People v. Barralaga

• Decision Date: 10 September 2021
• Docket Number: Docket No. CR-023933-20NY
• Citation: 153 N.Y.S.3d 808,73 Misc.3d 510
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Eddy BARRALAGA, Defendant.
• Court: New York Criminal Court

73 Misc.3d 510

153 N.Y.S.3d 808

The PEOPLE of the State of New York, Plaintiff,

v.Eddy BARRALAGA, Defendant.

Docket No. CR-023933-20NY

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

Decided on September 10, 2021

For the Defendant: Janet E. Sabel, Esq., Albany, Richell Lisboa, of Counsel

For the People: Cyrus R. Vance, Jr., District Attorney, New York County, Jacqueline Studley, of Counsel

Paul McDonnell, J.

The defendant allegedly rear-ended a police vehicle that was stopped at a red light. At the time of the incident the defendant had a blood alcohol level of 0.19 per centum by weight of alcohol in his blood, and he stands charged with operating a motor vehicle while under the influence of alcohol ( Vehicle and Traffic Law [VTL] § 1192[2] ). He moves to invalidate the People's Certificate of Compliance with discovery (COC) and Certificate of Readiness (COR). He also moves to dismiss the accusatory instrument on speedy trial grounds (see CPL 30.30 ).

Discovery

Certificate of Compliance

CPL 245.20[1] requires the People "to disclose to a defendant and permit the defendant to discover, inspect, copy photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control ...". The People's discovery obligation is automatic, and thus the defendant no longer needs to make a demand for such discovery beforehand (see People ex rel. Ferro v. Brann , 197 A.D.3d 787, 153 N.Y.S.3d 194 (2d Dept. 2021). Once the People have disclosed all relevant items of discovery, they must file a proper COC before they may announce their readiness for trial by filing a readiness certificate ( CPL 30.30[5] ).

In this case, the defendant was arraigned on a misdemeanor complaint on December 22, 2020, and the case was adjourned to February 4, 2021, for the prosecution to convert the misdemeanor complaint to an information. On February 4, the People converted the accusatory instrument, and the case was adjourned to April 15, for trial. The next day, February 5, 2021, the People served on defense counsel and filed with the court a COC and a COR.

The defendant claims the COC was invalid, and therefore the People improperly filed a readiness statement, because the discovery provided to him did not include numerous essential items: the defendant's arrest photos, his mugshot profile, the permit certification of the arresting officer for operating the Intoxilyzer 9000 allegedly used to perform the test of his blood-alcohol content, the arresting officer's memo book, and all records of calibration, certification, inspection, repair or maintenance of the Intoxilyzer 9000 for the period six months before and six months after December 22, 2020, the date on which the alleged blood-alcohol test was conducted.

The People acknowledge that they erred in failing to disclose the required discovery, but contend they made a good faith effort to provide all discoverable material. They claim their failure to turn over the discoverable material was the result of human error and argue, in part, that they thought they had in fact downloaded discovery materials when they had not. They ask the court to take into consideration the relative newness of CPL 245.20 at the time of disclosure and suggest it was foreseeable that it would lead to reasonable errors in the People's efforts to comply with the statute's mandates. They further contend that the defendant bears some responsibility by waiting more than two months to inform the People of their omissions. The People point out that once the defendant alerted them to the missing material on April 16, they turned over the material in their possession three days later.

CPL 245.20[2] requires the People to make "a diligent, good faith effort to ascertain the existence of discoverable material or information and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control ...". This is a fundamental tenet of the new discovery laws and cannot be read out of the statute because it is inconvenient or burdensome for the People to meet their obligation. The prosecution's duty is to turn over all items and information enumerated in CPL 245.20 that is in their possession or control, including any such material in the possession of law enforcement, and they must use diligence to acquire any such material or information that exists so it can be turned over to the defense. 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 of their compliance with discovery (see e.g., People v. Bruni, 71 Misc. 3d 913, 144 N.Y.S.3d 544 [Albany County Ct., 2021] People v. Erby, 68 Misc. 3d 625, 629, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020] ; People v. Gonzalez, 68 Misc. 3d 1213(A), 2020 WL 4873901 [Sup. Ct., Kings County 2020] ). But it does demand that the People use diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC.

Here, the People ask the court to accept that their good faith alone absolves them of their failure to disclose significant discoverable material they knew existed and that was either in their possession or in the possession of law enforcement. But good faith is, by itself, inadequate where the People fail to use diligence to comply with their discovery obligations.

Absent a valid explanation, the People's concession that they inexplicably failed to turn over numerous items of discovery is insufficient and, as a result, their filing of a COC on February 5, 2020 invalid. Nor have they shown good cause for their discovery lapse or explained how they used due diligence in ensuring that fundamental discovery material was disclosed timely. Frankly, given the nature and number of items the People failed to turn over, it is difficult to fathom an explanation that would result in a finding that they were diligent. Article 245 was in effect for over a year before the People served and filed their purported COC, long enough to accommodate the statutory disclosure requirements and to ensure appropriate delivery of discovery material to the defense.

Impeachment Material of Police Witnesses

The defendant also attacks the validity of the COC on the ground that the People have failed to provide relevant disciplinary records of the police officers they intend to testify in this case. As the defendant points out, CPL 245.20(1)(k) requires, in relevant part, that the People disclose "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness ...."

Generally, disciplinary records involving police officers take one of two forms. Civilian complaints against police officers are adjudicated by the Civilian Complaint Review Board (CCRB) and, following certain findings, the CCRB must turn over the results of their investigation to the Police Department (Civilian Complaint Review Board, 38-A RCNY § 1-33[c and d]). Complaints made by police personnel are adjudicated by the Internal Affairs Bureau (IAB) of the police department. While historically, the prosecutor was only required to disclose police disciplinary records in very limited circumstances (see e.g., People v. Gissendanner , 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ), the Legislature recently repealed the statutory provision affording law enforcement officers confidentiality of their disciplinary records (see L 2020, c 96, repealing Civil Rights Law § 50-a ). With this repeal, the defendant contends that the People are obliged to provide him with a complete accounting of all such information, no matter how collateral to the specific events of this case, including all records held by the police department as to the officers involved in activity leading up to this case, to his arrest and the sobriety tests conducted upon him.

In response, the People assert that they have diligently searched for and disclosed all potentially relevant evidence and information enabling the defendant to impeach the credibility of these officers and they invite him to use the state's Freedom of Information Law to secure more detailed records if he is so inclined.

However, CPL article 245 dramatically increases the rights of criminal defendants to meaningful discovery. When the Legislature greatly reduced the confidentiality of law enforcement personnel records, all evidence and information that "tends to impeach the credibility of a testifying prosecution witness" must be disclosed to the defense (245.20[1][k]). This requires more than providing a list of complaints filed against all testifying officers (see People v. Kelly , Docket No. CR-018600-20NY, 2021 WL 1182333 [Crim. Ct., N.Y. County, 2021] ). Instead, the prosecution must provide the relevant underlying disciplinary file documents, including all findings of complaints that were substantiated or unsubstantiated, but excluding exonerated or unfounded complaints ( Id. , citing People v. Randolph , 69 Misc. 3d 770, 772, 132 N.Y.S.3d 726 [Sup. Ct., Suffolk County 2020]. As the issue was appropriately described in Randolph :

[A] case is "substantiated" where it is determined that the facts clearly support the allegation, "unsubstantiated" when the allegation cannot be resolved because sufficient evidence is not available, "exonerated" where the act was legal, proper and necessary and "unfounded" when there is evidence to establish that the act did not occur.^{[1 ]}

Therefore, in cases involving exonerated and unfounded allegations, there is no good faith basis for cross-examination by the defendant's counsel and as such it is not evidence or information that tends to or has an...