DECISION AND ORDER Defendant moves to reargue this court’s decision, dated July 5, 2023, denying defendant’s motion to invalidate the People’s certificate of compliance (COC) and statement of readiness (SOR) for their failure to disclose the defendant’s Emergency Medical Services’ (EMS) records. In support of her motion to reargue the defendant relies on People v. Rahman, 2023 NY Slip Op 50692(U) (NY Sup, App Term 2d, 11th, and 13th Jud Districts, June 23, 2023). However, the critical facts in Rahman, upon which the Appellate Court based its decision, are clearly distinguishable from the facts in the present case. Rahman involved an alleged physical altercation wherein the victim walked into the police precinct to report the attack and officers on duty, observing her injuries, called EMS. The Appellate Term held that since EMS had been summoned by the police, the complainant’s EMS records fell within the purview of CPL §245.20(1)(j) which requires the People to disclose any records of mental or physical examinations, related to the criminal action, which are made at the request or direction of law enforcement. In reaching this conclusion the Appellate Term stated: “We agree with the Criminal Court that, in the circumstances of this case, and in light of the instruction to interpret CPL §245.20(1) in favor of disclosure…the FDNY/EMS records were discoverable under CPL §245.20(1)(j). Moreover, the People were required to ‘make a diligent, good faith effort to ascertain the existence of [the FDNY/EMS records] and to cause [the records] to be made available for discovery’ even if the records were not in the People’s ‘possession, custody, or control’”…(People v. Rahman, 2023 NY Slip Op 50692(U) (NY Sup, App Term 2d, 11th, and 13th Jud Districts, June 23, 2023) (citations omitted) (emphasis added). The qualifying language “in the circumstances of this case” indicates that the Appellate Term did not intend their ruling to be a broader mandate requiring the People to disclose EMS records as part of their automatic disclosure in every case. Citing to CPL §245.20(2) the Appellate Term confirmed that the People’s disclosure obligations do not encompass the duty to subpoena material which the defendant may also obtain. “The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain…” “… “…(People v. Rahman, 2023 NY Slip Op 50692(U) (NY Sup, App Term 2d, 11th, and 13th Jud Districts, June 23, 2023) (emphasis added). The significant fact in Rahman — that EMS was summoned by law enforcement — is not present in this case.1However, the most compelling distinction is that this case involves disclosure of the defendant’s own EMS records. As part of their automatic disclosure the People provided the defendant with the FDNY/EMS incident number and the FDNY EBF-4 Report which identifies all the FDNY personnel who were involved. It is axiomatic that the defendant may obtain her own medical records and that CPL §245.20(2) unequivocally relieves the People of the duty to subpoena any records that the defendant may obtain. As the defendant has failed to show how this court has overlooked or misunderstood the relevant facts, or misapplied any controlling principle of law, defendant’s motion to re-argue is denied (CPLR §2221[d]). The foregoing constitutes the Decision and Order of the court. Dated: August 16, 2023
