DECISION & ORDER By motion filed May 16, 2023, defendant moves, inter alia, for an order granting dismissal pursuant to Criminal Procedure Law (“CPL”) §§30.30 and 170.30 or, in the alternative for an Order imposing sanctions pursuant to §245.80 (2) and suppressing properly noticed evidence, properly noticed statements and other statements pursuant to §§§710.20 (2), (3) and (6), and 60.45 (2) (b) (ii). Specifically, defendant asserts that the People’s Certificate of Compliance (“CoC”) and Supplemental CoC (“SCoC”) are illusory because the prosecution failed to disclose impeachment materials, namely underlying records pertaining to civilian lawsuits and unredacted disciplinary records. On June 12, 2023, the People opposed the motion in its entirety. Upon review and consideration of the submissions, court file and relevant legal authority, defendant’s motion is GRANTED in part and DENIED in part, as follows: 1. The People’s CoC filed April 24, 2023, is deemed VALID; 2. Dismissal pursuant to CPL §30.30 is DENIED; 3. The People are DIRECTED to produce unredacted Internal Affairs Bureau (“IAB”) Giglio materials for Police Officer Joseph Rusin (“P.O. Rusin”); 4. The People are DIRECTED to produce unredacted IAB Giglio materials for P.O. Aidan Murphy (“P.O. Murphy”); 5. Suppression of evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 (2), (3) and (6) is DENIED; 6. Sanctions pursuant to CPL §245.80 are DENIED; and 7. Pre-trial hearings are ORDERED as provided herein. PROCEDURAL BACKGROUND On January 23, 2023, defendant Amaury Basora was arrested and charged with three violations of the Vehicle and Traffic Law (“VTL”), §511 (1) (a) (aggravated unlicensed operation of a motor vehicle), §1192 (4) (operating a motor vehicle while under the influence of alcohol or drugs, and §1192 (1) (operating a motor vehicle while under the influence of alcohol or drugs), all misdemeanor charges. On January 24, 2023, defendant was arraigned and released on his own recognizance. The People were not converted and were not ready for trial when the parties appeared in court on March 2, 2023. At a conference held on April 26, 2023, the People reported that they had filed and served their CoC off-calendar on April 24, 2023, in response to which, defense counsel advised the Court he had sent his objections regarding discovery and the CoC to the People. After the instant motion schedule was set, the People filed and served their SCoC and Statement of Readiness (“SoR”) on May 26, 2023, and a second SoR on June 12, 2023. DISCUSSION I. Applicable Standard for CoC Challenge Where the People have fulfilled their statutory discovery obligations, they must file a SoR for trial, accompanied or preceded by a CoC (see People v Marin, 74 Misc 3d 1037 [Crim Ct, Bronx County 2022] citing People v England, 84 NY2d 1 [1994]; see also CPL §245.50 [1]). If the defense alleges that the People’s CoC is invalid because they have failed to discharge their discovery obligations, the prosecution must demonstrate their efforts to comply with CPL §245.20 (1) (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”] [internal quotations omitted] 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"]). It is well-settled 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 Martinez, ___ NY3d ___, 2023 NY Slip Op 23194, *2 [Crim Ct, Bronx County 2023] citing People v Kendzia, 64 NY2d 331, 337 [1985]). II. The Parties’ Arguments Defendant asserts that as of the filing of his motion, the following items remain outstanding: 1) underlying records pertaining to two lawsuits in which P.O. Rusin was a civil defendant; 2) unredacted information concerning a complainant in an IAB report involving P.O. Murphy; and 3) unredacted information concerning a complainant in an IAB report involving P.O. Rusin (affirmation of defendant’s counsel at 4). Defense counsel argues that his inability to glean information from a summary of civilian lawsuits and redacted IAB logs has hindered his investigation (affirmation of defense counsel at 9) Additionally, defendant claims that because both redacted IAB logs pertain to the failure to investigate crimes, the People have not fulfilled their obligation to disclose impeachment material pursuant to CPL §245.20 (1) (k) (iv) (affirmation of defense counsel at 9-12). Defendant further maintains that civilians who complain to the IAB do not share the same privacy concerns as complaining witnesses to a crime (affirmation of defense counsel at 11-12). Defendant contends that because of these purported deficiencies, the People’s CoC should be deemed illusory, and the period of non-compliance, if properly charged against the prosecution’s speedy trial time, should result in a dismissal for failure to timely prosecute (affirmation of defendant’s counsel at 7-12). Next, defendant claims that sanctions should be imposed against the People because he has been severely prejudiced by their noncompliance (affirmation of defendant’s counsel at 12-13). Additionally, defense counsel submits that properly noticed evidence should be suppressed because law enforcement did not have probable cause to arrest defendant (memorandum of law of defendant’s counsel at 13-14), and that properly noticed statements, including responses to questioning in the police department’s IDTU room, should be also suppressed because defendant did not voluntarily speak to law enforcement (memorandum of law of defendant’s counsel at 14-17).1 Initially, the People state that their CoC was filed in good faith because a reasonable effort was made to provide discoverable items to defense counsel (People’s affirmation at I A). Next, the prosecution avers that it complied with disclosure obligations pertaining to civilian lawsuits involving P.O. Rusin by giving defense counsel case information including the name, index number, date of claim, incident location and court for the lawsuits (People’s affirmation at I B and exhibit 1). The People further assert that they have provided one IAB log for both P.O. Rusin and P.O. Murphy, and that redactions of the complainants’ identification, including name, age, gender and mobile number, were made pursuant to the general provisions relating to access to records of the Public Officers Law §89 and, thus, were proper (People’s affirmation at I C). The prosecution also argues that sanctions are inappropriate and denies that it has caused, or that defendant can establish, prejudice due to its disclosures, including the redacted IAB logs, specifically arguing that although the complainants’ personal information has been redacted, defendant can still investigate the claims based upon the IAB log and ICAD numbers, as well as a detailed summary of the reported incidents included in the file (People’s affirmation at I D).2 Moreover, the People state that when they filed the CoC on April 24, 2023, their speedy trial time was tolled at eighty-nine days, within their statutory time to declare readiness for trial (People’s affirmation at I A).3 Lastly, the People maintain that the portion of defendant’s motion requesting an order to suppress properly noticed evidence and statements is wholly meritless because there was probable cause for his arrest and notices were properly served, and they oppose the filing of additional motions by defendant (People’s affirmation at II, III, IV). III. The Court’s Analysis While CPL §245.50 (1) requires the prosecution to file a CoC after complying with their discovery obligations, CPL §245.20 (1) 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 §245.50 [1] and §245.20 [1] [emphasis added]). Where the information is not within their possession or control, the People are required to make a diligent, good faith effort to ascertain the existence of discoverable information and cause it to be made available for discovery; however, congruent with this directive is the statutory caveat that “the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain” (see People v Lustig, 68 Misc 3d 234, 244 [Sup Ct, Queens County 2020]; CPL §245.20 [2]). A. The People have satisfied their obligation to provide information concerning P.O. Rusin’s involvement in two civil lawsuits Defendant invokes CPL §245.20 (1) (k) (iv), which states that the People are to disclose “[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to impeach the credibility of a testifying prosecution witness, to assert that the prosecution was required to produce underlying records for the two civil lawsuits in which P.O. Rusin was a defendant. The record at bar demonstrates that defendant was provided with the salient identifiers for both lawsuits involving P.O. Rusin, specifically, the name, index number, dates the litigations commenced and closed, incident address and amount paid (People’s affirmation exhibit 1). However, defense counsel avers that notwithstanding this information, his investigation has been hindered without access to the underlying documents, and he cites to In re NTL Inc. Sec. Litig. for the proposition that the lawsuit records are “considered to be under a party’s control when that party has the right, authority, or practical ability to obtain the documents from a non-party” hence, the People have a duty to disclose records relating to the officer’s civil lawsuits because they have the ability to obtain them (see In re NTL, 244 FRD 179, 195 [SD NY 2007]). This Court respectfully disagrees and discerns no such duty imposed by CPL §245.20 (2). Although the holding in In re NTL recognized that courts have interpreted Federal Rules Civil Procedure rule 34 (a) to require the production of documents if a party has the practical ability to obtain them, the statutory confluence ends where CPL §245.20 (2) has been construed as “not meant to make the prosecution obtain documents that are not in its possession or control that the defense can just as easily obtain” (see Lustig, 68 Misc 3d at 243 [emphasis added]). Indeed, the Lustig court noted that imposing an affirmative duty on the People to search court dockets for complaints would “be counterproductive since it would incentivize prosecutorial ignorance about lawsuits involving police witnesses, because knowledge of them would drastically increase their discovery obligations” (see Lustig at 244). As this Court held in People v Peralta, it is well-settled that “[u]nder New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records” (see Peralta, ___ NYS3d ___ 2023, NY Slip Op 23150, *6 [Crim Ct, Bronx County 2023], citing Styles v Podz Inc., NYLJ, May 20, 2021 at 17, col 1 [Sup Ct, NY County 2021] [internal quotations and citations omitted]). In the instant matter, the People have disclosed, with some specificity, information about P.O. Rusin’s two civil lawsuits. Absent a particularized argument that he was unable to obtain the underlying court records, defense counsel cannot credibly argue that his ability to investigate those claims has been impeded. Accordingly, this Court finds that the People have met their obligations pursuant to CPL §245.20 (1) (k) (iv). B. The People cannot unilaterally redact IAB files without leave of court Criminal Procedure Law §245.70 (1) provides, in pertinent part, that “the court may at any time order that discovery or inspection of any kind of material or information under this article be denied, restricted, conditioned or deferred” (see People v Goggins, 76 Misc 3d 898, 902 [Crim Ct, Bronx County 2022]["(I)f the files contain any material which should not be disclosed, the People have the availability to seek a protective order"]). The prosecution asserts that Public Officers Law §89 (2-b) grants the People statutory license to redact portions of the IAB files produced for P.O. Rusin and P.O. Murphy which pertain to the complainants’ information, including name, contact information, and age (People’s affirmation at I C1). The relevant section provides that redactions are permitted of “the home addresses, personal telephone numbers, personal cell phone numbers, personal e-mail addresses of a person employed by a law enforcement agency as defined in section eighty-six of this article as a police officer, peace officer, or firefighter or firefighter/paramedic, or a family member of such a person, a complainant or any other person named in a law enforcement disciplinary record” (see NY Pub Off §89 [2-b] [emphasis added]). However, it is respectfully submitted that, where CPL §245.70 unequivocally directs either party to make a “showing of good cause” to withhold otherwise discoverable information, the People have no province to make unilateral redactions of IAB disciplinary, or any other, records which are required to be disclosed. This is particularly evident where the Legislative reforms that animate CPL §245.20 emphasize a presumption of openness and disclosure (see CPL §245.20 [7]; see also People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U], *8 [Crim Ct, Bronx County 2023]["The People also did not request a protective order, additional time to comply with their discovery obligations, upon a showing of good cause [] nor seek an individualized finding of special circumstances”] [internal citations omitted]). If the People deemed the need to withhold the IAB complainants’ information, it was incumbent upon them to, in the first instance, seek an application for a protective order, citing NY Pub Off §89 (2-b) as their authority (see People v Soto,___ NYS3d ___ 2023, 2023 NY Slip Op 23198, *4 [Crim Ct, NY County 2023]["Thus, it was not for the People to unilaterally redact information without seeking a protective order"]; see also People v Best, 76 Misc 3d 1210 [A], 2022 NY Slip Op 50859 [U], *5 [Crim Ct, Queens County 2022]["These are determinations that are not for the People to decide"]). To be clear, even a judicial determination directing disclosure of information pursuant to CPL §245.20 does not settle the matter ad infinitum where the prosecution can still make arguments in support of a motion in limine concerning admissibility before trial (see People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280 [U], *5 [Dist Ct, Nassau County 2021]). Here, the Court concedes that redactions, presumably intended to safeguard the identities of IAB complainants, are not expansive, and most of the details of the alleged incidents are apparent. But that is of no import where the People decided to preemptively redact information without leave from the court. Accordingly, the Court directs the People to, within 10 days of this order, disclose unredacted copies of the IAB files for both P.O. Rusin and P.O. Murphy to defense counsel. IV. Defendant’s Request for Orders to Suppress Evidence Defendant moves alternatively for an order suppressing evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii) and 710.20 (2), (3) and (6), or granting pre-trial Mapp, Huntley and Miranda hearings. This Court respectfully defers to the trial court to decide defendant’s request for suppression orders. Accordingly, the Court denies that part of defendant’s motion which seeks an order suppressing evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii) and 710.20 (2), (3) and (6), but grants his request for Mapp, Huntley and Miranda pre-trial hearings. V. The CPL §30.30 Calculation and Defendant’s Request for Sanctions Where a defendant meets his burden to demonstrate that the prosecution failed to declare readiness within the statutorily prescribed time, the burden then shifts to the People to identify excludable delays (see People v Luperon, 85 NY2d 71, 77-78 [1995]["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]). In the case at bar, the People’s 30.30 calculation commenced the day after defendant’s arraignment on January 25, 2023. The People were not converted and were not ready for trial when the parties appeared in court on March 2, 2023 (January 25, 2023 to March 2, 2023 = 36 days chargeable). On April 24, 2023, the People filed their CoC and SoR (March 2, 2023 to April 24, 2023 = 53 days chargeable). The People filed their SCoC on May 26, 2023, when additional non-Giglio items, including test and laboratory results, became available.4 In the absence of 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 or SCoC, courts have examined the due diligence and reasonableness of the prosecutor’s efforts to obtain outstanding discoverable materials (see People v. Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]; 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 People v Figueroa, 76 Misc 3d 888, 893 [Crim Ct, Bronx County 2022] ["(T)he People fail to articulate any efforts whatsoever to ascertain the existence of FDNY reports and make them available for discovery"]). As a threshold matter, the Court categorically rejects the premise that the People can preemptively redact documents in lieu of demonstrating good cause in support of an application for a protective order. However, the Court concludes that the facts of the case, in which the prosecution responded promptly to disclose Giglio materials except for identifying information concerning IAB complainants, do not support either a determination that the People’s CoC was invalid or the imposition of sanctions pursuant to CPL §245.80. Criminal Procedure Law §245.35 (4) holds that to facilitate compliance with CPL §245, the court in its discretion may issue an order “[r]equiring other measures or proceedings designed to carry into effect the goals of this article” (see CPL §245.35 [4]). Accordingly, the prosecution is directed to produce the unredacted IAB files to defendant because no redactions, even those which are de minimus in nature, are permitted without leave from the court. Consequently, 89 days, in total, are chargeable to the People, who declared their readiness for trial within the time allotted by law (see CPL §30.30 [1] [b]). Further, there is no basis to grant defendant’s request pursuant to CPL §170.30 because the prosecution has not been untimely. CONCLUSION Based upon the foregoing, defendant’s motion for orders dismissing the misdemeanor charges on statutory speedy trial grounds pursuant to CPL §§30.30 and 170.30, or suppressing evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii) and 710.20 (2), (3) and (6), or imposing sanctions pursuant to CPL §245.80 are all DENIED. However, the Court DIRECTS the People, within 10 days of this order, to disclose unredacted IAB files for P.O. Rusin and P.O. Murphy. Additionally, the court GRANTS defendant’s request for an order for Mapp, Huntley and Miranda pre-trial hearings. This constitutes the opinion, decision, and the order of the Court. Dated: July 21, 2023
