People v. Bruni

• Decision Date: 30 March 2021
• Docket Number: DA 118-20
• Citation: 71 Misc.3d 913,144 N.Y.S.3d 544
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Thomas BRUNI, Defendant.
• Court: New York County Court

71 Misc.3d 913

144 N.Y.S.3d 544

The PEOPLE of the State of New York, Plaintiff,

v.Thomas BRUNI, Defendant.

DA 118-20

County Court, New York, Albany County.

Decided on March 30, 2021

For the People: HON. P. DAVID SOARES, Albany County District Attorney, Albany County Judicial Center, Albany, New York 12207, Marissa C. Olsen, Esq., Assistant District Attorney

For the Defendant: HON. STEPHEN W. HERRICK, Albany County Public Defender, 60 South Pearl Street, Albany, New York 12207, Patricia Wilson, Esq., Assistant Public Defender

Andra Ackerman, J.

On August 12, 2019, the Defendant was charged by indictment with four counts of Burglary in the Third Degree ( Penal Law 140.20 ) and one count of Criminal Mischief in the Third Degree ( Penal Law 145.05(2) ). On September 8, 2020, the People filed a discovery disclosure, certificate of compliance, and statement of readiness. On October 27, 2020, a compliance inquiry was conducted on the record. At that time, the People indicated that they had made inquiries to all of the law enforcement officers involved in the case, all of the questionnaires and other available impeachment material had been disclosed, and the People had exercised due diligence by requesting the personnel files of the law enforcement witnesses. However, some of the officers declined to answer questions about any existing impeachment materials.

Consequently, by omnibus motion, the Defendant moved to invalidate the People's certificate of compliance alleging that police personnel files and internal investigations had not been disclosed to the Defendant at the time that the initial certificate of compliance was filed. In their answering affirmation, the People noted that they made in-depth impeachment inquiries into each police officer witness known to have relevant information about the present case and turned over all police personnel records in their possession. The People additionally noted that three of the law enforcement witnesses refused to answer the impeachment questionnaires. By Letter Order dated November 13, 2020, the parties were ordered, pursuant to CPL 245.35(1), to diligently confer in order to resolve the discovery dispute.

By letter dated November 17, 2020, the Defendant advised this Court that Assistant District Attorney Marissa Olsen (hereinafter ADA Olsen) "provided me with police records that she recently received and is aware of the police records that I do not have and is currently working on getting those records." On December 7, 2020, the People filed a supplemental certificate of compliance, indicating that the personnel file for the three officers had been provided to the Defendant. On December 18, 2020, the Court conducted another compliance inquiry to address the People's supplemental certificate of compliance. On January 11, 2021, this Court issued a Decision and Order denying the Defendant's motion to invalidate the People's certificate of compliance.

The Defendant now moves this Court for leave to reargue and renew by Notice of Motion and Affirmation dated February 10, 2021. The People have filed a Memorandum of Law, Affirmation of Due Diligence, and certificate of compliance, all dated March 3, 2021. The Defendant filed a Reply Affirmation dated March 5, 2021.

MOTION FOR LEAVE TO REARGUE AND RENEW

Defendant moves for leave to argue, contending that the Court misinterpreted the new discovery provisions of CPL 245 and failed to impose an appropriate remedy for non-compliance under CPL 30.30(5). The Defendant also appears confused as to whether the Court mistakenly considered sanctions under CPL 245.80, as opposed to invalidation under CPL 30.30(5). Pursuant to CPLR 2221(d)(2), a motion to reargue shall be based upon matters of fact not offered on the prior motion, yet the Defendant's motion to reargue contains an excessive amount of new facts and arguments that were not raised in his original motion. Therefore, the motion to reargue should be and is hereby denied. Although the motion to reargue is denied, the legal rationale supporting the prior Decision and Order must be explained, yet again, in order to properly address the Defendant's motion for leave to renew.

The Defendant's motion for leave to renew is solely based on a Brady letter provided by the People on January 19, 2021. The Brady letter states that the People learned that the City of Albany Police lost digital data contained within their Internal Affairs Database from the year 2018, but that hard copies of the lost data remained. The Defendant now moves to invalidate that People's certificate of compliance because there may have been impeachment materials contained within the destroyed electronic records. The Defendant asserts that the People acted in bad faith, pointing to the Brady letter as proof that the existence of destroyed impeachment material/information was not disclosed to the Defendant prior to the People filing their certificate of compliance.

DISCUSSION OF LAW

Upon the enactment of CPL 245, New York courts have addressed various questions that frequently arise in the context of discovery disputes. The primary issue before this Court is whether the People may file a valid certificate of compliance when outstanding discovery materials remain. After considering the plain language of CPL 245, intertwined with that of CPL 30.30(5), it is clear that in certain scenarios the People may file a valid certificate of compliance, even when limited discovery materials are outstanding.

CPL 245.20(1) and CPL 30.30(5)

The new statutory rules and regulations set forth in CPL 245 require this Court to ensure that the People are actually ready for trial. In other words, the People must do all that is required of them to bring the case to a point where it may be tried. Article 245 of the Criminal Procedure Law not only sets the time frames by which the People are to provide discovery materials, but the statute is intertwined with a CPL 30.30 speedy trial provision.

CPL 245.10(1)(a) instructs the prosecution to perform its initial discovery obligations, as laid forth in CPL 245.20, within twenty calendar days after an incarcerated defendant's arraignment on the indictment, and thirty-five calendar days after an out of custody defendant's arraignment on the indictment. CPL 245.20(1) calls for the automatic disclosure of certain discovery materials, which the People must turn over to the Defense within the previously stated time frame. This section includes "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 (iv) impeach the credibility of a testifying prosecution witness" ( CPL 245.20(1)(k) ). CPL 30.30(5) requires that once the People comply with these initial discovery obligations, a certificate of compliance shall be filed.

By filing a certificate of compliance, the People are indicating their readiness for trial. Once this occurs, "the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section" ( CPL 30.30(5) ). Therefore, the speedy trial clock is now directly linked to the People's duties and deadlines under CPL 245.20(1).

Good Faith Efforts and Reasonableness

Nowhere within CPL 245, nor within CPL 30.30(5), is there a requirement that the People disclose every discovery item under CPL 245.20(1) prior to the valid filing of a certificate of compliance. On the contrary, CPL 245 and CPL 30.30(5) both present a theme emphasizing the importance of good faith efforts by the People, and reasonableness under the circumstances, as it relates to discovery compliance.

Regarding the People's initial discovery obligations under CPL 245.20(1), CPL 245.20(2) states:

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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 (emphasis added)

The importance of good faith efforts made by the prosecutor is emphasized, not the prosecutor's success in actually obtaining and disclosing discovery material. This section indicates that the People do not necessarily need to physically obtain discovery material. Rather, the People must establish the existence of such discovery material and make it available for the defense to acquire. Recently, the Court in People v. Askin, 68 Misc.3d 372, 124 N.Y.S.3d 133 (2020) made a similar finding as it pertains to police officer disciplinary files: "the People's discovery obligation is satisfied where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the material or information to be made available to defense counsel" ( People v. Jason, 69 Misc. 3d 685, 691, 130 N.Y.S.3d 633 [N.Y. Co. Ct. 2020] ).

When the prosecution has provided the discovery required by CPL 245.20(1), except for discovery that is "lost or destroyed" and any items or information that are the subject to a protective order, it shall serve upon the defendant and file with the court a certificate of compliance ( CPL 245.50(1) )(emphasis added). The certificate of compliance "shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" ( CPL 245.50(1) ) (emphasis added).

CPL 245.50(1) similarly includes a "good faith" requirement, stating in relevant part:

No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under

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