People v. Ajunwa

The People move for leave to reargue the court’s July 7, 2022, decision granting the defense’s C.P.L. §30.30 motion to dismiss. (People v. Ajunwa, 75 Misc 3d 1220[A] [Crim. Ct., Bronx County 2022]). In that decision, the court found that the People failed to establish that they discharged their discovery duties before certifying compliance with those duties. (Id.). Upon consideration of the People’s motion for leave to reargue, as well as the defense’s response, the People’s request for leave to reargue is denied. LEGAL ANALYSIS The Criminal Procedure Law generally does not provide for leave to reargue,¹ but the Civil Practice Law and Rules does. (See C.P.L.R. §2221). As a result, criminal courts often apply the rules of C.P.L.R. §2221 to motions for leave to reargue. (E.g., People v. Benitez, 75 Misc 3d 1204[A], at *2 [Dist. Ct., Suffolk County 2022]; People v. Roberts, 76 Misc 3d 448, 452 [Crim. Ct., NY County 2022]; People v. Manzueta, 62 Misc 3d 187, 189 [Crim. Ct., Queens County 2018]; People v. Wilson, 50 Misc 3d 1224[A], at *1-*3 [Crim. Ct., Bronx County 2016]; People v. Merly, 51 Misc 3d 858, 859-60 [Sup. Ct., Bronx County 2016]; People v. Williams, 48 Misc 3d 1217[A] [Crim. Ct., Bronx County 2015]; People v. Garraway, 47 Misc 3d 1227[A], at *1-*3 [Crim. Ct., Bronx County 2015]; People v. Ramrup, 47 Misc 3d 1223[A], at *1-*3 [Sup. Ct., Bronx County 2015]; but see People v. DeFreitas, 48 Misc 3d 569 [Crim. Ct., NY County 2015]). A motion for “reargument” must be “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” (C.P.L.R. §2221[d][2]). A motion to reargue is not “‘designed to afford the unsuccessful party successive opportunities to reargue issues previously decided…or to present arguments different from those originally asserted.’” (Setters v. AI Properties and Developments (USA) Corp., 139 AD3d 492, 492 [1st Dep't 2016] [quoting William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 [1st Dep't 1992]]). Here, the court finds no reason to grant leave to reargue. First, the People fail to identify any matters of law that the court misapprehended. Instead, they only restate their incorrect legal arguments from their prior briefing. Specifically, they argue that the adverse-consequence clause applies to trial-readiness determinations. (Pr. Mot. at 12-13). This court has rejected that argument on multiple occasions. (E.g., People v. Alvia, 172 N.Y.S.3d 892, 895-96 [Crim. Ct., Bronx County 2022]; People v. Carrillo, 75 Misc 3d 1227[A], at *3 [Crim. Ct., Bronx County 2022]; People v. Vargas, 171 N.Y.S.3d 877, 880-81 [Crim. Ct., Bronx County 2022]). Other courts have also rejected the argument. (E.g., People v. Darren, 75 Misc 3d 1208[A], at *6 [Crim. Ct., NY County 2022]; People v. Martinez, 75 Misc 3d 1212[A], at *6 [Crim. Ct., NY County 2022]; People v. Formicola, 74 Misc 3d 559, 564-65 [Just. Ct., Monroe County 2022]; People v. Aquino, 72 Misc 3d 518, 526-27 [Crim. Ct., Kings County 2021]; People v. Quinlan, 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021]; see also People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021] [deciding whether a COC supported a statement of trial readiness without referring to the adverse-consequence clause]). And, earlier this year, when the Governor sought to amend the adverse-consequence clause to include trial-readiness determinations, the Legislature rejected it, as well. (See Carrillo, 75 Misc 3d 1227[A], at *3; see also Amer. Airlines Inc. v. State Comm. for Human Rights, 29 AD2d 178, 181 [1st Dep't 1968] ["In addition, the rejection of the Legislature of the amendments…sought by the Commission…is significant circumstance against the construction sought by [them].”]). That the People disagree with this court, other courts, and the Legislature is not a basis to grant leave to reargue. Second, the People fail to identify any matters of fact that the court overlooked. The court squarely addressed the alleged ability of the defense to subpoena medical records and FDNY records. (See Ajunwa, 75 Misc 3d 1220[A], at *3-*4). Just because the defense can obtain documents by subpoena does not mean that the People are absolved from doing anything regarding those documents. (See id.). To the contrary, the People must make a “diligent, good faith effort” to ascertain the existence of discoverable material and cause it to be made available “where it exists but is not within the prosecutor’s possession, custody or control.” (C.P.L. §245.20[2] [emphasis added]). If the defense can subpoena a document, the statute only relieves the People from serving a subpoena to fulfill that “diligent, good faith effort.” (See id.). In this case, however, the People did not even communicate with the FDNY — or do anything regarding the complainant’s medical records — until months after they filed their certificate of discovery compliance. (Ajunwa, 75 Misc 3d 1220[A], at *3-*4). The court also squarely addressed the People’s original proffered justification for failing to disclose the NYPD animal bite report — that, in their view, it was “duplicative” of information contained in other, different police reports. (See Ajunwa, 75 Misc 3d 1220[A], at *4). In fact, the People claimed that “‘[t]he only difference with respect to the [disclosed] complaint report and the [undisclosed] animal bite report is the title of the document.’” (Id. [quoting Pr. Resp. at 6]). Upon reviewing that complaint report and the animal bite report, the court found that claim to be “wholly untrue.” (Id.). The People gave no other justification for their failure to disclose the animal bite report in their original opposition or surreply. (Id.). That the People now claim, for the first time, that they were “apparently unaware” of the report’s “existence” is a new fact in their motion to reargue. (See Pr. Mot. at 13-15). Such new facts are not appropriate here. (See C.P.L.R. §2221[d][2] [a motion to reargue "shall not include any matters of fact not offered on the prior motion"]). In any event, this new fact would make no difference, as it would betray any claim of diligence on the People’s certificate of compliance. (See C.P.L. §245.50[1]). Again, the NYPD animal bite report was referenced in an NYPD Omniform System complaint report, a basic case document of which the People were in possession. (See Def. Mot. 17; Pr. Resp. Ex. 4). As Judge Shari Ruth Michels aptly reasoned in People v. Valentine: By simply reading her own file, the prosecutor would have realized that there was indeed an aided report. Instead, it was not until after defense counsel pointed to the specific memo book entry, that the prosecutor obtained and eventually disclosed the report. If, as here, defense counsel examines the prosecution’s discovery materials and points to clear references that other undisclosed discoverable items exist, the Court cannot find that the prosecution acted reasonably and diligently. (2019BX030896, at *9 [Crim. Ct., Bronx County June 4, 2021] [Michels, J.]). Third, nothing in the court’s decision relied on facts that were outside of the record. The court’s introductory paragraph — observing a pattern of Bronx prosecutors filing incomplete discovery, late, and then blaming defense counsel — was not a part of the court’s legal analysis. Nevertheless, courts are not barred from observing such patterns in their own dockets to contextualize a decision. (See, e.g., People v. Beshiri, 75 Misc 3d 1206[A], at *1 [Crim. Ct., Bronx County 2022] [Zimmerman, J.] [observing that "it is not uncommon in the Bronx for lawyers to ignore motion schedules"]; People v. Rodriguez, 76 Misc 3d 494, 499 [Sup. Ct., NY County 2022] [Mandelbaum, J.] [observing that the court "has a full inventory" of cases of "daily instances of gun violence that garner little attention"]; People v. Isaac, 7 Misc 3d 1004[A], at *2 & n.1 [Sup. Ct., Queens County 2005] [Rotker, J.] ["[A] court may also take judicial notice of the records of another action in the same court.”]; see also Francis C. Amendola et al., 57 New York Jurisprudence — Evidence and Witnesses §40 [2d ed. 2022] ["The courts may take judicial notice of actions taken by public officers and governmental bodies."]). One last thing is worth mentioning: the People have moved the court to “issue a new decision that removes any reference to [the assigned prosecutor] ADA Tracey by name and any suggestion that the incorrect date [on the People's subpoena] was anything other than a mistake.” (Pr. Mot. at 20). The People are referencing a subpoena that ADA Tracey submitted to this court, as an exhibit to his original opposition, that was dated “9/21/2021.” (See Ajunwa, 75 Misc 3d 1220[A], at *3). In their original papers, the People did not explain why the subpoena bore that date, even after it was pointed out by defense counsel in their reply, and even though the People had the opportunity to do so in their surreply. As a result, the court was left with an exhibit from the People that — with no explanation — was dated before the People had filed their certificate of discovery compliance. If that date were accurate, that evidence would have been material to the court’s decision. It would have shown that the People made some timely efforts to ascertain the existence of medical records and make them available. (See C.P.L. §245.20[2]). Without any explanation or acknowledgement from the People as to why the subpoena bore a September date, the court was required to thoroughly reason whether it could “possibly be true.” (Ajunwa, 75 Misc 3d 1220[A], at *3). Contrary to the People’s characterization, (see Pr. Mot. at 19), the court did not conclude that ADA Tracey “had acted unethically.” (Ajunwa, 75 Misc 3d 1220[A], at *3). Instead, the court admonished ADA Tracey “against submitting documents for consideration that may mislead a tribunal, especially without noting to a court that a material date is incorrect.” (Id.). The court was right to do so. It takes the People’s statements, papers, and exhibits seriously, and it expects prosecutors to act with diligence and care. An admonishment was appropriate. The court will not “remove[] any reference” to ADA Tracey’s name. (Pr. Mot. at 20). It is elementary that lawyers must file appearances on the record and that written decisions should include the appearances of counsel. In fact, the Law Reporting Bureau requires it.² There is no right to prosecute a criminal case anonymously. The People’s motion for leave to reargue is denied. The foregoing constitutes the order and decision of the court. Dated: October 7, 2022