People v Hubela
Annotate this CaseDecided on November 14, 2023
Criminal Court of the City of New York, Queens County
The People of the State of New York,
against
Hubela, Defendant.
Docket No. CR-0008425-23QN
For the People: Melinda Katz, District Attorney (by Aaron Kane)
For Mr. Hubela: Milton Florez, Esq. Wanda L. Licitra, J.
In January 2020, our legislature revised the criminal procedure law to impose substantial discovery duties on the People as a prerequisite to their trial readiness. This new statutory structure sought to eliminate the "trial by ambush" regime in which the People could provide discovery to the defense only "minutes before trial was to begin." (People v. McMillian, 71 Misc 3d 374, 380 [Crim. Ct., Bronx County 2021]). Under this structure, before the People may state ready for trial, they must first file a proper, good-faith certificate of automatic discovery compliance. (C.P.L. §§ 245.50[3], 245.50[1], 30.30[5]). In that document, they must certify that they have complied with their automatic discovery duties. (C.P.L. § 245.50[1]).
Those duties are laid out in C.P.L. § 245.20[1] and C.P.L. § 245.20[2]. They include—under the subsection entitled "[d]uties of the prosecution"—that the People make "a diligent, good faith effort to ascertain the existence" of discoverable material and "cause" it to be "made available for discovery" where it "exists but is not within the prosecutor's possession, custody or control." Afterwards, the People must certify in their certificate of compliance that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (C.P.L. § 245.50[1]). They must also certify they have "made available all known material and information subject to discovery." (Id.).
The People cannot, in good faith, certify compliance with these duties if they did not in fact do them. (E.g., People v. Hamizane, 80 Misc 3d 7, 11-12 [App. Term, 2d Dep't 2023] [certificate not in "good faith" because "none of the People's submissions ... showed that the People had attempted to obtain any police disciplinary records, or attempted to find out whether any such records existed"]; People v. Rahman, 79 Misc 3d 129[A], at *2 [App. Term, 2d Dep't 2023] [certificate "not filed in good faith" because the People, in fact, "failed to exercise due diligence and make reasonable inquiries to ascertain the existence of FDNY/EMS records"]; People v. LaClair, 79 Misc 3d 8, 11 [App. Term, 2d Dep't 2023] [certificate was "not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to ascertain the identities of all law enforcement witnesses related to the [*2]case"]; People v. Guzman, 75 Misc 3d 132[A], at *3 [App. Term, 2d Dep't 2022] [certificate "was not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to obtain [a dashcam] video"]).
The defense here has filed a C.P.L. § 30.30 motion. They allege that the People did not file a proper, good faith certificate compliance before stating ready for trial within the statute's allotted timeframe. Since the most serious offense the People charge is a class A misdemeanor, they were required to state ready for trial within ninety days of commencing the action. (C.P.L. § 30.30[1][b]). The People, in response, must now establish that they have met their burden. (See Hamizane, 80 Misc 3d at 11-12 [noting that "the People failed to demonstrate" that their certificate was "filed in good faith"]).
The relevant facts are not in dispute. On March 25, 2023, the People commenced this case, charging Mr. Hubela with third-degree assault and second-degree harassment against a person named Mr. Robles in December of 2022. They also charged Mr. Robles for the same incident. Ninety days later, the People filed a certificate of compliance and stated ready for trial. However, before doing so, the People had never directly spoken to Mr. Robles. (See Pr. Resp. at 2). Instead, they had only spoken to Mr. Robles' criminal defense attorney and to the Queens prosecutor assigned to Mr. Robles' cross-prosecution. The People provide no detail about the substance of those communications. (See id.).
On October 4, 2023, the court was ready to call a jury panel to the courtroom and begin voir dire as scheduled. However, earlier that same day, the People, apparently for the first time due to "the upcoming trial," had finally spoken with Mr. Robles directly. (Id.). Upon doing so, they learned that Mr. Robles had taken two photos relating to this incident. They also learned the names and contact information of three witnesses to the allegations, all of whom had made written statements about what they claimed to have seen. Right before jury selection, the People disclosed all this information to the defense.
Before the January 2020 revisions to the criminal procedure law, this series of events may have presented no problem for the People's readiness. Back then, the People could state ready even with little contact with their complaining witness. (See, e.g., People v. Migliaccio, 64 Misc 3d 139[A], at *3 [App. Term, 2d Dep't 2019]). At the time, when the People answered ready for trial, it was a representation simply that "the People have their witnesses available and willing to proceed, and that they have the evidence they need to proceed." (People v. Khachiyan, 194 Misc 2d 161, 165 [Crim. Ct., Kings County 2002]). That meant little more than that the People were generally "prepared to present a prima facie case." (People v. Bargerstock, 192 AD2d 1058, 1058 [4th Dep't 1993]; see also People v. Young, 46 Misc 3d 142[A], at *2 [App. Term, 2d Dep't 2015] ["[T]he transcript of the NYCHA hearing which [the People] subsequently sought to obtain was not necessary to make out their prima facie case."]).
The statutory requirements are very different now. When discoverable material "exists but is not within the prosecutor's possession, custody or control," the People now have a "[d]ut[y]" to make a "diligent, good faith effort" to "ascertain" its existence. (C.P.L. § 245.20[2]; see also C.P.L. § 245.50[1] [requiring the People to certify having made that diligent effort]). This must be done before stating ready for trial. (See C.P.L. §§ 245.50[3], 30.30[5]). It is difficult to see how the People can be said to have discharged that duty without ever having spoken to the complaining witness before stating ready. Even assuming, arguendo, that they could have done so here by speaking only with the complainant's attorney, the People provide no information about those communications on which the court could find such diligence. But as [*3]many courts have held, "assessing . . . due diligence requires the People to demonstrate how due diligence was exercised." (People v. Critten, 2022 NY Slip Op. 51315[U], at *3 [Crim. Ct., NY County 2022] [internal quotation marks omitted]). This requires the People to show a "factual basis" for a court to find "due diligence." (People v. McKinney, 71 Misc 3d 1221[A], at *7 [Crim. Ct., Kings County 2021]; see also People v. Carrillo, 75 Misc 3d 1227[A] [Crim. Ct., Bronx County 2022] [same]; People v. Vargas, 76 Misc 3d 646, 652 [Crim. Ct., Bronx County 2022] [same]; People v. Higgins, 75 Misc 3d 1232[A], at *3 [City Ct., City of Yonkers 2022] [same]).
In any event, the record here strongly suggests that the People did not, in fact, exercise due diligence to ascertain the existence of discoverable material before stating ready. The witness statements at issue were dated in January of 2023—three months before the People even commenced this case. And the People do not claim that the complainant's attorney refused to let them speak with his client before stating ready. Indeed, the People do not even state that they ever even requested to do so before stating ready. Instead, it appears that the People only made efforts to speak to Mr. Robles once it became apparent that a trial was only a couple days away. (See Pr. Resp. at 2 [articulating efforts to speak with Mr. Robles beginning only on October 2, 2023, two days before jury selection]).
As such, the People's statement of readiness was illusory because their certificate of automatic discovery compliance was not filed in good faith. Despite affirming otherwise, the People did not, in fact, exercise due diligence and make reasonable inquiries to ascertain the existence of discoverable material. The People had not, in fact, made a diligent, good faith effort to ascertain the existence of discovery that was not in their possession, custody, or control.
The People commenced this case on March 25, 2023. They had ninety days thereafter to validly state ready for trial. (C.P.L. § 30.30[1][b]). The People's statement of readiness within those ninety days was illusory as it was not preceded or accompanied by a good-faith certificate of discovery compliance. It is now the People's burden to prove that any time "should be excluded" under C.P.L. § 30.30[4] 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 do not claim even a single such exclusion. (See generally Pr. Resp.). Nonetheless, the defense concedes it requested a motion schedule on October 4, 2023, thereby tolling the clock. (See C.P.L. § 30.30[4][a]). Therefore, the C.P.L. § 30.30 calculation runs from March 25, 2023, to October 4, 2023. That is 193 days, more than the 90 days the People are allowed.
The case must therefore be dismissed. (See C.P.L. § 30.30[1][b]).
The foregoing constitutes the order and decision of the court.
Dated: November 14, 2023Queens, NY
Wanda L. Licitra, J.C.C.
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