DECISION & ORDER The defendant moves to invalidate the People’s Certificate of Compliance (COC) because they failed to automatically disclose audit trails created by police body-worn cameras in their entirety. The People argue that the statute — CPL §245.20 — does not require them to automatically disclose all such ‘metadata.’ The defendant relies heavily, in his argument, on a Queens County Criminal Court case, People v. Ballard, 82 Misc3d 403 (Qns Co Crim Ct 2023) in which the court found that the plain language of CPL §245.20 clearly and unambiguously requires the People to automatically disclose all metadata associated with police body-worn cameras. And, because the People, in that case, had not made such disclosures, the court dismissed the case pursuant to CPL §30.30. Body-worn camera audit trails are system metadata which reflect “automatically generated information about the creation or revision of a [video] document … or the date and time of its creation or modification” People v. Larkin, 72 Misc3d 663 (Sup Ct Kings Co 2021). This metadata includes information such as who has viewed the video in question and when; when the camera was turned on and off; how charged the device’s battery was at the time; when the device was connected to a charger, etc. As Judge D’Emic wrote in Larkin, such metadata is usually most relevant when the authenticity of a document is in issue, or if there are questions about who received the document or when it was received. The audit trails also include user (ie police) entered information called ‘notations’ and ‘tags’ made by officers. Officers are to enter, for example, the reason for stopping a civilian, or to choose a characterization of the type of encounter being memorialized by the footage, from a pull down menu. They are required to upload body-worn camera footage to the system after an incident. These aspects of the audit trail — anything like a description or a “tag” — are not at issue here because they are routinely turned over by the People in this county in the form of what they call “metadata sheets.” CPL §245.20 is entitled ‘Automatic Discovery.’ CPL §245.20(1) reads: “Initial discovery for the defendant. 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…” In other words, the People need, initially, to turn over the following items, provided they have them and that they relate to the subject matter of the case. The Larkin court took a straightforward approach to interpreting the statute in this context. “As a general matter, body-worn camera footage is discoverable pursuant to CPL §245.20(1)(g), which provides, in relevant part, that the prosecution shall disclose ‘[a]ll tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident.’ The statute does not specifically mention the terms ‘audit trails’ or ‘metadata.’ Consequently, under the plain language of CPL §245.20(1)(g), the People discharged their duty by furnishing the defendant with relevant body camera footage” Larkin at 663. In addition, the People point out that when the legislature wanted to indicate that underlying data was required, they knew how to say so. CPL §245.20(1)(j), for example, requires the disclosure of “reports, documents, records, data [and] calculations” around mental and physical examinations and scientific tests1. CPL §245.20(1)(s) requires the People to turn over “records of calibration, certification, inspection, repair or maintenance of machines and instruments utilize to perform any scientific tests and experiments” in VTL cases. Contrast this with the approach taken to interpreting the statute in Ballard. In discussing the discoverability of underlying police disciplinary records, the Ballard court writes that “CPL §245.20(1)(k)(iv) creates the automatic duty to disclose ‘all evidence which tends to (iv) impeach the credibility of a testifying prosecution witness.’ This provision is offered in support of the Ballard court’s belief that the statute requires the People to disclose, for example, all police disciplinary records, regardless of whether the underlying allegations were deemed ‘unfounded’ or ‘unsubstantiated’, and regardless of whether or not they are related to the subject matter of the case. What of the limiting language of §245.20(1) — ie “the prosecution shall disclose…all items and information that relate to the subject matter of the case” (emphasis added)? Ballard gives a number of differing explanations, depending on the context. The first is to simply ignore it. The second is to assert that it does not apply to impeachment material, and the third is to assert that anything which might impeach a prosecution witness is always related to the subject matter of the case, no matter what. Ballard goes the simplest route first and ignores, or rather discounts subdivision one altogether. Ballard cites People v. Hamizane, 80 Misc3d 7. (Sup Ct App Term 2nd Dept, 9 & 10 Jud Dist 2013) — the sole appellate authority on the subject the day before Ballard was published — for the proposition that “[i]mpeachment evidence is not limited to what is related to the subject matter of the charges.” No explanation as to why, just that it is not thusly limited2. It is hard to see how the limiting phrase “related to the subject matter of the case” could be read to not apply to all the provisions that follow. For example, §245.20(1)(a) requires disclosure of “[a]ll written or recorded statements and the substance of all oral statements, made by he defendant or a co-defendant to a public servant engaged in law enforcement activity. Without the qualifier “related to the subject matter of the case” this would seem to require the People to turn over any statements made by the defendant in previous cases, or previous interactions with law enforcement. §245.20(1)(b) requires the People to disclose, “[a]ll transcripts of the testimony of a person who has testified efore a grand jury.” Grand jury testimony is certainly fodder for impeachment. So, if the limiting language of section one does not apply, this court would have to conclude that (1)(b) requires the People to disclose “all transcripts of the testimony of a person who has testified before a grand jury.” This is, obviously, absurdly broad3. Ironically, the very same day that Ballard was published, the Appellate Term published two additional opinions seemingly over-ruling Hamizane without explicitly saying so. “It is undisputed that the contents of the IAB [Internal Affairs Bureau] files at issue here are not “relate[d] to the subject matter of the case (CPL §245.20[1]). Consequently, there were no IAB files here that were subject to automatic discovery (People v. Fuentes, 81Misc3d 136[A] [NY App Term 2023]; see also People v. Woerner, 81 Misc3d 136[A] [NY App Term 2023]; ["[f]or the reasons stated in People v. Fuentes…the order, insofar as appealed from, is reversed”]). The next way the Ballard court gets around the phrase “related to the subject matter of the case” is to assert that a prosecution witness’s credibility is always an issue in a case and that, therefore, anything useful in attacking his/her credibility is thereby “related to the subject matter of the case.” Ballard asserts (quoting Harris v. The City of New York, 2019 WL 2231278 [NY Sup Ct 2019]) that it is “by now an ‘immortal principle’ that the credibility of a witness is always in issue, and evidence which tends to impeach it…is relevant4.” Ballard means by this, that any allegation, say, or complaint against a prosecution witness founded or unfounded, substantiated or unsubstantiated, is automatically discoverable and fair game for impeachment. The Court of Appeals disagrees. “A party may not introduce extrinsic evidence on a collateral matter solely to impeach credibility” (People v. Alvino, 71 NY2d 233 [1987]). The reason for that is “to avoid undue confusion and unfair surprise on matters of minimal probative worth” (People v. Knight, 80 NY2d 845 [1992]). However, where evidence is “clearly probative of [a] witness’s ability to accurately recall or observe the details of” a relevant event it is not collateral and is admissible (People v. Jenkins, 68 NY2d 896 [1986]). Is the issue of a witness’ veracity related to the instant case? Yes, it certainly is. Are his or her past indiscretions or misdeeds related to the ‘subject matter’ of the case? Likely, no. Say, for example, there is a murder case and a police witness had received discipline in the past related to an unrelated Driving While Intoxicated case, wherein he ignored patrol guide procedures for the stop and failed to write various things in his memo book5. The murder is captioned People v. X, not In re Officer Y’s Credibility. The subject matter of the case is the murder. What the officer did in relation to the DWI is related to the subject matter of the DWI. Of course, what happened in the DWI case may be quite probative of the officer’s credibility or for some other issue. §245.20(1) is titled “Initial Discovery.” §240.30 is titled “Court orders for preservation, access or discovery. §245.30(3) is captioned “[d]iscretionary discovery by order of the court. The court in its discretion may, upon a showing by the defendant that the request is reasonable…order the prosecution…to make available for disclosure to the defendant any material or information which relates to the subject matter of the case.” In other words, initial automatic discovery need not be the end of it, provided the request is reasonable. In the instant case, defendant spends several paragraphs entertaining the possibility that officers may, in effect, edit their body-worn camera video by strategically turning the device on or off. If that were to have happened, at the very least a suspicion for such a thing would likely be apparent from the videos themselves and/or from other evidence. If the defendant has articulable reasons to believe such shenanigans took place he has only to relate them to the court and the court can order additional discovery of the metadata. CPLR §3101(a) and the Court of Appeals have addressed in very general terms, what is discoverable. Not a list but a characterization. What sort of things are discoverable? “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR §3101[a]). “We have emphasized,” the Court of Appeals wrote in Forman v. Henkin, 30 NY2d 656 (2018), “that the words material and necessary are…to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist in preparation for trial by sharpening the issues and reducing delay and prolixity6. The test is one of usefulness and reason. (Henkin at 656; internal quotations omitted; emphasis added). What is discoverable and what is relevant are not precisely the same thing, but the two concepts are close cousins. This court believes that insisting on the automatic disclosure of all body-worn camera metadata is contrary to the values of usefulness and reason and contrary to the goals of sharpening issues, reducing delays and prolixity. Discovery should be a process to facilitate the gathering of items material and necessary to prepare to try a case. It should not be an ever-expanding, Sisyphean burden meant to end in more speedy trial dismissals. In the instant case, the defendant, a man with a previous conviction for driving under the influence, is alleged to have been behind the wheel, despite a revoked license, under the influence, armed with a supply of PCP. The defendant walked away from the collision, but the complainant is alleged to have been paralyzed from the chest down. This court has no appetite, no enthusiasm for engineering a speedy trial dismissal by moving the goal posts on the prosecution. This court does not see any virtue in re-writing statutes to impose yet further burdens on prosecutors7. The court does not see any inherent virtue in dismissing cases. The defendant’s motion is denied in all respects. The foregoing constitutes the Decision and Order of the Court. Dated: June 21, 2024
