People v. Franklin

DECISION & ORDER Defendant moves, inter alia, for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law (“CPL”) §§30.30 and 210.20 (1) (g).¹ Specifically, defendant contests the validity of the People’s certificate of compliance (“COC”) and supplemental certificate of compliance (“SCOC”) due to the People’s failure to comply with their disclosure obligations pursuant to CPL §245.20 (1) prior to the expiration of their speedy trial time. The People oppose the motion. Upon review and consideration of the submissions, court file and relevant legal authority, the court finds that the People’s COC and SCOC, filed October 25, 2022, and February 22, 2023, respectively, were valid. Accordingly, the People’s prosecution pursuant to CPL §30.30 was not untimely and defendant’s motion is denied. PROCEDURAL BACKGROUND On August 30, 2022, defendant Cliana Franklin was arrested and charged with assault in the third degree (Penal Law §120.00 [1]), criminal possession of a weapon in the fourth degree (Penal Law §265.01 [2]), endangering the welfare of a child (Penal Law §260.10 [1]) and harassment in the second degree (Penal Law §240.26 [1]). On August 31, 2022, defendant was arraigned and released on her own recognizance. The People filed their COC and statement of readiness (“SOR”) on October 25, 2022. At a conference held on December 19, 2022, the parties were directed to confer regarding discovery issues and to submit a joint letter concerning unresolved issues to the court prior to the next appearance date. At a conference held on February 22, 2023, the court was advised that the People had been provided with additional discovery material from the complaining witness, and they filed their SCOC and a second statement of readiness (“SSOR”). On March 17, 2023, defendant filed the instant motion challenging the propriety of the People’s COC and SCOC pursuant to CPL §245.50 (4) and seeking dismissal of the information pursuant to CPL §§30.30 and 210.20 (1) (g). Specifically, defendant argues that the People’s COC and SCOC are invalid because they failed to produce certain discoverable items in compliance with CPL §245.20 (1) and, thus, failed to satisfy their discovery obligations prior to the expiration of their speed trial clock. The People oppose the motion and further aver that they made good faith attempts to identify and locate documents and to name witnesses as evidence became available to them before filing their COC and SCOC. The People also assert that even materials they believed not to be discoverable were provided to the defense as a courtesy. On April 28, 2023, defendant filed a Reply brief to reiterate his objection to the COC on the basis that discoverable items remain outstanding, namely adequate contact information for witnesses and video taken by a civilian witness. DISCUSSION I. Applicable Standard for COC and SCOC Challenge Criminal Procedure Law §245.20 (1) provides, in pertinent part, that the prosecution shall disclose to defendant and permit defendant to “discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and in the possession, custody, or control of the prosecution or persons under the prosecution’s direction or control.” Including in the enumerated items is “[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf” (People v. Perez, 75 Misc 3d 1205 [A] at *2 [Crim Ct, Bronx County 2022]). Pursuant to CPL §245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a COC on defendant and file it with the court as a condition precedent to announcing their readiness for trial. However, if the prosecution should subsequently provide additional discovery prior to trial pursuant to CPL §245.60, which mandates a continuing duty to disclose, then “a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided” (CPL §245.50 [1]). Further, “[a]ny supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance” (CPL §245.50 [1-a]). Where defendant alleges that the People’s COC is invalid because they have failed to discharge their discovery obligations, the People must establish that they have met their burden. (see e.g., People v. Figueroa, 76 Misc 3d 888, 892 [Crim Ct, Bronx County 2022] citing People v. Payne, 75 Misc 3d 1224 [A], at *2 [Crim Ct, Bronx County 2022]; see also People v. Spaulding, 75 Misc3d 1219 [A], at *2 [Crim Ct, Bronx County 2022] ["They must certify that they have complied --- that "the prosecutor has disclosed and made available all known material and information subject to discovery"] citing CPL §245.50 [1-a]). Courts have examined the COC for an explanation of the People’s efforts to ensure that they have turned over all known discoverable materials. (see Perez, 75 Misc 3d 1205 [A], *3). Additionally, following a challenge to the validity of the COC, courts inquire whether the prosecution has done all that is required of them to bring a case to the point that it could be tried. (see e.g., People v. Rodriguez, 77 Misc 3d 23, 25 [1st Dept 2022] ["Nor did the People's unsworn, unaffirmed memorandum of law in opposition to defendant's CPL 30.30 motion establish that they "exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery,” and that the certificate of compliance was filed in “good faith and reasonable under the circumstances”] but see People v. Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022] ["Numerous provisions of article 245 expressly provide that compliance based on due diligence which is reasonable under the circumstances of the case is a sufficient basis upon which to file a COC in good faith even if some items are otherwise unavailable, and that if these conditions exist, a court can deem the COC valid and the People ready for trial"]). The People are not statutorily required to produce every single piece of discoverable material before certifying their compliance (People v. Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]). As discussed in Erby, “[T]he new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic discovery rules specified in CPL §245.20.” (id. at 633.) II. The Parties’ Arguments As a threshold matter, the court file includes a two-page document with two headings — “Defense’s Discovery Letter — Defense’s communication with the People re: missing discovery,” and “People’s Discovery Letter — People’s Efforts made,” which appears to be the parties’ joint discovery letter. Although undated, the document enumerates dates of communication from October 25, 2022 through February 17, 2023, and the items discussed and/or exchanged. The court notes that defendant’s portion of the document ends with an entry for a discussion the parties had on February 17, 2023, which states “At this time, defense believes all discovery issues may be resolved.” Nonetheless, defendant now asserts that the following items were belatedly produced after the People filed their COC: video taken from witness I.A.² during the alleged incident, names and adequate contact information for all persons, other than law enforcement personnel, “whom the prosecutor has evidence [sic] or information relevant to any offense charged, specifically, witnesses A.I. and L.M.,” and domestic incident and complaint reports filed by the complainant — the latter two referenced in a 911 call. Additionally, defendant states that the People still have not produced 1) adequate contact information for the complaining witness, 2) the names and work affiliations of all law enforcement personnel whom the prosecutor knows to have relevant information, and 3) video taken by a civilian witness at the time of the alleged incident which was purportedly shown to NYPD and captured by a body worn camera (“BWC”). The People counter that their COC and SCOC are valid because 1) they have already disclosed information requested by the defense, some of which only became known to the prosecution after continuing to investigate the case and after the filing of their initial COC and 2) the information was not within their custody and control. Upon review of the record, the court credits the People’s assessment and will address each item in turn. Discovery Produced After the COC Filing The People enumerate their requests and follow-up efforts to secure discoverable materials prior to October 25, 2022. They contend that their due diligence was demonstrated by attempts made on September 16, 2022, September 30, 2022, and October 13, 2022, through their NYPD liaisons, to marshal evidence in compliance with their discovery obligations prior to certifying. And although they dispute the discoverability of the video taken by witness I.A., because they state that it was taken prior to the alleged incident, the People nevertheless assert that it did not come into their possession until February 20, 2022 [sic] and it was shared with the defense two days later on February 22, 2023, as a courtesy. (People’s Aff. at 6-7) The People do not dispute that the contact information for witnesses I.A. and L.M. were not disclosed prior to filing their COC, but argue that at that time, they had no plans to call either as a witness until after their interview on February 20, 2023. (People’s Aff. at 8). Here, the People appear to argue that because they discounted I.A. and L.M., the complainant’s own mother and sister, as potential witnesses, they did not endeavor to interview them until after their initial certification. Next, the People assert that they were first advised about the existence of reports made by the complainant in the defense’s email dated December 19, 2022, and the parties’ joint discovery letter confirms defendant’s request for those reports. The People contend that domestic incident and complainant’s reports were filed months prior to the subject incident, but their response sets forth attempts made to follow-up with the complaining witness, Arresting Officer, and personnel at the 40th and 50th Precincts. (People’s Aff. at 10-11). In response to their request for Domestic Incident Reports (“DIRs”), the People, after conferring with the complainant on December 29, 2022, contacted the 50th Precinct to request DIRs and complaint reports filed in the preceding six months. When no information was forthcoming, the People contacted Arresting Officer R.M. on January 5, 2023, to reiterate their request and a DIR and Complaint Report, dated July 31, 2022, was subsequently provided to the defense. On January 31, 2023, the People once again contacted the complaining witness about the 911 call that referenced a report but the complainant was unsure of whether she had filed a report at all. On February 22, 2023, after being advised by the complainant that she may have made a report at a precinct closer to her home, the People forwarded to the defense documentation provided by the 40th Precinct concerning reports filed within the preceding three months. The People filed their SCOC following this disclosure. (People’s Aff. at 10-11). Items Defendant States are still Outstanding Defendant further argues that other discoverable items remain outstanding: 1) adequate contact information for the complaining witness, E.B., 2) the name and work affiliation of all law enforcement personnel whom the prosecutor knows to have relevant information or evidence and 3) video taken by a civilian witness. The People contend that complaining witness E.B.’s contact information was provided to the defense by OneDrive on October 25, 2022. The parties’ joint discovery letter indicates that the defense advised the People that there was a technical issue with the OneDrive link and the People responded contemporaneously with a new one. Next, the People aver that they disclosed the names and tax IDs of 16 officers at the time of their COC filing. Moreover, the People’s Automatic Disclosure Form, filed contemporaneously on October 25, 2022, identifies 18 police officers and their respective tax IDs. Insofar as defendant requests the contact information of officers referenced in a 911 call, the People responded that the 911 call does not clearly identify law enforcement personnel, nor were the complaining witness and her sister able to provide any information other than that a report had been filed at a precinct a few weeks before the subject incident; the People further explain that this report was produced when their SCOC was filed, February 22, 2022. Finally, the People contend that video taken by an unidentified witness was never in their possession, custody or control and, thus, not subject to CPL §245.20 (1). The People also recount their efforts to determine if NYPD was ever provided with a copy of the video: the prosecutor met with a police officer who stated that while he viewed cell phone video, he did not endeavor to make a copy because the quality of the video was poor, and the officer’s BWC depicted the officer looking at the cell phone but giving it back to the witness. The People state that they also contacted complaining witness E.B., who watched the BWC footage but could not identify the person who took the video. (People’s Aff. at 15). III. The Court’s Analysis While CPL §245.50 (1) mandates that the prosecution file a COC after complying with their discovery obligations, CPL §245.20 unambiguously qualifies the People’s duty to disclose information which is in the “possession, custody or control of the prosecution, [or] under the prosecution’s direction or control” (CPL §245.20 [emphasis added]; see also, People v. Williams, 2021 NYLJ 1187, *26 [Sup Ct, Kings County 2021] [internal citations omitted] citing People v. Lustig, 68 Misc 3d 234, 241-42 [Sup Ct, Queens County 2020]). As a threshold matter, the People argue persuasively that the video taken by witness I.A. was not shared with the prosecution until February 20, 2023, and thus could not have been filed prior to the COC because it was not yet in their custody. Similarly, the People have put forth credible evidence that the video taken by an unidentified witness was never in their control nor was it copied by the police officer who observed the footage on a cell phone due to the poor quality of the video. The People further explain their futile attempt to glean information from the BWC about the person who took the video when the complaining witness could not identify anyone from the images. Additionally, the statutory caveat that a COC shall be filed when the People have “disclosed and made available all known material and information” makes clear that the Legislature anticipated that the prosecution’s ability to identify the universe of discoverable material might be constrained by a continuing investigation (CPL §245.50 (1) [emphasis added]). Hence, the parties’ continuing duty to disclose pursuant to CPL §245.60, which requires that the parties “shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article” (People v. Perez, 73 Misc 3d 171, 176 [Sup Ct, Queens County 2021]). The People argue that contact information for witnesses other than law enforcement personnel, specifically I.A. and L.M., were not disclosed prior to their COC filing because they did not initially perceive that either would be called as a witness. However, pursuant to CPL §245.20 (1) (c), the prosecution is required to provide names and contact information for all persons other than law enforcement personnel whom the prosecution knows to have evidence or information relevant to any offense charged or to any potential defense, “including a designation by the prosecutor as to which of those persons may be called as witnesses.” (CPL §245.20 (1) (c) [emphasis added]). As such, the People incorrectly conflate their duty to identify persons with relevant information to the offense with their obligation to include a designation of which of these persons may be called as a witness. The prosecution acknowledges that the “entire case involves nothing but family members” (People’s Aff. at 8), and arguably, they would not have been hindered to provide I.A. and L.M.’s information to the defense prior to filing their COC whether they had yet decided to call them as witnesses. Nonetheless, the People credibly argue that even if defendant did not have her mother and sister’s phone numbers, the complaining witness did, and her information was provided to the defense in their Automatic Disclosure Form, served contemporaneously with their COC. Further, the court finds that it was reasonable that the People did not disclose contact information relating to witnesses I.A. and L.M. until filing their SCOC on February 22, 2023, because I.A. and L.M. were not interviewed until February 20, 2023. Thus, the People did not lack good faith in their actions and, therefore, there is no reason to sanction them. The People’s contention that DIRs were irrelevant because the reports were filed prior to the subject incident is incorrect because CPL §245.20 (3) expressly provides, in pertinent part, that the People shall disclose “a list of all misconduct and criminal acts of the defendant not charged” if they intend to use this evidence at trial. As such, DIRs could be probative as evidence concerning the defendant’s prior misconduct. However, CPL §245.20 (3) clearly designates this evidence as supplementary disclosure (CPL §245.20 (3) [emphasis added]). Therefore, the People were under no duty to include DIR material prior to filing their COC. Without appellate guidance to establish what, if anything, constitutes full or even substantial compliance with mandatory discovery obligations as a condition precedent to filing a COC, courts have examined the due diligence of the prosecutor’s efforts to obtain outstanding discoverable materials to determine the validity of their COC and SCOC. (compare People v. Rodriguez, 73 Misc 3d 411, 419 [Sup Ct, Queens County 2021] ["Moreover, the People's communications with defense counsel, which they have attached to their opposition papers, demonstrate that they have endeavored with great diligence to ensure that counsel received all documents to which the defendant is entitled"] with Figueroa, 76 Misc 3d at 912 ["(T)he People fail to articulate any efforts whatsoever to ascertain the existence of FDNY reports and make them available for discovery"]). In the instant matter, the People have detailed their efforts to comply with their statutory disclosure obligations. With respect to the DIRs, the People enumerate attempts made on December 29, 2022, January 5, 2023, January 31, 2023, and February 20, 2023, to investigate and locate any reports filed by the complaining witness, which are corroborated by emails attached to their opposition. The People also set forth dated efforts to further investigate the claims and produce information as it became available. The People exercised similar due diligence by providing a correct link to access complaining witness E.B.’s contact information after the initial OneDrive link proved to be defective. The parties’ joint discovery letter corroborates that another link was provided the same day, October 25, 2022. More importantly, E.B.’s phone number, the only contact information that the People claim to have, had already been disclosed in their Automatic Disclosure Form along with the names and tax IDs of 18 law enforcement personnel whom the prosecution knew to have evidence or relevant information. The People have demonstrated that defendant’s challenge to the COC and SCOC is based, in part, on not having information which was provided contemporaneously with their COC filing. The People’s due diligence and compliance was established. Thus, the People’s COC and SCOC were valid. IV. Defendant’s Request for a Hearing if Motion is Denied Defendant moves the court to order a CPL §30.30 hearing if his motion is not granted pursuant to CPL §210.45 (4), and in support of his argument cites to People v. Allard, 28 NY3d 41 [2016]. In Allard, the court held that “CPL 210.45 furnishes the general procedure applicable to all motions to dismiss an indictment — including, among others, motions based on defective grand jury proceedings, untimely prosecutions, a defendant’s immunity, and CPL 30.30 grounds” (see Allard, 28 NY3d at 45-46 [emphasis added]). However, insofar as defendant is charged with assault in the third degree (Penal Law §120.00 [1]), criminal possession of a weapon in the fourth degree (Penal Law §265.01 [2]), endangering the welfare of a child (Penal Law §260.10 [1]) and harassment in the second degree (Penal Law §240.26 [1]), all of which constitute misdemeanor charges, CPL §210.45 (4) does not apply to the facts at bar. Assuming, arguendo, that defendant was not charged with misdemeanors, the court would still find that the People’s opposition has settled all factual disputes and, thus, there are no unresolved disputes which require a hearing and defendant’s request for an Allard hearing is denied. V. The CPL §30.30 Calculation Criminal Procedure Law §245.50 (3) provides that “the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section” (see People v. Pierna, 74 Misc 3d 1072, 1087 [Crim Ct, Bronx County 2022] [internal quotation marks omitted]; People v. Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Courts have determined that a proper COC is one that sets forth the prosecution’s efforts to ensure that they have turned over all known discoverable materials. (see People v. Adrovic, 69 Misc 3d 563, 574-575 [Crim Ct, Kings County 2020]; People v. Vargas, 76 Misc 3d 646, 652 [Crim Ct, Bronx County 2022]). In a motion to dismiss misdemeanor charges pursuant to CPL §30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days. (see CPL §30.30 (1) [b]); People v. Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays. (see, Luperon, 85 NY2d at 78). In the case at bar, the People’s 30.30 calculation commenced at defendant’s arraignment on August 31, 2022. When the People filed a valid COC on October 25, 2022, they declared their readiness for trial and stopped their speedy-trial clock. Accordingly, the People were ready for trial 54 days after arraignment, within the statutorily allotted time. (see CPL §30.30 (1) [b]). CONCLUSION Based upon the foregoing, defendant’s motion for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to CPL §30.30 is DENIED. This constitutes the opinion, decision, and the order of the court. Dated: May 1, 2023