People v Perez

[*1] People v Perez 2021 NY Slip Op 21165 Decided on June 14, 2021 Supreme Court, Queens County Lopez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 14, 2021
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

Ashley Perez, Defendant.



00477-2020



The People by:

Assistant District Attorney Danielle Catinella

Queens County District Attorney's Office

125-01 Queens Boulevard

Kew Gardens, New York 11415

The Defendant by:

Steven Sternberg, Esq. and Cassandra Kelly, Esq.

Queens Defenders

118-21 Queens Boulevard, Suite 212

Forest Hills, New York 11375
Gene R. Lopez, J.

The defendant, Ashley Perez, is charged with five counts of Aggravated Vehicular Assault (Penal Law §§§ 120.04[A][1], [3], [4]), five counts of Vehicular Assault in the First Degree (Penal Law §§§ 120.04[1], [3], [4]), two counts of Vehicular Assault in the Second Degree (Penal Law § 120.03[1]), two counts of Assault in the Second Degree (Penal Law § 120.05), two counts of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (VTL § 511[3][a][i]), Aggravated Driving While Intoxicated (VTL § 1192[2][a]), two counts of Driving While Intoxicated (VTL §§ 1192[2], [3]), and Reckless Driving (VTL § 1212).

The People filed a certificate of compliance, pursuant to CPL § 245.50[1], on October 19, 2020. Thereafter, they filed supplemental certificates on October 23, 2020, November 10, 2020, [*2]November 30, 2020, January 4, 2021, January 29, 2021, and April 7, 2021. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials. The People oppose the defendant's motion.

Relevant Law

On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia, expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Sess Law News of NY Ch 56 [S 7506-B] Part HHH [McKinney's].)

Pursuant to CPL § 245.20(1), prosecutors are required to disclose "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 and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. (CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.

In making such disclosures, the statute explains:

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL § 245.20(1)] 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.

(CPL § 245.20[2].) And, importantly, "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." (CPL § 245.20[2].) Congruent with that provision, CPL § 245.55(1) directs that, "The district attorney and the assistant responsible for the case, . . . 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 . . . ." The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245 (CPL § 245.20[7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." (CPL § 245.60.)

Significantly, the law also ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL § 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL § 245.20(1). (CPL § 245.50[1].) Therein, the People must affirm 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." (Id.) In addition to this statement, the certificate must include a list of the [*3]discovery materials provided. (Id.) Moreover, if the People provide additional discovery in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information provided." (CPL § 245.50[1].) Notably, the statute also specifies, "No adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." (CPL § 245.50[1].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL § 30.30. Pursuant to CPL § 245.50(3), "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The statute further clarifies that, "[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [CPL § 245.80(b)], despite diligent and good faith efforts, reasonable under the circumstances."[FN1] And CPL § 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 . . . ." (CPL § 30.30[5]).

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL § 30.30[5]; People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct NY County 2020].) And the statute requires that "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." (CPL § 245.50[4].) However, for the purposes of evaluating a claim concerning the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper" certificate, which it makes the prerequisite to an announcement of trial readiness. (CPL § 245.50[3].) Given that the statute specifies that "[n]o adverse consequences" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances," (CPL § 245.50[1]), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Bruni, __ NYS3d __, 2021 NY Slip Op 21076 [Albany [*4]County Ct 2021] People v Erby, 68 Misc 3d 625, 633 [Sup Ct Bronx County 2020]; People v Gonzalez, 68 Misc 3d 1213(A), *1, 3 [Sup Ct Kings County 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct Kings County 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct Queens County 2020]; People v Randolph, 69 Misc 3d 770, 770 [Sup Ct Suffolk County 2020]; People v Davis, __ NYS3d__, 2020 NY Slip Op 20298, 2020 WL 6576095, at *5-7 [Crim Ct Bronx County, October 9, 2020].) Indeed, in People v Erby, 68 Misc 3d at 633, a court of coordinate jurisdiction addressing a discovery challenge observed:

As the legislative history of Article 245 indicates, and as the Article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20.

Similarly, in People v Knight, another court addressed a situation in which the People had provided "a very few [additional] discovery items" to the defendant after filing their certificate of compliance. (69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that, "[b]y any measure it was filed 'in good faith' and 'reasonable under the circumstances'" and, thus, was "valid." (Id.)

In this court's view, good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated. Accordingly, upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL § 245.20(1) with respect to the statutory subsections or specific items of discovery at issue. If the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid. This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good-faith arguments for why certain materials are not discoverable under the statute. On the other hand, where the People fail to set forth their efforts to locate items of discovery or determine that they do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated.

The Present Motion

In the present motion, the defendant contends that the People's certificate of compliance was improper because they failed to provide three categories of evidence: (1) law enforcement disciplinary records, (2) certain OCME records, and (3) witness contact information. The People argue that the information and evidence they have already supplied is sufficient to meet their obligation for each category of evidence.

Law Enforcement Disciplinary Records

The defendant claims that she is entitled to the underlying documentation regarding Civilian Complaint Review Board (CCRB) and Internal Affairs Bureau (IAB) investigations concerning police witnesses. She also asserts that the People have provided information regarding only substantiated complaints and investigations, when they should have provided all information and materials relating to both substantiated and unsubstantiated claims. The People contend that such material is not discoverable because the discovery statute requires only that they provide impeachment information, rather than the disclosure of the underlying records. [*5]They assert that they have complied with their discovery obligations by providing disclosure letters regarding the allegations against each police witness.

Under the automatic discovery statute, the People are required to disclose "[a]ll 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 . . . impeach the credibility of a testifying prosecution witness." (CPL § 245.20[1][k].) That subsection further provides: "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." (CPL § 245.20[1][k].) Importantly, this subsection is a part of CPL § 245.20(1), which broadly states that the People must disclose "all items and information that relate to the subject matter of the case," followed by a non-exhaustive list that includes the impeachment material discussed in subsection (k). As discussed previously, the discovery law also dictates that "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." (CPL § 245.20[2].)

Based on the language of the statute and its interaction with the overall statutory scheme of Article 245, this court finds that the People are not required to obtain and disclose all personnel records in the possession of the New York City Police Department, including IAB records. CPL §245.20(2) limits the items deemed to be in the People's custody and control to those "related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency." This language circumscribes the People's discovery obligations. Because they do not relate to the prosecution of the charge, police personnel records are not deemed, by the statute, to be in the People's control.

This determination is consistent with the Court of Appeals's conclusion in People v. Garrett, 23 NY3d 878, 889 (2014). Although that case was decided before Article 245 was enacted, the use of the phrase "related to the prosecution of a charge" in the statute closely resembles the language the Court used in that case to discuss the type of police misconduct of which the prosecution has imputed knowledge, whether or not they have actual knowledge. The Court observed, "A prosecutor's 'duty to learn' of favorable evidence known to those 'acting on the government's behalf' has generally been held to include information that directly relates to the prosecution or investigation of the defendant's case." The Court noted that "[t]here is a distinction between misconduct 'which has some bearing on the case against the defendant' and the nondisclosure of such material which has 'no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes.'" (Id. at 888 [quoting People v Vasquez, 214 AD2d 93, 100 (1st Dept 1995)].) Relying on that distinction, the Court concluded that the People did not have constructive knowledge of a lawsuit against a police witness, which was not related to the defendant's case, of which they did not have actual knowledge. (Id.) Specifically, the court found that the allegations were not "directly related to defendant's murder prosecution." Instead, the court noted, "the allegations were, at most, collateral to defendant's prosecution to the extent they may have provided impeachment material." (Id. at 889.)

As a matter of statutory interpretation, "when a statute fails to define a given term, that term should 'be given its precise and well settled legal meaning in the jurisprudence of the state.'" (People v Reed, 265 AD2d 56, 66 [2d Dept 2000] [quoting Matter of Moran Towing & Transp Co v New York State Tax Commn, 72 NY2d 166, 173 (1988)] [internal quotations omitted].) And "it is presumed that in drafting the statute the Legislature understood and [*6]adopted that well-settled meaning." (Id.) Moreover, "effect and meaning should be given to the entire statute and 'every word part and word thereof.'" (People v Giordano, 87 NY2d 441, 448 [1995] [quoting Sanders v Winship, 57 NY2d 391, 396 [1982]] [internal quotations omitted].) In that regard, courts should avoid a construction that renders words of the statute superfluous. (See id.)

In the absence of any appellate authority directly elucidating these issues, and in keeping with these principles of statutory construction, the Court of Appeals's decision in Garrett must inform this court's reading of the statute. While the Court in Garrett did not use the precise phrase "related to the prosecution of a charge," that characterization is nearly identical to the Court's determination that the impeachment material was not "directly related" to the defendant's "prosecution." (Garrett, 23 NY3d at 889.) It also closely reflects the language in the Court's pronouncement that, "A prosecutor's 'duty to learn' of favorable evidence known to those 'acting on the government's behalf' has generally been held to include information that directly relates to the prosecution or investigation of the defendant's case." (Id.) And, as the Legislature is presumed to have adopted the well-settled meaning of a statute's terms, this court may presume that the Legislature was aware of the distinction set forth in Garrett and relied upon it in crafting the discovery statute. Thus, the statute's provision that "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" (CPL § 245.20[2]) limits the police documents deemed to be in the possession of the People to those that directly relate to the prosecution of the specific case at issue. By the same token, the prosecution is not deemed to possess "material which has 'no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes.'" (Garrett, 23 NY3d at 888 [quoting People v Vasquez, 214 AD2d 93, 100 (1st Dept 1995)].)

And this construction also prevents superfluity. If all police documents, including personnel files, were deemed to be in the prosecution's possession, there would be no reason to modify "all items and information" with the phrase "related to the prosecution of a charge." To give these words meaning within the statute, there must be some items and information in law enforcement's possession that are not deemed to be within the People's possession. The Legislature quite easily could have created a provision that deemed all law enforcement materials and documents to be in the People's possession. Their decision not to do evinces an intent that the People should not be imputed with the possession of certain materials. It is hard to imagine what materials other than personnel files they could have intended to exclude. This too weighs in favor of a reading excluding personnel files from the items deemed to be in the prosecution's possession. (See People v Mauro, 71 Misc 3d 548, 557 [Westchester County Ct 2021] ["By its plain wording, CPL Article 245 is quite specific in detailing the material that a prosecutor must provide. The absence of any specific reference to police personnel files militates against [d]efendant's argument."].)

However, these materials may still "relate to the subject matter of the case." Accordingly, while they are not deemed to be in the People's possession, if the People have them and they "tend to . . . impeach" a witness's credibility, they are discoverable pursuant to CPL § 245.20(1)(k).

Other courts considering this question have reached different conclusions. In People v McKinney, 71 Misc 3d 1221[A],*5 (Crim Ct Kings County 2021), the court concluded that CPL 245 does not merely codify the People's Brady obligations, but rather, expands them. In [*7]reaching this conclusion, the court found that the statute includes a "more encompassing definition for what constitutes the prosecution's possession or control," effectively abrogating the distinction recognized in Garrett. (Id.) This analysis turns on the court's reading of CPL § 245.55(1), which states:

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.

This court respectfully disagrees. CPL § 245.55(1)'s requirement that the People establish a flow of information sufficient to obtain material discoverable pursuant to CPL § 245.20(1)(k) must be read as part of the overall statutory scheme that includes CPL § 245.20(2). Thus, the two provisions must be construed in a way that renders their meaning consistent with one another. Indeed, "[w]hen the statutory language at issue is but one component in a larger statutory scheme, it 'must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible.'" (Mestecky v City of New York, 30 NY3d 239, 243 [2017] [quoting Matter of MB, 6 NY3d 437, 447 (2006)] [internal quotations omitted].)

Consistent with this canon, the court cannot interpret CPL § 245.55(1) in a manner that renders the language of CPL § 245.20(2) inconsistent or superfluous. Given this necessity, the language of CPL § 245.55(1) requiring the People to establish a flow of information with law enforcement necessary to obtain "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," must be read in conjunction with CPL § 245.20's dictate that all material "related to the prosecution of a charge" is deemed to be in the People's possession. Based upon its plain language, it seems clear that the purpose of CPL § 245.55(1) is to ensure that the prosecution is able to comply with the requirements of CPL § 245.20 by requiring that the People establish a consistent means of obtaining law enforcement materials.

Specifically, CPL § 245.55(1) states that the flow of information concerns material and information "pertinent to the defendant and the offense or offenses charged." In this regard, this provision is congruent with CPL § 245.20(1), because it limits the material the People are directed to place in their possession or control. Like CPL § 245.20(1), this provision does not say the People are required to obtain or establish a flow of information with respect to all materials in the possession of law enforcement. Instead, it limits the requirement to information and material "pertinent to the defendant and the offense or offenses charged." Although the language is not identical to CPL § 245.20(2), it is similarly keyed to the specific charges facing a particular defendant. Accordingly, this court finds that the language of CPL § 245.55(1) also follows the distinction set forth in Garrett. In other words, the flow of information provision extends to impeachment material "which has some bearing on the case against the defendant." (Garrett, 23 NY3d at 888.)

For the same reasons, the court also respectfully declines to follow other courts reaching the same conclusion as McKinney. (See People v Castellanos,__ NYS3d __, 2021 NY Slip Op [*8]21126 [Sup Ct Bronx County 2021]; People v Kelly, 71 Misc 3d 1202[A] [Crim Ct NY County 2021]; People v Cooper, 71 Misc 3d 559 [Erie County Ct 2021], People v Altug, 70 Misc 3d 1218(A) [Crim Ct NY County 2021].) Several of these courts, as well as the court in McKinney, found that the repeal of Civil Rights Law § 50-a also supported the conclusion that the People are required to turn over personnel files. Indeed, some decisions have cited the legislative history of the repeal of § 50-a in their discussions of these issues. (See McKinney, 71 Misc 3d 1221(A) at *6; People v Perez, 71 Misc 3d 1214[A], *4 [Crim Ct Bronx County 2021].) This court has a different view.

Importantly, Civil Rights Law § 50-a was not in any way integrated into the discovery statute. Nor was the repeal of § 50-a attended by any concomitant amendment to CPL § 245. Thus, the People's discovery obligations pursuant to Article 245 were exactly the same before and after the repeal of § 50-a. If anything, the repeal of § 50-a undermines the defendant's position. The discovery law provides, "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (CPL § 245.20[2].) As a result of the repeal of § 50-a, police personnel materials may be obtained by subpoena. This is, therefore, yet another reason the People are not charged with the possession of these materials.

Because the requested items from police personnel files do not fall within the ambit of CPL § 245.20(2), the court finds that the People are not required to turn over any police personnel documents that are not in their actual position. Moreover, the CCRB is not a law enforcement entity or, indeed, any kind of agency within the People's control. The People, therefore, have no obligation to disclose underlying CCRB records where they do not have them in their possession.

On the other hand, if the People have any of the underlying substantiated IAB or CCRB materials in their actual possession, they are required to disclose them. Thus, if the People have no underlying records relating to these IAB and CCRB cases, they have met their discovery obligation with respect to this material. If they are in possession of any underlying records relating to the IAB or CCRB cases, they are hereby ordered to turn them over to the defense pursuant to CPL § 245.20(1)(k).

But the defendant's contention that she is entitled to any unsubstantiated IAB and CCRB complaints or information about such complaints is unavailing. As discussed thoroughly above, if such materials are not in the People's actual possession, the inquiry ends there. This court further concludes that the People are not required to disclose any unsubstantiated complaints that they do possess.

In several recent decisions, lower courts have found that unsubstantiated complaints are discoverable. (See Castellanos, 2021 NY Slip Op 21126 at *2-3; Perez, 71 Misc 3d 1214(A) at *5; Cooper, 71 Misc 3d at 567-68.) This court disagrees, finding that such materials do not tend to impeach a witness's credibility.

In the context of civil lawsuits, the Court of Appeals has set forth certain criteria for determining whether material is admissible for impeachment purposes. While the question of whether material is discoverable under CPL § 245 is obviously distinct from the question of whether it would be admissible at trial, the Court's decision in People v Smith, 27 NY3d 652 (2016), provides some insight regarding what constitutes impeachment material. Namely, such material must provide a "good faith basis" for cross-examination and contain "specific allegations relevant to credibility." (Id. at 662.) Thus, a settled lawsuit that was based upon [*9]specific allegations of misconduct against the witness may form a proper basis for cross-examination about the underlying facts. (Id.) In general, good faith is simply "some reasonable basis for believing the truth of the things asked." (People v Nasti, 37 AD2d 980, 981 [2d Dept 1971].)

.) The standard on which the Board relies in these determinations is a preponderance of the evidence. (See

.) The New York City Police Department has acknowledged that it uses the same definition in classifying complaints or allegations to be "unsubstantiated." (See Castellanos, 2021 NY Slip Op 21126 at 3.) They, too, must satisfy a preponderance burden. (See generally, New York City Police Department Disciplinary System Penalty Guidelines, available at

.)

Given this definition, an unsubstantiated complaint does not provide a good faith basis to inquire and, thus, does not constitute discoverable impeachment material. A determination that there is insufficient evidence to establish that something happened does not support a reasonable basis to believe that it did. Indeed, an "unsubstantiated" finding amounts to a determination after an investigation that there is a lack of evidence to support an accusation. A party's awareness that an accusation lacks evidentiary support belies the notion that they can then rely upon it in good faith. Such findings are not akin to allegations in an unresolved or settled civil lawsuit, but rather, resemble one that has been resolved in the officers' favor, since the unsubstantiated finding is a determination that the allegation was not established by a preponderance of the evidence.

The defendant's motion is, therefore, denied with respect to these materials.

All Records of Calibration, Certification, Inspection, Repair, or Maintenance and Underlying Data from OCME

The defense claims that the People have failed to provide all records of calibration, certification, inspection, repair or maintenance of machines and instruments used by OCME. The People explain that they have provided a letter from the OCME, explaining that these documents are "created in multitude every day and would be exceptionally voluminous and nearly impossible to download and turn over." In order to fulfill their discovery obligation, the People note that the letter states that the materials are available for defense counsel to inspect at the OCME by arranging a visit.

The People have already complied with this obligation by providing all of the calibration, inspection, and certification records relating to this case in their possession, which both the People's response papers and their extensive list of all items they have turned over demonstrate.

The OCME, however, is not within the People's control. (See People v Washington, 86 NY2d 189, 192 [1995]; Lustig, 68 Misc 3d at 245.) If the OCME will not turn over additional records to the People due their voluminous nature, and they are not in the People's actual possession, the People have no obligation to provide them. The alternative that the OCME has fashioned permits the defense access to these documents without having to obtain a subpoena. [*10]In any event, CPL § 245.20(1) does not require the People to provide the defense with all discovery materials in the manner of the defense's choosing. Instead, it states that the prosecution "shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test" all discoverable items. (CPL § 245.20[1].) The People have disclosed the existence of these materials to the defendant and provided the defense with a method for discovering them. In doing so, they have satisfied their discovery obligations in this regard.

Adequate Contact Information

The defense also contends that the People have failed to provide adequate contact information as required by CPL § 245.20(1)(c), because they have provided the defense with means of contacting the civilian witnesses through the Verizon Witness Portal, rather than the witnesses' personal phone numbers and addresses. The People disagree, arguing that the information allowing the defense to contact the witnesses through the Verizon Portal amounts to adequate contact information.

The automatic discovery statute states that the People must disclose, "names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses." (CPL § 245.20[1][c].) Nevertheless, the statute makes clear, "[n]othing in this paragraph shall require the disclosure of physical addresses," except upon a motion demonstrating good cause to do so (Id.)

As the statute does not define "adequate contact information," the inquiry here does not turn on precisely what type of contact information is provided, but rather, whether the information provided is adequate to enable the defendant to reach the witnesses. In this regard, the Verizon Portal service is an adequate means of contact, because it is the functional equivalent of providing the defense with the witnesses' phone numbers.

Through this service, the defense attorney is first given an identification number that they can use to access the Portal. The witness is also assigned a numeric code by Verizon that is linked to the witness's personal phone number. The People then provide the defense with the witness's name and assigned code, as well as an 800 number they may use to contact witnesses through the Portal. When an attorney calls the 800 number, enters their own identification code, and enters the witness's assigned code, they then have the option to record an audio message, which the witness will receive before deciding whether to accept their call. The call then connects to the witness's personal phone. The witness is able to see that the call originates from the Verizon Portal and they may answer if they choose to do so. If they answer, the service plays counsel's audio message. The witness is then given the option of accepting or rejecting the call. If they miss the call, the call goes to the witness's voicemail, where the service plays counsel's recorded message. There is no meaningful difference between this process and requiring the People to disclose a witness's phone number, because when counsel places a call through the Portal, it reaches the witness's phone, just like any call placed directly to them.

The defendant claims that this service is inadequate, because it alerts the witness that a defense attorney may be calling them and they can choose whether to answer or reject the call. To that end, the defendant also suggests that this form of communication is susceptible to inappropriate conduct by the prosecution because they could discourage the witnesses, explicitly or implicitly, to reject defense counsel's calls. She also argues that this service prevents the attorney from being able to verify that the person they are speaking to is, in fact, the witness.

These concerns, however, do not distinguish this process from a regular phone call. A witness may always choose whether to answer or reject an attorney's call. Modern phones typically identify the number of the caller and, even if an attorney were to call from their own number, the witness could look the number up and ascertain that the call was coming from a defense attorney on their own. They could then decide whether or not to speak with them. They have that choice regardless of how they are contacted. If anything, the Portal service may be beneficial to counsel in this regard. Many people do not answer phone calls from unknown numbers to avoid spam calls. The Verizon Portal at least identifies that the call is coming from that service, which alerts witnesses who wish to speak with defense counsel to the fact that this is not a spam call, but rather, a communication from a defense attorney.

As for the defendant's concern that the Portal does not permit counsel to verify a witness's identity, it is possible with any type of phone call that someone other than the witness themselves could answer the phone. If, for whatever reason, the person who answered a phone call wished to deceive the caller, it would be difficult for the caller to confirm that they were talking to the correct person in any situation where they have not met the witness in person before. The Portal is not unique or inferior to a direct phone call in that way.

Indeed, other courts have reached the same conclusions, determining that the Verizon Witness Portal and similar services constitute adequate contact information. (See People v Todd, 67 Misc 3d 566, 570-582 [Sup Ct Queens County 2020]; People v Escamilla, 70 Misc 3d 1216[A] [Sup Ct Kings County 2020].)

The defendant also argues that the use of the Portal is contrary to the Court of Appeals's decision in People v Rong He, 34 NY3d 956 (2019). In that case, the Court found that the People's failure to provide adequate means for the defense to contact two witnesses who provided exculpatory statements to the police constituted a Brady violation. There, the People offered to provide the witnesses with defense counsel's contact information but would not disclose any contact information for the witnesses themselves. (Id. at 958.)

In this case, the use of the Portal does not run afoul of the Court's ruling in Rong He. Significantly, the Court's determination in Rong He centered on the fact that the witnesses at issue were the source of Brady material. Without asserting that any of the witnesses at issue can be characterized in the same way, the defense urges this court to apply the same standard to all witnesses. But the question in Rong He was very different from the one presented to this court. Specifically, the question in that case was whether the failure to provide contact information for witnesses who were acknowledged to be the source of exculpatory information constituted a Brady violation and, thus, a constitutional issue. Here, the question is whether the contact information the People have in fact provided for all witnesses, none of whom is suggested to be in the possession of Brady material, is adequate pursuant to statute. If the defense were to raise a claim based upon a specific factual allegation that certain witnesses provided exculpatory evidence of some kind, the court's analysis might be different. In the absence of any such claim, this case is readily distinguishable from Rong He and the defendant's argument in that regard must fail.

The defendant further contends that the use of the Verizon Portal is unconstitutional in several regards. To that end, she argues that its use violates: (1) the right to counsel, by frustrating the defense's investigatory efforts; (2) the right to due process, by requiring the defense to provide contact information that the prosecution is not required to provide because the statute explicitly states that the defense must provide witnesses' addresses to the prosecution; and [*11](3) the right of confrontation, by preventing the defense from effectively impeaching the prosecution's witnesses. The court finds these claims unpersuasive. For the same reasons discussed above, the Verizon Portal does not inhibit the defense's ability to investigate because it is the functional equivalent of a phone call. Further, its use does not amount to a violation of due process. The defendant's argument that the statute treats the prosecution and defense differently in this regard with respect to addresses does not go to the adequacy of the Witness Portal with respect to the "adequate contact information" provision. Indeed, it seems to have little relevance to the defendant's claim that she should be given the witnesses' phone numbers. To the extent that the defendant is arguing that she should be entitled to the witnesses' addresses, the court rejects that argument, as contrary to the explicit language of the statute. In fact, this due process argument weighs more in favor of a finding that the defense should not be required to disclose witnesses' addresses than that the prosecution should, but the defense has not requested such relief. Finally, for the same reasons discussed above, this technology does not impede the defendant from cross-examining witnesses in accordance with her right of confrontation, because it is essentially no different from any phone call in this regard.

For these reasons, this court finds that the People have provided adequate contact information within the meaning of CPL § 245.20(1)(c).

CONCLUSION

Given that it was made in good faith and reasonable under the circumstances, the court finds that the People's certificate of compliance was proper, pursuant to CPL § 245.50(3). Indeed, they have met their obligations with respect to each of the items raised in the defendant's challenge. The defendant's motion is, therefore, denied, except to the extent that the People must disclose any underlying substantiated IAB and CCRB records in their actual possession to the defense.

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Dated: June 14, 2021

GENE R. LOPEZ, A.J.S.C. Footnotes

Footnote 1:Curiously, CPL § 245.80(b), part of the section of the discovery law addressing remedies and sanctions for non-compliance, states, "When material or information is discoverable under this article but cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost material may have contained some information relevant to a contested issue." Thus, this section addresses only situations in which material is "lost" or "destroyed," leaving unclear the meaning of "otherwise unavailable" in CPL § 245.50(3).