People v. Irving

DECISION & ORDER The defendant is charged in the instant indictment with Manslaughter in the Second Degree and other related charges in connection with an incident alleged to have occurred on August 18, 2020. The defendant moves by notice of motion challenging the People’s certificate of compliance (COC) pursuant to Criminal Procedure Law (CPL) section 245.50(1).¹ The defendant further seeks a remedy or sanction pursuant to CPL section 245.80(1) for belated and missing disclosures. The People served and filed opposition on October 29, 2024.² The defendant served reply papers on November 7, 2024, and filed the same on November 8, 2024.³ The People allege that on or about August 18, 2020, the defendant drove a 2016 Audi A7 at a high rate of speed and t-boned a 2016 Toyota Camry (People’s Aff 3). The People further submit that on November 20, 2021, a passenger of the Toyota Camry died as a result of injuries sustained on August 18, 2020 (People’s Aff 4). On September 2, 2020, a search warrant was issued for the 2016 Audi A7 (see People’s Exhibit 3). As explicitly stated in the search warrant, its issuance was based on, “[p]roof by affidavit having been made…by Detective Christopher Paul…of the Collisions Investigations Squad, and further proof in the form of stenographically-recorded testimony having been presented…” (People’s Exhibit 3 [emphasis added]). According to the People, the “[d]efendant’s DNA was recovered from the driver’s air bag of the 2016 Audi sedan” (People’s Aff 5). An X-indictment filed on February 23, 2022, charges the defendant with one count each of Manslaughter in the Second Degree (Penal Law [PL] §125.15[1]). Criminally Negligent Homicide (PL §125.10), Leaving the Scene of an Incident Without Reporting (VTL §600[2][a]), Excessive Speed (VTL §1180[A]), and Failure to Comply with a Traffic Control Sign (VTL §1110). On February 24, 2022, an arrest warrant was issued for the defendant’s arrest. On June 7, 2022, the defendant was arrested and arraigned in Kings County Supreme Court. On May 23, 2023, the People served a COC and inventory of discovery (see People’s Exhibit 1). Contrary to the People’s assertion (see People’s Aff 8), their initial COC was not accompanied by a statement of readiness (SOR) (see People’s Exhibit 1). On May 23, 2023, the People simultaneously filed a Notice/Disclosure Form for Initial Discovery (NDF).⁴ The NDF states, among other things, that “the People are disclosing…the existence of executed search warrant(s) and documents relating thereto, including but not limited to the warrant, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of testimony or other oral communications offered in support of the warrant application” (NDF 14). The People now concede that the search warrant and related materials were not turned over to the defense in the People’s initial COC (see People’s Aff 10). The People subsequently served three supplemental COCs, each accompanied by a SOR, on the following dates: June 11, 2024;⁵ July 18, 2024;⁶ and August 21, 2024⁷ (see People’s Exhibits 2, 5-6). At issue here is the People’s belated disclosure of DD5s on June 11, 2024, which included, for the first time, the 2020 search warrant and accompanying documents (see Defense’s Aff 8). On July 18, 2024, the People provided the defense with an affidavit from the court reporter present during the 2020 search warrant application (see People’s Exhibits 4-5). The affidavit states, in relevant part, An extensive and diligent search for the stenographic notes of the proceeding has been made of the in-house storage facility and the outside storage facility and the stenographic notes aren’t able to be retrieved. As a result of the non transcription of the stenographic notes containing the required proceedings we are not able to provide the required transcript (People’s Exhibit 4). The defense seeks an order deeming the People’s May 23, 2023 COC invalid and further requests that the court “[a]t a minimum” grant a sanction in the form of “an adverse inference charge as to the lost transcription” (Defense Memo at 4). DISCUSSION Certificate of Compliance Pursuant to CPL section 245.20(1), the People are required to disclose to the defendant “all items and information that relate to the subject matter of the case,” that are within or under the People’s “possession, custody, or control including but not limited to,” the items listed in CPL section 245.20(1)(a)-(u). In fulfilling this obligation, the People must “make a diligent, good faith effort to ascertain the existence of material or information discoverable” (CPL §245.20[2]). Once the People have complied with the mandates of CPL section 245.20, the People are required to serve and file a COC (CPL §245.50). The COC shall identify the items provided, and state that “after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery” (CPL §245.50[1]). Where the defense is aware of a potential defect or deficiency related to a COC, counsel must “notify or alert the opposing party as soon as practicable” of the defect (CPL §245.50[4][b]). The statute further requires that a motion challenging a COC be made “as soon as practicable” (CPL §245.50[4][c]). In this case, there is no doubt that the People’s disclosure of search warrant materials and DD5s 735 days after the defendant’s arraignment and 385 days after the COC and NDF were filed is inexcusable especially where the proffered excuse is “the prior ADA simply forgot to turn over the search warrant, search warrant affidavit, and crime scene documents and inadvertently did not request the search warrant minutes” (People’s Memo at 5). Notwithstanding, CPL section 245.50(4) imposes a requirement upon the defense to alert the People of any missing items “to the extent that [the defense] is aware of a potential defect or deficiency.” Consistent with this court’s holding in People v. Sotos (83 Misc 3d 1288[A] [Sup Ct, Kings County 2024]), untimely challenges to a COC where the items belatedly disclosed were known or should have been obvious to the defense should be summarily rejected, absent good cause shown for the delayed challenge. Here, the NDF served simultaneously with the initial COC indicated that the People were disclosing search warrant materials. Despite being on notice of the existence of these materials, there is no proof in this motion to indicate that the defense ever inquired of the People or took any timely reasonable steps to alert the People of the missing materials. This challenge, made approximately 497 days after the COC was filed, is untimely (see People v. Seymour, 217 NYS3d 815, 816 [App Term, 2d Dept, 9th and 10th Jud Dists 2024] [COC challenge untimely where motion filed 72 days after COC filed]). In any case, the search warrant materials coupled with the affirmation of the lost transcription were served and disclosed as of the filing of the People’s July 18, 2024 supplemental COC, which this court deems valid. For these reasons, the defendant’s challenge to the COC is denied as untimely. Sanctions or Remedy Though “[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances,” a trial court “may nonetheless grant discovery sanctions and remedies where provided in CPL 245.80″ (CPL §245.50[1]; see People v. Bay, 41 NY3d 200, 209 [2023]). The statute sets out two relevant determinations the court must make with regards to any appropriate sanctions — the first, if the material is disclosed belatedly; the second, if the material is lost or destroyed (see CPL §§245.80[1][a], [b]). With respect to belatedly disclosed material, prior to the 2022 amendment, CPL section 245.80(1)(a) required the court to “impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced” (emphasis added). The amended statute, effective May 9, 2022, states that the court “ shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure” when discoverable material or information is disclosed in belated fashion (CPL §245.80[1][a]). Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material (id.). It is undisputed that the People’s automatic disclosure obligations encompass the DD5s for officers that were on the scene along with the search warrant materials for the vehicle alleged to have been used during the commission of the charged crimes (see CPL §245.20[1][e] [police reports and law enforcement notes are automatically discoverable; CPL §245.20[1][n] [all documents pertaining to a search warrant are automatically discoverable]). Moreover, neither party disputes that the DD5s and search warrant materials, except for the lost transcript, were first disclosed on June 11, 2024, 385 days after the COC was filed. Therefore, according to statute, the court must impose a sanction or remedy that is “appropriate and proportionate to the prejudice suffered by the” defendant (CPL §245.80[1][a]). The People argue that the defense did not suffer prejudice as a result of the late production (People’s Memo at 12). The People further contend that the fact that the defense has had the search warrant materials in its possession for four months prior to the scheduled trial date obviates any need for a sanction (see id. at 13). When considering remedies for delayed disclosures, additional time to prepare has been the touchstone of curing any surprise to the defendant (see CPL §245.80[1][a]; People v. Jenkins, 98 NY2d 280, 284 [2002] [trial court offered to adjourn the case to allow defendant an opportunity to review late ballistics report and to retain defense expert]; People v. Delvalle, 114 AD3d 612, 612 [1st Dept 2014] [additional time to review the belated cell phone records would have been a more appropriate remedy for any surprise to the defendant]; People v. Baa, 83 Misc 3d 1248[A], *2 [Sup Ct, Kings County 2024] [the delayed introduction at trial of belatedly disclosed records was appropriate remedy]). The statutory language is consistent with the long-held principle that ” ‘the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society’ ” (Jenkins, 98 NY2d at 284, quoting People v. Kelly, 62 NY2d 516, 520 [1984]). The appropriate remedy to be imposed is within the trial court’s discretion (Jenkins, 98 NY2d at 284). The late disclosure of search warrant materials may have a prejudicial effect on a defendant where it operates to cause late motion practice to controvert the search warrant and further delays a defendant’s trial to allow motion practice to proceed (see People v. Rodriguez, 73 Misc 3d 411, 420 [Sup Ct, Queens County 2021]). Here, the defense has had ample time to review the DD5s and search warrant materials and prepare its defense prior to trial. The defense received the late disclosures on June 11, 2024, and trial is calendared to commence on November 14, 2024. This five-month period is sufficient to eliminate any prejudice to the defendant for the belatedly disclosed materials at issue here (see People v. Florez, 74 Misc 3d 1222[A], *13 [Sup Ct, Nassau County 2022] [one month prior to initial trial date adequate time to review belated police personnel files]). Turning to the lost material, CPL section 245.80(1)(b) requires the imposition of a remedy or sanction for lost or destroyed discoverable material “if the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue” (CPL §245.80[1][b]). Here, the transcript from the detective’s September 2, 2020 testimony supporting the search warrant application is lost or destroyed as said transcription is unable to be retrieved (see People’s Exhibit 4). The People contend that “the search warrant minutes contain the same reiteration of facts as the search warrant and search warrant affidavit provided to defense counsel” (People’s Memo of Law at 13). The People’s assertion in this regard, however, is made without any personal knowledge of what occurred at the search warrant application proceedings on September 2, 2020. Furthermore, this argument is merely asserting that the transcription is duplicitous of other materials in defense’s possession, which is unpersuasive (see generally People v. Cartagena, 76 Misc 3d 1214[A] [Crim Ct, Kings County 2022], quoting Ajunwa, 75 Misc 3d 1220[A], *4 [" 'It is not the People's decision to look at two entirely different [items] and decide that they believe one contains information “duplicative” of the other and so need not be disclosed’ “]). Detective Paul’s statements made under oath to the court for issuance of the search warrant are clearly relevant to a contested issue in this case. The defendant’s identity is a contested issue. The search warrant allowed law enforcement to retrieve the driver’s side airbag, subsequently test that airbag for DNA which resulted in a sample suitable for comparison, and then compare that to a buccal swab obtained from the defendant. The September 2, 2020 minutes would be useful, for example, for cross-examination of Detective Paul, who is identified in the People’s NDF as a potential witness, but without the transcription the fullest extent of its value is not clear. The court has also considered the circumstances surrounding the lost transcription. In this case, the People did not request the minutes from the court reporter until June 2024 (see People’s Aff 10). While their efforts in June and thereafter are laudable, it does not excuse the People’s failure to exercise due diligence to secure the transcript in the first instance, especially here where the proceedings were held three years and nine months prior to the People’s initial request for the minutes. The defense has sufficiently demonstrated that a search warrant was executed in 2020 for the subject vehicle, evidence was seized during the search, the related search warrant minutes were not disclosed when the COC was filed, and now the minutes are lost and unable to be retrieved. An adverse inference charge, the minimum sanction requested by the defense, is appropriate where, as is the case here, evidence considered helpful to the defense for cross-eximatination has been lost or destroyed (see People v. Viruet, 29 NY3d 527, 533 [2017] [adverse inference instruction appropriate where video footage of the murder defendant was charged with committing was lost]; People v. Johnson, 219 NYS3d 73, 74 [1st Dept 2024] [adverse inference charge mandatory upon request where police destroyed evidence by selling the defendant's cell phone at auction]; People v. Smith, 73 Misc 3d 1212[A], *3-4 [Albany City Ct 2021] [adverse inference appropriate for two destroyed 911 call recordings]). CONCLUSION Accordingly, for the reasons set forth above, the defendant’s motion for sanctions pursuant to CPL section 245.80 is GRANTED. An adverse inference instruction shall be given at trial regarding the lost or destroyed transcription of the September 2, 2020 search warrant application. This constitutes the Decision and Order of the court. Dated: November 14, 2024