DECISION AND ORDER Defendant has demanded disclosure of an audio recording of the swearability examination conducted on the child complaining witness prior to the Child Advocacy Center (CAC) interview; defendant argues that Criminal Procedure Law §245.20 requires disclosure of the audio recording. The People have rejected defendant’s demand, arguing that CPL 245.20 does not, in fact, require disclosure of the recording. On July 6, 2021, pursuant to this court’s order, defense counsel and the People filed briefs in support of their respective contentions. Procedural History On March 20, 2020, as a result of the COVID-19 pandemic, the governor issued Executive Order 202.8, suspending CPL 30.30. Subsequent executive orders extended that suspension through October 4, 2020. On May 14, 2020, defendant was arraigned on an accusatory instrument charging him with Endangering the Welfare of a Child, Penal Law §260.10 (1). The People alleged that on May 10, 2020, between 12:00 A.M. and 11:59 P.M., defendant called the child complainant into a room and removed his pants, exposing his boxers. Defendant did then state to the child complainant, “Lick my penis.” The child witness’s date of birth is August 31, 2012. The People did not announce readiness for trial and the case was adjourned to July 7, 2020, for conversion and filing of a certificate of compliance (COC). On July 7, 2020, the case was administratively adjourned to November 25, 2020. On October 4, 2020, the Governor issued Executive Order 202.67, lifting the prior suspension of CPL 30.30 applicable to misdemeanor and lesser offenses.1 On November 20, 2020, the People served and filed an off-calendar superseding information (SSI) along with a supporting deposition of the child complaining witness and an affidavit of swearability.2 Defendant remained charged with Endangering the Welfare of a Child, but the People now alleged, in pertinent part, that defendant called the child complaining witness into the kitchen; defendant did then open and lower his pants and point to his penis before telling the child complaining witness to “Lick it.” The People did not file a COC that day. On November 23, 2020, the People served and filed an off-calendar COC along with a statement of readiness (SOR); in the attached Notice/Disclosure Form for Initial Discovery, the People indicated that they were delaying production of certain discoverable material pending a motion for a protective order. That day, as a separate application, the People filed a motion for a protective order limiting discovery of a digital video recording of the child witness’s CAC interview; specifically, the People requested an order providing that defense counsel be given one copy of the video recording but not be permitted to make additional copies. On November 25, 2020, the case was administratively adjourned to June 29, 2021. On January 29, 2021, defendant filed his opposition to the People’s request for a protective order. Specifically, defendant argued that the motion for an order prohibiting any additional duplication of the video interview recording was overbroad and damaging to his constitutional right to prepare a defense. That day, as a separate application, defendant filed a motion for the People to provide the court with the voir dire of the child complaining witness and for the court to review such any such recording to determine the competency of the complainant to verify a complaint. In the alternative, defendant moved for a swearability hearing. On February 1, 2021, the People filed an off-calendar Supplemental COC and SOR affirming that additional police paperwork had been disclosed to defense counsel. On March 31, 2021, upon the court’s suggestion that the parties resolve the motion for a protective order first, defendant withdrew his swearability motion with the court’s assurance that he would be given leave to file an amended motion at a later date. On April 14, 2021, a hearing having been held on the motion the prior day, the court issued an order limiting duplication of the digital video recording of the child witness’s CAC interview. Specifically, the court ordered that (1) one copy of digital video recording be provided to defense counsel, (2) defense counsel may only share the recording with those employed or consulted to assist in defendant’s defense, (3) defense counsel may employ or consult outside agencies to assist in the defense so as long as they agree to destroy the video at the conclusion of the consultation or defense of the case and (4) the recording may only be shown to defendant in the virtual or physical presence of defense counsel. On April 15, 2021, the People filed an off-calendar Supplemental COC and SOR affirming that the digital video recording of the child witness’s CAC interview had been disclosed to defense counsel. On May 3, 2021, defendant filed his amended swearability motion, now in the form of a motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to CPL 30.30. Specifically, defendant claimed that the child complainant lacks the capacity to verify an accusatory instrument; accordingly, defendant claimed the misdemeanor information is invalid and must be dismissed; in the alternative, defendant moved for a hearing to determine the competency of the child complainant. On May 4, 2021, the People advised the court and defense counsel that they possessed an audio recording of the swearability examination conducted on the child complaining witness prior to the child’s CAC interview. This audio recording is separate and apart from the video recording of the child’s CAC interview in which the child witness was questioned regarding the facts of the underlying incident. Defense counsel requested a copy of the audio recording, and the People rejected that request.3 On May 11, 2021, the People filed their opposition to defendant’s motion. On May 24, 2021, defendant filed his reply to the People’s opposition to his motion Notably, defendant argued that in light of the People’s recent confirmation of an audio recording of the swearability examination, the People’s prior COCs are invalid and any SORs illusory. On June 18, 2021, the court advised the parties that it was holding defendant’s May 3, 2021 motion to dismiss in abeyance.4 Given the People’s confirmation of an audio recording of the swearability examination following the filing of the defendant’s motion, the disagreement over the recording’s discoverability, and defendant’s related argument contesting the validity of the People’s COC/SOR in his reply, the court thought it prudent to resolve all issues in proper order. The court therefore ordered the parties to submit written arguments to the court by July 6, 2021, as to whether CPL 245.20 requires disclosure of the audio recording of the swearability examination. On July 6, 2021, pursuant to this court’s order, defendant and the People filed briefs in support of their respective arguments as to disclosure of the audio recording of the swearability examination. Defendant argues that the audio recording of the swearability examination conducted on the child complaining witness is discoverable: (1) pursuant to CPL 245.20 (e) because it is a recorded statement “made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto” and (2) pursuant to CPL 245.20 (k) because it is evidence and information “that tends to…support a potential defense to a charged offense,” namely, that the child complaining witness cannot distinguish fantasy from reality and is therefore an unreliable witness. The People oppose and contend that the audio recording of the swearability examination conducted on the child complaining witness is not discoverable pursuant to CPL 245.20 because: (1) it is neither Rosario nor Giglio material that is subject to disclosure and (2) it does not relate to the subject matter of the child witness’s testimony, only the quality, and is therefore not subject to disclosure. For the reasons below, the court concludes the audio recording of the swearability examination conducted on the child complaining witness prior to her CAC interview recording must be disclosed pursuant to CPL 245.20. Accordingly, the People are ordered to provide the audio recording of the swearability examination to the defense within 5 days of receipt of this decision. Disclosure of Swearability Audio Recording The People, citing People v L.G., 18 Misc 3d 243 (Crim Ct, Kings County 2007) and People v Anglin, (Sup Ct, Kings County, May 7, 2021, Leo, J. indictment No. 1956-2020) argue that CPL 245.20 does not mandate disclosure of the audio swearability recording. Specifically, the People contend that the discovery obligations of CPL 245.20 must be read in the context of Rosario or Giglio obligations predating the amended discovery statute. Accordingly, disclosure is not mandated for evidence that is only related to a witness’s ability to testify truthfully at trial, and not to the facts of the underlying criminal transaction. Conversely, defendant contends that the plain language of CPL 245.20 mandates disclosure of the audio swearability recording. Specifically, defendant argues that CPL 245.20 (1) (e) provides for disclosure of: “[a]ll statements…made by persons who have evidence or information,” and CPL 245.20 (1) (k) provides for disclosure of: “[a]ll evidence and information…that tends to support a potential defense to a charged offense.” The court’s review of existing case law reveals no appellate authority on this issue, only trial court decisions that defendant urges are either distinguishable or unpersuasive; as a result, the court must turn to legislative history and statutory interpretation to determine the scope of CPL Article 245. A. Legislative History In interpreting a statute, the court should evaluate the legislative intent and history of the enactment of the new discovery laws. (New York County Lawyers’ Assn’n v Bloomberg, 19 NY3d 712 [2012]). Prior to 2020, the discovery statute, CPL 240, merely “delineated a discrete list of items that were required to be disclosed” (People v Lustig, 68 Misc 3d 234, 238 [Sup Ct, Queens County 2020]). Discovery of these items was not automatic and prior to disclosure of these items, a defendant had to serve a “demand to produce” upon the prosecutor (CPL 240.10 [1]).5 In contrast, Criminal Procedure Law Article 245, the discovery law in effect since 2020, lays out a non-exhaustive list of items the People must automatically disclose (Lustig, 68 Misc 3d at 238, ["[CPL 245.20 [1] defin[es] the People’s discovery obligations by outlining a number of categories of materials that must be disclosed, but noting that the People’s compliance is ‘not limited to’ those materials]). Indeed, “so expansive [are the items to be disclosed] as to “virtually constitute ‘open file’ discovery, or at least make ‘open file’ discovery the far better course of action to assure compliance” (id., citing William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 245.10). Finally, if, “any doubt arises about whether a particular item must be disclosed, the statute includes an explicit ‘presumption in favor of disclosure [that applies] when interpreting’ the prosecution’s discovery obligations” (id. citing CPL 245.20 [7]). Guided by both this “presumption of openness” and the dramatic change in the burden, timing, and scope of disclosure, the court can only conclude — as it has done numerous times before — that the legislature intended the amended discovery statute to provide for broader and earlier disclosure than the prior statute (see People v Mauro, 71 Misc 3d 548, 552 [Westchester County Ct 2021] ["[the new discovery statute] mandated that the prosecution provide significantly more discovery. They also directed that the materials be provided at an earlier stage of the proceedings”]). B. Statutory Interpretation 1. Material Related to the “Subject Matter of the Case” under CPL 245.20 (1) is Broader Than the Specific Criminal Transaction. As a preliminary matter, the court must determine whether the “subject matter” language in CPL 245.20 functions to limit the enumerated items to only evidence or testimony related to the underlying criminal transaction, or if the “subject matter” of a case is broader than the specific criminal act. Since the term “subject matter of the case” is neither statutorily defined nor appears in precedential case law, the court turns to the process of statutory interpretation, including the principles of plain meaning and statutory construction. Applying these principles, the court concludes that “subject matter” is broader than the charged criminal conduct While the term “subject matter” of the case is not defined within Article 245, other terms in the statute limiting or defining what constitutes the “subject matter” for that particular category demonstrate that the statute as a whole is not limited to the criminal incident. CPL 245 (1) (g), for example, limits discovery of 911 telephone calls to the underlying incident, only requiring disclosure of those calls, “made or received in connection with the alleged criminal incident” ([emphasis added]). Similarly, by providing that the People must disclose “all tangible property that relates to the subject matter of the case, along with a designation of which items the prosecution intends to introduce in its case-in-chief,” the text of CPL 245 (1) (o) expresses that the “subject matter” of a case is broader than what the People intend to use at trial ([emphasis added]). The principle of statutory construction therefore requires the court to conclude that if the legislature had intended “subject matter of the case” to be so narrowly construed as to only comprise “the alleged criminal incident,” they would have included such language (Rivers v Birnbaum, 102 AD3d 26, 36 [2d Dept 2012]) ["where the Legislature includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the Legislature] acts intentionally and purposefully in the disparate inclusion or exclusion”] [internal citation and quotation omitted]). 2. Material Enumerated in CPL 245.20 (1) is within the purview of “Subject Matter of the Case” CPL 245.20 (1) requires that the prosecution “shall” disclose numerous categories of items “that relate to the subject matter of the case.” The provision clearly states the items that must be disclosed “include[e] but [are] not limited to” (emphasis added) the listed categories and therefore are an illustrative and not exhaustive list of the discovery the prosecution must turn over (see Legislative History supra at 7). Therefore, the legislature has deemed all the listed items as “ relate[d] to the subject matter of the case.” As such, the court need not make an independent “subject matter” determination regarding an item enumerated in the plain language of the statue. Simply by listing a category of material discoverable, the legislature has already determined that it relates to the subject matter of the case. 3. CPL 245.20 Requires Broader Disclosure Than the Rosario and Giglio Doctrines The People urge that CPL 245.20 (1) (e) merely codifies existing Rosario and Giglio law; as a result, the discoverability of the audio recording is governed not just by whether it is part of an enumerated category in CPL 245.20, but also whether it falls under the definition of Rosario or Giglio material. Defendant argue that the Rosario and Giglio doctrines do not apply, as CPL 245 is, by design, broader than the disclosure requirements of Rosario and Giglio doctrines pre dating its enactment. Rosario material, defined as evidence that relates “to the subject matter of the witness’ testimony,” was formulated in People v Rosario, 9 NY2d 286, 289 (1961) and codified in CPL 240.45. Giglio material, evidence that implicates a witness’s credibility at trial, was formulated in Giglio v United States, 405 U.S. 150 (1972) and codified in CPL 240.45. The Supreme Court, Kings County recently examined a similar issue — the applicability of the Brady and Giglio doctrines to the disclosure requirements of exculpatory and impeachment material pursuant to CPL 245.20 (k). In People v Shakeem Smith, (Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., Indictment No. 01866-2019, at 3), the Supreme Court reviewed the People’s contention that CPL 245.20 (k) was intended “by the Legislature to codify extant law regarding Brady/Giglio disclosure.” In its review, the court initially compared CPL 240.20 with CPL 245.20, finding that, CPL 240.20 “expressly couched the People’s obligation in terms of the requirements of the federal and State constitutions…[while] [n]o such limitation was enacted in the new statute (id. at 3-4). Next, the court highlighted that “CPL 245.20 (k) speaks far more broadly of evidence and information ‘tending to’ impeach witness credibility” than the Brady doctrine, which requires that “requirement that mandatorily disclosable information be “material” to the outcome of a case” (id. at 4). Finally, the court examined the language and purpose of CPL 245.20, finding that, “it is plainly intended…to reduce discovery delay by requiring the prosecution to ‘automatically provide the defense with disclosure, including material for possible impeachment use. It would make little sense then to limit that disclosure…and shift the burden to the defense” (id.). The court therefore rejected the People’s argument, concluding that, “when CPL 245.20(k) obliges the People to disclose ‘all evidence and information,’ rather than ‘evidence or information,’ it means what it says” (id.) Furthermore, a plain reading of the statue indicates a broader interpretation of CPL 240.20. Rosario material relates to the “to the subject matter of the witness‘ testimony” (emphasis added), in contrast to the more encompassing requirement of CPL 245.20 to disclose all material related to the subject matter of the case. Unlike other subdivisions in 245.20 (1), such as (g), subdivision (e) does not include any limiting language (see Statutory Interpretation, supra at 8). For this reason, the court finds that the 2007 case cited by the People, People v L.G., 18 Misc 3d 243 (Crim Ct, Kings County 2007) distinguishable from the instant case. In L.G., the Criminal Court, Kings County held that the audio recording of the child witness’ swearability examination was not discoverable based on its determination that the recording did not constitute Rosario or Giglio material as defined by existing caselaw interpreting CPL 240. Even if this court agreed with the L.G. court that the audio recording of the swearability examination is not potential impeachment material, which it does not, this court must review the disclosure of the of the recording against the requirements of CPL 245, not CPL 240. As discussed supra, the court concludes that CPL 245 has broader disclosure requirements that CPL 240. Accordingly, this court, guided by the reasoning of Smith, particularly its application of statutory interpretation, concludes that discovery is mandated by the broader disclosure mandate of CPL 245 and is not limited by whether such material is also Rosario or Giglio. 4. Swearability Fundamentally Falls Within the Subject Matter of the Case Even if the court had to make a “subject matter” determination, the court, guided by the implicit intent of the Legislature and purpose of the statute, concludes that swearability material relates to the subject matter of the case. Presumably, in the instant case, the child witness will be the only one able to testify to the facts underlying the criminal charge in the instant case. The child witness’s ability to testify truthfully to the incident is, therefore, of critical importance. Certainly, the law providing for a swearability hearing prior to a child witness being permitted to testify in any case substantiates the importance of such determination (see CPL 60.20; People v Nisoff, 36 NY2d 560, 563 [1975]). As a result, discovery related to such a fundamental determination cannot be said to be unrelated to the subject matter of the case and is discoverable. For that reason, the court also disagrees with People v Anglin, (Sup Ct, Kings County, May 7, 2021, Leo, J. indictment No. 1956-2020) and declines to follow it. The Anglin court first held that swearability material “relates to the quality of the witness’s testimony and not the subject matter of the testimony, which is what the defense is entitled to” (see People’s memorandum of law, exhibit 2, Anglin Transcript p. 4). The Anglin court, citing L.G., next held that swearability material “is not discoverable under Rosario or Giglio…So anything regarding the swear ability of the witness is not discoverable at this time” (id.). As the court has previously discussed, the scope of CPL 245.20 exceeds the alleged criminal incident and the Rosario or Giglio doctrines. Finally, the People’s argument that the recording of the swearability examination is not discoverable because the swearability determination is solely the purview of the prosecution and the court is unavailing. As this court has previously held regarding police misconduct records, the prosecution’s discovery obligations are separate and apart from admissibility. Disclosure of the material during the discovery process does not equate to admissibility during trial; the latter remains within the sound discretion of the court and the People may seek an in limine ruling to preclude any cross examination (People v Smith, 27 NY3d 652, 663 [2016]) ["courts have inherent power to control the scope of cross-examination"]). Without disclosure, however, the defense would not even be able to argue admissibility of the material or that the material provides a proper avenue for cross-examination, subverting the purpose of the recent legislative enactments (People v Erby, 68 Misc 3d 625, 632 [Sup Ct, Bronx County 2020] [stated purpose of Criminal Procedure Law Article 245 is "eliminating unfairness and inefficiencies"]). C. CPL 245.00 (1) (e) and 245.00 (1) (k) The court’s review of the statute reveals that there are several subsections under CPL 245.20 that would mandate disclosure. 1. CPL 245.20 (1) (e) — “Statements” CPL 245.20 (1) (e) requires disclosure of: All statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports. This provision also includes statements, written or recorded or summarized in any writing or recording, by persons to be called as witnesses at pre-trial hearings. It is indisputable that the child complaining witness’s swearability examination is a recorded statement by a person “who [has] evidence or information relevant to any offense charged” under CPL 245.20 (1) (e). Furthermore, this section does not include any limiting language as to the listed material, such as items related to the “alleged criminal incident” or the witness’s anticipated trial testimony (compare CPL 245.20 (1) (e) with CPL 245.20 (1) (g) [People must disclose 'electronic recordings…made or received in connection with the alleged criminal incident] [emphasis added]). Therefore, pursuant to 245.20 (1) all the items listed in (1) (e) must “relate to the subject matter of the case.” 2. CPL 245.20 (1) (k) — “Exculpatory Material” CPL 245.20 (1) (k) requires disclosure of: All 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: (i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information… The court also concludes that the audio swearability recording is discoverable under under CPL 245.20 (1) (k), not just, as defendant argues, to support a potential defense, but also as potential impeachment material. As discussed earlier (see Statutory Interpretation, supra at 12), the child witness is expected to be the only witness to testify to the facts of the criminal incident; the child’s ability to testify truthfully to the incident is therefore of critical importance. Consequently, the audio swearability recording, which has the potential to provide a defense orimpeach the witness, must be disclosed. It is irrelevant whether that the prosecution agrees with defendant’s characterization of the material (CPL 245.20 [1] [k] ["[i]nformation under this subdivision shall be disclosed…irrespective of whether the prosecutor credits the information”]). Therefore, the court concludes that audio swearability recording is discoverable under both CPL 245.20 (1) (e) and (k). Accordingly, The People are ordered to provide the audio recording of the swearability examination to the defense within 5 days of receipt of this decision. The foregoing constitutes the Decision and Order of the court. Dated: September 3, 2021
