People v. Sherman

Upon the following papers read on this second motion for omnibus relief: Notice of Motion/xxxxxxxxxxxxx and supporting papers            X; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers X; Replying Affidavits and supporting papers   X; Filed papers; Other Exhibits  X; Certificate(s) of Compliance        X; (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this second omnibus motion by the defendant is decided as follows: The defendant’s motion to stay these proceedings pending a determination by an appellate court on his interim application for relief is DENIED. The defendant’s motion to stay these proceedings so that defendant may attend other court appearances is DENIED as moot. The defendant’s motion to dismiss/compel/strike the People’s Certificate of Compliance and/or Statement of Readiness pursuant to CPL §245.20 and §245.50(1) based on an alleged failure to comply with automatic disclosure requirements is DENIED. The defendant’s motion to deem the prosecution not ready for trial is DENIED. The defendant’s motion to deem the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation) is DENIED. The defendant’s motion to strike the People’s Supplemental CoC and dismissing the case due to the People’s failure to certify readiness on the record is DENIED. The defendant’s motion to compel disclosure of discovery pursuant to CPL §245.30 is DENIED. The defendant’s motion to sanction the People for failure to respond to the defendant’s written Demand for Discovery and Inspection is DENIED. The defendant’s motion for an adverse inference instruction based upon the People’s failure to comply with discovery demands is DENIED. The defendant’s motion to suppress any statements by the defendant pursuant to CPL §710.20 is DENIED. The defendant’s motion to file additional motions is GRANTED, to the extent indicated herein. On May 23, 2022, the defendant was charged under Docket # CR-015730-22SU with one count of Driving While Intoxicated in violation of New York State Vehicle & Traffic (“VTL”) Law §1192.3, an unclassified misdemeanour, and one count of Driving While Intoxicated Per Se in violation of VTL §1192.2, an unclassified misdemeanour. He was arraigned on June 20, 2022. By motion dated June 6, 2023, the defendant filed this second omnibus motion seeking an order (1) staying these proceedings pending a determination by an appellate court on an interim application for relief; (2) staying these proceedings so that defendant may attend other court appearances; (3) dismissing/compelling discovery/striking the People’s Certificate of Compliance and/or Statement of Readiness pursuant to CPL §245.20 and §245.50(1) based on an alleged failure to comply with automatic disclosure requirements; (4) deeming the prosecution not ready for trial; (5) deeming the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation); (6) striking the People’s Supplemental CoC and dismissing the case due to the People’s failure to certify readiness on the record; (7) compelling disclosure of discovery pursuant to CPL §245.30; (8) sanctioning the People for failure to respond to the defendant’s written Demand for Discovery and Inspection; (9) permitting an adverse inference on each element of the charged crime due to the People’s discovery violations; (10) suppressing any statements by the defendant pursuant to CPL §710.20; and (11) permitting counsel to file additional pre-trial motions. The People oppose the motion. This Court addresses each motion, in turn, below. A. First Omnibus Motion On January 26, 2023, defendant filed his first omnibus motion to dismiss¹ in which he moved this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instruments for the People’s failure to provide discovery; (4) granting an adverse inference instruction based upon the People’s failure to comply with discovery demands; and (5) allowing defendant to file additional motions. The gravamen of the defendant’s first omnibus motion was that the People had failed to comply with their disclosure requirements pursuant to CPL §245.20 because they did not turn over full records of impeachment materials with respect to law enforcement witnesses. On March 22, 2023, in a written decision, this Court (1) denied the defendant’s motion to strike the CoC/SoR; (2) denied the defendant’s motion to dismiss the accusatory instruments based upon an alleged violation of his statutory and constitutional speedy trial; (3) denied the defendant’s motion to dismiss the accusatory instruments for the People’s failure to provide discovery; (4) denied the defendant’s motion for an adverse inference instruction based upon the People’s failure to comply with discovery demands, and (5) granted the defendant’s motion to file additional motions. In so holding, this Court concluded that the People were required to, and did, turn over impeachment materials containing all categories of findings (substantiated, unsubstantiated, unfounded, exonerated). (See Order dated March 22, 2023). This Court further held that the People were not required to turn over the entire underlying files, but so long as the People disclosed “sufficiently detailed information such that defendants could understand the nature and degree of the alleged misconduct and determine its relevance to a particular defense,” the information disclosed complies with the statutory requirement. (Id. at p. 7). Thus, this Court concluded that the People’s disclosures of detailed case reports were sufficient, and the People did not have to disclose the entirety of the underlying files in the first instance. (Id. at pp. 8-9). If the defendant believed he needed the underlying files, he could make a motion for such upon a showing of necessity. In addition, this Court held that the redaction of personally-identifying information, such as tax identification numbers and social security numbers from the IAB files was permissible. (See 3/22/2023 Order at p. 10). However, the redaction of other information would require the People to apply for a protective order. (Id.) The People were ordered either to disclose unredacted versions of the previously-redacted files (except for personally-identifying information), or to move for a protective order within fifteen (15) days of this Court’s order. (Id.) The People did not move for a protective order, nor was one granted or denied. B. Pending Motion [Second Omnibus Motion] By motion dated June 6, 2023, the defendant filed this second omnibus motion seeking an order (1) staying these proceedings pending a determination by an appellate court on an interim application for relief; (2) staying these proceedings so that defendant may attend other court appearances; (3) dismissing/compelling discovery/striking the People’s Certificate of Compliance and/or Statement of Readiness pursuant to CPL §245.20 and §245.50(1) based on an alleged failure to comply with automatic disclosure requirements; (4) deeming the prosecution not ready for trial; (5) deeming the CoC as illusory and dismissing the accusatory instrument on the grounds that the People were not ready for trial within 90 days (speedy trial violation); (6) striking the People’s Supplemental CoC and dismissing the case due to the People’s failure to certify readiness on the record; (7) compelling disclosure of discovery pursuant to CPL §245.30; (8) sanctioning the People for failure to respond to the defendant’s written Demand for Discovery and Inspection; (9) permitting an adverse inference on each element of the charged crime due to the People’s discovery violations; (10) suppressing any statements by the defendant pursuant to CPL §710.20; and (11) permitting counsel to file additional pre-trial motions. The People oppose the motion. 1. Motion to Stay Proceedings Pending a Determination on Defendant’s Application for Interim Relief The defendant first moves to stay proceedings in this case pending a determination on the defendant’s application for interim relief before the appellate court. (See Def.’s Notice of Motion at 1 & Exhibit D). Specifically, the defendant notes that he filed an Order to Show Cause in the Appellate Term, Second Department on or about March 24, 2023. (Id.) The defendant’s application to the Appellate Term cites CPL §245.70 as a basis for expedited appellate review.² Pursuant to CPL §245.70, a defendant may seek expedited appellate review of an adverse ruling by a trial court pertaining to a protective order (relating to the name, address and contact information or statements of a person). See CPL §245.70(6). While seeking such expedited appellate review, the defendant is entitled to a stay of the Court’s order pending appeal. See CPL §245.70(6)(b). Here, however, the defendant’s original motion neither sought nor opposed a protective order. Nor did the People seek or oppose a protective order; nor was a protective order granted or denied by this Court.³ Therefore, the expedited review provision is inapplicable to the defendant’s interim application. See CPL §245.70(6)(b). Finally, this Court notes that the defendant’s application for interim relief to the appellate court does not appear to have complied with the rules of the Appellate Term for seeking expedited review of an adverse ruling regarding a protective order. See 22 NYCRR §731.15 (requiring the application to be made within two business days of the adverse ruling).⁴ It is therefore unclear whether the defendant’s application was accepted by the Appellate Term, and/or whether the application will be given expedited review by the Appellate Term. This Court notes that the defendant’s application has currently been pending for four months. Therefore, the defendant’s motion for a stay of proceedings in this case pending a determination on the defendant’s application for interim relief before the appellate court is DENIED. 2. Motion to Stay Proceedings Due to Defense Counsel’s Scheduling Conflict The defendant next moves to stay proceedings in this case so that defendant may attend other scheduled court appearances in June 2023. (See Def.’s Notice of Motion at 2). Since the conflicting court appearance dates have now passed, the defendant’s motion is DENIED as moot. 3. Motion to Compel/Strike/Dismiss Pursuant to CPL §245.20 and §245.50(1) As noted above, the defendant was charged on May 23, 2022 and he was arraigned on June 20, 2022. The People served their initial Discovery Disclosures and CoC/SoR on July 5, 2022, and then filed Supplemental CoCs/SoRs on November 18, 2022, February 6, 2023, June 1, 2023 and July 19, 2023. The defendant moves to compel discovery, to dismiss, and to strike the People’s initial CoC/SoR, filed on July 5, 2022, as well as the People’s Supplemental CoC/SoRs as invalid because the People failed to comply with their automatic discovery obligations in a timely manner pursuant to CPL §245.20(1). (See Def.’s Aff. at

23-56). In particular, the defendant contends that the People failed to provide (1) discovery regarding the simulator solution contained in the Intoxilyzer 9000 used during the field sobriety test of the defendant (see Def.’s Aff. at