DECISION AND ORDER The Defendant, Cleavaugh Perkins, has submitted an omnibus motion, dated April 12, 2024, seeking: invalidation of the People’s certificate of compliance; deferral of the defense certificate of compliance; inspection of the Grand Jury minutes and reduction or dismissal of the indictment; a voluntariness hearing; preclusion of statement evidence; preclusion of identification evidence; a Bill of Particulars; the preservation and production of recordings; any and all Brady material; additional police cross-examination records; disclosure of vicious or immoral acts and a Sandoval hearing; and the reservation of rights to make further motion. The People’s response, dated May 22, 2024, provides a Bill of Particulars but otherwise opposes the relief sought. The Court decides the motion as follows: The branches of the motion seeking to inspect the Grand Jury minutes and dismiss or reduce the indictment are granted only to the extent that the Court has inspected the minutes of the Grand Jury. “To dismiss [or reduce] an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v. Gaworecki, 37 NY3d 225 [2021], quoting People v. Grant, 17 NY3d 613, 616 [2011]). The Court must determine if the evidence adduced before the Grand Jury was legally sufficient, meaning “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (CPL §70.10[1]; People v. Castro, 202 AD3d 815 [2d Dept 2022]). The evidence must provide prima facie proof of each offense, rather than proof beyond a reasonable doubt (People v. Hulsen, 150 AD3d 1261, 1262 [2d Dept 2017]; see also People v. Jessup, 90 AD3d 782, 783 [2d Dept 2011]). The reviewing court’s inquiry is limited to “whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference” (Gaworecki, supra, quoting Grant, supra). The Court finds that the evidence adduced before the Grand Jury was legally sufficient to support all counts of the indictment. The People “maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused” (People v. Thompson, 22 NY3d 687 [2014]; People v. Mitchell, 82 NY2d 509, 515 [1993], citing People v. Lancaster, 69 NY2d 20, 25 [1986]). Moreover, the District Attorney properly instructed the Grand Jury on the relevant law (People v. Tunit, 149 AD3d 1110 [2d Dept 2017], citing People v. Calbud, Inc., 49 NY2d 389 [1980]). To the extent that the Defendant alleges defects in the presentation of the case to the Grand Jury, the Court finds that the presentation was not defective as a matter of law. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time that the District Attorney instructed the Grand Jury on the law. No unauthorized person within the meaning of CPL §190.25 was present at any time during the proceedings (see People v. Sayavong, 83 NY2d 702 [1994]). Also, no irregularity that would impair the integrity of the Grand Jury occurred (see People v. Adessa, 89 NY2d 677 [1997]; People v. Huston, 88 NY2d 400 [1996]). The release of additional Grand Jury minutes beyond what has been turned over by the People pursuant to the discovery provisions of Article 245 of the Criminal Procedure Law is denied since defense counsel has failed to demonstrate any compelling need for such action and the Court is able to determine the motion without assistance (see CPL §210.30[3]). The branch of the motion seeking a voluntariness hearing is reserved for the trial court (see Jackson v. Denno, 378 US 368 [1964]; Mincey v. Arizona, 437 US 385 [1978]; People v. Clemons, 166 AD2d 363 [1st Dept 1990]). The branch of the motion seeking preclusion of unnoticed statements made by the Defendant to members of law enforcement is granted. Absent a showing of good cause, the People are precluded from the use of any unnoticed statements on their direct case (see People v. O’Doherty, 70 NY2d 479 [1987]). The branch of the motion seeking to preclude identification testimony is granted. Absent a showing of good cause, the People are precluded from the use of any unnoticed police-arranged identifications on their direct case (People v. McMullin, 70 NY2d 855 [1987]). The branch of the motion seeking a Bill of Particulars and demand for discovery is granted to the extent provided by the People pursuant to CPL §200.95 and CPL §245.20. The People are directed to make every effort to preserve Rosario material as well as all 911 calls, radio runs, sprint reports, surveillance footage, and any other recordings that are relevant to this case and make them available to the Defendant at the appropriate time as prescribed by CPL §245.10 and CPL §245.20(1)(g) (see People v. Rosario, 9 NY2d 286 [1961]; People v. Consolazio, 30 NY2d 446 [1976]). The branch of the motion seeking all Brady material is granted to the extent that the Court reminds the People of their obligations under Brady v. Maryland, 373 US 83 (1963). The branch of the motion seeking the disclosure of Defendant’s prior uncharged criminal, vicious or immoral acts is granted to the extent that the People are directed to adhere to the time-period for disclosure pursuant to CPL §245.20(p). The branch of the motion seeking a Sandoval hearing is referred to the trial court (see People v. Sandoval, 34 NY2d 371 [1974]; Luck v. US, 348 F2d 763 [DC Cir 1965]; People v. Ventimiglia, 52 NY2d 350 [1981]; People v. Molineux, 168 NY 264 [1901]). As for the branch of the motion seeking additional law enforcement disciplinary records, because there is no appellate authority from either the New York Court of Appeals or the Appellate Division, Second Department on this issue, this Court has considered relevant statutes and appellate decisions from other departments. Criminal Procedure Law §245.20(1) provides: 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…[21 categories of discovery]. Furthermore, CPL §245.20[1][k][iv] requires the People to provide “all evidence and information that tends to…impeach the credibility of a testifying prosecution witness.” In People v. Johnson, the Appellate Division, Fourth Department, held that the “defendant was not automatically entitled to the entirety of a police officer’s personnel file as impeaching material under CPL 245.20(1)(k)(iv), but rather only to the extent that the information ‘related to the subject matter of the case’” (218 AD3d 1347 [4th Dept 2023], quoting CPL §245.20[1]). Therefore, the Fourth Department did not require the prosecution to disclose any disciplinary records from unrelated matters in order for their certificate of compliance and statement of readiness to be valid. Additionally, in People v. McCarty, the Appellate Division, Third Department, found that a defense argument that the prosecution must disclose the entire disciplinary record for each and every law enforcement officer involved with a case was “belied by a plain reading of the automatic disclosure statute, which requires the People to disclose ‘all items and information that relate to the subject matter of the case” (221 AD3d 1360, 1362 [3rd Dept 2023]). The Third Department noted that their decision was “consistent with the balancing of interests espoused by the Court of Appeals in People v. Garrett, 23 NY3d 878, 888-91 (2014)” (id.). Although decided before Criminal Procedure Law article 245 was enacted, in Garrett, the Court of Appeals held that “the People have no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witness…This would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefit defendants would enjoy from the information ultimately disclosed on account of the People’s efforts” (Garrett at 890). The Court is aware that other trial courts have opined that this view of CPL §245.20(1)(k)(iv) is too restrictive a view and could not possibly fit the Legislature’s intent when initially passing this discovery reform. However, because there is no authority from the New York Court of Appeals or the Second Department on this issue, this Court must accept the precedents set by the Third and Fourth Departments. Indeed, in Mountain View Coach Lines, Inc. v. Storms, the Appellate Division, Second Department held “[t]he Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule” (102 AD2d 663 [1984]). Accordingly, this Court finds that the People have satisfied their obligations under CPL §245.20(1) by providing LEOW letters for law enforcement witnesses whom they expect to call as witnesses at trial. The Court notes that “this ruling does not diminish a defendant’s other rights of access to misconduct evidence for potential impeachment of a witness at a hearing or trial. The District Attorney remains obligated, as a matter of due process, to disclose favorable evidence that ‘may affect only the credibility of a government witness”‘ (People v. Lewis, 78 Misc3d 877 [Sup Ct, Kings Cty 2023], quoting People v. Steadman, 82 NY2d 1 [1993]). The Defendant “may use the subpoena process to seek records underlying police misconduct” (id.). Motion to Invalidate the People’s Certificate of Compliance The Defendant has moved to invalidate the People’s certificate of compliance because he argues that there are four categories of discovery which have not been disclosed and are therefore in dispute: 1) Domestic Incident Reports (DIRs) between the Defendant and complainant; 2) a 911 call and related paperwork; 3) surveillance video from 87-24 Midland Parkway; 4) any and all records related to bank transactions made by the Defendant; and 5) an Ambulance Care Report (ACR). In their response, the People affirm that the discovery disclosure made in connection with their original certificate of compliance was comprised of 166 files which contained hundreds of pages of material including medical records and two body-worn camera videos. The Court will now address each item in dispute: 1) The DIRs between the Defendant and Complainant The Defendant argues that the People’s certificate of compliance was invalid because they did not disclose all thirty (30) of the prior DIRs between the Defendant and complainant, including nine (9) DIRs where the complainant was allegedly the aggressor. In their response, the People indicate that they requested all prior DIRs through MIDAS, a city-wide records system. The People affirm that they shared all DIRs in their possession and that they are unaware of (and not in possession of) any additional DIRs. 2) A 911 call and Related Files The Defendant also argues that the People’s certificate of compliance was invalid because they did not disclose the correct 911 call and related files. In their response, the People indicate that they did order the 911 call for this case almost immediately after the Defendant’s arrest. They received a response from the NYPD on October 18, 2023, and disclosed this call and related files to the Defendant. However, defense counsel was able to determine that this call, which was primarily a recording of voices in the background which could not be deciphered, was not the correct 911 call for this case. After defense counsel diligently conferred with the assigned prosecutor, the correct 911 call was ordered and later disclosed to the Defendant on May 16, 2024, which was the same day that it was received by the prosecution. 3) Video Surveillance from 87-24 Midland Parkway The Defendant argues that video surveillance from 87-24 Midland Parkway which was viewed, but not secured by, a NYPD detective should have been disclosed by the People. In their response, the People affirm that they made several requests for this video and that this video is not in their possession and no longer exists. 4) Bank Statements Related to Bank Cards and EBT Cards The Defendant further argues that he is charged with using the complainant’s Bank of America Card and EBT card and that the bank records regarding those transactions should have been disclosed to the Defendant. Although the People did not address this branch of the Defendant’s motion in their response,1 in an e-mail to the Court’s staff on May 31, 2024, the People indicated that they were not in possession of those records, nor was the NYPD. The People also indicated that they have not sent subpoenas for the complainant’s bank or EBT records. 5) Ambulance Care Report (ACR) Finally, the Defendant notes that there is an indication in the People’s certificate of compliance that the People requested an ACR in relation to this case and that it had not yet been received at the time they filed their certificate of compliance. In their response, the People confirm that they still have not yet received the ACR as of the date of their response. The People further indicate that they will continue to endeavor to obtain this report and that they will disclose it to the Defendant when they receive it. CPL §245.20(1) requires the People to disclose to the defendant “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”. The People must disclose this initial automatic discovery within thirty-five calendar days of the Defendant’s arraignment where the defendant is not in custody (CPL §245.10[1][a][ii]) unless the discoverable materials are “exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution,” in which case an extension may be granted pursuant to CPL §245.70 (CPL §245.10[1][b]). Furthermore, pursuant to CPL §245.60, both the People and the Defendant have a continuing duty to disclose “additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order”. “[W]hether the People made reasonable efforts to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented” (People v. Bay, 41 NY3d 200 [2023]). “Although the statute nowhere defines ‘due diligence,’ it is a familiar and flexible standard that requires the People ‘to make reasonable efforts’ to comply with statutory directives (id. quoting People v. Bolden, 81 NY2d 146, 155 [1993])…. Although the relevant factors for assessing due diligence may vary from case to case, the courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material might have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of missing discovery” (Bay at 212). The Court has considered the factors that the Court of Appeals listed in Bay and finds that the People have exercised due diligence in providing discovery for this case. First, considerable efforts have been made by the People to generate the discovery they are obligated to be turned over in this and every case. For example, the Queens County District Attorney’s Office has established a Discovery Compliance Unit to coordinate with law enforcement agencies in an effort to streamline interagency communication and exchange of discoverable information. Additionally, the Queens County District Attorney’s Office has also established a Law Enforcement Officer Witness Unit to obtain disciplinary information for their witnesses as well as a Forensic Science Unit to obtain scientific and forensic evidence that may exist in any case. Finally, the Queens County District Attorney’s Office has also embedded paralegal discovery liaisons in many of its bureaus, whose duties and responsibilities include interacting with a variety of law enforcement agencies in an effort to oversee discovery compliance and to troubleshoot any outstanding discovery issues. The creation of these additional units and allocation of resources to generally address their discovery obligations under CPL Article 245 support a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Second, in comparing the amount of discovery turned over to the amount of discovery outstanding, it is clear that the People have exercised due diligence. It is not in dispute that the People have turned over voluminous discovery, including hundreds of pages of police reports and medical records, 166 sets of files, body-worn camera videos, DD5s and attachments. In contrast, the outstanding discovery consists of one ACR, a single surveillance video, and a number of prior DIRs.2 It is self-evident that the comparison of the discovery turned over to the discovery outstanding support a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Third, in analyzing the complexity of this case, all indications provided to this Court is that the instant case is not a particularly complex case. Fourth, it does not appear to this Court that the People missed any discoverable material in this case. For example, the ACR was identified in the People’s original Certificate of Compliance [COC], the DIRs were disclosed, and a 911 call, albeit not relating to this case, was requested timely and turned over by the time the COC was filed. The surveillance video could not be turned over because it was destroyed, and the bank records were not missing because they are not relevant to the actual charges pending in this case. Again, the fact that the People did not miss any discoverable material supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Fifth, the explanation for the error with the 911 call, the outstanding ACR report and the destroyed surveillance video all point towards the exercise of due diligence by the People. The 911 call was requested by the People on September 6, 2023, almost immediately upon the Defendant’s arrest, was received on October 18, 2023, and appeared on the surface to be related to the date and location of the incident. No explanation has been put forth by the People as to why the ACR has yet to arrive, although it appears to have been timely requested and re-requested. Finally, the video surveillance requested by the Defendant was from a private entity. As it was never in the possession of the police, the People, or anyone under their control, there was, in fact, no error in the People’s inability to turn over that surveillance video. In reviewing this factor considering all facts and circumstances, it also supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Finally, the response by the People when apprised of any missing discovery further indicates an exercise of due diligence. In re-requesting the ACR, in immediately correcting the mistake with the 911 call, and in inquiring about the surveillance video to determine that it no longer exists, the People timely pursued all discovery corrections that were pointed out by the Defendant once there was a conferral between the parties about what discovery the Defendant believed was outstanding. This is how the statute was intended to work to get discoverable materials to a Defendant, and it also supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. In total, the People have exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their certificate of compliance in this case. Further, they filed that certificate of compliance, as well as their supplemental certificate of compliance, in good faith. Accordingly, the Defendant’s motion to invalidate the People’s certificate of compliance, deem their statement of readiness illusory, and to dismiss the indictment due to a violation of his right to a speedy trial is denied. The branch of the motion seeking to defer the time for filing of the Defendant’s certificate of compliance is denied. Now that this Court has found the People’s certificate of compliance to be valid, the Defendant is directed to comply with CPL §245.50(2). The branch of the motion reserving the right to make further motions is granted to the extent permitted by CPL §255.20. This constitutes the decision and order of the Court. Dated: June 4, 2024
