People v. Ballard
| Docket Number | Docket No. CR-002769-23QN |
| Decision Date | 14 December 2023 |
| Citation | 2023 NY Slip Op 23392 |
| Parties | The People of the State of New York v. Shaniece Ballard, Defendant. |
| Court | New York Criminal Court |
For the People, Melinda Katz, Queens District Attorney's Office (by Leanna Samson)
For Ms. Ballard, Twyla Carter, The Legal Aid Society (by Jennifer Liles).
The defendant's motion to dismiss for insufficient discovery disclosure is GRANTED.
On January 28, 2023, the People filed an accusatory instrument charging the defendant with the top count of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [3]). The defendant was arraigned later that day. The People filed a certificate of compliance (COC) and statement of readiness on April 10, 2023.
The defendant moves to dismiss on the ground that the People's statement of readiness is illusory because they have failed to provide discovery required under CPL 245.20. In particular, the defendant challenges the People's discovery compliance based on withheld underlying police disciplinary records and bodyworn camera (BWC) audit trails. For the reasons discussed below, this Court holds that underlying police disciplinary records for testifying police witnesses and BWC audit trails (also known as "audit logs") are automatically discoverable pursuant to CPL 245.20 (1) (e), (k), (u) (i) (B). Therefore, the People's COC and statement of readiness is invalid without disclosing those records.
The defendant challenges the validity of the People's COC for missing underlying police disciplinary records as to testifying-witness Officer Walter Ebbitt. The People respond that their COC filed without Officer Ebbitt's underlying police disciplinary records, which were not in their actual possession, should remain valid because it was filed in good faith after exercising due diligence. [1] The People also state that they relied on trial-level case law at the time they filed their COC to support their position that underlying police disciplinary records are not discoverable.
CPL 245.20 (1) (k) creates the automatic duty to disclose "all evidence and information" which tends to "(iv) impeach the credibility of a testifying prosecution witness." Despite differing trial-level opinions, the statutory language of CPL 245.20 (1) (k) is clear and unambiguous and has been the law since its enactment on January 2020. [2] "All evidence and information" that tends to impeach does not call for a summary of that information, but instead makes discoverable the underlying information itself (see People v Hamizane, 80 Misc.3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] citing Matter of Jayson C, 200 A.D.3d 447, 449 [1st Dept 2021]; People v Rodriguez 77 Misc.3d 23 [App Term, 1st Dept 2022]). The People were on notice with the passing of the statute on April 12, 2019 [3], that any information in their possession which tends to impeach is automatically discoverable for any testifying prosecution witness.
The People's argument that they were not in possession of Officer Ebbitt's underlying police disciplinary records is not supported by law. The discovery statute clearly states "all items and information related to the prosecution of a charge in the possession of any New York State or local police or law enforcement agency shall be deemed in the possession of the prosecution" (CPL 245.20 [2]). The People have designated Officer Ebbitt as a testifying witness, directly responsible for the prosecution of the charges; his missing disciplinary records include NYPD Internal Affairs Bureau (IAB) reports for two allegations. These documents, which tend to impeach and are created by law enforcement, are in the People's possession per the statute (id.).
The People also argue that the IAB allegations against Officer Ebbitt do not pertain to the subject matter of the case, and are therefore not automatically discoverable. "Impeachment evidence is not limited to what is related to the subject matter of the charges against a defendant" (People v Hamizane, 80 Misc.3d at 11 [citations omitted]). The credibility of a testifying witness will always come within the bounds of the subject matter of a case, despite impeachment material reflecting facts extrinsic from the charges themselves (Harris v The City of New York, 2019 NY Slip Op 31450[U] [Sup Ct, NY County 2019] ["It is by now an immortal principle that the credibility of a witness is always in issue, and evidence which tends to impeach it, or to demonstrate the probability of the truth of his [or her] testimony, is relevant."] [internal quotations omitted]).
For these reasons, Officer Ebbitt's underlying police disciplinary records were automatically discoverable.
The defendant also challenges the People's COC for missing audit trails for BWC videos taken during her arrest. The People argue that this material is not automatically discoverable because audit trails do not pertain to the subject matter of the case or fall within any subsections of the discovery statute. The Court was unable to determine the nature and content of audit trails based on the parties' motions and held an evidentiary hearing on October 18, 2023.
At this evidentiary hearing, the People called as a witness Allison Arenson, who is executive agency counsel and Director of the NYPD BWC Unit Legal Bureau. She has been in that role since 2017. Ms. Arenson's unit is responsible for assisting with all discovery requests for BWC information, including sharing evidence with district attorney's offices federal prosecutors, civil law departments, and oversight agencies. The Court finds the People's witness to be credible, and extremely knowledgeable about NYPD BWC protocols and the audit trails created by police in all five boroughs of the city.
Ms. Arenson testified that all cameras used by the NYPD are bought from the same company: Axon. All videos are uploaded to evidence.com, a cloud-based software system used by Axon for the storage of NYPD audio and camera footage. NYPD manage their videos using evidence.com. Officers attend a one-day training course on BWCs, and the BWC protocols are memorialized in the NYPD Patrol Guide Procedure Number 212-123. [4] Officers are instructed, per NYPD policy, to add arrest numbers and notate categories in their videos. If an appropriate category is not available from a drop down menu in the software, the officer is instructed to enter in the text themselves. Officers must categorize their videos within two scheduled tours following the recording. Any NYPD user may access uploaded BWC footage on evidence.com and add information. NYPD supervisors are instructed to review video footage and ensure all categories have been documented.
When an officer docks their camera after filming, the videos are automatically uploaded to evidence.com. After the upload, officers log on to evidence.com and create a case file and gather any video associated with an arrest and add them to that case file. Officers can then share the case file they created.
Ms Arenson testified that she is familiar with audit trails for BWC footage. Audit trails are documents that can be assembled from information within evidence.com; they are reports of data and notes created by NYPD for BWC footage and videos created by cameras in Intoxicated Driver's Unit rooms. All types of audit trails record information in an ongoing process. Whenever a user takes action with a video, whether to view the footage, share it, or add information, those actions are recorded in the audit trails. Audit trails are retrieved once a user requests a specific audit trail type from the software.
Ms. Arenson stated that there are several types of audit trails, including (1) evidence, (2) device, and (3) user. [5] These three specific types of audit trails exist for all videos used on the Axon evidence.com system. Officers are able to run reports for evidence and device audit trails, but not user audit trails. Officers can share evidence audit trails by checking a box on evidence.com, and can share device audit trails by downloading the report and printing a hard copy or emailing it. If an officer does not click the audit trail option to share, the receiving entity, like a district attorney's office, will not have access to the audit trail.
Evidence audit trails collect information regarding specific video footage and include it's start time, upload time, and categories and information added to the video from any user. Evidence audit trails also record which users accessed and streamed the video. Officers can add categories from a box with a drop-down list, or add tags in a fillable format. [6] Officers are trained to share evidence audit trails along with the video footage, but Ms. Arenson testified that compliance with this protocol is not high.
Units within police departments use categories such as "summons, investigative encounter, car stop, emotionally disturbed person, domestic incident, use of force" (tr at 17) and Ms. Arenson estimated there are about 50 different types of categories for officers to choose from "to kind of set forth what type of encounter they have" (id.). Ms. Arenson said that NYPD has been mandated by the Federal Monitor to include investigative encounter category levels into their BWC footage to assist them with analyzing police-stops. [7] Specifically, for Level 2 encounters, officers are required to further categorize...
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