DECISION AND ORDER As a sanction for an alleged discovery violation, defendant moves to preclude the testimony of certain police witnesses at his upcoming suppression hearing. Because there has been no discovery violation, the motion is denied. CPL 245.20 (1) requires the People to 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.” Further, in satisfying their automatic discovery obligations, the People must “make a diligent, good faith effort to ascertain the existence” of discoverable material and to cause such material “to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control” (CPL 245.20 [2] [emphasis added]). Defendant asserts that the police officers who stopped his vehicle for an alleged traffic infraction failed to activate their body-worn cameras at the outset of the encounter, in violation of New York City Police Department protocols (see NY City Police Dept Patrol Guide procedure no. 212-123 [4] [g] [mandating activation of body-worn camera "prior to engaging in, or assisting another uniformed member of the service with" vehicle stops]). But the People’s failure to turn over recordings that were never made cannot constitute noncompliance with automatic discovery. Nor does the nondisclosure of something that never existed equate with a failure to provide items that once existed but have since been lost or destroyed (cf. CPL 245.80 [1] [b] [when discoverable information relevant to a contested issue "cannot be disclosed because it has been lost or destroyed," the court shall impose an appropriate remedy or sanction]; see also People v. Kelly, 62 NY2d 516 [1984] [failure to preserve evidence]; People v. Handy, 20 NY3d 663 [2013] [destruction of evidence]). Since the People cannot, and therefore need not, provide discovery that never existed, their failure to do so does not warrant a discovery sanction. Rather, the failure of an officer to activate his body-worn camera in violation of police procedures may subject the witness to impeachment for prior misconduct (see People v. Smith, 27 NY3d 652 [2016]). Of course, any such bad act is collateral and may not be proved by extrinsic evidence (see People v. Zabrocky, 26 NY2d 530, 535 [1970]; Badr v. Hogan, 75 NY2d 629, 635 [1990]). This opinion shall constitute the decision and order of the court. Dated: March 28, 2022
