People v. Darren
| Decision Date | 19 May 2022 |
| Docket Number | Docket No. CR-026055-21NY |
| Citation | 75 Misc.3d 1208 (A),167 N.Y.S.3d 384 (Table) |
| Parties | The PEOPLE of the State of New York v. Danks DARREN, Defendant. |
| Court | New York Criminal Court |
For defendant: Anna Dean, Neighborhood Defenders Service
For the People: Alvin L. Bragg Jr., District Attorney, New York County, by Assistant District Attorney James Williams
By motion filed March 21, 2022, defendant moves for dismissal of the accusatory instrument pursuant to CPL 30.30 (1) (b). The People filed a response on April 22, 2022. The defendant replied on April 25, 2022. On April 29, 2022, the court, after a review of the motion papers, exhibits, and the court file, on the record in open court, granted defendant's motion to dismiss. This Decision and Order provides the court's reasoning.
On November 10, 2021, defendant was arraigned on an accusatory instrument charging him with assault in the third degree ( Penal Law § 120.00 [1] ) and assault in the third degree ( Penal Law § 120.00 [2] ), class A misdemeanors, attempted assault in the third degree (Penal Law § 110/120.00 [1])), a class B misdemeanor, and harassment in the second degree ( Penal Law § 240.26 [1] ), a violation. The case was adjourned to December 13, 2021, for conversion of the criminal complaint to an information.
On December 13, 2021, the complaint was deemed an information, and the case was adjourned to January 24, 2022, for trial.
The People were not ready for trial on January 24, 2022. The case was adjourned to March 3, 2022, for trial.
On February 4, 2022 — eighty-six days after defendant's arraignment — the People filed a certificate of compliance ("COC"), certificate of readiness ("COR"), automatic discovery form ("ADF"), and list of discovery and Rosario materials, off-calendar. The list of discovery and Rosario materials included Garrett and Giglio disclosures and disclosure advisory forms ("DAF") for three testifying officers, two of which are at issue in this motion. The DAF for Officer Bryan Gray provided that the New York City Police Department ("NYPD") found substantiated misconduct on three occasions and unsubstantiated misconduct on one occasion. The DAF for Officer Frank Contaldi provided that the NYPD found substantiated misconduct on one occasion.
On February 18, 2022, the attorneys had a phone conversation during which defense counsel requested the following: (1) underlying paperwork for both substantiated and unsubstantiated NYPD findings noticed in the DAFs, and (2) notes taken by Officer Contaldi. The People responded that they would not provide the requested NYPD misconduct paperwork because it was their position that this was not discoverable material under CPL 245.20.
On February 25, 2022, the People disclosed the requested police notes, which were in fact Officer Gray's notes, as well as a four-page "health pedigree information" record from the veterans’ residence where the alleged incident took place.
At the next scheduled court appearance, on March 3, 2022, defendant requested a motion schedule. On March 21, 2022, defendant filed the instant motion to dismiss pursuant to CPL 30.30 for failure to file a valid COC within the statutory 90-day period.
Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time ( CPL 30.30 [1] [b], [4] ). Computation for speedy trial purposes commences on the day after arraignment ( People v Stiles , 70 NY2d 765 [1987] ). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded ( People v Santos , 68 NY2d 859 [1986] ; People v Berkowitz , 50 NY2d 333 [1980] ).
Defendant argues that more than 90 days of includable time have elapsed since the commencement of the criminal action because the People's COCs were invalid. Specifically, defendant contends that the People have not disclosed discoverable NYPD disciplinary records for the two testifying officers, as well as information concerning the complainant's prior bad acts. Defendant argues also that the People did not disclose hand-written police notes and records from the veterans’ residence facility until more than 90 days had elapsed after arraignment.
In response, the People claim that NYPD disciplinary records are not discoverable, as they are "collateral" and would be too difficult to produce. The People argue also that the contents of the police notes were known to the defendant, as they were essentially information contained elsewhere in the provided discovery. The veterans’ residence records, the People assert, were prepared by the Veterans House, which is not under the custody and control of the District Attorney's Office. The People did, however, belatedly disclose a copy of these records that had been in NYPD possession since the alleged incident, as well as the originals, which the People later obtained from the veterans’ residence. The People did not specifically address defendant's argument concerning complainant's prior bad acts, but stated that they have complied with the requirements of CPL 245.20(1)(k).
Pursuant to CPL 245.20 (1), the People must automatically disclose to defendant "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." All information and items "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 to be in the possession of the prosecution" ( CPL 245.20 [2] ). CPL 245.20 (2) further directs the People to make a diligent, good faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control.
Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and 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] ). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery ... was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" ( People ex rel. Ferro v Brann , 197 AD3d 787, 787 [2d Dept 2021], citing People v Aquino , 72 Misc 3d 518, 523 [Crim Ct, NY County 2021] ).
The discovery statute must be read in conjunction with CPL 30.30. The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense ( CPL 30.30 [5] []). Pursuant to CPL 245.50 (3), "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."
At issue are records of substantiated and unsubstantiated allegations of misconduct concerning the People's testifying officers. Rather than disclose those records, the People provided their own DAFs, in which they summarized the allegations against the officers. The DAF for Officer Gray notes three allegations substantiated by the NYPD, and one unsubstantiated allegation. One of the substantiated allegations against Officer Gray is that he encouraged another NYPD officer to "use a ruse" to get another officer to commit misconduct involving computer use. The substantiated allegation summarized in the DAF concerning Officer Contaldi involves his improper use of the NYPD computer database for purposes unrelated to official business, in particular, to aid another officer who was under investigation — for sale of drugs to a man who overdosed and died — and who subsequently pled guilty to manslaughter and was sentenced to prison.
Defendant argues that the People's failure to disclose the NYPD investigatory paperwork related to substantiated and unsubstantiated allegations against the testifying officers undermined the validity of their purported COCs and CORs.
The People's arguments in opposition are not particular to the facts of this case. Rather, in the same generic fashion as has been offered to this court time and again, the People claim that they need not disclose underlying disciplinary records because: 1) they concern a "collateral issue"; 2) they are not related to the subject matter of the case; and 3) disclosure "would impose an insurmountable burden on police departments, prosecutors, and the criminal justice system." The People argue also that even if their refusal to disclose is deemed a discovery violation, dismissal is not appropriate, as the failure to disclose caused no prejudice.
As in each of the prior cases in which the People have presented the same generic claims, their arguments are unavailing. Indeed, this court has rejected them on several occasions (see People v Soto , 72 Misc 3d 1153 [Crim Ct, NY County 2021] ; People v Williams , 72 Misc 3d 1214[A] [Crim Ct, NY County 2021] ). Other judges in this courthouse have likewise rejected the same arguments, holding that CPL 245.20 (1)(k)(iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of misconduct before a valid COC can be filed (see People v Edwards , 74 Misc 3d 433 [Crim Ct,...
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