People v Trotman

[*1] People v Trotman 2022 NY Slip Op 51181(U) Decided on December 5, 2022 Criminal Court Of The City Of New York, Queens County Licitra, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2022
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Trotman, Defendant.



Docket No. CR-006754-22QN

For the People: Melinda Katz, District Attorney of Queens County (by ADA Alexander Blisko)

For Mr. Trotman: Queens Defenders (by Ethan Lowens) Wanda L. Licitra, J.

The People's discovery obligations are clear. Before stating ready for trial, they must disclose "all" items and information in their actual or constructive possession that "relate to the subject matter of the case." (C.P.L. §§ 245.20[1], 245.50[3], 245.50[1]). This mandate "virtually constitute[s] 'open file' discovery, or at least make[s] 'open file' discovery the far better course of action to assure compliance." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). "If something is in the prosecutor's file (or that of the police investigating agency) . . . it should invariably 'relate to the subject matter of the case' and will need to be disclosed." (People v. Lustig, 68 Misc 3d 234, 239-40 [Sup. Ct., Queens County 2020] [Zayas, J.]).

Here, however, the People stated ready for trial without first complying with these obligations. They chose to withhold police misconduct records, stating that it is their "practice" to do so "unless there is a court order." (Pr. Resp. at 4). They also did not disclose some police reports that were listed on the police's own arrest index. (See id. at 3; Def. Mot. Ex. D). And then, months later, when they did disclose those reports, they first redacted information from them, unilaterally adjudicating it to be of "limited" relevance. (See Pr. Resp. at 3-4).

As a result, the certificate of discovery "compliance" claimed that the People exercised "due diligence" and turned over "all known material and information" even though the People had "not actually turn[ed] over all known material and information." (People v. Quinlan, 71 Misc 3d 266, 271 [Crim. Ct., Bronx County 2021]). The People could not claim to have turned over "all known material and information" while at the same time making unilateral policy or value judgments to withhold material. (See generally People v. Best, 76 Misc 3d 1210[A], at *1 [Crim. Ct., Queens County 2022]; People v. Spaulding, 75 Misc 3d 1219[A], at *3 [Crim. Ct., Bronx County 2022]; People v. Payne, 75 Misc 3d 1224[A], at *3-*4 [Crim. Ct., Bronx County 2022]; People v. Demonia, 74 Misc 3d 752, 759 [County Ct., Ulster County 2022]). And they could not have claimed to have exercised "due diligence" when they failed to ascertain and disclose police reports explicitly referenced on the police's own index. (See People v. Guzman, 75 Misc 3d 132[A], at *4-*5 [App. Term, 2d Dep't 2022]; People v. Ajunwa, 76 Misc 3d 1217[A], at *2 [Crim. Ct., Bronx County 2022]).

Because the People's certificate of discovery compliance did not genuinely certify compliance, it could not support a valid statement of readiness. Therefore, because People failed to validly state ready for trial within the entire speedy-trial period, the court must grant the defense's motion to dismiss.

LEGAL ANALYSIS

I. Automatic discovery under Article 245

Article 245 requires that the People "actually produce[]" automatic discovery to the defense. (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]; C.P.L. §§ 245.20[1], 245.20[2]). Automatic discovery includes "all" items and information in the People's possession that "relate to the subject matter of the case." (C.P.L. § 245.20[1]). The People's "possession" also includes discoverable material that is in the possession of the police, (C.P.L. § 245.20[2]), and favorable information that is "known to police," (C.P.L. § 245.20[1][k]).[FN1]

Under Article 245, the People's "obligations to provide discovery" are "so broad" as to "virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). Indeed, the "opening language" of the statute "itself points towards an 'open file' discovery policy." (Id.). It requires the People to disclose "all" items and information in their possession that "relate to the subject matter of the case." (Id.). It then lists a non-exhaustive set of items that are "includ[ed]" under that standard, but do not "limit[]" it. (Id.).

Therefore, "[i]f something is in the prosecutor's file (or that of the police investigating agency) . . . it should invariably 'relate to the subject matter of the case' and will need to be disclosed," unless it is attorney work-product or subject to a protective order. (Lustig, 68 Misc 3d at 239-40; see also C.P.L. § 245.20[7] [establishing a statutory presumption favoring disclosure]; Payne, 75 Misc 3d 1224[A], at *3 ["The Court strains to imagine a situation where material contained within records in the People's case file would somehow not 'relate' to the case."]).

After the People have exercised "due diligence" and made "reasonable inquiries to ascertain the existence of material" subject to discovery—and after they have "actually turn[ed] over all known material and information"—they must certify it. (Quinlan, 71 Misc 3d at 271; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] [same]). They must do so by filing a "proper" certificate of compliance ("COC"). (C.P.L. §§ 245.50[3], [1]).

The statute defines a "proper" certificate as one filed "[w]hen the prosecution has [*2]provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. (C.P.L. § 245.50[1] [emphasis added]). Indeed, that is precisely what the statute directs the People to do in their certificate of compliance. They must certify that they have complied—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. [emphases added]). Therefore, a certificate "[can]not be deemed complete" until discovery is "actually produced" to the defense. (Ferro, 197 AD3d at 787-88; see also Quinlan, 71 Misc 3d at 271 [requiring that the People file a COC only after they "actually turn[ed] over all known material and information"]; Adrovic, 69 Misc 3d at 574 [same]).

A "proper" COC is a prerequisite to a valid statement of readiness. (C.P.L. §§ 245.50[3]; 245.50[1]). As a result, "a prosecutor who fails to engage in 'open file' discovery (except for 'work product' and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10).

Contrary to the People's contention, there is no analysis of "prejudice" in a C.P.L. § 30.30 speedy-trial motion. "Prejudice" is a consideration for C.P.L. § 245.80 sanctions—situations where the People only violate the 20- or 35-day discovery deadlines, not where they fail to validly state ready within an entire 90-day speedy-trial timeframe. (Adrovic, 69 Misc 3d at 574; People v. Darren, 75 Misc 3d 1208[A], at *5 [Crim. Ct., NY County 2022]; People v. Diaz, 75 Misc 3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc 3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; Quinlan, 71 Misc 3d at 272]). "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Adrovic, 69 Misc 3d at 574). "Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).

Nonetheless, the discovery statute is not impracticable. Should the People face any burdens in producing discovery, the statute provides them numerous opportunities to petition a court for relief. For instance, the People may ask a court to modify the discovery periods for "good cause." (C.P.L. § 245.70[2]). Or they may ask a court for permission to state ready on an improper COC because of "special circumstances." (C.P.L. § 245.50[3]). Or they may ask for a protective order to withhold some materials entirely. (C.P.L. § 245.70).

II. The People's failures to disclose A. Police misconduct records

There is no longer ambiguity over whether the People may only disclose mere summaries of their testifying police witnesses' prior misconduct records. The Appellate Division has held that such summaries are insufficient to meet what C.P.L. § 245.20[1][k][iv] requires. (Matter of Jayson C., 200 AD3d 447, 448-49 [1st Dep't 2021]; see also People v. Polanco-Chavarria, 74 [*3]Misc 3d 1210[A], at *4 [County Ct., Rockland County 2021] [analyzing Jayson C.]; Best, 76 Misc 3d 1210[A], at *5; People v. Goggins, 76 Misc 3d 898 [Crim. Ct., Bronx County 2022]; People v. Martinez, 75 Misc 3d 1212[A], at *3 [Crim. Ct., NY County 2022]). That decision is uncontested amongst the Appellate Division's departments and is therefore controlling on all trial courts throughout the state, including this one. (See Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [2d Dep't 1984] [where another department's decision is the only authority "on point," then a trial court must understand that decision "to be binding authority"]).

It is worth reviewing what Jayson C. held. There, in a juvenile delinquency proceeding, the defense, relying on C.P.L. § 245.20[1][k][iv], sought impeachment information about several police officers involved in the case. (Jayson C., 200 AD3d at 448). The presentment agency—which acts like the prosecution in a juvenile delinquency proceeding—responded by sending summary "disclosure letters" to the defense. (Id.). The lower court held that these disclosure letters were sufficient because it believed that C.P.L. § 245.20[1][k][iv] was "inapplicable" to juvenile delinquency cases. (Id. at 448-49). But the Appellate Division unanimously reversed, holding that "the denial of records available under C.P.L. § 245.20[1][k][iv], which broadly requires disclosure of all impeachment evidence deprived appellant equal protection of the laws." (Id. at 449). "A similarly situated defendant in a criminal proceeding," it wrote, "would be entitled to access the impeachment materials requested by appellant." (Id. [emphasis added]).

This predicate conclusion in Jayson C. was "not dicta," as it was "necessary to the resolution of the issue presented." (See Matter of Report of April, 1979 Grand Jury of Montgomery County, 80 AD2d 654, 655 [3d Dep't 1981] [where a court's statements are "necessary to the resolution of the issue presented," they are "not dicta"]).[FN2] If a "similarly situated defendant in a criminal proceeding" were not entitled to anything more than disclosure summaries, then the Appellate Division could not have held that the juvenile appellant was entitled to anything more, either.

Jayson C.'s conclusion follows straight from the text of the discovery statute. Criminal Procedure Law § 245.20[1][k][iv] requires the disclosure of "[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." Evidence of "a police witness's prior bad act . . . can be proper fodder" for impeaching that witness. (People v. Smith, 27 NY3d 652, 661 [2016]). Therefore, at minimum, the People must disclose "[a]ll evidence and information" regarding a testifying police witness's prior bad acts in their possession or the possession of police. "All means all." (People v. Francis, 75 Misc 3d 1224[A], at *2 n.2 [Crim. Ct., Bronx County 2022]).

Following the law, several judges in this borough have found certificates of discovery compliance improper where the People only disclosed mere summaries of police misconduct. (E.g., People v. Dowling, Ind. 01123-2021 [Sup. Ct., Queens County 2022] [Gopee, J.]; People v. Belle, CR-002627-22QN [Crim. Ct. Queens County 2022] [Gershuny, J.]; People v. Bravo, [*4]CR-002662-22QN [Crim. Ct., Queens County 2022] [Johnson, J.]). As Judge Gershuny summarized in People v. Best:

The principles of automatic disclosure and openness in the discovery process are hampered by the unilateral, self-serving, and incomplete Queens District Attorney's Office practice of withholding and redacting police officer witness disciplinary records without leave of court or protective order. The Law Enforcement Officer Witness (LEOW) letters filed and served by the People are mere summaries without any substantive underlying documentation. To hold these LEOW letters as compliant with the prosecutorial discovery statute mandates would be to ignore the plain letter, spirit, and meaning of the statutory language "all evidence and information."(76 Misc 3d 1210[A], at *1).

These decisions accord with the overwhelming weight of authority throughout trial courts in the city. (See, e.g., People v. Goggins, 76 Misc 3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Martinez, 75 Misc 3d 1212[A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People v. Mohammed, CR-026662-21NY [Crim. Ct., NY County 2022] [Wang, J.]; People v. Salaam, CR-019124-21NY [Crim. Ct., NY County 2022] [Maldonado-Cruz, J.]; People v. Spaulding, 75 Misc 3d 1219[A] [Crim. Ct., Bronx County 2022] [Licitra, J.]; People v. Castellanos, 72 Misc 3d 371 [Sup. Ct., Bronx County 2021] [Clancy, J.]; People v. Perez, 71 Misc 3d 1214[A] [Crim. Ct., Bronx County 2021] [Johnson, J.]; People v. Sozoranga-Palacios, 73 Misc 3d 1214[A] [Crim. Ct., NY County 2021] [Stein, J.]; People v. Edwards, 74 Misc 3d 433 [Crim. Ct., NY County 2021] [Weiner, J.]). "Courts have ruled time and again that case summaries prepared by the People are insufficient to satisfy the mandates imposed by C.P.L. § 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witness, should not be filtered through the prosecution." (Goggins, 76 Misc 3d at 901).

Despite these decisions, the People here have only disclosed mere summaries of the officers' misconduct—precisely what the Appellate Division found insufficient in Jayson C. Nonetheless, the People ask that their failure be excused because it is their "practice" to withhold disciplinary records "unless there is a court order." (See Pr. Resp. at 4-5). This position is untenable. The statutory text of C.P.L. 245.20[1][k][iv] has "the force and effect of a court order." (C.P.L. § 245.20[5]). The People may not simply ignore it until a judge explicitly tells them to comply. Making that choice does what Justice William C. Donnino warns prosecutors in his commentaries to the discovery statute: it "jeopardize[es] the viability of a prosecution." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). And it has done so here by invalidating the People's statement of readiness, which requires a "certification of good faith compliance" with automatic discovery. (C.P.L. § 30.30[5]). "Good faith compliance" finds no footing in the willful disobedience of controlling authority.

B. The police accident and damage reports, Z-Finest report, and subsequent unilateral redactions

The People also concede that they did not disclose some police reports before filing their certificate of compliance. (Pr. Resp. at 3). Specifically, they failed to disclose accident and damage reports and a report from the NYPD's "Z-Finest" system. (Id.). After the defense pointed [*5]out that these reports were missing, the People disclosed them four months later. (Id. at 12-13).

Again, there is appellate caselaw on point. In People v. Guzman, the People filed a certificate of discovery compliance despite failing to first disclose a police dashcam video. (75 Misc 3d 132[A], at *1 [2d Dep't App. Term. 2022]). Six months later, the defense pointed out that the video was missing. (See id. at *2, *4-*5). Two months after that, the People filed a supplemental certificate and disclosed the video, saying their initial failure "was an unintentional oversight." (Id. at *2). The Appellate Term found that the original certificate could not support a valid statement of readiness. (Id. at *3-*4). It did so because "the People were in possession of police documents which indicated the existence of the video" and the People provided "no explanation as to why they did not check the items sent to them . . . against the police reports they sent to the defense." (Id. at *3). The Appellate Term wrote that the People's "office failure" did not "amount to special circumstances," which would be necessary to validate the People's readiness despite a failure to disclose. (Id.).

Other courts—including this one—have drawn similar conclusions. In People v. Valentine, for instance, a court held that if "defense counsel examines the prosecution's discovery materials and points to clear references that other undisclosed discoverable items exist, the Court cannot find that the prosecution acted reasonably and diligently." (2019BX030896, at *9 [Crim. Ct., Bronx County 2021]). In People v. Ajunwa, this court agreed, holding that the People could not claim to have exercised due diligence where they failed to disclose a police report that was "referenced in an NYPD Omniform System complaint report, a basic case document of which the People were in possession." (76 Misc 3d 1217[A], at *2).

Here, like in Guzman, the People were plainly on notice that the accident and Z-Finest reports existed. The complaint alleges that officers responded "to the scene of a motor vehicle accident." (Def. Mot. Ex. A). The NYPD arrest checklist from this case—a police index disclosed by the People—indicates that the police prepared a "Z-Finest" report and accident and damage reports. (Def. Mot. Ex. D). Like in Guzman, the People here do not provide any specific reasons as to why these reports were not disclosed before they certified that they had exercised due diligence in ascertaining and disclosing all known material from the police. (See Pr. Resp. at 3, 12-13). Instead, like in Guzman, they disclosed it months later and now simply state that their failure "at best, was an oversight." (Id. at 3). Applying Guzman, their claimed certificate of "compliance" was therefore invalid. And since "there were no special circumstances presented, the [statement of readiness] was also invalid." (Guzman, 75 Misc 3d 132[A], at *3).

Yet even when the People finally did disclose these reports, they still failed to discharge their discovery obligations. Instead of disclosing the full reports, they instead took a black marker to them, redacting information of persons they unilaterally deemed to be of "limited" involvement. (See Pr. Resp. at 3-4). The People had no authority to do so. Disclosure of police reports must be "automatic, absolute, and without redaction, adulteration, or censorship by the People." (See Best, 76 Misc 3d 1210[A], at *5; see also Payne, 75 Misc 3d 1224[A] [same]). The discovery statute grants only specific and limited exceptions to this rule. (See, e.g., C.P.L. § 245.20[1][c] [allowing the People to withhold physical addresses and the identities of 911 callers and confidential informants "without need for a motion"]; C.P.L. § 245.20[1][d] [same for [*6]materials relating to undercover personnel]).[FN3]

If the People nonetheless believe that some NYPD materials contain information that should not be disclosed, the statute provides a "process" to "follow." (Best, 76 Misc 3d 1210[A], at *7; Payne, 75 Misc 3d 1224[A] [same]). "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the information. (Best, 76 Misc 3d 1210[A], at *7). But aside from the statute's specific and limited exceptions, "it is not for the People alone to make this determination." (Demonia, 74 Misc 3d at 759).

Here, the People did not follow any of these processes. They never sought a "determination and ruling of the court" as to whether any of this information could be withheld. (C.P.L. § 245.10[1][a]; see also Best, 76 Misc 3d 1210[A], at *7 [same]; Payne, 75 Misc 3d 1224[A], at *4 [same]; Demonia, 74 Misc 3d at 759 [same]). Instead, they made unilateral determinations on their own, without permission from any court.

In any event, this court also rejects the People's position that this information need not be disclosed just because, in their view, it relates to individuals of "limited" involvement. The standard for whether information should be disclosed is whether it "relate[s]" to the case. (C.P.L. § 245.20[1]). "The People's opinion that material would not be useful for the defense's investigation or relevant to proving guilt at trial is not the same as whether the material relates to the case." (Payne, 75 Misc 3d 1224[A], at *3). This is a case in which the People accuse Mr. Trotman of driving while intoxicated. Part of the People's evidence of intoxication is that he crashed into various parked cars. The People intimate that the redacted information relates to the individuals who own these cars. (See Pr. Resp. at 3-4). Therefore, these individuals—and their redacted information—obviously "relate" to the case.[FN4]

As a result, the People to this day have still not complied with the statute in good faith or with diligence. They have still not yet exercised "due diligence" and "disclosed and made available all known material and information subject to discovery." (C.P.L. § 245.50[1]). In fact, they do not even properly claim otherwise, as they have not yet filed a supplemental certificate of compliance. (See People v. Aguayza, 2022 NY Slip Op. 22333, at *5 [Sup. Ct., Queens County 2022] [Johnson, J.] ["Although the People [have now] disclosed the requisite Grand Jury [*7]minutes, they failed to file a supplemental COC and/or SOR containing the requisite affirmations of 'good faith compliance' . . . . This means the speedy trial clock continues ticking subject only to the applicable exclusions under C.P.L. § 30.30[4]."]).

III. The 30.30 calculation

The People had 90 days from commencing this case to validly state ready for trial. (C.P.L. § 30.30[1][b]). The People commenced this case on March 20, 2022. The People's statement of readiness on April 14, 2022, was not valid, as it was not preceded by a proper certificate of discovery compliance. (C.P.L. §§ 245.50[3], 30.30[5]). The case was adjourned several times until September 21, 2022, when the defense requested a motion schedule.

It is the People's burden to prove that any of these time periods "should be excluded." (E.g., People v. Wearen, 98 AD3d 535, 537 [2d Dep't 2012]). Other than arguing that their statements of readiness were valid, the People point to no exclusions. (See generally Pr. Resp.). The defense, however, concedes that their request for a motion schedule on September 21, 2022, tolled the speedy trial clock. (C.P.L. § 30.30[4][a]).

Nonetheless, the People failed to abide by the court deadline for their response to the ensuing motion, filing it 13 days late without permission or justification. Accordingly, 13 days of delay is also attributable to them there. (See, e.g., Ferro, 197 AD3d at 788 ["Thus, the People are chargeable with the time between the court-imposed deadline to respond to the omnibus motion and the date on which the People actually filed a response."]).

Therefore, time accrued from March 20, 2022, to September 21, 2022. That is 186 days. Time again accrued from the court-imposed deadline of November 2, 2022, to the date on which the People actually filed a response, November 15, 2022. That is 13 days. In total, the People caused 199 days of delay in this matter. That is more than the 90 days that the People are allowed. (See C.P.L. § 30.30[1][b]). As a result, the case must be dismissed.

The defense's remaining arguments are moot.

The foregoing constitutes the order and decision of the court.

Dated: December 5, 2022
Queens, NY
Wanda L. Licitra, J.C.C. Footnotes

Footnote 1: By explicitly including impeachment material that is "known to police," Article 245 abrogates earlier constitutional law that drew an exception for extrinsic impeachment material that was "known only to police." (See generally People v. Payne, 75 Misc 3d 1224[A], at *2 [Crim. Ct., Bronx County 2022] ["[T]he Constitution provides a floor, not a ceiling . . . constitutional analysis is not applicable here."]; People v. McKinney, 71 Misc 3d 1221[A], at *5-*6 [Crim. Ct., Kings County 2021] ["Article 245 does away with that distinction."]; see also People v. Darren, 75 Misc 3d 1208[A], at *4 n.1 [Crim. Ct., NY County 2022]; People v. Rosario, 70 Misc 3d 753, 766-69 [County Ct., Albany County 2020]; cf. People v. Garrett, 23 NY3d 878, 887-88 [2014] [excluding impeachment information "known only to police" from the People's constitutional disclosure obligations]).

Footnote 2: See also John Bourdeau et al., 5 Am. Jur. 2d Appellate Review § 520 [2022] ["In addition, matters in the opinion of a higher court which are not decisive of the primary issue presented but which are germane to that issue, such as aspects of the reasoning by which the court reached its conclusion, are not dicta, but binding decisions of the court."]).

Footnote 3: While the papers allude that some of the redacted information may refer to a 911 caller, it does not appear that all the redacted information relates to that individual. (See Pr. Resp. at 3-4). The People state that the redacted information relates to individuals whose "involvement is limited to their cars being hit," not solely to a 911 caller. (Id.). And the People's "Notice of Non-Disclosure" states that "personal contact information has been redacted as not related to the case," not merely because it relates to a 911 caller's identity. (Def. Mot. Ex. B at 14 [emphasis added]).

Footnote 4: It is also worth noting that the People's opinion that this information is of limited use is wrong. It could be worthwhile for a defense attorney to interview the individuals whose cars appeared damaged. For example, as the defense attorney here points out, speaking to the individuals who own these cars could reveal whether any of the damage visible at the time of the arrest pre-dated the alleged events in this case. The discovery statute does not ask the People to only disclose information that they foresee will be useful to the defense. That the People here fail to foresee an avenue of possible defense investigation is precisely why that is so.