DECISION AND ORDER On May 1, 2023, defendant filed a motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law §30.30. On May 8, 2023, the People filed their opposition to defendant’s motion. On May 12, 2023, defendant filed his reply to the People’s opposition to his motion. On May 26, 2023, the court issued its decision and order, denying defendant’s motion in its entirety. On September 15, 2023, defendant served and filed the instant motion to renew. On October 3, 2023, the People filed their opposition to defendant’s motion. Relevant Procedural History On November 6, 2022, defendant was arraigned on an accusatory instrument charging him with three misdemeanors and a violation, specifically: assault in the third degree, Penal Law §120.00 (1); attempted assault in the third degree, Penal Law §§120.00 (1)/110; menacing in the third degree, Penal Law §120.15; and harassment in the second degree, Penal Law §240.26 (1). The People alleged, in pertinent part, that defendant headbutted complaining witness, Teylor Harris (Harris) and then hit Harris’s head against the nightstand with his hands. This caused Harris to suffer a chipped tooth, a laceration to the nose and eye, and substantial pain. On January 27, 2023, the People served and filed an off-calendar certificate of compliance (COC)/statement of readiness (SOR), an inventory of discovery provided under CPL 245, and notice/disclosure form for initial discovery (NDF). On May 1, 2023, defendant filed a motion to dismiss the charges, claiming he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law §30.30. Specifically, defendant argued that the People’s COC’s was invalid for, among other things, failure to provide underlying impeachment information for testifying officers. The People opposed defendant’s motion. On May 8, 2023, the People filed an amended NDF listing the following officers as testifying witness: (1) Officer Maxime Muller (Officer Muller), (2) Officer Gregory Antoine (Officer Antoine), and (3) Officer Chrisopher Lillis (Officer Lillis). On May 26, 2023, the court issued its decision and order denying defendant’s motion. Pursuant to the court’s decision, the People were ordered to provide disciplinary records of the substantiated allegations for testifying witnesses to the defense in their entirety within 30 days of receipt of this decision. On July 13, 2023, the Appellate Term, Second Department issued its decision People v. Hamizane, 80 Misc 3d 7 (App Term, 2d Dept, 9th & 10th Jud Dists 2023). In Hamizane, the Appellate Term rejected the People’s argument that they need only disclose disciplinary records related to the subject matter of the charges as “the disciplinary records of a potential police witness which were created in relation to a different case goes to the weight of the credibility of the witness and can be used for impeachment purposes” (id. at 11 [internal citation omitted]). The court therefore held that “with respect to every listed potential police witness, it was the People’s obligation to disclose [1] whether or not disciplinary records exist, and [2] to provide the defense with copies of any existing records” (id.). As “the People had [failed to demonstrate any] attempt[] to obtain any police disciplinary records, or attempted to find out whether any such records existed, prior to the filing of these CoCs,” the People’s efforts to efforts obtain discovery could not be said to be made in good faith and reasonable under the specific circumstances of the case (id. at 12) On September 15, 2023, defendant served and filed the instant motion to renew. On October 3, 2023, the People filed their opposition to defendant’s motion. Motion to Renew Defendant, citing the Hamizane decision, argues that, upon renewal, his motion to dismiss pursuant to Criminal Procedure Law §30.30 should be granted. Specifically, defendant argues that the People’s initial COC was invalid because, among other things, the People failed to disclose impeachment material for testifying officers prior to filing their initial COC and SOR. As a result, the People have exceeded the applicable CPL 30.30 time period and should be dismissed. Defendant cites multiple non-binding trial court decisions as authority for this contention.1 The People first respond that defendant’s attempt to reargue2 represents an improper attempt by defendant to again argue the very same issues that were previously correctly decided by this court. The People next respond that the issue of disclosure of impeachment material has already been determined by the court. Additionally, the People urge the court to disregard Hamizane and follow the Fourth Department’s holding in People v. Johnson, 218 AD3d 1347 (4th Dept 2023). Finally, the People argue that, in any event, Hamizane is distinguishable from the instant case. For the following reasons, defendant’s motion for leave to renew is denied. The court first notes that New York Criminal Procedural Law is silent as to motions to reargue or renew, but such motions are incorporated through caselaw (People v. Merly, 51 Misc 3d 858, 860 [Sup Ct, Bronx County 2016] [Since "there are no applicable provisions in the CPL concerning [motions to reargue or renew], those provisions of the CPLR that address the issue may be applied in a criminal action”] citing People v. Davis, 169 Misc 2d 977 [County Ct, Westchester County 1996]; People v. Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992]; People v. Cortez, 149 Misc 2d 886 [Crim.Ct, Kings County 1990]). Civil Practice Law and Rules §2221 (e) governs motions to renew. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.” In reviewing defendant’s motion to renew, the court first finds that Hamizane settled the issue of the scope of disclosure under CPL 245.20 (k)(iv) as it relates to testifying police officers. The Appellate Term, Second Department court rejected the People’s argument that they need only disclose disciplinary records related to the subject matter of the charges and held that “the disciplinary records of a potential police witness which were created in relation to a different case goes to the weight of the credibility of the witness and can be used for impeachment purposes” (Hamizane, 80 Misc 3d at 11 [internal citations and quotations omitted]). As a result, the court held that “with respect to every listed potential police witness, it was the People’s obligation to disclose [1] whether or not disciplinary records exist, and [2] to provide the defense with copies of any existing records” (id.). Regarding People’s argument that the court should disregard Hamizane as it was not decided by the bench that hears appeals from the Second Judicial District, the Judicial District for Kings County, the court finds that since that bench has not ruled, Hamizane is binding. Similarly, in light of the conflicting determination by Hamizane that is binding on the court, the court rejects the People’s argument that the court should follow the Fourth Department’s holding in Johnson. This determination, however, does not resolve the instant motion as the court must determine whether to retroactively apply the Hamizane decision, which was issued after the court found the People’s COC valid in the instant case and after the People served and filed their COC. In its determination, the court finds instructive the Court of Appeal’s decision, People v. Baret, 23 NY3d 777, 782 (2014). In Baret, the Court of Appeals examined whether to retroactively apply the Sixth Amendment requirement that criminal defense counsel advise noncitizen clients about the risk of deportation arising from a guilty plea provided for in Padilla v. Kentucky, 559 US 356 (2010). In holding that Padilla did not apply retroactively, the Court of Appeals first concluded that Padilla was not a watershed rule of fundamental fairness that should be applied retroactively because it was not “central to an accurate determination of guilt or innocence [and did not] safeguard the fundamental fairness of [a] trial” (Baret, 23 NY3d at 798 [internal quotation omitted]). Moreover, the court applied the three-part test established in People v. Pepper, 53 NY2d 213 [1981] and found that the Padilla rule did not need to be applied retroactively (Baret 23 NY3d at 799-800). Specifically, the Pepper test, examines “[1] the purpose to be served by the new standard; [2] the extent of the reliance by law enforcement authorities on the old standard; and [3] the effect on the administration of justice of a retroactive application of the new standard.” Applying that test, the Baret court held that retroactivity was inappropriate because: (1) “Padilla has nothing to do with a reliable determination of guilt or innocence”; (2) the prior “reluctan[ce] [for defense attorneys] to volunteer advice in an often complex area of law outside their legal specialty” and (3) “the sheer volume of prosecutions disposed of by guilty plea” (People v. Baret, 23 NY3d 777, 799-800 [2014] (id. at 793 [2014]). While the court notes that Baret concerned a case upon appeal — that is, after a final judgment was entered — the court finds that the reasoning applied in Baret is applicable to the instant case. The court first notes that that the People, on May 24, 2023, disclosed the underlying Giglio materials for Officers Antoine and Lillis (People affirmation at 19). The People then filed a supplemental COC on that day reflecting the additional disclosures (id.). The People state that they have no documents to disclose for Officer Muller as there are no disclosures in Officer Muller’s Giglio or CCRB Letter (id.). These disclosures, which were made prior to both the court’s May 26, 2023 decision and order and the Hamizane decision, establish compliance with the requirement that the People disclose underlying records. In its analysis of the instant case, the court concludes that the ruling in Hamizane is far from the type of “watershed rule” that requires a retroactive application. The amended discovery statute was an attempt by the legislature to address prior shortcomings of the previous discovery law such that the defense would be provided with timely and comprehensive discovery. By holding in Hamizane that underlying impeachment records must be disclosed, the Appellate Term did not fundamentally alter rules pertaining to the determination of guilt or innocence, but clarified statutory discovery rules that allow a defendant to properly prepare for trial. While the ruling in Hamizane may be considered a “change in the law” for the purposes of the motion to renew, the holding in the appellate case is consistent with this court’s holding in the case at bar, finding that the People are required to turn over the underlying disciplinary records under CPL 245.20 (1) (k)(iv). Furthermore, following the Pepper test, Hamizane should not be afforded retroactive application. Here, the People have provided underlying impeachment material for testifying prosecution witnesses well in advance of trial, providing the defense with adequate time to review it. The People have relied on this and other court’s rulings that the failure to disclose underling material does not invalidate a COC. The effect on the administration of justice would be significant where numerous cases, which were decided upon the lack of consistent authority, would be dismissed based upon a subsequent ruling. Indeed, the statute was not to be weaponized against the prosecution in circumstances where the material has been turned over, consistent with the existent statutory precedent and well in advance of trial. To apply the ruling retroactively here, when the defense is already in possession of the material, would be contrary to the principals of fundamental fairness. Accordingly, the rule set forth in Hamizane is not to be applied retroactively. As such, defendant’s motion to renew is denied. The foregoing constitutes the decision and order of the court. Dated: November 2, 2023
