People v Torres

[*1] People v Torres 2023 NY Slip Op 50532(U) Decided on June 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2023
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Torres, Defendant.



Docket No. CR-017883-22QN


For the People: Melinda Katz, District Attorney of Queens County (by Jared Brady & Amanda Iannuzzi)

For Mr. Torres: The Legal Aid Society (by Shane Ferro) Wanda L. Licitra, J.

Before the court is a motion to dismiss under C.P.L. § 30.30. At issue is whether the People properly certified compliance with automatic discovery, a prerequisite to their readiness. When the People claimed compliance, they had not disclosed body-worn camera audit logs associated with this case and accessible to them on Evidence.com. Two weeks later, the defense alerted the People by email that the audit logs were missing from discovery. The People, then represented by ADA Adalgiza Rodamis, responded to the defense that they "do not have a username or password" for Evidence.com. Therefore, they explained, they could not access the audit logs. The People, now represented by ADA Jared Brady, reaffirmed that same claim in their initial sworn response to this motion. There, they stated, twice, that "the People do not have a username and password" for the site. The court subsequently ordered a factfinding hearing to determine whether that assertion was true. Three weeks later, the People, represented by ADA Amanda Iannuzzi of the office's appellate department, sent an email to the court and the defense. In that email, the People conceded that "while line-level ADAs do not have the ability to log in to Evidence.com, our office does, in fact, have access to this information."

The discovery statute does not permit the People to arbitrarily wall off their line prosecutors from an entire category of material. Nor may the People withhold body-worn camera audit logs that are within their control. As a result, the People here failed to establish that they properly certified compliance with automatic discovery before claiming they were ready for trial. They did not properly certify, in good faith, that they exercised due diligence to ascertain the existence of discoverable material and that they had disclosed all known material. (See C.P.L. §§ 245.50[1], [3]; see also People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]; People v. LaClair, 2023 NY Slip Op. 23146 [App. Term, 2d Dep't 2023]; People v. Guzman, 75 Misc 3d 132[A] [App. Term, 2d Dep't 2022]). Nor did they do so at any point within the speedy-trial period. Accordingly, the motion is granted.

PROCEDURAL HISTORY

The procedural history of this motion is worth recounting. On November 10, 2022, the defense filed a C.P.L § 30.30 motion to dismiss alleging that the People's statement of readiness was illusory. They made three arguments as to why. First, that the People had invalidly stated ready on a facially insufficient information. Second, that the People had invalidly stated ready without first having Mr. Torres re-arraigned on a replacing information. And third, that the People had invalidly stated ready on an improper certificate of automatic discovery compliance. On November 28, 2022, the People responded. On November 30, 2022, the defense replied.

On March 9, 2023, this court issued an interim decision. (People v. Torres, 78 Misc 3d 1206[A] [Crim. Ct., Queens County 2023]). That decision explained that the People's information was facially sufficient. (Id. at *1-*3). It also explained that the People were not required to have Mr. Torres re-arraigned on the replacing information before stating ready for trial. (Id. at *3-*4).

However, the court could not decide, on the papers, whether the People's certificate of discovery compliance was proper. (See id. at *5-*6). In their initial motion, the defense contended that the People had failed to produce Axon body-worn camera audit logs from the People's Evidence.com account. (Id. at *5). The court noted that such audit logs "plainly" fall within the ambit of automatic discovery. (Id.). Indeed, the People had not even claimed otherwise. (See generally Pr. Resp). The court observed that the automatic discovery statute's list is "not exhaustive, requiring production of 'all' material that relates to the subject matter of the case in the People's actual or constructive possession." (Id. [quoting C.P.L. § 245.20[1]). It also noted that the statute "explicitly requires the People to provide 'a copy of all electronically created or stored information . . . on behalf of law enforcement from . . . a source other than the defendant which relates to the subject matter of the case.'" (Id. [quoting C.P.L. § 245.20[1][u][i][B]). "Without dispute from the People," the court recounted, the defense alleged that these audit logs "'permanently log[] all activity related to each piece of footage'" and include "'modifications made to the video, any notes added or deleted, when the video was watched and by whom, when the camera was turned on and off, if the camera malfunctioned, if the battery died on the camera, and many other pieces of detailed information.'" (Id. [quoting Def. Mot. at 14-17]).

Both parties agreed that the People had not produced these audit logs, but there was a factual dispute as to whether the People had actual or constructive access to them. (See id.). The defense credibly alleged that the People had access. (See id.). They cited publicly available information from the Civilian Complaint Review Board stating that the NYPD uses "'Axon Evidence (Evidence.com).'" (Id. [quoting Def. Mot. at 15-16). They also credibly alleged that audit logs had "'previously been turned over in Queens County'" and provided a copy of one from another Queens case. (Id. [quoting Def. Mot. at 13]). In response, however, the People wrote, twice, in their sworn affirmation that they "'do not have a username or password'" for Evidence.com. (Id. at *6 [quoting Pr. Resp. at 10]). As a result, they argued that the audit logs are not automatically discoverable, as they are "'in the control of Axon and not in the possession, custody, or control of the Prosecution.'" (Id. [quoting Pr. Resp. at 12]). In this initial briefing, the People did not claim that the audit logs did not fall under the discovery statute for any other reason.

Accordingly, the court ordered a hearing to determine whether the People did not, in fact, have "actual or constructive access to the body-worn camera audit logs on Evidence.com." (Id.). Three weeks later, however, the People emailed the court and the defense. They conceded that "while line-level ADAs do not have the ability to log in to Evidence.com, our office does, in fact, have access to this information." "As such," they admitted, "there is no longer a need for a hearing on that issue."

The People then requested an "opportunity to file an additional memorandum of law" in response to the court's interim decision. The defense objected (and continues to object), arguing that any additional briefing must be filed as a motion to reargue. Over the defense's objection, the court permitted both parties an opportunity to file one more brief.[FN1] The People filed their supplemental brief on April 21, 2023, in which they made new legal arguments and additional factual assertions. The defense responded to these new arguments and assertions on May 12, 2023. The People then requested yet another opportunity to file yet another brief. They did not provide any reason for this request. The court denied it.

Having considered the abundance of papers submitted by both parties, the court now issues its final decision and order in this case.

LEGAL ANALYSIS

As an initial matter, the court finds that the People's information was facially sufficient and that they were not required to have Mr. Torres re-arraigned before stating ready. The court provided the reasons for these conclusions in its interim decision and carries them over here. (People v. Torres, 78 Misc 3d 1206[A], at *1-*4 [Crim. Ct., Queens County 2023]). Accordingly, the court turns to whether the People have established that their certificate of discovery compliance was proper.

I. The statutory requirements for automatic discovery

Criminal Procedure Law § 245.50[1] defines a proper certificate of compliance, and it requires the People to certify, in good faith, two things. First, that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (C.P.L. § 245.50[1]; see also People v. LaClair, 2023 NY Slip Op. 23146 [App. Term, 2d Dep't 2023] [finding that the People failed to file a certificate in good faith because they had not, in fact, exercised that diligence or made those inquiries]; People v. Guzman, 75 Misc 3d 132[A], at *5 [App. Term, 2d Dep't 2022] [same]). And second, that they "made available all known material and information subject to discovery." (C.P.L. § 245.50[1]; see also People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021] [holding that a certificate is not complete until the People "actually produce[]" automatic discovery to the defense]). Absent special circumstances, a proper, good-faith certificate of compliance is a prerequisite to a valid statement of readiness. (C.P.L. §§ 245.50[3]; 30.30[5]; Guzman, 75 Misc 3d 132[A], at *5; Ferro, 197 AD3d at 787-88).

The result is one of common sense. The People cannot, in good faith, file a certificate in which they certify that they exercised "due diligence" and made "reasonable inquiries" to ascertain the existence of discoverable material if they did not, in fact, do so. (See Guzman, 75 Misc 3d 132[A], at *3). Additionally, the People cannot, in good faith, file a certificate in which they 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]; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] [same]; see also Ferro, 197 AD3d at 787-88). 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]; see also C.P.L. § 30.30[5] [requiring a "good faith" certificate of compliance as a prerequisite to readiness]; Certificate, Merriam-Webster Dictionary [2023] [defining a "certificate" as a "document containing a certified statement especially as to the truth of something"]).

Where the defense alleges that the People improperly certified compliance with discovery, "the People must establish that they have met their burden." (E.g., People v. Vargas, 78 Misc 3d 1235[A], at *2 [Crim. Ct., Bronx County 2023]; People v. Hooks, 78 Misc 3d 398, 402 [Crim. Ct., Kings County 2023] ["The People have . . . not met their burden of showing how their actions were diligent."]; People v. Critten, 77 Misc 3d 1219[A], at *3 [Crim. Ct., NY [*2]County 2022] [holding that assessing "due diligence requires the People to demonstrate how due diligence was exercised"]; People v. McKinney, 71 Misc 3d 1221[A], at *7 [Crim. Ct., Kings County 2021] [holding that the People must produce a "factual basis" for the court to find "due diligence"]; see also C.P.L. § 30.30[5] [requiring the People to prove their actual readiness]).

That is because the People are the party who best know about what efforts they made. (See People v. Spaulding, 75 Misc 3d 1219[A], at *4 [Crim. Ct., Bronx County 2022] ["The party in possession of information should bear the burden of producing it."]; see also Campbell v. United States, 365 U.S. 85, 86 [1961] ["[T]he ordinary rule . . . does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."]; National Communications Ass'n v. AT & T Corp., 238 F.3d 124, 130 [2d Cir. 2001] ["[A]ll else being equal, the burden is better placed on the party with easier access to relevant information."]; 9 J. Wigmore, Evidence § 2486 [J. Chadbourn rev. ed. 1981] ["[T]he burden of proving a fact is said to be put on the party who presumably has a peculiar means of knowledge."]).

II. Body-worn camera audit logs [FN2]

This case concerns whether the People's actions regarding body-worn camera audit logs and Evidence.com show that they did not certify their certificate's statements in good faith. The record before the court contains a wealth of information, including references to public documents and websites, that explain what these materials involve. Evidence.com is a website that allows law enforcement agencies who use Axon body-worn cameras to share video and its associated files with their partners.[FN3] Specifically, it serves as a video management system that creates "a copy of the case in the partner agency's instance of Axon Evidence."[FN4] The NYPD Patrol Guide explains that audit logs are created for every body-worn camera video file and stored on the video management system. (Def. Suppl. Reply Ex. 4).

An NYPD manual [FN5] directs officers to take various steps to correctly upload and share a body-worn camera video with prosecutors on Evidence.com. (Def. Suppl. Resp. Ex. 5). One such [*3]step involves "categorizing videos" on an evidence audit log, in which officers are "mandated to categorize[] and tag all their videos." (Id.). These categories—statements with which officers subjectively tag each video—can include "arrest," "homicide," "investigative encounter," "summons," "aided," "dv home visit," or any number of other characterizations "in regards to the police incident." (Id.). Other examples include "unlawful entry," "use of force," "weapon," "injured officer," "interview," "hit & run," "DWI," and "EMS." (Def. Suppl. Reply Ex. 6). "So as an example," the NYPD document explains, "an arrest video in EVIDENCE.COM could have the following categor[ies] attached: ARREST, DV INCIDENT, AIDED." (Def. Suppl. Reply. Ex. 5). The evidence audit log also shows when any police officer—like an officer's sergeant, for example—reviewed the video. (Def. Suppl. Reply. Ex. 2).[FN6]

These evidence audit logs are not merely coextensive with what the People disclosed as "NYPD Body Camera Video Metadata." (See Pr. Suppl. Resp. Ex. 3). The audit logs are PDFs that detail the police's actions on a video file throughout its entire life. They are not unlike a police report detailing a physical item's chain of custody or a log of draft DD5s. For instance, an evidence audit log would include whether the officer added, removed, or edited any of their subjective tags or notes. In contrast, the "metadata" the People disclosed only reports those tags, and other metadata, in their final form. (See id.). It does not include a log of the police's actions regarding the file.

The body-worn camera also produces a separate device audit log. That log shows how the police officer used the camera. For instance, it shows when the officer chose to start or stop recording, whether they chose to manipulate the volume control, and why video or audio started or stopped recording. (See Def. Suppl. Reply Ex. 3). It also shows what footage was taken. (See id.).[FN7]

In sum, as noted by the court in its interim decision, the audit logs include "'modifications made to the video, any notes added or deleted, when the video was watched and by whom, when the camera was turned on and off, if the camera malfunctioned, if the battery died on the camera, and many other pieces of detailed information.'" (People v. Torres, 78 Misc 3d 1206[A], at *4 [quoting Def. Mot. at 16]).[FN8]

The NYPD manual instructs that it is "MANDATORY" that officers share with prosecutors four "boxes" of information on Evidence.com for each body-worn camera video. (Def. Suppl. Reply Ex. 5). These are "audit logs," "notes," "clips," and "markers." (Def. Suppl. Reply Ex. 5). Submitted as a defense exhibit, an annotated screenshot from the manual makes [*4]clear what police officers encounter on the graphical user interface.[FN9] Despite numerous opportunities to do so, the People have never disputed that the police generate these logs by using their cameras or that these logs are uploaded to Evidence.com.

III. Whether the People certified, in good faith, that they exercised due diligence and made reasonable inquiries to ascertain the existence of discoverable material

As is clear from the record in this case, body-worn camera audit logs are in the People's actual or constructive possession. The police are required to share their body-worn camera files with prosecutors through Evidence.com. The People now concede that they have access to Evidence.com. The People's insistence that the files are "not stored" by their office or NYPD is a distinction without a difference. (See Pr. Suppl. Resp. at 15-16). That the People have access to them through an online account they control obviously renders them within their "possession, custody or control." (See C.P.L. § 245.20[1]). Arguing otherwise is akin to arguing that the People are not in control of their own emails simply because they are stored on Microsoft servers.

These audit logs likely contain discoverable material. Police officers are mandated to subjectively categorize and tag the videos in those audit logs. They can also write notes into the program for each file. These are both places in which police officers write statements about what they believe occurred during an incident. And they are statements that the People must disclose under C.P.L. § 245.20[1][e], which mandates that the People disclose "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto." The audit logs also contain other important information about the officer's use of the body-worn camera. For instance, they include when the officer decided to start or stop recording—acts that can (and should) be compared in every case against the NYPD Patrol Guide's rules. (See C.P.L. § 245.20[1][k][iv]). And they would indicate whether there are any other related body-worn camera video files other than what the police have voluntarily identified.

As a result, a diligent prosecutor would, at the very least, review these audit logs for discoverable material. The People are required to exercise due diligence to ascertain the existence of discoverable material in each case. (C.P.L. § 245.50[1]). That is not "an infinite burden." (See People v. Jawad, 78 Misc 3d 1217[A], at *5 [Crim. Ct., Queens County 2023]). "Anything beyond 'due diligence' and 'reasonable inquiries' is beyond the People's automatic responsibility." (Id.). But these audit logs were in the People's actual control. And Axon body-worn camera audit logs are not some inaccessible, complex, or hidden lines of obscure metadata of which even a diligent prosecutor may not know. At minimum, they are basic PDF documents describing the NYPD's chain of custody of a video file—a concept not unfamiliar to those involved in criminal litigation. Indeed, the audit logs are one of four categories of body-worn camera files that the NYPD is mandated to share with the People. And they are one of four categories of information that are prominently displayed on the Evidence.com graphical user [*5]interface. If due diligence means anything, surely it means the People must ascertain the existence of material that the police have shared with them by default on Evidence.com.

The People's actions here were not diligent. Instead, the People created and maintained an inexplicable policy—of which they provide no justification—to wall off their line prosecutors from Evidence.com. Yet the People are statutorily mandated to maintain a "flow of information" between themselves and the police to comply with discovery. (C.P.L. § 245.55). And they are even more fundamentally required to maintain a flow of information between members of their own office. Since at least 1972, they have been expected to establish "procedures and regulations" that "insure communication of all relevant information on each case to every lawyer who deals with it." (Giglio v. United States, 405 U.S. 150, 154 [1972] ["The prosecutor's office is an entity and as such it is the spokesman for the Government."]). Building walls within the prosecutor's office and blocking the flow of information between prosecutors and police flouts these basic requirements and is not due diligence.

Suggestive of why the People were not proactive about sharing Evidence.com access with their line prosecutors, the People seek to flip their own burden onto the defense. The People admit that "in some circumstances, BWC audit logs could be discoverable upon a proper threshold showing of relevance." (Pr. Suppl. Resp. at 20 n.6). But in their view, it is the defense who bears the burden to come up with that "proper threshold showing" before the People need even look at the documents. (See id. at 19-20).

This gets the discovery statute backward. Automatic discovery is not a game whereby defense attorneys are tasked with guessing what the People or police have sitting on their computer accounts. Under the law, it is the People who are tasked with exercising due diligence to ascertain the existence of discoverable information in the first instance. (C.P.L. § 245.50[1]). "[T]he discovery statute now imposes upon the People an affirmative obligation to ferret out and ascertain" discoverable material. (People v. Castellanos, 72 Misc 3d 371, 376-77 [Sup. Ct., Bronx County 2021]). The People may not "shift the burden to the defendant" to "remind[]" them of "their automatic discovery obligations." (People v. Rivera, 78 Misc 3d 1219[A], at *4 [Sup. Ct., Queens County 2023]). Indeed, "discovery demands are now defunct." (Ferro, 197 AD3d at 787-88; see also People v. Pagan, 75 Misc 3d 11, 12-13 [App. Term, 2d Dep't 2022] [noting the same]). "The current statutory framework of CPL 245.10 abolishes the prior mechanism for obtaining discovery through serving a demand upon the People and instead requires that the People provide the discovery listed in CPL 245.20 automatically within the deadlines established therein." (Ferro, 197 AD3d at 787-88).

That statutory scheme makes sense. "The party in possession of information should bear the burden of producing it." (Spaulding, 75 Misc 3d 1219[A], at *4). One should not expect "the party with the least access" to "know whether such material exists." (Jawad, 78 Misc 3d 1217[A], at *4). A world requiring the defense to prove that discovery in the prosecutor's control [*6]is relevant before they may even be allowed to see it would be a Kafkaesque one, indeed.[FN10] But that "is not a world that Article 245 requires." (People v. Ajunwa, 75 Misc 3d 1220[A], at *5 [Crim. Ct., Bronx County 2022]). "To the contrary, that is the world that Article 245 sought to change." (Id.).

In sum, the People failed to review the body-worn camera audit logs for discoverable information—including for statements by police officers about this case. They failed to review these logs because of an arbitrary office wall separating line prosecutors from Evidence.com. This was a failure to exercise due diligence to ascertain the existence of discoverable material. Therefore, the People's certification otherwise was not made in good faith.

IV. Whether the People certified, in good faith, that they had disclosed all known discoverable material

In addition, the People separately failed to establish that they properly certified they had turned over all known discoverable material. Regardless of what they may contain in any given case, the NYPD's body-worn camera audit logs themselves necessarily fall under C.P.L. § 245.20[1]. The People knew about these logs, did not disclose them, and then falsely "certified" that they had disclosed all known material.

Criminal Procedure Law § 245.20[1] requires the People to broadly disclose "all items and information that relate to the subject matter of the case" that are in their possession or the possession of police. (See also C.P.L. § 245.20[2] [deeming items in the police's possession as in the People's possession]). The ordinary, commonly accepted, and plain dictionary definition of "relate" means "to have a relationship or connection." (Relate, Merriam-Webster Dictionary [2022]). This statute's subdivision provides a list of potential related material, but that list is not exhaustive. As a result, the C.P.L. § 245.20[1] mandate "virtually constitute[s] 'open file' discovery." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). Regardless of whether something is on the list, if it "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]). Here, the body-worn camera audit logs at issue are not from some unrelated case. They are the audit logs from this case. They are the audit logs associated with the body-worn camera footage in this case. In fact, they are explicitly uploaded to Evidence.com as connected to this case. Therefore, they relate to the subject matter of this case and are covered by C.P.L. § [*7]245.20[1].[FN11]

The People, however, newly argue in their supplemental response that the word "relate" empowers them to filter to the defense only information that the prosecution believes is "relevant." (See Pr. Suppl. Resp. at 18-20). This court, and many others, disagree. "The People's opinion that material would not be useful for the defendant's investigation or relevant to proving guilt at trial is not the same as whether the material relates to the case." (People v. Payne, 75 Misc 3d 1224[A], at *3 [Crim. Ct., Bronx County 2022]). As a result, "the People's evidentiary opinions have absolutely no import in an Article 245 discovery analysis." (People v. Payne, 2023 NY Slip Op. 23101, at *2 [Crim. Ct., Bronx County 2023]). Under the statute, discovery "should not be filtered through the prosecution." (See People v. Goggins, 76 Misc 3d 898, 901 [Crim. Ct., Bronx County 2022] [same]). It "leaves no room for the People to pick and choose which documents in their case file, or the police's case file [or Evidence.com], to disclose." (People v. Amir, 76 Misc 3d 1209[A], at *5 [Crim. Ct., Bronx County 2022]). Therefore, "it is not for the People to determine what is relevant." (People v. Kennedy, 2023 NY Slip Op. 23153, at *5 [Crim. Ct., Kings County 2023]). "To permit the single-minded counsel for the accused" to only see the police file as filtered through the prosecution "impinges on counsel's ability to represent the accused." (See People v. Edwards, 74 Misc 3d 433, 443-44 [Crim. Ct., NY County 2021] [Weiner, J.] [making the same argument regarding police misconduct files]). Our criminal legal system is not an inquisitorial one. The People do not unilaterally determine that a person is guilty. The People do not choose what the accused's defense will be. And the People may not decide that materials they can access on Evidence.com are "not related 'to the subject matter of the case' simply because, in the People's estimation, they appear to be of minimal value." (See People v. Lustig, 68 Misc 3d 234, 239 [Sup. Ct., Queens County 2020]).[FN12]

As Judge Jeffrey Gershuny of this borough has observed, courts are all "aware of the extensive discovery obligations" in article 245 and "how these demands create new challenges for the People when trying to fulfill their duties." (People v. Rugerio-Rivera, 77 Misc 3d 1230[A], at *4 [Crim. Ct., Queens County 2023]). "Nevertheless, it is not the courts' role to set aside" the language of C.P.L. § 245.20[1] "and apply an artificially restrictive reading just to avoid potentially cumbersome discovery challenges for the People." (See id.). "The courts cannot apply the discovery statute in a limiting way simply because the People may not yet possess the experience, manpower or resources required to meet their lawful discovery obligations." (Id.). The statutory rights of an accused person "cannot be arbitrarily limited or diminished simply because the prosecution has logistical challenges when fulfilling the requirements." (Id.). In any event, alongside its requirements, the statute also provides the People "numerous opportunities to petition a court for relief" if they face difficult discovery problems. (People v. Amissah, 2023 NY Slip Op. 23105, at *6 [Crim. Ct., Bronx County 2023]). For instance, under C.P.L. § 245.70[2], the People may move to extend time periods for discovery. And under C.P.L. § 245.50[3], they may demonstrate "special circumstances" upon which to state ready without a proper certificate of compliance. That all said, if there was ever a case to read the statute in a limiting way to excuse some burdensome discovery obligation, this would not be the case to do it. The audit logs at issue here were plain PDF documents readily available to the People on their own Evidence.com account. And they were one of four basic categories of information that the police share with prosecutors, by default, on that video management site.

Also new to their supplemental submission, the People now argue that they displayed good-faith compliance by relying on a few lower court decisions that insulated audit logs from automatic discovery. The court rejects this argument, as well.

As an initial matter, the People's claim that they relied on these cases and so withheld the audit logs reinvents history. Indeed, the People did not even make this claim in their initial briefing. The reason the People failed to disclose these audit logs was not because, after reviewing case law and the audit logs in this case, they concluded that nothing about them was discoverable. Instead, the reason they failed to disclose the audit logs was because they arbitrarily failed to provide their line prosecutors with access to Evidence.com. As a result, the line prosecutor represented to the defense—and to this court—that the People could not even access those documents, let alone review them.

Even if the People's counterfactual series of events did happen, that would still not demonstrate good-faith compliance. Two of the three cases the People have now identified seem to misunderstand what body-worn camera audit logs are. (See People v. Soto, CR-006405-21BX [*8][Crim. Ct., Bronx County 2021]; People v. Smith, ind. no. 1866-2019 [Sup. Ct., Kings County 2020]). For instance, Soto assumes that body-worn camera audit logs "do not contain factual information about the charged crime or the perpetrator." Smith likewise assumes that "metadata like audit logs does not contain factual assertions about or descriptions of the charged activity or its perpetrators." Perhaps the records before those courts were not accurate, as the record before this court reveals that these assumptions are not true. The People, however, should not have labored under such misapprehensions. They have control over the audit logs, access to them on Evidence.com, and should have been familiar with what these documents contain.

In any event, the discovery statute mandates that the People engage in virtually open-file discovery and presume that material should be disclosed. (See C.P.L. §§ 245.20[1], [7]). To be clear, that mandate is explicit: the statute commands a "presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20." (C.P.L. §§ 245.20[7). And subdivision one of section 245.20 mandates that the People disclose "all" material related to the subject matter of the case that is in their possession. (C.P.L. § 245.20[1]). As a result, "to interpret article 245 narrowly is to flout the Legislature's unmistakable intent that it be interpreted broadly, in favor of disclosure." (Edwards, 74 Misc 3d at 439). Therefore, the People cannot wait for a court order or a court decision ordering them to produce documents that are in their case file, the police's case file, or their own Evidence.com account. Nor may the People withhold material any time they can dig up a few lower court decisions that excused such non-compliance. "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-Rivera, 77 Misc 3d 1230[A], at *2).

The People's argument here, however, advances a very different understanding of their responsibilities. In their view, so long as they can make a "colorable legal argument[]" that some material does not fall within the statute, they will withhold it. (See Pr. Suppl. Resp. at 12). But the statutory presumption means the People should not withhold evidence just because they can make a "colorable legal argument" that it does not fall within the statute. Instead, the People should disclose evidence any time there is a "colorable legal argument" that it does fall within the statute. The discovery statute requires the People to engage in information sharing, not information suppression. And they are to build mechanisms to support the free flow of information, not construct arbitrary walls that block access. The People's approach here "appear[s] more bent on constricting the discovery statute, rather than acceding to the command of the Legislature that '[t]here shall be a presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20." (Payne, 2023 NY Slip Op. 23101, at *2 [quoting C.P.L. § 245.20[7]). The People's responsibility—in entirety—is only to "diligently ascertain the existence of material" that relates to the case and then "disclose" it. (People v. Williams, 72 Misc 3d 1214[A], at *5 [Crim. Ct., NY County 2021]). It is not to withhold material and then dispute the evidentiary materiality of it.[FN13]

Now three years out from January 1, 2020, this court reminds the People what other judges have already said to them:

[I]t would serve the People well to accept that no amount of wishful quibbling or interpretation will change the plain language of the statute or obscure the obvious intent of the legislature. The People must go to trial with the discovery statute they have, not the discovery statute they might wish to have.

(People v. Rahman, 74 Misc 3d 1214[A], at *2 [Sup. Ct., Queens County 2022]). Here, the People had information about this case—shared with them by police—in their control on Evidence.com. They failed to disclose it because they arbitrarily failed to give their line prosecutors access to that information-sharing site. Then they reinvented an explanation for their non-disclosure, claiming they relied on a small number of lower court cases that insulated these documents from discovery. Even if they had so relied, they should have disclosed the information. The statute mandates they presume disclosure, not suppression. As a result, the People's certification that they had disclosed all known material was not made in good faith.

V. The C.P.L. § 30.30 calculation

Neither of the People's statements on their certificate of discovery compliance was made in good faith, and therefore the certificate was not proper. Where the People fail to exercise due diligence and do not make reasonable inquiries to ascertain the existence of discoverable material, a certificate of compliance claiming otherwise is "not filed in good faith." (LaClair, 2023 NY Slip Op. 23146, at *2; see also Guzman, 75 Misc 3d 132[A], at *3). Additionally, the People cannot, in good faith, file a certificate in which they certify they have "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (Quinlan, 71 Misc 3d 266, 271; Adrovic, 69 Misc 3d 563, 574 [same]; see also Ferro, 197 AD3d at 787-88). Both of these situations happened here.

Accordingly, the People's statement of readiness was also invalid, as such a statement "'must be accompanied or preceded by'" a proper certificate of discovery compliance. (LaClair, 2023 NY Slip Op. 23146, at *2 [quoting C.P.L. § 30.30[5]]). "Compliance with the discovery [*9]requirements of CPL 245.20 is a prerequisite to a valid statement of readiness absent the showing of 'special circumstances.'" (Guzman, 75 Misc 3d 132[A], at *3). "[I]t is well settled that office failure does not amount to special circumstances." (Id.).

The People had 90 days from commencing this case to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The People commenced the case on July 15, 2022. The People's September 12, 2022, statement of readiness was illusory as it was not preceded by a proper, good faith certificate of automatic discovery compliance. The People have never filed a valid certificate. It is the People's burden to prove that any of the time between July 15, 2022, and now "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 AD3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 AD2d 1122, 1122 [4th Dep't 1993]). Here, the People claim no C.P.L. § 30.30[4] exclusions. However, the defense concedes that its motion on November 10, 2022, tolled the clock. (Def. Mot. at 27-28). Therefore, the C.P.L. § 30.30 calculation runs from July 15, 2022, to November 10, 2022. That is 118 days, more than the 90 days the People are allowed.

As a result, the motion is granted. The case is dismissed.

Any remaining issues are moot.

The foregoing constitutes the order and decision of the court.

Queens, NY
June 1, 2023
Wanda L. Licitra, J.C.C. Footnotes

Footnote 1:To be clear, the court still disagrees with the defense that it could not allow the parties to file an additional brief after issuing its interim decision. Courts may issue interim decisions as non-final determinations on a matter. (See, e.g., Spectrum News NY1 v. NYPD, 179 AD3d 578, 578 [1st Dep't 2020] [in which a Supreme Court had issued a pre-hearing interim decision]). That is what makes a decision an interim one—after all, an "interim" is only "an intervening time" or an "interval." (Interim, Merriam-Webster Dictionary [2023]). Therefore, there is no reason why this court could not permit additional briefing after its non-final interim decision.

Footnote 2:Throughout the briefing, the parties and the court have interchangeably used the phrases "audit trail" and "audit log." The defense argues that "audit log" more accurately captures what these documents are—a PDF log of actions by police officers. The court agrees and will also now consistently use the phrase "audit log."

Footnote 3:See generally myAxon, Sharing Case Outside Your Agency, https://my.axon.com/s/article/Subset-Case-Sharing-Enabled [cited in Def. Suppl. Reply].

Footnote 4:Id.

Footnote 5:The court credits the defense's statement that this document, submitted as an exhibit, was produced by the NYPD in response to a journalist's Freedom of Information Law request. (See Def. Suppl. Resp. at 6-7). That request sought the "user manual and any supplemental appendices, exhibits, indices, and auxiliary documentation for the use and operation of the body camera (or cameras) employed by officers and representatives" of the NYPD. (See id. [citing MuckRock, Body Camera User Manual and Supplemental Records (New York City Police Department), https://www.muckrock.com/foi/new-york-city-17/body-camera-user-manual-and-supplemental-records-new-york-city-police-department-79305/#files]).

Footnote 6:To fully illustrate the evidence audit log, an example submitted and annotated by the defense is cached at https://nycourts.gov/reporter/webdocs/people-v-torres-footnote-6-exhibit.pdf.

Footnote 7:To fully illustrate the device audit log, an example submitted and annotated by the defense is cached athttps://nycourts.gov/reporter/webdocs/people-v-torres-footnote-7-exhibit.pdf.

Footnote 8:Although the parties have added detail about what these audit logs contain in their supplemental briefing, this key point remains unchanged and undisputed.

Footnote 9:The annotated screenshot is cached at https://nycourts.gov/reporter/webdocs/people-v-torres-footnote-9-exhibit.pdf.

Footnote 10: For an example of how such a standard fails abysmally to function, see critiques of United States v. Armstrong, 517 U.S. 456 [1996]. In that case, the U.S. Supreme Court imposed a burden on the defense to show "a credible showing" of selective prosecution before they could obtain discovery to support a selective prosecution claim. The result is that selective prosecution claims are now "virtually impossible to prove." (E.g., Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 932 [1997]).

Footnote 11:Though academic because the C.P.L. § 245.20[1] list is not exhaustive, the plain terms of C.P.L. § 245.20[1][u][i][B] cover the audit logs. That provision requires the People to disclose a "copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from . . . a source other than the defendant which relates to the subject matter of the case." The body-worn camera audit logs are "electronically created" information "obtained by" or "on behalf of" the police. The People's argument that they are "automatically generated" by the camera is wrong and irrelevant. (See Pr. Suppl. Resp. at 17). It is wrong because the police create at least some of the data found in the audit log by manually inputting it. It is irrelevant because to the extent that any of the information found in the logs is "automatically generated," it is automatically generated because police used a police camera. It is therefore "obtained by" the police.

Footnote 12:That the People cannot foresee why audit trails could "possibly relate to the subject" of this case, (see Pr. Suppl. Resp. at 20)—despite not actually reviewing them—illustrates exactly why the statute does not empower them to filter discovery for what they believe is relevant. In any case, the audit logs provide important avenues for investigation for either party. They could show whether the police have failed to disclose any footage. They could show why something was not recorded, whether it was because the battery died or the officer intentionally omitted it. And they could show whether and when an officer, other officers, or supervisors reviewed the footage. (See generally Harlan Yu, The Details Beyond Body-Worn Camera Footage, 43 Champion [July 2019]). That the People fail to appreciate any of this is exactly why the single-minded counsel for the accused is entitled to develop its own view about the value of evidence.

Footnote 13:If the People have a genuine concern that some information in their files should not be disclosed for some reason, the statute provides them a court "process" to "follow." (E.g., People v. Best, 76 Misc 3d 1210[A], at *7 [Crim. Ct., Queens County 2022]). They must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Id.; People v. Demonia, 74 Misc 3d 752, 759 [County Ct., Ulster County 2022] [same]; see also C.P.L. § 245.10[1] ["Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70."]; C.P.L. § 245.70 [providing for motions for protective orders]). Here, the People did not even attempt to follow that process. Instead, they did what they "may not do"—they "file[d] a certificate of compliance in which they claim[ed] to have exercised due diligence and 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]; People v. Adrovic, 69 Misc 3d 536, 574 [Crim. Ct., Kings County 2020] [same]).