People v Dorado
Annotate this CaseDecided on August 25, 2023
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
Jesus Dorado, Defendant.
Docket No. CR-006337-23KN
People: Kings County District Attorney's Office by Trevor Stime, Esq.
Defendant: Brooklyn Defender Services by Jeremy Gross, Esq.
Dale Fong-Frederick, J.
The defendant, Jesus Dorado, is charged with Driving While Under the Influence of Alcohol or Drugs (VTL §§ 1192[1]; 1192[2]; 1192[3]), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL §511[1][a]), Unlicensed Operator (VTL §509[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03).
The defendant moves to renew his argument to invalidate the People's certificate of compliance (COC) and statement of readiness (SOR) filed on April 6, 2023. On May 31, 2023, the court (1) ruled that despite the People's failure to turn over underlying police disciplinary records, the COC and SOR were valid, and (2) directed the People to disclose the underlying disciplinary records within thirty days or the police witnesses would be precluded from testifying.Subsequently, on July 13, 2023, the Appellate Term, Second Department ruled that the failure to turn over underlying disciplinary records renders the COC and SOR invalid (People v Hamizane, __ Misc 3d __, 2023 NY Slip Op 23233, [App Term 2d Dept]). The defendant's motion to renew based upon a change in the law, which may be made at any time prior to conviction and the imposition of sentence, is granted (CPL §1.20[15]; see People v Moquin, 77 NY2d 449 [1991]; Merchants Mut. Ins. Co. v Arzillo, 98 AD2d 495 [2d Dept 1984]; see also Dinallo v Dal Electric, 60 AD3d 620 [2d Dept 2009]), and the accusatory instrument is dismissed upon reconsideration.
The defendant was arraigned on February 22, 2023, when the instant accusatory instrument was filed. It is alleged that on February 21, 2023, the defendant was observed sitting in the driver's seat of a motor vehicle parked at a fire hydrant with the engine running, and he exhibited red watery eyes, had an odor of alcohol on his breath, and was unsteady on his feet. The defendant is alleged to have had a .138% blood alcohol concentration measured by chemical analysis of his breath. The accusatory instrument further alleges that the defendant's privilege to drive had been suspended for failure to pay child support and that he possessed seven plastic bags of cocaine in the motor vehicle at the time of his arrest.
The defendant argues that the Hamizane holding is binding authority that the trial courts of the Second Department must follow in finding that the People's COC and SOR are invalid when the People fail to provide all underlying disciplinary records in their initial disclosure pursuant to CPL §245.20. This court agrees.
The People's reliance on People v Johnson, (__ Misc 3d __, 2023 NY Slip Op 04064, [4th Dept 2023]), is misguided. The Johnson holding is from the Fourth Department and is not binding on the criminal courts of the Second Department in light of the conflicting determination reached by the Hamizane court in the Appellate Term, Second Department (People v Graham, 177 Misc 2d 542 [App Term 2d Dept 1998]). The Appellate Term of the Second Department is not bound by the decision of the Appellate Division of the Fourth Department. Absent a determination by the Court of Appeals, the criminal courts of the Second Department are bound to follow the determinations of the Appellate Term, Second Department when in conflict with the decisions of the Appellate Division of another department (id.).[FN1]
The People's argument that the Hamizane court did not require the disclosure of all disciplinary records is unpersuasive. The Hamizane court expressly adopted the reasoning that the People have a statutory duty to disclose all evidence and information that tends to impeach the credibility of a testifying prosecution witness, even if it is unrelated to the subject matter. It is beyond cavil that in an adversarial criminal proceeding the People cannot determine what evidence their adversary, the defendant, can use or how the evidence can be used. All underlying disciplinary records should be disclosed to the defendant. He can then conduct his own investigation and determine if he can use the allegations in the disciplinary records to attempt to impeach the prosecution witness. In this case, the People failed to provide the underlying disciplinary records for testifying officers, and accordingly, the COC and SOR filed on April 6, 2023, are invalid (Hamizane, supra).
The charges in the instant accusatory instrument require the People to be ready within ninety days of arraignment (CPL §30.30[1][b]). There is no dispute that the defendant was arraigned on February 22, 2023. Since the COC and SOR were deemed invalid, the People are charged nine-eight days from the arraignment February 22, 2023, through May 31, 2023, when the COC and SOR were initially challenged.
Additionally, the People have never satisfied their discovery obligations under the ruling of Hamizane, as there remains outstanding underlying disciplinary records and, as such, have never validly announced ready. Therefore, the period from May 31, 2023, through the filing of the instant motion on August 18, 2023, are includable, and the People are charged seventy-nine days for this period. The People are charged for a total of one hundred and seventy-seven days.
Accordingly, the accusatory instrument is dismissed.[FN2]
August 25, 2023
Dale Fong-Frederick
Kings County, New York
Hon. Dale Fong-Frederick
Judge of the Criminal Court Footnotes
Footnote 1:In People v Rodriguez, (77 Misc 3d 23 [App Term 1st Dept 2022]), the Appellate Term, First Department held that the underlying disciplinary records were required to be turned over to the defendant as part of automatic discovery. In People v Johnson, (__ Misc 3d __, 2023 NY Slip Op 04064, [4th Dept 2023]), the Appellate Division, Fourth Department held that underly disciplinary records are not part of automatic discovery. The People do not address why Johnson would be binding but not Rodriguez, which was issued a year earlier than Johnson (see People v Turner, 5 NY3d 476 [2005][controlling appellate law binds trial courts and is entitled to the respect of other appellate courts]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984][Second Department trial courts are bound by the appellate decisions of other departments courts unless a contrary decision is issued by the Second Department or Court of Appeals). Under the rationale of Graham (177 Misc 2d 542, supra), the Rodriguez holding was binding upon the criminal courts of the Second Department until at least the conflicting holding by the Johnson court, and now certainly since the holding of Hamizane, which substantively conflicts with Johnson.
Footnote 2:Were this accusatory instrument not dismissed, the People would be precluded from calling certain police witnesses to testify. On May 31, 2023, the People were ordered to turn over all disciplinary records for testifying police officers, regardless of the outcome of the investigation, within thirty days of the court order or the witnesses would be precluded from testifying. By August 15, 2023, the People still had neither complied with the May 31, 2023 court order nor requested an extension of time to comply with the court order directing disclosure. The People would have been precluded from calling PO Alleyne, PO Guele, and any other officer whose underlying disciplinary records were not provided by June 30, 2023.
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