People v. Audino

• Decision Date: 07 June 2022
• Docket Number: Docket No. CR-025399-21NY
• Citation: 75 Misc.3d 969,172 N.Y.S.3d 569
• Parties: The PEOPLE of the State of New York, v. Frank AUDINO, Defendant.
• Court: New York Criminal Court

75 Misc.3d 969
172 N.Y.S.3d 569

The PEOPLE of the State of New York,
v.
Frank AUDINO, Defendant.

Docket No. CR-025399-21NY

Criminal Court, City of New York, New York County.

Decided on June 7, 2022

Margaret DaRocha, New York County Defender Services, for defendant.

Alvin Bragg (Alexander Bourdakos of counsel), New York, for the People.

Eric Schumacher, J.

75 Misc.3d 970

Motion by defendant Frank Audino for an order deeming the prosecution's certificate of compliance improper under CPL 245.50(1) and dismissing the information pursuant to CPL 30.30(1)(b) and 170.30(1)(e) is granted.

BACKGROUND

Defendant pleaded not guilty to a top charge of Penal Law § 120.14, menacing in the second degree, a class A misdemeanor, at the arraignment on October 28, 2021. The court released defendant on recognizance, and defendant is at liberty.

As is relevant here, on January 25, 2022, the prosecution filed off-calendar a certificate of compliance, certificate of readiness, automatic discovery form and notice pursuant to CPL 710.30, and discovery list. On March 1, 2022, defendant filed this motion for an order deeming the prosecution's certificate of compliance improper under CPL 245.50(1) and dismissing the information pursuant to CPL 30.30(1)(b) and 170.30(1)(e).

Defendant argues, in sum and substance, that the defense has not received the radio runs, nor the audio of a certain August 20, 2021 call to 911, nor the audio of the September 7, 2021 identification proceeding, as required under CPL 245.20(1)(g). Defendant further argues that the prosecution has failed to produce any "bodyworn [sic] cameras, handwritten notes, memo books, [or] notes" in connection with the subject incident, despite that the officers involved were notified regarding the case (defendant's affirmation in support at 9). Defendant then states that "[i]t appears that there was no effort made to contact any of these officers prior to the People certifying their compliance with discovery" (id. ). Defendant further argues that the prosecution has failed to produce the complaining witness's

75 Misc.3d 971

video of the subject incident as required under CPL 245.20(1)(e) and (k).

Defendant cites to this court's decision and order in People v. Ramirez, 73 Misc.3d 664, 155 N.Y.S.3d 537 (Crim. Ct., N.Y. County 2021, Schumacher, J.). That decision granted the defendant's motion to deem a certificate of compliance improper

172 N.Y.S.3d 571

and dismiss pursuant to CPL 30.30 where the prosecution had failed to produce certain enumerated initial discovery, specifically photographs of the subject incident, having taken the position that such discovery was duplicative and of lesser value than certain body-worn camera footage of the subject incident that had already been produced to the defendant. This court rejected the prosecution's arguments and held that the prosecution was required to produce all enumerated initial discovery, noting that "it is not for the prosecution to select which discoverable material is of most value to the defense" ( id. at 668, 155 N.Y.S.3d 537 ).

The prosecution argues in opposition that, at the January 28, 2022 appearance, the court directed defendant to confer with the prosecution as to any missing discovery and to file a motion if a resolution was not reached, but that defendant filed the motion without conferring.

As to the CPL 245.20(1)(g) material, the prosecution affirms that:

"[a]fter the People received Defense Counsel's motion to deem the People's Certificate of Compliance invalid, the People discovered that the following items of discovery which should have been disclosed had not been provided to Defense Counsel: (1) a 911 Call and Radio Runs made on August 20, 2021 in connection with the case (incident date), (2) Radio Runs made on October 27, 2021 in connection with this case (arrest date), and (3) memo-books of NYPD Officers who originally responded on scene the date of the Menacing incident. The People subsequently gathered all missing discovery and turned it over to [the] defense on March 29, 2022 before the filing of this response."

(The prosecution's affirmation in opposition ¶ 11.)

As to the complaining witness's video of the subject incident, the prosecution affirms:

"[i]n early May, the People and Defense Counsel continued negotiations in regards [sic] to this case and Defense Counsel raised concerns to the People

75 Misc.3d 972

that the video taken by the victim on the date of the incident had yet to be disclosed by the People. Being under the impression that this video had previously been disclosed in January with the initial discovery, the People communicated their belief that Defense Counsel was already in receipt of said video. After further investigation, the People were made aware that the video itself was not disclosed and subsequently disclosed said video."

(Id. ¶ 12.)

The prosecution "concede[s] that the four above-listed discovery materials should have been turned over with the initial discovery disclosures made on January 25" (id. at 6). The prosecution argues, in sum and substance, that the delayed disclosure of this missing initial discovery is the result of minor production oversights and constitutes unintentional error. The prosecution affirms that the "Discovery Packet served on Defense Counsel reflected the existence of the undisclosed discovery items, and upon learning of the failure to provide these discovery documents the People immediately began to remedy their error by gathering all undisclosed discovery and subsequently disclosing [it] to the defense" (id. at 5).

The prosecution affirms, as to the radio runs and 911 call audio from the date of the incident, that it disclosed their existence to defendant on January 25, 2022, but that the assigned ADA requested the records from the NYPD for August 27, 2021, instead of the correct date of August 20, 2021, and this resulted in the NYPD

172 N.Y.S.3d 572

rejecting the request. The prosecution further affirms that it did not learn of this mistake until receiving the moving papers, at which point it immediately requested the records correctly. The prosecution argues that it would have obtained these records sooner had defendant conferred with the prosecution.

As to the radio runs from the date of arrest, the prosecution affirms that it also disclosed their existence on January 25, 2022, but that, although it possessed these radio runs as of January 5, 2022, it failed to produce them due to an oversight amounting to a production error. The prosecution then argues that it would have produced these records sooner had defendant conferred with the prosecution.

As to the missing memo books, the prosecution affirms that it had failed to obtain them...