DECISION AND ORDER Defendant Alfred Reed moves to challenge the validity of the People’s certificates of compliance and supplemental certificates of compliance. For the reasons that follow, this Court finds that the People’s certificate of compliance filed on December 29, 2021 was prematurely filed and was invalid; all other supplemental certificates of compliance filed thereafter are valid. Background and Procedural History Mr. Reed was arrested on November 28, 2021 and charged with one count of Forcible Touching [PL 130.52(1)] and one count of Sexual Abuse in the Third Degree [PL 130.55] in relation to an incident occurring that evening at the HRA Men’s Shelter in Manhattan, where he is alleged to have pressed his penis against the complainant’s buttocks over her clothing without her consent. The case was arraigned on November 29, 2021, bail was set and the case was adjourned to December 3, 2021 for the People to provide a supporting deposition. On November 30, 2021, the People filed and served a supporting deposition off-calendar. On December 3, 2021, the complaint was deemed an information and the case was adjourned to December 17, 2021 for trial.1 On December 17, 2021, the People were not ready for trial and the case was adjourned to January 11, 2022 for trial. On December 29, 2021, the People filed their first certificate of compliance (COC) and certificate of readiness (COR) off-calendar. On January 11, 2022, the People answered ready for trial. The Defense challenged the People’s COC and the Court issued a directive, pursuant to CPL 245.35, ordering the parties to diligently confer with each other in an attempt to resolve outstanding discovery issues. The case was adjourned for trial to January 27, 2022.2 On January 17, 2022, the Defense filed an omnibus motion off-calendar. On January 20, 2022, the People filed their response off-calendar. On January 27, 2022, the Court granted pretrial hearings. The Defense continued to object to the People’s discovery disclosures and the Court renewed its directive ordering the parties to diligently confer. The case was adjourned for hearing and trial to February 25, 2022. On February 8, 2022, the Defense filed an affirmation of due diligence. On February 24, 2022, the People filed an affirmation of due diligence, detailing their efforts to confer with the Defense regarding discovery.3 On February 25, 2022, the Defense filed a second affirmation of due diligence, detailing their objections to the People’s discovery disclosures and their efforts to confer with the People to resolve the issues. On February 25, 2022, the People answered ready for trial. The case was adjourned to April 8, 2022. On March 18, 2022, the Defense filed the instant motion off-calendar, challenging the validity of the People’s COC’s filed on the following specific dates: December 29, 2021, February 1, 2022, February 22, 2022, February 23, 2022, February 25, 2022, and March 1, 2022. On April 1, 2022, the People filed their response off-calendar. On April 7, 2022, the Defense filed a reply to the People’s response off-calendar. On April 8, 2022, the case was adjourned for the Court’s decision to April 29, 2022. Discussion Mr. Reed challenges the validity of the People’s COC’s, contending that the People have failed to disclose certain discoverable materials pursuant to CPL 245.20(1), prior to the filing of each of the People’s COC’s listed above. The People respond that they have complied with their discovery obligations and acted diligently and in good faith each time they certified their compliance, in accordance with CPL 245.20 and CPL 245.50(1). Pursuant to CPL 245.20(1), the “prosecution shall disclose to the defendant and permit the defendant to discover, inspect, copy, photograph and test, 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 also requires the prosecutor to “make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control;” CPL 245.20(2). CPL 245.20(2) also states: “For purposes of subdivision one of this section, 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 possession of the prosecution.” Once the People have met their discovery obligation, they “shall serve upon the defendant and file with the court a certificate of compliance” which “shall state 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 statute also provides: “If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances….” Id. At the outset, the Court notes that Defendant’s argument that the People failed to disclose the names and adequate contact information for all non-law enforcement witnesses, pursuant to CPL 245.20(l)(c), misses the mark because, pursuant to CPL 245.20(1)(c), where, as here, the Defendant is charged with a sexual offense, the People are not obligated to disclose this information. The Court also notes that in this case, it appears that all law enforcement witnesses are members of the Department of Homeless Services (DHS) and not the New York City Police Department (NYPD). In fact, the People listed these witnesses in their Addendum to Automatic Discovery Form, filed on January 10, 2022, identifying these witnesses by rank as “PO” and including their names and shield numbers. Therefore, because these officers were acting in a law enforcement role and have been identified as such, the Court deems any discoverable materials relating to this case in their possession to be in the possession of the prosecution for purposes of CPL 245.20(2).4 In determining the validity of the People’s COC’s, the Court looks to the most current version of the People’s Discovery List filed on March 22, 2022. This list documents each item of discovery disclosed by the People to the Defense, and the dates of such disclosures. After reviewing this document, the Court finds that as of the date of the People’s first COC, filed on December 29, 2021, there was still a substantial amount of undisclosed discoverable materials. These included the memobooks for the officers involved in the arrest of Mr. Reed as well as Body Worn Camera footage for these officers. The last of these memobooks and Body Worn Camera footage was provided to the Defense on February 1, 2022, with the exception of one additional memobook entry for Officer Leibowitz, provided to the Defense on March 23, 2022, and accompanying Body Worn Camera footage, provided to the Defense on February 23, 2022.5 The memobooks and Body Worn Camera footage created at or near the time Mr. Reed was arrested are critical items of discovery that existed since the inception of the case and should have been promptly disclosed to the Defense pursuant to CPL 245.20(1)(e) and (1)(g) prior to the filing of the People’s COC on December 29, 2021. Accordingly, the Court invalidates the December 29, 2021 COC, as it was filed prematurely. By the time the People filed their COC on February 1, 2022, the Court finds that the People had provided the vast majority of discoverable materials to the Defense that existed and of which they were aware. Thereafter, the People continued to disclose discoverable materials to the Defense promptly and diligently upon receipt of those materials, in accordance with CPL 245.50(1) and CPL 245.60.6 Accordingly, the Court validates the People’s Supplemental COC’s filed on or after February 1, 2022. The Court also wishes to acknowledge the diligence of both parties in their extensive efforts to confer regarding discovery disputes in this case and encourages such diligence whenever discovery disputes arise. Conclusion For the reasons stated herein, the People’s COC dated December 29, 2021 was invalid. The People’s supplemental COC’s dated February 1, 2022 and thereafter were valid. The Defendant’s motion to reserve the right to make additional motions is denied, subject to good cause shown, pursuant to CPL 255.20(3). This opinion constitutes the decision and Order of the Court. Dated: April 29, 2022
