People v Johnson

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People v Johnson 2020 NY Slip Op 34772(U) December 11, 2020 County Court, Westchester County Docket Number: Ind. No. 19-1037 Judge: David S. Zuckerman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] • FILED 1(1 COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER DEC 2 t 2020 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x TIMOTHY C. IOONI COUN'TY CLERK COUNTY -OF WESTCHESTER THE PEOPLE OF THE STATE OF NEW YORK DECISION & ORDER -against- Ind. No.: 19-1037 JAMAL JOHNSON, Defendant. -----------------------------------x ZUCKERMAN, J. Defendant stands accused under Indictment No. 19-1037 of five counts of Criminal Possession of a Forged Instrument in the Second Degree (Penal Law §170.25(1]) and Attempted Petit Larceny " in the Indictment, As set forth (Penal Law §110/155.25). alleged that, Westchester on County, or about New June York, while 13, 2019, aiding it is Defendant, in abetting and and acting in concert with another, possessed five fraudulent credit cards and attempted to steal property from another. Motion dated November Defendant to 2020, strike with accompanying Affirmation, the prosecution's Compliance and compel Discovery, arguing that failed moves 2, to provide him with all pursuant to CPL Article 245. By Notice of Certificate the of People have statutorily mandated discovery In response, the People have submitted an Affirmation in Opposition dated November 18, 2020. The motion is disposed of as follows: [* 2] ~- CONTENTIONS OF THE PARTIES Defendant moves, pursuant to CPL §245.50(4), "for an order finding the prosecution's certificate of compliance invalid and directing full compliance with [Criminal Procedure Law] §245.20." Notice of Motion, p. 1. Particularly, Defendant asserts that the People have not provided him with unspecified police disciplinary records, as defined by CPL §245.20(1) (k) (iv), in violation of the In support, automatic discovery provisions of CPL §24 5. 2 0 ( 1) . Defendant asserts that the recent repeal of Civil Rights Law §50a, which previously shielded police disclosure, discovery coupled with statutes, recent disciplinary amendments mandates that to the records the from criminal prosecution now automatically provide him with any and all disciplinary records of police officers who will be witnesses in his trial. People have not complied with that obligation, he Since the continues, their Certificate of Compliance is invalid. The People oppose the motion, arguing provided Defendant with all discovery materials. police disciplinary the records, People that they have With respect to assert that they specifically inquired of police witnesses whether any exculpatory and/or impeachment material exists (see CPL §245. 20 (1) (k)) were informed that there was none, other than that one of the three police witnesses had a 2005 unlawful possession marihuana conviction (before he was a police officer) and of which was [* 3] sealed. they The People assert that this is the only information that know of which is defined under CPL disclosing this information to Defendant, they fulfilled have their §245. 20 (1) (k). the People claim that Article CPL Upon disclosure 245 requirements. The People also argue that Defendant's motion to invalidate their Certificate of untimely. the Compliance should be summarily denied as They assert that, almost one year ago, Defendant made same application orally whereupon the court (Minihan, scheduled a Compliance Conference (see CPL §245. 35 (2)). Defendant arguments did not make the same at the J.) Since Compliance Conference, he is precluded from asserting them now. Lastly, specifically the People assert reference that police CPL Article disciplinary 245 does records. not At a minimum, the statute does not impute possession of those records to the People nor require their Therefore, production. notwithstanding the repeal of Civil Rights Law §50-a, they are not required to provide them to Defendant. CPL Article 245 sets no clear procedure for seeking to challenge a Certificate of Compliance. CPL §245.50(4), certificate of "[c]hallenges compliance to, shall or questions a defendant Pursuant to related be addressed by motion." to a As Judge Donnino points out in his Practice Commentary, the statute is silent regarding the timing of such motion and whether it need [* 4] be in (William writing. McKinney's Cons Laws There are, however, of C. NY, Donnino, Criminal Practice Procedure Commentary, Law §245. 50.) numerous reported decisions wherein courts have addressed defense motions seeking to strike a Certificate of Compliance on deficiencies the in grounds of discovery Randolph, 2020 WL 5540201 what are asserted See production. to have e.g., been People v (Supreme Court, Suffolk County, Cohen, J., September 15, 2020); People v Knight, 69 Misc3d 546 (Supreme Court, K_ings County, 2020); People v Gonzalez, 68 Misc3d 1213(a) (Supreme Court, 234 (Supreme Kings County, Court, Queens 2020); People v Lustig, County, .2020); see also 68 Misc3d People v Suprenant, 130 NYS3d 633 (City Court, City of Glens Falls, 2020). Guided by those decisions and others, this court will address the asserted merits of Defendant's motion. ~- DISCOVERY UNDER CPL ARTICLE 245 In 2019, the New York State legislature dramatically amended the long-standing discovery provisions of the Criminal Procedure Law (L.2019, C. 59, pt. LLL, § 2ff, eff. Jan. 1, 2020). The legislation, inter alia, repealed.former Article 240 (relating to discovery) and added a new discovery statute, Article 245. changes not significantly only mandated more discovery. that They the also prosecution directed These provide that materials be provided at an earlier stage of the proceedings. the In 2020, CPL Article 245 was amended with regard, inter alia, to the [* 5] timing of such disclosures (L.2020, c. 56, pt. HHH, § 1, eff. May 3, 2020). Without question, legislative provide intent to information expand to discovery disputes, the the the favor of disclosure." The the new CPL Article 245 evinces a clear prosecutor's defendant. court is In obligation addressing guided by a CPL §245.20(7). legislation also added a new requirement that, the prosecution must upon the defendant Compliance. People's and has not of with cites court a "serve Certificate Compliance him is invalid with because unspecified Defense counsel Affirmation, CPL upon §245.20(1) (k) (iv) as p. support 2. He for his statute requires disclosure of 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: the defendant's guilt as to a charged (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 prosecution witness; credibility of a the "police motion to strike the People's Certificate of Compliance. (I) negate offens_e; of Here, Defendant asserts that the provided disciplinary records." specifically file CPL §245. SO (1)." Certificate prosecution any "presumption in providing all discovery materials, the to testifying That [* 6] {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 (emphasis added). Defendant does not cite any case law in support of his motion. The People point to CPL §245. 55 and certain trial level decisions to argue that the new discovery provisions mandate that they only need to provide police reports related to the specific case. That section provides 1.Sufficient communication for compliance. The district attorney and the assistant responsible for the case, or, if the matter is not being prosecuted by the district attorney, the prosecuting agency and its assigned representative, shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article. 2. Provision of law enforcement agency files. Absent a court order or a requirement that defense counsel obtain a security clearance mandated by law or authorized government regulation, upon request by the prosecution, each New York state and local law enforcement agency shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article. CPL §245.55, emphasis added. Similarly, CPL §245.20 provides 2. Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the [* 7] existence of material or information discoverable under subdivision one of this section and to 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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph (c) or (e) of subdivision one of this section. CPL §245.20(2), emphasis added. ~ DISCUSSION In rejecting Defendant's argument, another judge of this court has held that the new discovery statute does not mandate that the statutory People provide amendments all direct police the records. prosecution to Rather, the furnish the defendant with only those records ... related to the prosecution of a charge. Notably, the personnel records at issue were not created for the purposes of the prosecution of the underlying charges, but for the purposes of the police department's administrative duties. Indeed there could very well be documents contained in the personnel records that long predate the incident leading to this indictment. Matter of the Application of Certain Police Officers to Quash a So-Ordered Subpoena Duces Tecum, et al., 67 Misc3d 458, 469-70 [* 8] (County Court, Westchester original) (Blackwood, County, Thus, J.). the in emphasis 2020, court held, the People's duty under that statute is only to undertake a good faith effort to identify items discoverable, not within their control that might guided by the admonition of CPL §245.20(2), be that " ... the prosecutor shall not be required to obtain by subpoena duces tecum material thereby obtain." or information which the defendant may Id. Other courts have similarly held that the prosecution is not obligated, records under CPL Article 245, to obtain police disciplinary (specified in CPL §245.20(1) (k)) Knight, possession. supra; Lustig, which are not in their supra; People v Davis, 67 Misc3d 391 (Criminal Court, Bronx County 2020); Suprenant, supra. In People v Gonzalez, supra, the court held that, pursuant to CPL §245.20(2), once the prosecution police disciplinary records, discloses the existence of they have satisfied their discovery obligations related thereto. Defendant does not cite any contrary case law. Rather, he argues that the New York State legislature's June, 2020 repeal of Civil Rights Law §50-a §245. 20 (1) (k) (iv), the mandates that, prosecution pursuant provide him to CPL with all disciplinary materials related to any law enforcement off ice rs involved with the L . 2 O2 O , c. 96 , case § 1, (Civil Rights e ff . June 12 , Law § 50-a; 2 o2 o) . repealed by In the past, Civil [* 9] Rights Law §50-a had acted as police disciplinary records. Upon its repeal, (1979). a shield to prevent access to People v Gissendanner, 48 NY2d 543 both sides now have equal access to them. In response, support for necessarily the People argue his bald made the assertion formerly that the protected discoverable under CPL Article 245. that, that Defendant provides legislative disciplinary no repeal records To the contrary, they argue because repeal of Civil Rights Law §50-a now enables the public to acquire those records, they assuredly are not now more within the prosecution's control than before. The People also argue that the legislature, upon repeal of Civil Rights Law §50a, did not explicitly provide for application of CPL Article 245 to the now available records. Therefore, the court cannot impute such application. One court has examined these arguments and held that determination of whether the People have complied with the new discovery mandate turns on whether the alleged police misconduct was found to be "substantiated," "unsubstantiated," "exonerated," or "unfounded. " In People v Randolph, Suf the Co. 2020), court analyzed 2020 WL 5540201 the new (Sup Ct legislation and determined that the People were required to provide the defendant with police records from "substantiated" and "unsubstantiated" [* 10] misconduct complaints. 1 In contrast, prosecution's several discovery other obligations addressing courts have found that they the are required to provide the defendant with all police disciplinary records. Particularly instructive is People v Rosario, Slip Op 20322 20, 2020), 2020 NY (County Court, Albany County, Carter, J., November where the court held, regarding CPL §245. 20 (1) (k) discovery, that such information 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. Rosario, supra. Further, CPL §245.20(2) provides The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to 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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police ·or law enforcement agency shall be deemed to be in the possession of the prosecution. 1 The court invited the parties to apply to the trial court for an in limine ruling on whether the defendant could use any of the information during cross examination. [* 11] Rosario, supra, emphasis added. And CPL §245.55(2) provides Absent a court order or a requirement that defense counsel obtain a security clearance mandated by law or authorized government regulation, upon request by the prosecution, each New York state and local law enforcement agency shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article Rosario, supra, citing CPL §245.55, emphasis added. The Rosario court went on to hold that, given the broad statutory framework requiring open disclosure by the People (most particularly §245. 20 (7), "the presumption in favor of disclosure" in CPL the presumption of possession "by the People of all i terns and information related to the prosecution of a charge," and the shall requirement "provide that complete all State records and and local files police related agencies to the investigation of the case or the prosecution of the defendant") a prosecutor must make a diligent, good faith effort to ascertain the existence of all automatic discovery, but particularly (1) (k) (iv) pertinent Brady/Giglio to the People's discovery prosecution is deemed to have CPL 245.20 obligations, the in its possession all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency (CPL 245.20 [2]). [* 12] Rosario, supra. The Rosario court also rejected the prosecution's continued reliance on People v Garrett (23 NY2d 878 [2014]) regarding such material, asserting that if the People intend to call a enforcement as a witness at trial, all evidence and information, known to police or other member of law they must disclose including that which is law enforcement agencies acting on their behalf in the case, that impeaches the of credibility irrespective of that whether pursuant to CPL 245.20 enforcement stated exceptio~ above, treated in the "law enforcement law they credit the witness information (1) {k). There is simply no law to these enforcement same manner as requirements witnesses and as should be any other prosecution witness for purposes of cross-examination " {People v Smith, 27 NY3d 652 [2016]). Rosario, supra. As a result, the Rosario court held the Certificate of Compliance invalid and scheduled a hearing to consider discovery sanctions. See also Court, People v Bronx County, Porter, Stone, NYLJ J., 12/4/2020, November 4, page 21 {Criminal 2020) {directing the People to provide police dis~iplinary records but declining to impose sanctions after finding no prejudice to the defendant and [* 13] that the People's filing of Certificate of Compliance and Statement of Readiness were made in good faith). Nonetheless, the cited decisions are not determinative in deciding Defendant's motion. are flawed. That is Similarly, both parties' arguments because they address an inapplicable statute. Defendant argues that he is entitled to relief for the People's failure to comply with CPL §245. 20 (1) (k) (iv). The People respond that Defendant's motion should be denied because they have however, fully is complied wholly with inapplicable. that That statute, §245.20(1) (k) requires statute. CPL production of (k) 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. The material at issue here (a police witness's pre-employment Unlawful Possession of Marihuana conviction), however, is instead [* 14] addressed by CPL §245.20(1) (p). That section requires the People to provide {p) A complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision, other than those witnesses who are experts. First, · it is of Unlawful conviction clear "disciplinary material" became a police officer. that the police Possession since it Marihuana of occurred Therefore, officer/witness' before is the not witness CPL §245.20(1) (k) (iv), the statute relied upon by Defendant and argued by the People, does not apply. offense Moreover, of §221.05), notwithstanding that it appears that the "conviction" was subsequently sealed, only a violation (see Penal Law the information was disclosed to Defendant on December 17, 2019, nearly one year ago. In sum, the discovery material at issue, a law enforcement witness's pre-employment, sealed marihuana violation conviction, is record. not a disciplinary §245.20(1) (p), It not CPL §245.20(1) (k) (iv). is addressed Moreover, by CPL ~he People satisfied their obligations under CPL §245.20(1) (p) by disclosing the prior conviction to Defendant. Thus, Defendant's motion to strike the Certificate of Compliance for failure to provide him with police witness disciplinary records must be denied. Finally, there also is much to be said for the People's [* 15] argument that Defendant waived his right to litigate this issue. As noted above, in early 2020, Defendant orally challenged the People's Certificate of Compliance whereupon the court (Minihan, J.) scheduled a Compliance Conference for February 4, 2020. provides §245.3.5(2) for such a conference to CPL facilitate The People argue compliance with CPL Article 245's directives. that Defendant did not make the same arguments at the Compliance Conference and therefore is precluded from asserting them nine months later. The People, however, have neither provided the minutes of the February 4, 2020 conference nor produced an order, pursuant to CPL §245.35, that recounts the arguments of counsel and/or a decision on the merits. asserts that readiness Notably, the court Rather, the prosecutions simply "accepted when defendant t~e people's failed· to proceed" declaration of with the hearing. the court's records do not reflect any argu~ent; only that the People asserted that they were ready. As unclear noted as People's to above, the filing Certificates of §245. 50 (4), the proper of newly enacted procedural " [c] hallenges to, steps (i.e. subsequent Compliance. discovery after Certainly, or to statute challenge the coupled CPL to related certificate of compliance shall be addressed by motion." other hand, the initial) pursuant questions is to a On the Defendant's nine month delay in filing his motion with his failure to proceed during the discovery [* 16] conference certainly supports a determination that he waived his objection. Given a year when the court was effectively closed for four months, however, and most deadlines have been tolled for even longer, coupled with the lack of a statutory deadline for a motion to challenge, the court will not preclude Defendant's motion on the grounds that counsel failed to move more promptly. Nonetheless, as detailed above, Defendant's motion has no merit. Accordingly, Defendant's motion is in all respects denied. Dated: White Plains, New York December 11, 2020 ZUCKERMAN, A.J.S.C. HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 BY: Adrian Murphy, Esq. Assistant District Attorney DOUGLAS G. RANKIN, ESQ. Attorney for Defendant 26 Court Street, Suite 714 Brooklyn, NY 11242

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