On January 23, 2022, the defense filed the instant motion requesting an order to preclude evidence pursuant to CPL §245.80. To date, eight months after the instant motion was filed, the People have failed to respond to defense’s motion. The court granted the defense’s motion on August 18, 2022. Mr. Hernandez was arrested on June 11, 2021, and was arraigned on this indictment in Supreme Court on July 8, 2021. According to defense counsel, he has not received any discovery apart from body worn camera. Defense asserts that he made numerous attempts to communicate with the assigned ADA. When those attempts failed, he emailed the court and informed Hon. Guy Mitchell that he had not received any discovery and “would therefore be unable to abide by the court’s initial motion schedule”. (Defense’s Motion to Preclude, p. 3, 10). On October 18, 2021, according to the defense, Hon. Guy Mitchell directed the People to turn over all required discovery to defense counsel by close of business. (Defense’s Motion to Preclude, p. 4, 11). The defense further asserts that on October 19, 2021, the People stated that their failure to turn over discovery was the result of a computer error to which the Court suggested that the People find an alternative way to provide the required materials to defense. (Defense’s Motion to Preclude, p. 4, 12). On October 21, 2021, defense counsel stated that he received an e-mail from the assigned stating that the computer error was “still being worked on and that discovery would be provided once it was resolved.” (Defense’s Motion to Preclude, p. 4, 13). The defense asserts that he did not have any further communication with the assigned ADA regarding the progress of the computer repair and has still not received required discovery. On August 18, 2022, the fourth time this case was scheduled for the decision awaiting the People’s response, the court was alerted that, to date, the People have failed to turn over required discovery or respond to any motions. The court inquired about the People’s lack of compliance with the discovery statute and the motion schedules set in this case. The assigned ADA responded that he was assigned to the case in June, two months ago, and was unaware of the People’s lack of compliance. The assigned ADA also stated that he did not know this matter was scheduled for decision today despite there being numerous ways, all within the People’s knowledge and possession which could have appraised the assigned of the status of this case prior to the scheduled appearance. The court granted the defense’s motion to preclude evidence and the People did not object. Where a defendant is not in custody, the People are required to perform their initial discovery obligations within thirty-five calendar days after the defendant’s arraignment on the indictment. (CPL 245.10[1][a]). CPL 245.20 requires the People to disclose “all 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.” This statute provides a detailed and exhaustive list of the items that the prosecutor must disclose. Where a prosecutor fails to abide by discovery mandates, CPL 245.80 provides for remedies or sanctions for non-compliance. Pursuant to 245.80, the court may “preclude or strike a witness’s testimony or a portion of a witness’s testimony, admit or exclude evidence, order a mistrial, order dismissal of all or some charges or make such other order as it deems just under the circumstances.” CPL 245.80(2). Where a defendant shows that they were prejudiced by the late disclosure of discoverable material, the court must impose an appropriate remedy or sanction. CPL 245.80(1). The sanction of preclusion is warranted in this matter. This case has been pending for over one year and the People have willfully violated their discovery obligations at every turn. Initial discovery in this case was due on or before August 11, 2021, over one year ago, and the People have not provided any reason for this Court to find that they have acted in good faith with respect to their discovery obligations. In fact, the current ADA in this matter, assigned two months ago, stated that he was unaware of the status of this case and clearly made no good faith effort to determine whether discovery had been served by communicating with opposing counsel, the court, or reviewing the case file in advance of the scheduled August 18th appearance. Further, during this appearance, the current assigned provided no reason for the People’s continued failure to comply with discovery orders. Frankly, the assigned ADA’s statements to the court demonstrate that the People have not made any recent efforts to prosecute this case at all. With respect to the People’s past efforts, on October 18, 2021, the People clearly ignored the Court’s order to deliver discovery by close of business. The Court finds the People’s excuse, on October 19, 2021, to be unavailing. The Court has no information regarding any other efforts made to deliver discovery after October 19, 2021. While electronic delivery is the People’s preferred method of delivering discovery, after two days which turned into over a year of computer error and the Court’s clear instruction to find other means of turning over the required discovery, the People have still failed to do so. The People’s issues with Microsoft One Drive does not render them unable to deliver discovery by hand. The statute does not provide that the People may shirk their discovery obligations if their preferred method of delivery is unavailable. To the contrary, the statute “virtually constitute[s] ‘open file discovery”. Hon. William C. Donnino, Practice Commentaries, CPL 245.10. “Thus, a prosecutor who fails to engage in ‘open file’ discovery…may do so at his or her professional peril while also jeopardizing the viability of a prosecution.” Id. Furthermore, there is also no indication that the People ever made any good cause applications pursuant to CPL 245.70 (2) or provide any explanation, other than computer error, for their violation of discovery orders. It is abundantly clear that the People have willfully allowed this case to fall through the cracks. In choosing to do so, the People violated their discovery obligations, failed to abide by the mandates of the law, and ignored this Court’s orders. Given that more than a year has elapsed since the People were required to serve discovery, disclosure at this point would be belated and this Court must conclude that the defendant has been prejudiced as a result of the People’s delay. If the People had turned these materials over, the defense would have been able to adequately investigate the case, obtain potentially exculpatory evidence, and develop a trial strategy. There is little doubt at least some of the evidence pertinent to this case and the defense is no longer available. There has already been over a year of delay in this case and the ultimate disclosure of these items will delay Mr. Hernandez’s case yet again, as defense counsel will need to review the items and mount a defense against them. (CPL 240.80 [1]). The People’s actions herein demonstrate the exact reason Article 245 of the Criminal Procedure Law was adopted. For all the foregoing reasons, on August 18, 2022, the court granted the defense’s motion to preclude the People from introducing any evidence specified in CPL §245.20 that was not timely turned over to the defense as required by CPL §245. This constitutes the Decision and Order of the Court. Dated: August 18, 2022
