People v Thompson
Annotate this CaseDecided on July 6, 2023
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
Delano Thompson, Defendant
Dkt: CR-028785-22KN
For the People:
Maura Arnold, Law Graduate
Lauren Moore, Assistant District Attorney
Office of the Kings County District Attorney For the Defendant:
Luke Schram, Attorney at Law
The Legal Aid Society Joshua Glick, J.
Procedural History:
The matter was commenced with the filing of a felony complaint on October 7, 2022. It charged defendant with two (2) incidents: The first time and place of occurrence (TPO) was on October 6, 2022, between 6:15 PM and 7:33 PM, at XXX East 98th Street, apartment B6, in Kings County. Defendant is charged with Assault in the Third Degree, pursuant to Penal Law (PL) § 120.00(1), a class A misdemeanor, and related charges. In this TPO, defendant is alleged to have punched the informant, and to have refused to let the informant leave the bedroom.
The second TPO was on October 7, 2022, between 1:08 AM and 1:40 AM, at the same address as above.[FN1] Defendant is charged in this TPO with Criminal Possession of a Controlled Substance in the Third Degree, pursuant to PL § 220.16(1), a class B felony, and related charges. Defense counsel informs the court that the charges in the second TPO stem from the execution of a search warrant.
On March 1, the court dismissed the felony count, PL § 220.16, in the second TPO, and on June 2, this court dismissed the remaining counts relating to the second TPO.
The People filed and served discovery, along with a Certificate of Compliance (COC) [*2]and a Statement of Readiness (SOR) on April 5, 2023.
On April 28, a motion schedule was set by the court at defendant's request, and on or about May 22, the defendant moved to dismiss the charges.
The People oppose the motion in its entirety.
Parties' Contentions:Defendant argues that the People failed to provide four items of discovery: 1. Search Warrant Application; 2. Search Warrant Minutes; 3. Search Warrant; and 4. New York Police Department (NYPD) Snapshot of defendant. Defendant's Affirmation, ¶12.
Defendant contends that the People did not provide the search warrant material as of the date they filed their COC/SOR on April 5, 2023. Defendant points out that while the People moved to dismiss the remaining counts of the second TPO on the date they filed their COC/SOR, on April 5, 2023, these counts were not actually dismissed by the court until June 2.
Counsel further contends that that a 911 call from the complainant served as the basis for the issuance of the search warrant. Counsel points out that the police did not recover the firearm the informant alleged would be recovered with the enforcement of the search warrant. Counsel asserts that "[t]he credibility of [complainant] is material to the case against [the defendant] as a conviction relies on her credible testimony". Id. at ¶ 32 (emphasis in the original).
Counsel argues that therefore, the People were not in compliance with their discovery obligations when they filed their COC/SOR, making their COC/SOR illusory.
Defendant concludes that "[i]n this case, more than 203 days of includable time have thus far elapsed since the commencement of the action", and the matter must, therefore, be dismissed. Id. at ¶ 30.
The People counter that their COC and SOR were valid and were timely served on April 5. They argue specifically, that "[t]he People complied with their discovery obligations . . . by disclosing all discovery in the People's possession that relates to the subject matter of this case". People's Affirmation, pg. 5. They contend that the search warrant material pertains to a TPO and to charges that were all dismissed, and therefore, the search warrant material does not relate any longer to the subject matter of this case.
Court's Discussion:
Defendant was charged initially with a felony. In this matter, pursuant to Criminal Procedure Law § 30.30(7)(c), the People had six (6) months from filing of the felony complaint to be ready for trial. The six (6) months ran from October 7, 2022, to April 6, 2023, (barring excludable time) for a period of 181 days.
The People do not argue and have not shown any time from the filing of the accusatory instrument to the date they served and filed the COC on April 5, to be excludable.
There is no clear consensus on how to define what material "is related to the subject matter of the case". CPL §245.20(1). Here, the People argue that since the charges from which the search warrant material stemmed have all been dismissed, the search warrant material is no longer relevant to the remaining TPO.
However, the court finds that the two TPO's are related and that the search warrant material is "reasonably likely to be material" especially when determining the credibility of the complainant. CPL § 245.30(3); People v. Hirsch, 2023 Slip Op. 23185 (Sup. Ct., Queens County); People v. Castellanos, 72 Misc 3d 371, 377 (Sup. Ct., Bronx County 2021). [*3]"Impeachment evidence has never been restricted to material related only to the particular case" (internal citations omitted).
The above notwithstanding, courts should not invalidate a COC where the delay resulted from minor oversights in the production of certain items, or a good faith position that the material in question was not discoverable. See, People v. Georgiopoulos, 71 Misc 3d 1215(A), (Sup. Ct., Queens County 2021); accord, People v. Barralaga, 73 Misc 3d 510 (Crim. Ct., New York County 2021), "The statute does not require the impossible; it does not demand that every scrap of discoverable information be turned over before the People may file a certificate. . . But it does demand that the People use due diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC" at 514; see also, People v. Deas, 75 Misc 3d 190 (Sup. Ct., Westchester County 2022).
The People did not provide the search warrant and related search warrant material on a good faith belief that it was not material or relevant. The court will, therefore, not dismiss the charges on this basis.
The People do not address the remaining outstanding item of discovery, the NYPD snapshot of defendant.
The court orders, therefore, that the People should provide these items of discovery to the defense within 10 days of the date of this decision and order.
Conclusion:This Court finds that the People are charged with 180 days of their 181 days of speedy trial time.
Defendant's motion to dismiss is, therefore, denied.
Pursuant to the discussion and findings, the prosecution shall timely provide the items of discovery as provided above within ten (10) days of the date of this decision.
This constitutes the Decision and Order of the Court.
Dated: Brooklyn, New York
July 6, 2023
JOSHUA GLICK, J.C.C. Footnotes
Footnote 1: Defense counsel incorrectly states that defendant is charged in "[t]he second TPO on October 6 [sic], 2022, at 7:15 PM [sic]" Defendant's Affirmation, ¶5.
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