People v Wong

[*1] People v Wong 2007 NY Slip Op 51754(U) [16 Misc 3d 1139(A)] Decided on September 17, 2007 Supreme Court, Kings County Holdman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 17, 2007
Supreme Court, Kings County

People of the State of New York,

against

STEPHEN WONG, KWUN TSO and YUSEF HAAM, Defendants.



6225/2006



Appearance of Counsel:

Charles J. Hynes, District Attorney of Kings County, by:

Charles Guria and Gregory Marshall, Assistant District Attorneys, Of Counsel

Marvin Kornberg, Esq. - for Defendant Wong

Andrew C. Quinn, Esq. - for Defendant Tso

Paul Martin, Esq. - for Defendant Haam

Robert Kenneth Holdman, J.

Pursuant to the defendants' oral motion to preclude evidence (CPL 240.70 [1]), made on-the-record before this Court on August 7, 2007, the People's written response and affirmations annexed thereto, dated August 10, 2007, and the defendants' written reply, dated August 24, 2007, it is decided as follows:

The defendants are New York City Police Officers who, at the time of the alleged crimes, were assigned to the Brooklyn South Vice Squad and have been indicted for Burglary in the Third Degree (PL 140.20) and related charges [FN1].

PROCEDURAL HISTORY AND FACTS

It is alleged that on April 12, 2006, the three defendants were part of an undercover enforcement operation at 4214 Eighth Avenue in Brooklyn, which, at the time, was a purported unlicensed massage parlor. After the defendants and other police officers arrested the owner of the establishment and seven of his female employees, those individuals were brought to the 72nd Precinct for processing. All individuals under arrest were to be charged with prostitution-related offenses that ostensibly occurred at the establishment.

While at the 72nd Precinct, the owner spoke with the third defendant, Police Officer Hamm. The owner informed Officer Hamm that he had a video surveillance system in his establishment. Officer Hamm was told by the owner that this video system recorded the activity [*2]in the establishment at the time of the alleged crimes and that these recordings would exculpate him and his co-arrestees.

The individuals arrested for prostitution-related offenses were arraigned upon misdemeanor complaints in Red Hook Community Court in Brooklyn. Supporting depositions were filed in connection with their respective misdemeanor complaints. The supporting depositions, allegedly signed by Lieutenant Wong in an undercover capacity, affirm that the females charged in the complaint engaged an undercover - Lieutenant Wong - in conversations through which they offered him sex acts in exchange for money. All the individuals arrested refused plea offers at their arraignment.

Subsequent to the arraignments in Red Hook Community Court, Joshua Charlton, the Assistant District Attorney assigned to that court spoke with Lieutenant Wong [FN2] to express his concerns about the cases. Specifically, ADA Charlton noted issues regarding the supporting depositions wherein Lieutenant Wong affirmed that he had sex-related conversations with the women in question and he was offered sex by these women in exchange for money. Lieutenant Wong allegedly admitted to ADA Charlton that, in fact, he did not have any sex-related conversations with the women. ADA Charlton had a similar conversation with Sergeant Tso [FN3] during which Sergeant Tso made only a seemingly innocuous reply that any problems with the prostitution cases were, in substance, "the problem of the Assistant District Attorney."

On April 13, 2006, the three defendant police officers went to 4216 Eighth Avenue in Brooklyn - next door to 4214 Eighth Avenue (the "massage parlor") - under the alleged guise of a gambling investigation. Evidence was adduced before the Grand Jury that on April 13, 2006, the three defendants broke the rear door of 4214 Eighth Avenue, entered and stole surveillance cameras, video recordings, a computer and other items. The evidence includes an interior video recording of the alleged break-in at 4214 Eighth Avenue, which also reflects the presence of three individuals who appear to be the defendants and were identified as such through the testimony of a police official.

A computer, allegedly obtained from 4214 Eighth Avenue, was recovered from Lieutenant Wong's office at the Brooklyn South Vice Squad. Other computer equipment from 4214 Eighth Avenue was allegedly recovered from Lieutenant Wong's residence and the residence of his girlfriend.

While the police recovered various computer equipment and recorded media, a significant amount of such items remained in the possession of the complaining witness, Hui Ru Ruan (hereinafter "Ruan"), who is the owner of the target location.

Ruan, along with the females who were arrested at the location, had his criminal case dismissed. Further, Ruan retained an attorney to represent him in a civil capacity in relation to this case.

The defendants were arraigned upon the indictment before this Court on August 16, 2006. A motion schedule for discovery and inspection of the Grand Jury minutes was established at that [*3]time. Pursuant to the representation of the People at arraignment, the videotape evidence was in their possession and would be produced to defense counsel.

It is the computer equipment and recorded media that are the subject of the defendants' preclusion motion.

On or before September 19, 2006, the People did provide a significant amount of open file discovery, including video still photographs allegedly taken from recorded video media made on April 13, 2006 at 4214 Eighth Avenue. One of those photographs depicts Ruan and an unidentified female inside 4214 Eighth Avenue at approximately 16:00 hours, which is nearly two hours prior to the alleged burglary.

During a case conference on September 19, 2006, the Court directed defense counsel to forward to the People blank media for reproduction of the video evidence as part of discovery.

By decision and order, dated October 5, 2006, the Court directed the People to disclose all video evidence to defense counsel. Pursuant to the Court's order, the People forwarded DVD recordings containing what they claimed were copies of the video of April 12, 2006 and April 13, 2006; however, the video received from the People reflects a recording that commenced at 18:00 hours, or two hours after the photograph taken from the alleged videotape of April 13, 2006. Further, only select portions of the April 12, 2006 incident were produced, and there are certain issues as to events that may or may not have occurred that are not reflected within the video disclosed to defense counsel.

The Court made repeated, on-record orders to the People to disclose the entire video recording to defense counsel on November 3, 2006 and January 19, 2007.

On March 9, 2007, all parties were again before the Court. The People indicated, in response to the Court's orders, that they were in a possession of a USB (hard) drive, which contained the uninspected data. The Court directed the People to inspect the data on the USB drive to determine its contents and notify defense counsel within one-week of the results of this inspection.

By letter, dated March 14, 2007, the People acknowledged that the USB drive was not the device upon which the video was directly recorded. The People indicated that they had attempted to contact Ruan, through his attorney, to determine if the original recording still exists and other relevant details, and to schedule a meeting with Ruan and the Internal Affairs Bureau (hereinafter "IAB") Computer Crimes Squad.

The defendants filed a joint motion, dated March 22, 2007, pursuant to CPL 240.70 (1) based on the People's failure to produce for inspection and/ or duplication, the entire video recordings of April 12, 2007 and April 13, 2007. The People filed a written response in opposition to the defendants' motion.

In one portion of their response, the People assert that in October of 2006, Ruan produced a videotape and VCR that were supposedly the original media and recording device. The videotape was inspected and found to be blank. Ruan had apparently advised the People that he did indeed have the original recording, but he had to find it, and that he would contact them. In January 2007, Ruan, through his attorney, confirmed that he had provided the wrong tape and he would attempt to find the correct tape, but that it would be time consuming because Ruan would have to review many tapes.

By written decision and order, dated April 16, 2007, the Court denied the defendants' [*4]preclusion motion. The primary basis for the Court's decision was the then apparent fact that the items in question were never in the custody and control of the People.

On May 23, 2007, defense counsel forwarded correspondence to the Court seeking a conference relative to new information provided by Ruan to the People regarding the video evidence. The new information relates, in pertinent part, to a portable hard drive that was attached to the computer tower, which was allegedly removed from Ruan's business on April 13, 2006 by one of the defendants. The portable hard drive was supposedly attached to the outside of that computer tower by Velcro strips and connected to the tower via a USB cable. This source was never recovered by the People, who believe that it is somehow in the possession of one of the defendants. Moreover, a VCR was hidden in the ceiling that recorded video onto a VHS tape.

According to the People, Ruan used a conversion device to convert the video contained in the videotape to a hard drive that was connected to a laptop computer. Ruan subsequently kept the videotape in the ceiling VCR, and left his business with the external hard drive upon which the videotape was duplicated.

May 25, 2007 was the first time that the defense actually learned the manner in which the incident was recorded, despite orders from this Court and requests from defense counsel for that information (this was an approximate eight-month period).

On June 4, 2007, the parties were present before the Court for the conference requested by defense counsel. Defense counsel repeated their request for a defense expert to inspect the computer and video evidence in the People's possession and conduct a forensic examination of that evidence, because there was particular concern by the defense with regards to possible tampering. (The inspection request was agreed to by the People and ordered by the Court since September 2006.)

During various case conferences, the People repeatedly assured the Court and defense counsel that they would confer with the police and relay to all parties a specific proposal to allow a defense expert to conduct a forensic examination of the relevant evidence. To this date, however, one-year since the People were required to arrange the defense inspection, not only has the inspection not occurred, neither have the People set forth any proposal whatsoever for consideration by the Court and defense counsel.

One-year later, and now facing preclusion of all computer and video evidence, the People merely filed an affidavit from an IAB officer with their August 10, 2007 response. The affidavit, however, is entirely conclusory and fails to cite any proposal for defense inspection and examination. It reads, "The originals of the [computer and video] evidence cannot, however, be released to defense counsel. Due to the fragile nature of the above-listed evidence, there is a significant risk of alteration or damage if it is not handled properly."

There are absolutely no specific facts in the affidavit regarding the alleged fragility of the evidence, nor any mention of why a defense expert can or cannot inspect and/ or conduct a forensic examination of the items at the police facility or elsewhere, despite Court orders and defense demands for specific proposals.

At the case conference on June 4, 2007, the People revealed a new version by Ruan, in that Ruan had supposedly downloaded the images from the original VHS tape to a hard drive contained on the laptop; thereafter, Ruan copied the contents of the laptop onto a flash drive [*5](commonly known as a "memory stick"). Ruan used the recording on the flash drive to create the DVD's that he provided to the People, which was the genesis for this indictment. The People further indicated that the flash drive and laptop were still in the possession of Ruan. The flash drive was never examined by the People nor police, yet it is from where the alleged video evidence stems, and is the foundation of the indictment.

Other previously unknown facts revealed by the People on June 4, 2007 were: (1) the assigned Assistant District Attorney (hereinafter "ADA") acknowledged that he had not reviewed the contents of the memory stick not ever; and (2) IAB was in possession of other computer equipment that was not previously disclosed to the Court or defense counsel, in that the police possessed this equipment since the inception of this case well over one-year earlier.

A motion schedule was established on June 4, 2007 for a new motion for the Court to order discovery (CPL 240.40) based upon what counsel referred to as "simply stunning [new] revelations" by the People. The People's response was due on July 6, 2007, but was not filed until August 7, 2007. Simply put, the ADA assigned to the case since its inception resigned his position on or about July 6, 2007 and the new assigned ADA failed to either draft a response or request an extension of time from the Court [FN4]. Neither was an extension of time was granted, nor did the People contact defense counsel regarding this new development. In fact, the People exhibited complete inertia until the Court repeatedly contacted the Executive ADA responsible for the supervision of this case.

Although the People assert that the former assigned ADA left the employ of the District Attorney on little notice, thereby causing the delay in their response, all counsel and the Court clearly recall that months earlier, the former assigned ADA informed all parties that he may be leaving the District Attorney's Office. At the time the former assigned ADA told the parties and Court of his possible new employment prospects, the Court was excruciatingly clear that any potential departure must not affect the progress of this case. The former assigned ADA assured the Court that there would be no delays in the case.

On August 7, 2007, defense counsel were provided in court with the People's written response to defendants' renewed discovery motion. Further, defense counsel orally renewed their previous written motion to preclude evidence.

Upon receipt of the People's written response, dated August 10, 2007, the People revealed an extremely disturbing fact. On May 3, 2007, one-month before the June 4, 2007 case conference with the Court, the former assigned ADA and an officer with IAB met with Ruan. At the May 3, 2007 meeting, Ruan provided the officer with a portable hard drive that allegedly contained a copy of the backup video surveillance for April 13, 2006. Ruan demonstrated to the officer how he copied the video from the backup VHS recorder to the hard drive via his laptop computer.

The IAB officer, in conducting a forensic examination of the items found that the creation and modified dates on the computer file were April 16, 2006, which is three days after the alleged burglary date. Ruan's explanation to the officer was that the date on his laptop was not set correctly when he made the copy. (Ruan has also recently changed his account as to whether [*6]the lock to the rear door was broken.)

A copy of Ruan's hard drive was made by the IAB officer and he, along with the then assigned ADA returned the items to Ruan. Those items are the very same that the People were ordered to retain for defense inspection and examination.

No mention whatsoever of the May 3, 2007 meeting was made to this Court or defense counsel until the People filed their response on August 10, 2007. Even more troubling is the fact that the Court, on August 7, 2007, noted on-the-record, "As we speak today . . . the People have not gained any new knowledge regarding the whereabouts of the original recording, nor have they set up a proposed meeting [with Ruan]." The People did not respond to this observation by the Court, and led the Court and defense counsel to believe that they have not met with Ruan regarding these points.

Finally, as defense counsel notes in his reply papers at paragraphs six, seven and ten, forensic copies of two computer towers that were made by IAB and provided to the former assigned ADA on February 5, 2007 were not disclosed, and defense counsel only became aware of them as a result of the IAB officer's affidavit annexed to the People's August 10, 2007 response. It was also the first time that the People disclosed to the Court and defense counsel the discrepancy regarding the date on the video.

CONCLUSIONS OF LAW

"Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction. The overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society.'" People v. Jenkins, 98 NY2d 280, 284 (1992), quoting, People v. Kelly, 62 NY2d 516, 520 (1984). Indeed, preclusion of the People's evidence is a severe sanction, which is not subject to appellate review. Matter of Santucci v. Rotker, 110 AD2d 842 (2d Dept 1985). Therefore, the Court has given this matter careful and thorough consideration.

While CPL 240.70 (1) authorizes a variety of sanctions to be issued for failure to comply with a Court's discovery order, including the imposition of additional speedy trial time on the People, it is clear that under the facts of this case, the only appropriate sanction is preclusion.

In People v. Bryant, 104 Misc 2d 157 (Crim Ct, Queens County 1980), the court relied in pertinent part on the legislative intent behind CPL 240.70 in granting the defendant's motion to preclude evidence of gambling records. Governor Carey, in the memorandum which accompanied the enactment of the then new discovery law, wrote, "It is hoped that prosecutors and defense counsel, encouraged by the enactment of these bills, will experiment with even broader discovery on a voluntary basis and that further discovery legislation may be developed in the near future." 1979 McKinney's Session Laws of NY, at 1801.

Not only must a court consider the prejudice caused to the defendants in fashioning an appropriate sanction, but it should weigh the degree of prosecutorial fault. See, People v. Bramble, 158 Misc 2d 411 (Sup Ct, Kings County 1993).

The People have a clear and obvious duty to preserve evidence, including potentially exculpatory evidence (see, e.g., Brady v. Maryland, 373 US 83 [1963]).

Here, not only have the defendants incurred significant and irreparable prejudice, but the actions and inaction of the People are as frightening as they are outrageous. [*7]

Ruan, a person with both a financial and penal interest in the investigation and ultimate outcome of the case, was effectively permitted to handpick what evidence he wanted to give the police and prosecutors. A prosecutor should never permit a complaining witness, nor any other party to control an investigation.

The people of this State have a right to public officials, including District Attorneys and police officers, in whom they may invest their respective confidence. While the public's perception in this case may be verbalized as, "Oh, they got off on technicalities," those "technicalities" are at the very core of our system. Those "technicalities" are the constitutional rights of not only defendants, but of all persons, and the duty of the government to seek justice fairly and not by blind zeal.

First, while the Court clearly recognizes the serious allegations of official corruption and related acts by the defendants, such alleged acts were not of a violent nature. At the time of the Grand Jury investigation into this matter, there was absolutely no indication that the defendants would flee the jurisdiction, nor subject any other potential victims to their alleged abuse of power as the Police Department could have taken administrative action to suspend the officers, or modify their duties, pending the outcome of the Grand Jury and IAB investigations.

Second, by their actions, the People confirm the aforesaid by their election of a direct presentation to the Grand Jury, rather than an immediate arrest and filing of a felony complaint.

Therefore, before presenting charges to the Grand Jury in this matter, the People had a duty to demand that Ruan provide all evidence in his possession relating to the case. No exigency existed to necessitate a hasty Grand Jury presentation.

Ruan was allowed to effectively pick and choose what evidence the People obtained for the Grand Jury. Moreover, Ruan, through his civil attorney, was permitted to ignore the prosecutor's requests to supply further evidence and information. It took almost one-year for Ruan to bring necessary evidence to the People, at which point, the integrity of that evidence poses serious questions by even the People's own admissions.

Certainly, as defense counsel alleges, under the facts of this case, including the time discrepancies on the video and Ruan's conduct in withholding evidence, Ruan could have altered the video evidence. Further, had the People retained Ruan's laptop, a forensic examination could have determined, among other things, if the laptop examined by IAB on May 3, 2007 was the same used to create the original video.

If the People actually believed that a court order was required to retain the evidence, which they have not asserted, they could have obtained one immediately before what was a scheduled - not unexpected - meeting with Ruan. Even if an unscheduled meeting occurred where Ruan simply appeared without foreknowledge by the People and IAB, the People could have maintained possession of the evidence with the imprimatur of the Court by immediately bringing an Order to Show Cause.

Defense counsel aptly notes in his reply papers [FN5] that "this Court relied heavily upon the People's representation that they could not produce what they did not possess when it initially denied [the defendants' initial] motion to preclude."

The fact that the People took possession of certain crucial computer and video evidence [*8]on May 3, 2007, nearly one-year after the commencement of this case, and simply returned that evidence to Ruan without first consulting with the Court or defense counsel is not only inexcusable and outrageous, but, at minimum, borders upon prosecutorial misconduct.

The foregoing is further exemplified by the People's deafening silence at the case conferences on June 4, 2007 and August 7, 2007 where they did not disclose the May 3, 2007 meeting with Ruan. The People's explanation [FN6] that they did inform defense counsel that a copy of Ruan's portable hard drive was available is, at best, a reckless inaccuracy, which omitted the critical detail that the People took possession of the aforesaid evidence brought by Ruan and deliberately divested themselves of the same.

Here, as in People v. Bryant, "the subject nature of the items for discovery . . . , and the nature of the charges . . . , is of such a nature that discovery of the requested items was vital to the preparation of the defense. Inspection of the [items] allegedly seized . . . is so closely tied to the preparation of the defense that the defendants were unduly prejudiced by the [continuing] delay caused by the People's negligence." 104 Misc 2d at 165.

Not only does the computer and video evidence at issue have the potential to exculpate the defendants, it similarly could serve to inculpate Ruan, or otherwise thwart Ruan's obvious contemplation of filing a civil lawsuit against the police or other potential civil defendants.

Moreover, the People admit to possessing certain computer evidence, of which the defense and Court were unaware, as set forth in the various motion papers; that list is too lengthy to enumerate here. Nevertheless, as affirmed by the People in their response [FN7], the whereabouts of the memory card that was vouchered by the police is presently unknown to them, which is another fact that is simply astonishing and inexusable.

The People maintain that they did not intentionally mislead the Court and counsel, and that they were forthright in executing their obligations under CPL article 240. The Court is quite troubled by the People's excuse, at page nine of their August 10, 2007 response: "At most, the People were negligent in responding to defense counsels' motion and there seems to have been a misapprehension of the facts, perhaps due to the sheer volume of electronic evidence in this case and the unartful use of technical terminology by some of the parties."

It is the People's evidence, and therefore, the People's duty to be artful and clear in enumerating and explaining that evidence subject to discovery. The duty does not lie with the Court or defense counsel to decipher or speculate about what evidence the People may, or may not possess. In this regard, it may have behooved the People to retain the services of a computer expert from the inception of this case, not merely from a strategic standpoint, but in order to faithfully discharge their responsibilities under CPL article 240.

Finally, the lack of continuity between assigned ADAs to this serious case, the fact that the Court had to repeatedly contact the People in order to receive a response to the defendants' second discovery motion, and other factors already noted herein, demonstrate the People's laissez faire attitude toward their constitutional and statutory obligations in this matter.

In balancing the various facts of this case to determine whether preclusion is appropriate, [*9]the Court has considered those cases cited by the People; however, those cases primarily pertain to various items of evidence that, while arguably significant, were not fundamental to those cases as a whole. Here, the computer and video evidence goes to the very heart of the People's case; this evidence constitutes both the foundation and structural supports upon which the People's case is built.

In any event, the discovery demands by counsel and orders of the Court are self-explanatory and clear on their face, and the People's failure to adhere to those demands and orders, regardless of their ignorance of computer terminology, requires preclusion in this case. See, e.g., People v. Candelario,258 AD2d 809, 810 (3d Dept 1999).

Based upon the facts of this case, and in weighing the arguments of counsel, this Court cannot countenance any sanction less than preclusion.

Accordingly, the defendants' motion to preclude all computer and video evidence at trial, as well as all testimony related thereto, is granted. The defendants' second motion pursuant to CPL 240.40, dated June 19, 2007, is denied as academic.

SO ORDERED.

___________________________________

HON. ROBERT K. HOLDMAN, J.S.C.

Judge of the Court of Claims Footnotes

Footnote 1: Defendant Wong was charged with various charges consisting of Perjury and Making a Punishable False Written Statement.

Footnote 2: This conversation allegedly occurred via telephone on May 22, 2006.

Footnote 3: This conversation allegedly occurred in person at the Red Hook Community Court on June 5, 2006.

Footnote 4: The Court references the lengthy factual record made on these specific points at the case conference of August 7, 2007.

Footnote 5: Dated, August 24, 2007 at p. 5.

Footnote 6: People's response, dated August 10, 2007 at pp. 3-4.

Footnote 7: Dated, August 10, 2007 at p. 7.