papers numbered. 1 to 3 were read and considered on defendant’s motion for an order compelling further discovery pursuant to CPL §245.50, to deem the Certificate of Compliance invalid and to nullify the People’s statement of readiness Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 Replying Affidavits 3 DECISION AND ORDER Background Defendant stands accused of one count of Menacing in the Second Degree (Penal Law §120.14 [1]). The information alleged that on or about February 23, 2021, Defendant intentionally placed the complaining witness in reasonable fear of physical injury, serious physical injury, or death by displaying a dangerous instrument. The People filed a Certificate of Compliance, pursuant to CPL 245.50 [] 1] on June 7, 2021. Defendant now moves for a ruling deeming the Certificate of Compliance improper on the grounds that the People failed to provide certain discoverable materials. The People oppose the motion. Relevant Law The Criminal Procedure Law was amended as a part of criminal justice reforms which operated, in part, to expand discovery. According to the new discovery amendments, Prosecutors must now disclose “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 includes a non-exhaustive list of items subject to disclosure. Id. The People are under a duty to make a “diligent, good faith effort to ascertain the existence of material or information” and are deemed to be in possession of “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….” CPL §245.20 [2]. CPL §245.55[1] directs that the People “endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged….” The People must also disclose ” [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…(iv) impeach the credibility of a certifying prosecution witness” CPL §245.20 [1] [k] [iv]. There is no requirement that the People obtain by subpoena duces tecum any material or information which is not in their possession and which Defendant may so obtain. CPLR §245.50. The statute expressly directs that “[t]here shall be a presumption in favor of disclosure” (CPL §245.20 [7]) and the People’s obligations are ongoing. If the People learn of additional material which is required to be disclosed, the statute directs that they “expeditiously notify the other party and disclose the additional material and information as required for initial discovery.” CPL §245.60. Upon satisfying the discovery obligations the People must file a Certificate of Compliance with a list of the discovery materials provided. CPL §245.20 [1]. In the event the People provide additional discovery, a supplemental certificate “identifying the additional material and information provided” must be filed. CPL 245.50 [1]. As the discovery reforms are tied to speedy trial requirements, a finding that a Certificate of Compliance was improper equates to a determination that the People’s statement of readiness was illusory. CPL §30.30 [5]. However, Article 245 does not define what constitutes a “proper” Certificate of Compliance. In examining whether the People made honest efforts to comply with CPL §245.20 [1], “good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated.” People v. Perez, 2021 N.Y. Slip. Op. 21165 [Sup. Ct., Queens Co. 2021]. CPL §245.50 [3] provides that the prosecution may be deemed ready for trial “where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed or otherwise unavailable” despite “diligent and good faith efforts, reasonable under the circumstances.” The court may issue a remedy or sanction upon a showing by the defendant that the material “may have contained some information relevant to a contested issue.” CPL §245.50 [1] [b]. Several courts have found belated disclosures should not invalidate a Certificate of Compliance made in good faith where the delay was the result of a minor oversight or a good faith belief that the material was not discoverable. See People v. Bruni, 2021 N.Y. Slip Op. 21076 [Albany County Ct 2021]; People v. Erby, 68 Misc. 3d 625, 633 [Sup Ct Bronx County 2020]; People v. Gonzalez, 68 Misc. 3d 1213(A) *1, 3 [Sup. Ct. Kings County 2020]; People v. Knight, 69 Misc.3d 546, 552 [Sup. Ct. Kings County 2020]; People v. Lustig, 68 Misc.3d 234, 247 [Sup. Ct Queens County, 2020]; People v. Randolph, 69 Misc.3d 770 [Sup Ct Suffolk County 2020]. The People must set forth their efforts to comply with CPL §245. A demonstration of good faith and due diligence will result in a finding that the Certificate of Compliance is valid. “This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reason why particular items are outstanding, lost or destroyed, and submitting their good faith arguments for why certain materials are not discoverable under the statute.” People v. Perez, 73 Misc.3d 171, 174 [Sup. Ct. Queens Co. 2021]. There are “no adverse consequences” provided the filing o£ the certificate in good faith and reasonable under the circumstances. CPL §245.50 [1]; People v. Georgiopoulos, 71 Misc.3d 1215(A) [Sup. Ct. Queens Co. 2021]. Present Motion By notice of motion dated July 6, 2021, Defendant moved to strike the Prosecutions’ Certificate of Compliance and nullify the Prosecutions’ Declaration of Readiness pursuant to CPL §245.50 and to compel discovery pursuant to CPL §245.20 and CPL §245.50. The People opposed the motion. Defendant alleged that the People violated the automatic discovery provisions of CPL §245.20 in that they failed to provide the criminal history and records of the underlying police reports of their complaining witness. Particularly, Defendant alleged that the complaining witness was charged in Yonkers City Court and sentenced to ten years in state prison for an Assault in the First-Degree conviction and is on parole until 2024. Defendant seeks the underlying police reports related to this arrest and conviction as well as “records on inmate conduct, punishment, and parole proceedings.” (Defendant Attorney Affirmation in Support, par 5). The People alleged that they have worked assiduously to ascertain and disclose discoverable materials to Defendant. Particularly, the People allege they took the following efforts to discharge their duties about discovery in good faith and with diligence: 1. The Westchester County District Attorney’s Office established a Discovery Portal (hereinafter “Portal”) to provide discovery materials in digital format to the defense bar. They also held meetings with police jurisdictions within the county to discuss their ability to meet the technical requirements of utilizing the portal to provide discovery. 2. The Yonkers Branch office sent general demands or “Law Enforcement Agency Request Forms” to the Yonkers Police Department, Westchester County Department of Public Safety and the New York State Police agencies. 3. The Yonkers Branch sends follow up letters and emails to obtain outstanding material or update material previously received. 4. The assigned Assistant District Attorney requested and received the following items turned over to Defendant via the Portal a. Westchester County Department of Public Safety discovery checklist of documents and evidence pertaining to the case. b. All radio runs and any 911 calls made to Westchester County Department of Public Safety dispatch pertaining to the case and materials. c. Video surveillance from incident location, body camera footage from officers worn at the time of the investigation of the case, along with booking video upon Defendant’s arrest. d. All police reports and supplemental reports from the Westchester County Department of Public Safety involved in the investigation of the case and Defendant’s arrest. The People acknowledged the conviction of their complaining witness. However, the People contend the conviction was over ten years ago and that the underlying files were likely destroyed. The People assert that there is no obligation to maintain case files for an indefinite period and further that dismissal is illogical and at odds with. CPL §245.50 [1] and the linkage between discovery and speedy trial. They further posit that they provided Defendant with all pertinent discovery information including the original charge, the convicted charge, the date of the witness’s conviction and the sentence which followed. The People argue in the alternative that the court may find the People were ready for trial under CPL §245.50 [3] “where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable” despite diligent and good faith efforts, reasonable under the circumstances.” In such a circumstance the People argue, Court might impose a remedy or sanction under CPL §245.80 [1] [b] only on a showing that the material “may have contained some information relevant to a contested issue.” The People assert that as Defendant failed to make this showing, dismissal is not warranted. The People further argue that the records from the New York State Department of Corrections and the New York State Division of Parole are not within the custody or control of the District Attorney’s Office. Rather, the People argued, a subpoena from the District Attorney’s office is required to obtain these records. Defendant insists that the New York State Department of Corrections and the New York State Division of Parole are law enforcement agencies and the People are deemed in possession of the information pursuant to the plain language of CPL §245.20 [1] places the possession of “all times and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency” is deemed to be in the possession of the prosecution.” CPL §245.20 [1]. Defendant further asserts, “[w]hether or not the defense can pursue other avenues of disclosure does not relieve the People of their obligation to provide these records…” People v. Porter, 142 NYS 3d 703 [Crim. Ct. Bronx Co. 2020]. Defendant submits that the People’s allegations are mere conjecture and asserts that the People failed to demonstrate the actual efforts made to obtain any of the sought after discovery. Police Records Pertaining to Complaining Witness The People noted there is no obligation to maintain files for an indefinite period and allege “[t]he underlying convictions were more than 10 years old, and the files have in all likelihood either been destroyed due to time lapse pursuant to the Statute of Limitations to maintain files or are no longer available due to the age of the cases.” People’s Memorandum in Support, p. 3). However, these statements do not provide the court with information from which the court may assess the People’s due diligence in locating the within files. Defense maintains the lack of affidavits, affirmations or facts revealing the actual efforts by the People to obtain their own files, rendering allegations that the records do not exist pure speculation. Defendant argued that People’s failure to comply with CPL §245.50 must result in the imposition of sanctions as the Certificate of Compliance is only valid if the prosecution has disclosed “all known material and information subject to discovery”. First, the People are deemed to have custody and control over those items “related to the prosecution of a charge in the possession of any New York State or local police or law enforcement agency.” CPL §245.20[2]. There is nothing before the Court to indicate that the underlying police records of the People’s witness relate to the prosecution of Defendant in the above-entitled matter. As such, the Court may not conclude that these police department records in the People’s custody. There is no dispute that the underlying charges are related to the People’s witness. The People provided the criminal charge, convicted charge and the date of conviction and sentence. Defendant has failed to demonstrate the relevance of the records or what information, if any, relates to the subject matter of the case before the court. “It is the moving party’s responsibility to set forth a good faith basis for its belief that these items contain material relating to the subject matter of the case.” People v. Alvarez, 2021 N.Y. Slip. Op. 50292 [March 29, 2021]. To the extent that the police department records are sought as impeachment material, the Courts have consistently held that documentation under CPL §245.20 is limited to those items that directly relate to the prosecution of a case. In the same vein, the People are not deemed to be in possession of “material which has ‘no relationship’ to the case against the defendant, except insofar as it would be used for impeachment purposes.” People v. Garrett, 23 N.Y. 3d 878, 888 [2014] quoting People v. Vasquez, 214 A.D. 2d 93, 100 [1st Dept. 1995]. For the foregoing reasons, this branch of Defendant’s motion to deem the Certificate of Compliance invalid and to nullify the Certificate of Readiness and direct discovery is denied. Department of Corrections and Parole Records The remaining branches of Defendant’s motion pertaining to discovery regarding records of the New York State Department of Correctional Services and New York State Division of Parole are denied. The People are not under an obligation to disclose same as these agencies are not within the People’s possession, custody, or control. The State Department of Correctional Services is not under a duty to share information with the District Attorney’s Office. People v. Howard, 87 N.Y. 2d 940 [1996]. “[A]lthough Correction Department facilities are at the end of the State’s law enforcement chain, the Correction Department itself is, in most respects, an administrative rather than a law enforcement agency. Under these circumstances, the People had no obligation to attempt to locate and gain possession of the material for the purpose of turning them over to the defense.” Id citing People v. Washington, 86 N.Y.2d 189, 192-193; People v. Flynn, 79 N.Y.2d 779, 882. “Although Corrections Officers are authorized to perform “incidental law enforcement functions” the records are not in the possession of the People. See, People v. Kelly, 88 N.Y.2d 248 [1996]. Similarly, the Court of Appeals found that records of the State Division of Parole and the Department of Correctional Services are of the New York State Executive branch and “should not generally be deemed to be in the control of 62 county prosecutors, nor of any other prosecutorial office subject to the Rosario rule.” People v. Kelly, 88 N.Y.2d 248 [1996]. The Court held: The Records at issue in these cases were initiated and created by parole officers assigned to supervise the released individuals. This role is independent of the police investigations that ensued and supported new criminal charges against the defendants. As such, the parole interview records were in the possession of a State administrative agency, which is not within the control of a local prosecutor. The Division of Parole does not represent “The People” in the distinctive and customary usage of that term for prosecutorial purposes. Despite their incidental law enforcement function, possession of Division of Parole records should not be imputed to the local prosecutor because of the lack of prosecutorial control.” Id. There is no basis upon which to grant this branch of Defendant’s motion. The People were not required to disclose this material in order to validly certify the case. Leave to File Additional Motions That branch of Defendant’s motion which sought to reserve the right to make further or additional motions is denied. CPL §255.20 mandates that all pretrial motions be made in the same set of papers and within 45 days of Defendant’s arraignment. Further motions may only be heard by the court upon a showing of “good cause” by Defendant. CPL §255.20 [3]; People v. Davidson, 98 N.Y.2d 738, 739 [2002]. Absent a showing of “good cause” to reserve time for additional motions, Defendant’s motion for this relief is denied. Accordingly, Defendant’s motion is in all respects, denied. Dated and Entered: October 14, 2021
