People v. Alvia

• Decision Date: 01 August 2022
• Docket Number: Docket No. CR-003225-22BX
• Citation: 172 N.Y.S.3d 892
• Parties: The PEOPLE of the State of New York v. ALVIA, Defendant.
• Court: New York Criminal Court

172 N.Y.S.3d 892

The PEOPLE of the State of New York

v.ALVIA, Defendant.

Docket No. CR-003225-22BX

Criminal Court, City of New York, Bronx County.

Decided on August 1, 2022

For the People: Darcel Clark, District Attorney of Bronx County (by ADA Allyson White)

For Ms. Alvia: The Bronx Defenders (by Rachna Agarwal)

Wanda L. Licitra, J.

The defense moves to deem the People's statements of readiness invalid, arguing those statements were not predicated upon a proper certificate of discovery compliance ("COC"). They claim that when the People filed their COC, the People had not actually produced all the material listed on it. Specifically, they allege that the People did not actually produce body-worn camera footage, the Intoxicated Driver Testing Unit ("IDTU") video, and impeachment information about a police witness, Officer Johan Hernandez.

The People respond that they did actually produce the body-worn camera footage and IDTU video. However, they concede that they "inadvertently failed to place" some impeachment information about Officer Hernandez into the digital folder they sent to the defense. They also concede that they did not produce underlying documents relating to an Internal Affairs Bureau ("IAB") allegation against Officer Hernandez.

For the following reasons, the defense's motion is GRANTED.¹

LEGAL ANALYSIS

i. The IDTU video and body-worn camera footage

The Court concludes, with reservations, that the People actually produced the IDTU and body-worn camera videos. Controlling on this Court,² the Appellate Division has held that the filing of a COC "[can]not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant [is] actually produced to the defendant." ( People ex rel. Ferro v. Brann , 197 A.D.3d 787, 787-88, 153 N.Y.S.3d 194 [2d Dep't 2021] [emphasis added]; see People v. Francis , 2022 N.Y. Slip Op. 50655[U], at *2-*3, 2022 WL 2840487 [Crim. Ct., Bronx County 2022] [analyzing Ferro ]).

The defense submits various internal emails from the Bronx Defenders between attorneys and "the Bronx Defenders discovery hub" indicating that they cannot find these videos. (See generally Def. Reply 1-3; id. Exs. A-G). From these emails, the defense concludes that "the Bronx Defenders office never received this footage." (Def. Reply at 4). However, these emails do not establish that. They establish only that the defense attorney and the manager for the Bronx Defenders "discovery hub" do not recollect seeing and cannot find the missing files. (See id. Exs. A-G).

But the question of whether the defense has seen or can find discovery is not necessarily the same as whether the People "actually produced" it. To "produce" means "to offer to view." (Produce , Merriam-Webster Dictionary [2022]). Similarly, to "disclose"—which is the word the discovery statute uses—means "to expose to view." (Disclose , Merriam-Webster Dictionary [2022]). There are myriad situations in which the People could have produced discovery, but the defense may nonetheless be unable to find it in their files. For instance, the defense may inadvertently delete it. Or the defense's management system may be defective. Or the defense may look in the wrong place. To be sure, a defense attorney's affirmation that they have not seen or cannot find some discovery suggests that the People never produced it. But it is not dispositive.

Here, the People provide seven Axon "Evidence Audit Trails" indicating that they actually produced the body-worn camera and IDTU videos to the defense. (See Pr. Resp. Ex. 1). Each audit trail is associated with one video. (See id. ). The audit trails detail when each video file was "converted," "added" to a "case," and copied from the police to the People. (See id. ). Each also notes when a person was "granted" "access" to the video, when and with whom it was "shared," and the "permissions" given to each of those persons. (See id. ). These audit trails establish that the People produced the videos to Bronx Defenders email addresses on April 22, 2022, and May 10, 2022, before the People filed their COC. (See id. ).³

In this case, the Court accepts the People's Evidence Audit Trail data as dispositive, but it does so with reservations. Criminal Procedure Law § 245.20[1] requires that the People "disclose" automatic discovery "and permit " the defense to "copy, photograph and test" the items. In other words, simply allowing the defense to view a discoverable file does not fulfill the statute—the People must also grant the defense sufficient control over the file to "copy, photograph and test" it. Here, the Axon Evidence Audit Trails report that the People gave the Bronx Defenders "permissions to View" the files on April 22, 2022, and May 10, 2022, but did not give the Bronx Defenders "permissions to View and Download " them until May 23, 2022. (See Pr. Resp. Ex. 1 [emphasis added]).⁴ It may be that only allowing the defense to "view" but not "view and download" a discoverable file does not meet the statutory command that the defense be allowed to "copy, photograph and test" disclosed items. However, neither party has identified this discrepancy as an issue or explained what the Axon permissions mean. The Court cannot decode these technical terms on its own. As a result, on the existing record, the Court reservedly concludes that the People actually produced these videos to the defense, as the statute requires.

ii. Impeachment information for the People's police witness

The issue of the missing impeachment information is more straightforward. The People have an automatic discovery obligation to disclose information "that tends to ... impeach the credibility" of their witnesses. ( C.P.L. § 245.20[1][k][iv] ). That includes information that is in their possession and information that is "known to police." (Id. ). On their COC, the People listed a "Disclosure Letter" and "Lawsuit Information" regarding misconduct by one of their police witnesses, Officer Johan Hernandez. (Def. Reply Ex. B). The People concede that they "inadvertently failed to place" that Disclosure Letter and Lawsuit Information "in the OneDrive" they sent to the defense. (Pr. Resp. at 6-7). The People note that their failure to disclose was "a complete accident and in advertent [sic] mistake." (Id. at 6). The People also concede that they did not produce, on purpose, "underlying document[s]" for "IAB Log No. 18-15083," an "unsubstantiated allegation of Fado Discourtesy." (Id. at 7).

First, the People's COC was not proper because they failed to "actually produce" the "Disclosure Letter" and "Lawsuit Information" identified on their COC. Ferro applies straightforwardly here, and it controls. The People's COC "could not be deemed complete" for speedy-trial purposes until the "material and information identified in the certificate" was "actually produced to the defendant." ( Ferro , 197 A.D.3d at 787-88, 153 N.Y.S.3d 194 ).

The Court rejects the People's argument that "good faith" or "due diligence" may render a COC proper even if they fail to produce automatic discovery. The Court has explained in depth why the statute precludes such a claim. (E.g. , People v. Vargas , ––– N.Y.3d ––––, 171 N.Y.S.3d 877, 879-82, ––– N.E.3d –––– [Crim. Ct., Bronx County 2022] ; People v. Carrillo , ––– N.Y.3d ––––, 171 N.Y.S.3d 828, ––– N.E.3d –––– [Crim. Ct., Bronx County 2022] ).

Criminal Procedure Law §§ 245.50[1] and [3] define a "proper" COC, necessary to stop the speedy-trial clock, as one filed "[w]hen the prosecution has provided" automatic discovery. And the adverse-consequence bar does not apply to speedy-trial analyses. ( Vargas , ––– N.Y.3d ––––, 171 N.Y.S.3d 877, 879-82, ––– N.E.3d –––– [collecting cases holding the same]). Indeed, earlier this year, the Legislature rejected an amendment to the adverse-consequence bar that would have applied it. ( Carrillo , 2022 N.Y. Slip Op. 50680[U], at *4, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– ; see also Amer. Airlines, Inc. v. State Comm. for Human Rights , 29 A.D.2d 178, 286 N.Y.S.2d 493 [1st Dep't 1968] ["In addition, the rejection by the Legislature of the amendments ... sought by the Commission ... is significant circumstance against the construction sought by [them]."]).

Moreover, the People's argument otherwise contradicts the Appellate Division's decision in Ferro . The Appellate Division decided that case "[c]ontrary to the People's contention" of good faith and due diligence. (See Ferro , 197 A.D.3d at 787-88, 153 N.Y.S.3d 194 ; Pr. Br. at 22-23, People ex rel. Ferro v. Brann , 197 A.D.3d 787, 153 N.Y.S.3d 194 [Aug. 18, 2021] [where the People contended the lower court correctly held their COC proper because they exercised good faith and due diligence]).

Second, even setting aside the People's "inadvertent[ ]" error, they also concede that they intentionally failed to disclose underlying documents relating to Officer Hernandez's IAB matter # 18-15083. (See Pr. Resp. at 7). They do not explicitly justify this failure—they only note that it relates to an "unsubstantiated allegation of Fado Discourtesy." (Id. ). "FADO" is an acronym in police discipline that usually means "Force, Abuse of Authority, Discourtesy, and Offensive Language."⁵

The discovery statute mandates that the People disclose "all" impeachment information relating to their police witnesses that is in their possession or "known to police." ( C.P.L. § 245.20[1][k][iv] ). The First Department has held the same. (See Matter of Jayson C. , 200 A.D.3d 447, 159 N.Y.S.3d 40 [1st Dep't 2021] ; People v. Polanco-Chavarria , 74 Misc. 3d 1210(A), at *4, 2021 WL 6884862 [County Ct., Rockland County 2021] [analyzing Jayson C. ]). This Court and many others have explained that the statute's command includes "unsubstantiated" allegations—a technical term that simply means no factual determination was made. (E.g. , People v. Spaulding , 75 Misc. 3d 1219[A], at *2, 2022 WL...