DECISION AND ORDER The defendant, Christopher Hooks, is charged with Operating a Motor Vehicle While Intoxicated (VTL §1192[3]) and Operating a Motor Vehicle While Impaired (VTL §1192[1]). The defendant now moves to invalidate the Certificate of Compliance (COC) and to delay filing and serving the defendant’s reciprocal Certificate of Compliance (DCOC) pursuant to CPL §245.10(2). The People oppose the motion to invalidate the COC. It is alleged that on June 18, 2023, the defendant was observed by the police to drive through a steady red light while driving faster than the rate of traffic. Upon stopping the defendant’s vehicle, the police observed the defendant to have slurred speech, red watery eyes, an odor of alcohol on his breath and, upon exiting the vehicle, an unsteady gait. It is also alleged that the defendant stated that he was drinking a little bit and was rushing because he needed to urinate. There is no allegation that the defendant submitted to a chemical breath test after his arrest. The defendant was arraigned on June 19, 2023. On September 13, 2023, upon review of their file, the People contacted the arresting officer and discovery liaison for the precinct where the defendant was arrested to obtain discovery. The People filed a COC and a Statement of Readiness on September 18, 2023. While the defendant asserts that a conferral email was sent to the assigned prosecutor on October 6, 2023, the People deny receiving such an email, and no email has been proffered as an exhibit in support of the defendant’s motion or reply papers. The instant motion was filed on November 3, 2023. CERTIFICATE OF COMPLIANCE The People must disclose and permit a defendant to discover all items and information that relate to the subject matter of the case which are in the possession, custody or control of the prosecution or persons under their direction or control, including the items subject to automatic discovery listed in CPL §245.20(1)(a — u). The People must “make a diligent, good faith effort to ascertain the existence of material or information discoverable”…and must “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” (CPL §245.20[2]). When the defendant is not in custody, the People shall perform their initial discovery obligations within thirty-five days of arraignment on a misdemeanor complaint (CPL §245.10[1][a][ii]). The certificate of compliance must include a statement indicating that the People disclosed and made available all known information subject to discovery and must identify the items provided (CPL §245.50[1]). If the People provide additional discovery after filing their certificate of compliance (CPL §245.60), they must serve and file a supplemental certificate identifying the additional material and information provided (CPL §245.50[1]). Additionally, “[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]). The court must determine whether the People exercised the requisite level of diligence in obtaining discovery materials, and whether their certificate of compliance was filed in good faith and was reasonable under the circumstances (People v. Hamizane, 80 Misc3d 7, 9 [App Term, 2d Dept 2023]; People v. Guzman, 75 Misc3d 132[A] [App Term, 2d Dept 2022; People v. Rodriguez, 77 Misc3d 23, 25 [App Term, 1st Dept 2022]). 1. Simulator Solution Certification and Gas Chromatography The defendant urges this court to invalidate the COC for failure to disclose records pertaining to the simulator solution certifications and gas chromatography records. The People assert that they have disclosed all existing relevant materials regarding this disclosure objection. The court is satisfied that the People have satisfied their discovery obligations. 2. I-Card & DD5s The People assert that the purportedly missing I-Card and DD5s do not exist. The court is satisfied that the People have satisfied their discovery obligations. 3. Police Disciplinary Records The defendant lists a host of police disciplinary records that they assert are part of automatic discovery and were not disclosed. This includes various CCRB records, IAB records, and court filings for civil suits. The People counter that they are not required to disclose all underlying records under the automatic discovery rules. There has been a great deal of litigation concerning compliance with the rules of automatic discovery since the sweeping changes to discovery enacted in 2019. A large part of the debate involves the disclosure of police disciplinary records and conflates the People’s statutory obligation pursuant to CPL §245.20(1)(k)(iv) with the constitutional obligation set forth in Giglio v. US, (405 US 150 [1972]). However, automatic discovery and Giglio disclosures are two separate and distinct prosecutorial obligations despite some overlapping principles. Automatic discovery is a statutorily constructed obligation, while Giglio disclosure is a common law obligation grounded constitutional protections. In Giglio, the court held that the People’s failure to disclose impeachment information for a civilian witness violated the defendant’s due process rights under the United States Constitution. In extending the People’s obligations defined in Brady v. Maryland, (373 US 83 [1963]), the Giglio court reasoned that the People have a constitutional due process obligation to disclose to the defendant any information they learn about testifying witnesses that tends to impeach their credibility. The principles described in Giglio were not limited to police witnesses and did not require a reversal of a conviction any time a violation of Giglio occurred. The New York State Court of Appeals also advanced the same due process principle, holding that it applies not only under the federal constitution, but also under the New York State Constitution (People v. Simmons, 36 NY2d 126 [1975]). Indeed, the Court of Appeals has expressly adopted the principle that where the reliability of a witness may be determinative of guilt or innocence, nondisclosure of evidence affecting their credibility falls within the general rule established in Giglio (People v. Cwilka, 46 NY2d 434, 441 [1979]; see also People v. Vilardi, 76 NY2d 67 [1990]). Various appellate courts have touched upon the People’s statutory automatic discovery obligation to disclose impeachment materials. The law governing impeachment material in the context of automatic discovery reads, in pertinent part: The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control, including but not limited to…all 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: (i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article (CPL §245.20[1] [k] [emphasis added]). In Matter of Jayson C, (200 AD3d 447 [1st Dept 2021]), the court addressed the denial the minor-appellant’s right to equal protection under the law by granting the minor-appellant the same discovery rights provided to adults in CPL §245.20(1)(k). In Jayson C, the presentment agency failed to disclose pending NYPD disciplinary allegations, substantiated NYPD disciplinary findings, and CCRB compliant. The presentment agency argued that they provided all discovery required by the Family Court Act Article 3 and that CPL Article 245 was inapplicable to juvenile delinquency proceedings. The Jayson C court found that a presentment agency in a juvenile delinquency proceeding is bound by the statutory obligations set forth in CPL §245.20(1)(k) and must provide the same discovery records that are disclosed to an adult in a criminal proceeding and not the disclosure letters that satisfied the requirements of the Family Court Act Article 3. The Jayson C holding did not address whether the disciplinary records at issue were related or unrelated to the subject matter of the charges in the juvenile delinquency proceeding. In People v. Rodriguez, (77 Misc3d 23 [App Term, 1st Dept 2022]), the defendant challenged the People’s certificate of compliance for failure to disclose underlying impeachment records. The People failed to respond to conferral challenges and failed to properly address the court’s CPL §30.30(5) readiness inquiry in open court. The Rodriguez court upheld the trial court’s dismissal on speedy trial grounds, holding that the People failed to establish, through sworn facts, that they exercised due diligence in satisfying their statutory automatic discovery obligations. Although the Rodriguez court held that the People failed to disclose underlying disciplinary records, the court never reached the issue of whether the defense challenges were properly related to the subject matter of the case under CPL §245.20(1) because the People failed to substantively oppose the defendant’s challenge to the certificate of compliance. In People v. Johnson, (218 AD3d 1347 [4th Dept 2023]), the court dealt with the sufficiency of the People’s statutory obligation to disclosure impeachment evidence as part of automatic discovery. The Johnson court rejected the expansion of CPL §245.20(1)(k)(iv) to include all disciplinary records for testifying police witnesses and found that the statutory language plainly means what it says: the People are obligated to disclose only the disciplinary records that are related to the subject matter of the case. Thus, Johnson holds that disciplinary records related to the subject matter of the case are discoverable; however, it does not expressly hold that a disclosure list is sufficient to satisfy the People’s automatic discovery obligation. In People v. Hamizane (80 Misc3d 7 [App Term, 2d Dept 2023]), the People appealed a dismissal of the case on speedy trial grounds by arguing that they were not required to disclose police disciplinary records that do not relate to the subject matter; that they did not need to disclose disciplinary records for non-testifying witnesses; and that they had exercised due diligence in meeting their discovery obligations. In upholding the trial court’s dismissal on speedy trial grounds, the Hamizane court held that the People had failed to provide any disciplinary records for the potential witnesses or to indicate that such records did not exist. The Hamizane court reasoned that CPL §245.20(1)(k) now requires the People to disclose impeachment material which is known to the police that tends to impeach the credibility of a testifying prosecution witness (Hamizane at 11). This is a duty greater than Giglio obligations, where the People need disclose impeachment evidence that they learn about. CPL §245.20(2) places an affirmative duty on the People to seek out information known to the police that is subject to automatic disclosure. Moreover, Hamizane holds that “with respect to every listed potential police witness, it [is] the People’s obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records” and that a failure to do so invalidates the certificate of compliance (id.). The Hamizane court rejected the People’s argument under a Brady analysis that the unrelated disciplinary records need not be disclosed unless they are related to the instant offence. In reliance on People v. Smith, (27 NY3d 652 [2016]), People v. Pennant, (73 Misc3d 753 [Dist Ct, Nassau County 2021), and People v. Figueroa, (78 Misc3d 1206[A][Crim Ct, NY County 2023]), Hamizane holds that if impeachment material goes to the credibility of a witness, then such impeachment material is discoverable. However, all three cases are grounded in the same constitutional due process principles laid out by the United States Supreme Court in Giglio and Brady, which is still good law and remains a constitutional obligation that the People are required to meet in addition to the statutory obligations set forth in CPL §245.20. Hamizane does not hold that the People’s statutory obligation under CPL §245.20(1)(k) is the same as their obligation to ensure the defendant’s due process rights under Brady/Giglio analysis. Hamizane does not require the disclosure of the entirety of the potential testifying witnesses’ police disciplinary record, but it does hold that unrelated disciplinary records that go to the credibility of the police officer are discoverable as part of automatic discovery. Succinctly, Hamizane holds that to show due diligence in complying with their statutory automatic discovery obligation under CPL §245.20(1), for all listed potential police witness the People must either (1) disclose the existence of related disciplinary records pursuant to CPL §245.20(l)(k)(iv) and provide copies of such records to the defense, or (2) affirmatively state that such records do not exist, and any unrelated disciplinary records that tend to impeach the credibility of the witness must be disclosed as part of statutory automatic discovery. In denying an appeal in People v. Weisman, (2023 NY Slip Op 51248[U] [App Term, 2d Dept 2023]), the court first held that the defendant failed to preserve claims of a Brady/Giglio violation. The court then separately rejected the defendant’s contention that the failure to disclose certain police disciplinary records violated the People’s statutory discovery obligations under CPL §245.20. In accord with the holding of the Johnson court, the Weisman court reasons that CPL §245.20 limits the People’s obligation to disclose those disciplinary records that are related to the subject matter of the charges, and in Weisman the disciplinary records in question were not subject to disclosure as they were not related to the charges in the case. The Weisman court also compared its holding to Hamizane, ostensibly because there was no argument that the discovery in Weisman impeached the credibility of the police witness. Significantly, the Weisman court clearly separates the People’s constitutional Brady/Giglio obligation (which was not preserved for appellate review) from the statutory obligation of CPL §245.20 (which was considered on appeal). Such an analysis clarifies that compliance with the obligation of statutory automatic discovery is not the same as compliance with the separate Brady/Giglio constitutional obligation. The Third Department has now joined with Weisman and Johnson in expressly holding that only CPL §245.20(1)(k) requires the disclosure of information that relates to the subject matter of the case (People v. McCarty, 2023 NYSlip Op 06173 [3d Dept 2023]). In rejecting disclosure of the entire police disciplinary record, the McCarty court states that automatic discovery is restricted to the plain meaning of CPL §245.20(1). The harmonization between the holdings of Weisman, Hamizane, McCarty and Johnson is firmly grounded in long-standing practical trial principles holding that unrelated disciplinary records are generally collateral to the criminal proceeding (People v. Gissendanner, 48 NY2d 543 [1979]; People v. Fortune, 70 AD3d 964 [2d Dept], lv den 14 NY3d 887 [2010]; Matter of Sheldon G., 234 AD2d 459 [2d Dept 1996]; People v. Cedeno, 4 Misc3d 134[A] [App Term, 2d Dept 2004]; People v. McFaline, 167 AD3d 465 [1st Dept 2018]; People v. Cintron, 50 Misc3d 1204[A] [Crim Ct, Kings Co 2015]), but discovery is permissible when the records tend to impeach a witness’s credibility with respect to the specific issues the jury must resolve (People v. Beavers, 127 AD2d 138 [1st Dept], app denied 70 NY2d 642 [1987]; see also People v. Schwartzman, 24 NY2d 241 [1969]). The Legislature could not have intended the invalidation of certificates of compliance due to the People’s failure to disclose collateral disciplinary records that may not even be admissible at trial. What makes more sense is that the Legislature intended the People to automatically disclose any non-collateral disciplinary records that are directly related to the subject matter of the case or directly affects the credibility of the witness, as such evidence could be admissible at trial and necessary for the defendant to knowingly and intelligently determine how to proceed against the charges. Simply put, the Legislature created a system that requires the People to disclose all evidence related to the crimes charged within a maximum of thirty-five days of the initiation of the proceedings so that a defendant can make knowing and intelligent decisions on how to proceed with their case. The Legislature could not have intended the creation of a process that is so onerous that the People’s failure to disclose the contents of a collateral civil suit entirely unrelated to the charges against a defendant or unrelated to the witness credibility serves as a valid basis for invalidation of a certificate of compliance. Thus, the People’s duty to disclose police disciplinary records in a criminal proceeding under CPL §245.20(1)(k)(iv) requires that the People exercise due diligence in obtaining and disclosing any impeachment evidence related to the charges facing the defendant within twenty or thirty-five days of arraignment, depending on the defendant’s custody status (CPL §245.10; Weisman, supra; Johnson, supra; McCarty, supra; People v. Lewis, 78 Misc3d 877 [Sup Ct, Kings County 2023]; People v. Knight, 69 Misc3d 546, 551 [Sup Ct Kings County 2020]). This includes copies of underlying law enforcement disciplinary records (Rodriguez, supra; Hamizane, supra) if such records are related to the subject matter of the charges facing the defendant and is in the actual or constructive possession of the People (CPL §245.20[1][k][iv]; Weisman, supra; Johnson, supra; McCarty, supra;). Any disciplinary records that directly relate to the credibility of the witness, such as records that pertain to prior bad acts, bias, interest, or hostility (Beavers, supra; Smith, supra; Schwartzman, supra), are subject to disclosure as part of automatic discovery, even if unrelated to the subject matter of the case (Hamizane, supra). Any other type of police disciplinary records that are unrelated to the charges facing the defendant or directly impact on credibility, continue be potentially subject to disclosure as Brady/Giglio material but are not subject to automatic discovery (Brady, supra; Giglio, supra). In the instant case, the defendant’s initial motion fails to establish that the underlying disciplinary records sought are related to the instant charges or directly relate to the credibility of the witness. In opposing the motion, the People cite to the Weisman holding. In his reply, the defendant asserts that he is ready to provide proof of “materiality” of the documents requested. The purpose of a reply affirmation is to respond to arguments made in opposition to the People’s motion (see Gelaj v. Gelaj, 164 AD3d 878 [2d Dept 2018]), and here the defendant has failed to do so. Nevertheless, the People have failed to meet their burden of showing due diligence in this proceeding. The People have not presented any sworn facts in support of their diligence in meeting their automatic discovery obligations regarding police disciplinary records prior to filing their COC (Rodriguez, supra). There are no sworn facts establishing that the People have disclosed all disciplinary records related to the subject matter of the instant charges or directly related to the credibility of testifying witnesses, or that no such disciplinary records exist (id.; Hamizane, supra). 4. Automatic Disclosure for PO Gurasees Singh The defendant asserts that the People have failed to provide any disclosure regarding PO Singh’s body-worn camera, Giglio material, and his memobook. The People concede in their unsworn Memorandum of Law that PO Singh was present at the time of the defendant’s arrest, that they overlooked this disclosure, and that the materials will be disclosed. However, the People also counter that any evidence connected to PO Singh is only tangential and therefore not subject to disclosure. Notwithstanding this assertion, the People have failed to show any facts establishing due diligence in ascertaining the existence of discoverable material or information regarding PO Singh pursuant to CPL §245.20(2) (Rodriguez, supra; see also People v. Carter, 80 Misc.3d 127[A] [App Term, 2d Dept 2023] [the inadvertent failure to disclose required discovery invalidates a COC]). The People have failed to meet their burden to show due diligence that is reasonable under the circumstances regarding PO Singh (Hamizane, supra; Guzman, supra; Rodriguez, supra). DEFENSE CERTIFICATE OF COMPLIANCE The defendant seeks additional time to file his DCOC. Specifically, he seeks to file thirty days after a valid COC is filed. However, he fails to raise a factual basis or argument of law in his moving papers in support of this relief. Thus, although the People did not oppose the relief requested, there are no facts to accept as unopposed. The defendant shall file a DCOC within thirty days of service of a certificate of compliance (CPL §245.10[2] [emphasis added]). Service and filing of the DCOC is not contingent on the validity of the People’s COC, and the mandatory requirement for filing in this case commenced on September 18, 2023. The defendant’s request for expanded time to file a DCOC is denied. CONCLUSION The People’s COC was not filed in good faith and is deemed invalid (CPL §30.30[5]). Concomitantly, the People’s Statement of Readiness is also deemed illusory (id.). The defendant’s request for additional time to file a DCOC is denied (CPL §245.10[2]). This constitutes the Decision and Order of the Court. Dated: December 6, 2023
