People v Rafoel

[*1] People v Rafoel 2023 NY Slip Op 50076(U) Decided on February 6, 2023 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2023
Criminal Court of the City of New York, Queens County

The People of the State of New York,

against

Rafoel, Defendant.



Docket No.: CR-007536-22QN



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

For Mr. Rafoel: The Legal Aid Society (by Alisha Babar)
Wanda L. Licitra, J.

In a proper certificate of discovery compliance, the People must certify two things. (C.P.L. § 245.50[1]). First, the People must certify that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." (Id.). Second, they must certify that "after" doing so, the prosecutor "has disclosed and made available all known material and information subject to discovery." (Id.).

Courts and litigants must analyze both prongs of a certificate of compliance. A certificate is not proper if the People only complied with the first requirement, but then violated the second. And it should go without saying: the People cannot certify they have "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Quinlan, 71 Misc 3d 266, 271 [Crim. Ct., Bronx County 2021]; see also People v. Toussaint, 2023 NY Slip Op. 23025, at *2 [Crim. Ct., Queens County 2023] [same]; People v. Haymon, 71 Misc 3d 1203[A], at *2 [County Ct., Albany County 2021] [same]; People v. Salters, 72 Misc 3d 1219[A], at *6-*7 [Dist. Ct., Nassau County 2021] [same]; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] [same]; People ex rel. Ferro v. Brann, 197 AD3d 787, 788 [2d Dep't 2021] [a certificate is not proper until automatic discovery is "actually produced" to the defense]).

Here, however, the People begin and end their analysis with the first prong. Six days before the speedy-trial deadline (without explanation as to why this was only done seven weeks after discovery was due), the People emailed the arresting officer. They did so because they knew the police had not disclosed the "scratch arrest [report], scratch complaint [report], incoming case information sheet, and the controlled call" from this case. (See Pr. Resp. at 6-7). Three days later, the prosecutor, knowing that this material had not been disclosed, nonetheless filed the certificate claiming they "have disclosed and made available all existing known material and information subject to discovery." (Cert. of Compl. at 1).

In addition, the People certified "compliance" despite refusing to disclose the underlying disciplinary records for their police witnesses. In their defense, they articulate an unreasonably [*2]simplistic interpretation of Matter of Jayson C., an appellate case that accords with plain statutory text and affirms that the People must disclose such records. (See Matter of Jayson C., 200 AD3d 447, 448-49 [1st Dep't 2021]; C.P.L. § 245.20[1][k]; see also People v. Rodriguez, 2022 NY Slip Op. 22393, at *1-*2 [App. Term, 1st Dep't 2022] [holding the same and citing Jayson C.]; People v. Best, 76 Misc 3d 1210[A], at *5 [Crim. Ct., Queens County 2022]; People v. Trotman, 77 Misc 3d 1210[A], at *3-*4 [Crim. Ct., Queens County 2022]; People v. Goggins, 76 Misc 3d 898, 901-02 [Crim. Ct., Bronx County 2022]; People v. Martinez, 75 Misc 3d 1212[A], at *3 [Crim. Ct., NY County 2022]; People v. Polanco-Chavarria, 74 Misc 3d 1210[A], at *4 [County Ct., Rockland County 2021]).

By C.P.L. § 30.30 motion, the defense now challenges the propriety of the People's certificate and their claimed readiness for trial. A proper, good-faith certificate of discovery compliance is a prerequisite to a valid statement of readiness. (C.P.L. §§ 245.50[3], 30.30[5]). If the People do not file such a proper certificate, their statement of readiness is invalid and ineffective to stop their speedy-trial clock.

The court agrees that the People failed to properly certify discovery before stating ready for trial. (Ferro, 197 AD3d at 787-88; Rodriguez, 2022 NY Slip Op. 22393, at *1-*2). As calculated below, the People have accordingly exceeded the 90 days the law allows them to validly state ready. (See C.P.L. § 30.30[1][b]). Therefore, the court must dismiss the case. (See id.).

LEGAL ANALYSIS

I. The discovery statute

The discovery statute's plain text is clear. A "proper" certificate of discovery compliance is necessary to stop the speedy-trial clock. (C.P.L. § 245.50[3]). The statute defines a "proper" certificate in "subdivision one" of C.P.L. § 245.50. (Id.). It requires that the People certify, in good faith, two things. First, that the People exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of "material and information subject to discovery." (C.P.L. § 245.50[1]). And second, that "after" doing so, "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.). These are two separate statements that the People must certify, in good faith, to each be true. (See C.P.L. § 30.30[5]).

Appellate courts have analyzed whether the People filed a proper certificate of compliance by relying upon this clear plain text. (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]; People v. Guzman, 75 Misc 3d 132[A] [App. Term, 2d Dep't 2022]). They are right to do so. "[T]he text itself is generally the best evidence" of "the legislature's intent." (People v. Francis, 30 NY3d 737, 740 [2018] [internal quotation marks omitted]). Therefore, "courts should construe unambiguous language to give effect to its plain meaning." (Daimler-Chrysler Corp. v. Spitzer, 7 NY3d 653, 660 [2006]).

A proper certificate of discovery compliance is a prerequisite to a valid statement of readiness. (C.P.L. § 245.50[3], 30.30[5]). If the People do not file such a proper certificate, their statement of readiness is invalid and ineffective to stop the speedy-trial clock. (C.P.L. §§ 245.50[3], [1], 30.30[5]; Ferro, 197 AD3d at 788; Guzman, 75 Misc 3d 132[A], at *3; People v. Rodriguez, 2022 NY Slip Op. 22393 [App. Term, 1st Dep't 2022]). The only exception is for "special circumstances." (C.P.L. § 245.50[3]; see also Guzman, 75 Misc 3d 132[A], at *3).

Contrary to the People's contention, C.P.L. § 245.80, "prejudice," and "sanctions" are all irrelevant to a C.P.L. § 30.30 motion. Such analyses are for situations where the People only violate the 20- or 35-day discovery deadlines, not where they also fail to state ready for trial [*3]within the entire 90-day speedy trial timeframe. (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]; People v. Quinlan, 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020]). "[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."]).

Indeed, no appellate court has ever applied a "prejudice" or C.P.L. § 245.80 analysis to a C.P.L. § 30.30 motion challenging a certificate of compliance. (See Rodriguez, 2022 NY Slip Op. 22393 [affirming that a certificate was invalid without discussing prejudice or C.P.L. § 245.80]; Guzman, 75 Misc 3d 132[A] [same]; Ferro, 197 AD3d 787 [reversing a lower court and finding that a certificate was invalid without discussing prejudice or C.P.L. § 245.80]; see also People v. Elmore, 2022 NY Slip Op. 07345 [4th Dep't 2022] [discussing C.P.L. § 245.80 sanctions and "prejudice" separately from C.P.L. § 30.30 readiness]).

II. Missing police reports and controlled telephone call

Applying these standards, the People's certificate here was not proper. Six days before their speedy-trial limit expired, the People emailed the arresting officer because they knew discovery was missing. (See Pr. Resp. at 6-7). (The People do not provide any information as to why this was only done six days before the speedy-trial limit for the case, and not seven weeks beforehand when discovery was due. (See C.P.L. § 245.10[1][a])). That discovery included, at least, three police reports and a controlled call. (See Pr. Resp. at 6-7). Then, three days before the speedy-trial limit expired, the police sent some, "but not all," of the listed missing items. (See id.). On that day, the People "did email the detective again to get that missing discovery." (Id.). But then, on that same day, without waiting for the police to produce the missing items, "the People did file their certificate of compliance." (Id.). In other words, knowing this material existed but had not been disclosed, the People nonetheless filed a certificate stating that "all existing known material" had been disclosed. (See id.; Cert. of Compl. at 1).

Obviously, this is not how certificates are supposed to work. A certificate "must in good faith attest that [its] statements are actually true." (People v. Vargas, 76 Misc 3d 646, 649 n.2 [Crim. Ct., Bronx County 2022] [citing "Certificate," Merriam-Webster Dictionary [2022] [defining a "certificate" as a "document containing a certified statement especially as to the truth of something"]]). The People cannot in good faith certify a statement that they know is false. (See C.P.L. § 30.30[5] [requiring a good-faith certificate of compliance for a valid statement of readiness]).

In defense of their actions here, the People insist that they only filed their certificate "after making a diligent, good faith effort to ascertain the existence of any outstanding discovery." (Pr. Resp at 6). That misses the point. A proper certificate is one that claims compliance of both: (1) due diligence to ascertain the existence of discovery; and (2) disclosure of all known discoverable material. It is not simply a certificate of due diligence to ascertain the [*4]existence of discovery. (See C.P.L. § 245.50[1]; Cert. of Compl. at 1). Only the "first component" of the certificate deals with "ascertain[ing] the existence of discoverable material and information." (People v. Williams, 73 Misc 3d 1209[A], at *1 [Crim. Ct., NY County 2021]). And while the People certainly ascertained the existence of discovery here—they learned that these police reports and a controlled call existed—they "failed to satisfy the second part," to disclose it. (See id.).

Therefore, the People's certificate here was not proper and ineffective to support their statement of readiness.

III. Missing police misconduct records

The People next argue that they were entitled to withhold the underlying disciplinary records for their police witnesses. They assert that summary letters, which they authored, were a sufficient substitute. As this court and many others have explained before, the People are wrong.

In Matter of Jayson C., the Appellate Division held that such summaries are insufficient to meet what the discovery statute requires. (200 AD3d 447, 448-49 [1st Dep't 2021]; see also People v. Rugerio-Rivera, 2023 NY Slip Op. 50069[U], at *2 [Crim. Ct., Queens County 2023]; People v. Trotman, 77 Misc 3d 1210[A], at *3-*4 [Crim. Ct., Queens County 2022]; 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]; People v. Polanco-Chavarria, 74 Misc 3d 1210[A], at *4 [County Ct., Rockland County 2021]). 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, Inc. 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"]).

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]).

In People v. Rodriguez, the First Department's Appellate Term agreed. (2022 NY Slip Op. 22393, at *1-*2). In that case, it affirmed a lower court's dismissal where the People only provided mere summaries of their police witnesses' disciplinary records before the C.P.L. § 30.30 time-limit expired. (Rodriguez, 2022 NY Slip Op. 22393, at *1-*2; People v. Rodriguez, CR-002613-20BX [Crim. Ct., Bronx County May 20, 2021]). Because the People "failed to provide relevant records to defendant, including underlying impeachment materials pursuant to C.P.L. 245.20[1][k]," the lower court "properly held" that the certificate of compliance "was not valid and therefore did not stop the speedy trial clock." (Rodriguez, 2022 NY Slip Op. 22393, at *1). Appropriately, the Appellate Term cited Jayson C. to support its holding. (Id.).

Rodriguez accords with the weight of authority throughout trial courts in the city. (See, e.g., Best, 76 Misc 3d 1210[A] [Gershuny, J.]; People v. Bravo, CR-002662-22QN [Crim. Ct., Queens County 2022] [Johnson, J.]; Goggins, 76 Misc 3d 898 [Morales, J.]; Martinez, 75 Misc 3d 1212[A] [Rosenthal, J.]; People v. Mohammed, CR-026662-21NY [Crim. Ct., NY County [*5]2022] [Wang, J.]; People v. Salaam, CR-019124-21NY [Crim. Ct., NY County 2022] [Maldonado-Cruz, J.]; Spaulding, 75 Misc 3d 1219[A] [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).

The People argue their decision to withhold disciplinary records was made in "good faith." (Pr. Resp. at 5-6). They acknowledge Jayson C., but they argue it is not "binding" because "the First Department concluded that under equal protection grounds, CPL § 245.20[1][k] does apply to family court matters; however, the court did not make a determination as to what documents satisfy with the requirements of CPL § 245.20[1][k]." (Id.).

The court cannot accept this argument, in which the People refuse to make the most basic of inferences from Jayson C. The Appellate Division did, necessarily, "make a determination as to what documents satisfy with the requirements of CPL § 245.20[1][k]." In that case, a juvenile delinquency proceeding, the defense sought impeachment information about several police officers involved in the case. (Jayson C., 200 AD3d at 448). It did so by invoking C.P.L. § 245.20[1][k][iv]. (Id.). 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]).

Jayson C.'s predicate conclusion that a "defendant in a criminal proceeding" is entitled to more than mere summaries was a precedential holding. That is because 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 part of the holding]). If a "similarly situated defendant in a criminal proceeding" were not entitled to anything more than summaries, then the Appellate Division could not have held that the juvenile appellant was entitled to anything more, either.

Therefore, the People's decision to withhold these documents was not made in good faith. The People adopted an unreasonably simplistic interpretation of Jayson C., ignored the plain text of the statute, and set aside the weight of trial courts in the city. Worse, they did all this despite the discovery statute's "presumption of disclosure." (C.P.L. § 245.20[7] ["There shall be a presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20."]; see also Rugerio-Rivera, 2023 NY Slip Op. 50069[U], at *2-*3 [providing an excellent overview of the presumption]). "Whenever there is any debate about turning over a piece of material, the legislature explicitly instructed the People to presume the material is discoverable." (Rugerio-[*6]Rivera, 2023 NY Slip Op. 50069[U], at *3). Here, instead, the People ignored that presumption as a matter of policy. That choice was not one of good-faith compliance. (See C.P.L. § 30.30[5]).

In any event, the statute does not permit the People to make unilateral "good faith" determinations to withhold documents. What material should be discoverable "is not the People's province"; instead, it is a determination the Legislature already made. (Darren, 75 Misc 3d 1208[A], at *6). Under Article 245, "the People's responsibility is solely to disclose 'all material and information' that 'tends to impeach' the officer witness." (Id.). That the People claim to have exercised "good faith" in "making their own determination that disciplinary records do not—or should not—fall within the statute is of no moment." (People v. Williams, 72 Misc 3d 1214[A], at *5 [Crim. Ct., NY County 2021]). "That is not the People's determination to make." (Id.).

If the People ever believe that any records are not discoverable, the statute provides a "process" for them to "follow." (Best, 76 Misc 3d 1210[A], at *7; see also C.P.L. § 245.10[1][a]). "[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 documents. (Best, 76 Misc 3d 1210[A], at *7). But what the People cannot do is "file a Certificate of Compliance claiming they have disclosed all known discovery if they have not actually done so without the express permission of the court." (People v. Aguayza, 77 Misc 3d 482, 489 [Sup. Ct., Queens County 2022]; see also Sozoranga-Palacios, 73 Misc 3d 1214[A], at *5-*6 [the People do not comply in "good faith" where they withhold disciplinary records without court permission]).

Here, "the People knowingly failed to disclose discoverable material in their possession without leave of the court or a protective order." (Best, 76 Misc 3d 1210[A], at *8). This refusal to disclose was "merely an expression" of unilateral "policy and desire." (Darren, 75 Misc 3d 1208[A], at *6). Accordingly, the certificate "was not valid and therefore did not stop the speedy trial clock." (Rodriguez, 2022 NY Slip Op. 22393, at *1).

IV. C.P.L. § 30.30 calculation

March 29, 2022 — May 31, 2022

The People commenced this case on March 29, 2022. On that date, the People were not ready for trial. The court adjourned the case to May 31, 2022. In the interim, 63 days elapsed without a statement of readiness from the People.

May 31, 2022 — July 11, 2022

On May 31, 2022, the People still were not ready for trial. The court adjourned the case to July 11, 2022. On June 24, 2022, the People filed a statement of readiness. However, as explained above, the People's statement of readiness was illusory as it was not preceded by a proper certificate of discovery compliance. Therefore, 41 more days elapsed without a valid statement of readiness from the People.

At this point, the remainder of the adjournments would be moot. The People are only allowed 90 days from arraignments to validly state ready for trial, (C.P.L. § 30.30[1][b]), and by July 11, 2022, 104 days had elapsed without a valid statement of readiness from the People. Nonetheless, the court notes that the People also violated the October 13, 2022, court deadline for their response to this motion. They only asked for an extension on November 30, 2022. Therefore, the delay from October 13, 2022, to November 30, 2022, is also attributable to the People. (See, e.g., Ferro, 197 AD3d at 788). That is 48 days.

In total, the People are responsible for 152 days of delay in this case. This exceeds their speedy-trial time, so the court must dismiss the case. (See C.P.L. § 30.30[1][b]).

The foregoing constitutes the order and decision of the court.

Dated: February 6, 2023

Queens, NY

Wanda L. Licitra, J.C.C.