People v. Davis

• Decision Date: 09 October 2020
• Docket Number: 2019BX007394
• Parties: The PEOPLE of the State of New York, Plaintiff, v. David DAVIS, Defendant.
• Court: New York Criminal Court

70 Misc.3d 467

134 N.Y.S.3d 620

The PEOPLE of the State of New York, Plaintiff,

v.David DAVIS, Defendant.

2019BX007394

Criminal Court, City of New York, Bronx County.

Decided October 9, 2020

ADA Madeline Smith, Bronx County District Attorney's Office

Mr. Willoughby Jenett, Esq., The Legal Aid Society, for Defendant

Tara A. Collins, J. On June 12, 2020, Governor Cuomo signed a bill repealing Civil Rights Law § 50-a, which protected the police officers' personnel records from public inspection without court approval or, in narrow circumstances, a prosecutor's subpoena (2020 NY Senate-Assembly Bill S8496, A10611). In light of this legislative change, the defendant filed the instant motion to ask the Court to reconsider its earlier decision holding that the People had no obligation to turn over their witness' disciplinary records from an internal investigation by the police department ( 67 Misc. 3d 391, 120 N.Y.S.3d 740 [Crim. Ct., Bronx County 2020] ). In addition, the defendant contends that the People's failure to serve maintenance records for the breathalyzer machine that was used in this case invalidates their Certificate of Compliance ("COC"). Finally, he argues that his statutory speedy trial right was violated by the ineffective COC and moves for dismissal under CPL § 30.30.

Based upon the recent legislative changes, the Court GRANTS the defendant's motion to renew ( CPLR § 2221 [e] ). Upon reconsideration, the Court adheres to its ruling from February 20, 2020. For the reasons stated below, the Court also rejects the defendant's motion to deem the COC invalid for the prosecution's failure to provide maintenance records. As for the defendant's motion to dismiss, the Court concludes that sixty-four [64] days are chargeable. Accordingly, the defendant's motion is DENIED in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

The defendant was arrested on March 15, 2019 and charged with two counts of Driving While Intoxicated ( VTL § 1192 [2], [3] ; "DWI") and one count of Driving While Ability Impaired ( VTL § 1192 [1] ). On January 20, 2020, the People filed and served off-calendar their automatic disclosure form. They also filed and served a COC and a statement of readiness during the defendant's court appearance on January 23, 2020. A one-page document titled "Giglio Material" was attached to the COC and it provided, in relevant portions, "PO Lyubchenko received a partially substantiated IAB, where no action was taken for an incomplete/inaccurate property clerk invoice on 08/05/2019."

On January 23, 2020, defense counsel challenged the validity of the COC on several grounds. As relevant to the decision here, he argued that the People's disclosure of Officer Lyubchenko's partially substantiated complaint without also providing the underlying reports fell short of meeting their Brady and discovery obligations (see Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972] ; Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ; CPL § 245.20 [1] [k] ). He maintained that at a minimum, the People needed to provide substantive materials from the Internal Affairs Bureau ("IAB") investigation to the Court for an in camera review.

On the other hand, the People opposed by claiming that the IAB records sought by the defense were privileged internal police agency documents that may not be accessed without a subpoena or an order by the court. They further objected on relevance grounds because there were no issues relating to accuracy of the property invoice in this case. Defense counsel rebutted generally by pointing out that most of the DWI cases involve challenging police paperwork at trial.

After oral argument, the Court directed the People to provide all of the IAB documents in their possession for an in camera review. The People promptly provided a two-page document titled, "New York City Police Department Central Personnel Index." The Court then adjourned the case for further written submissions by the parties and adjourned the case for decision to February 20, 2020.

On February 20, the Court issued a written decision ("February 20 decision") holding, in part, that the People were not required to provide any more records from the IAB investigation. During the court appearance, defense counsel informed the Court that he was made aware during the appearance of an unrelated case that the Intoxilyzer machine that was used in this case had been taken out of service in July and August 2019. He further stated that he did not have any maintenance records related to this. The People stated that they did not know that the machine was taken out of service, but they agreed that if the out-of-service documents existed, they would be discoverable pursuant to CPL § 245.20 (1) (s).

Based on this new development, the Court directed the People to provide the records to the defense immediately and to file a supplemental COC. Defense objected, arguing that the COC has been invalidated based on the People's failure furnish all of the required discovery materials. The Court rejected that argument and held that the COC from January 23 was valid. The case was then adjourned to March 26 for hearings and trial. It is undisputed that the People provided the maintenance records to the defense counsel on February 20. They also filed a supplemental COC on the following day, February 21.

Prior to the next scheduled court date, the entire court system in New York had to shut down the administration of non-essential services due to the COVID-19 pandemic. As such, this case has not been heard on the record since February 20. In the meantime, on June 12, 2020, a bill repealing Civil Rights Law § 50-a was signed into law, effective immediately (2020 NY Senate-Assembly Bill S8496, A10611). Defense counsel e-mailed the Court on June 17, 2020, asking for reconsideration of the February 20 decision as the now-repealed statute was a part of the basis for why his motion for the underlying IAB records was denied. The Court invited a formal written submission by the defense, but none was received.

Subsequently, during a virtual SKYPE meeting with the Court on August 7, 2020, defense counsel renewed his motion orally. The Court once again invited written submissions from the parties. Defense filed the instant motion on August 22, 2020; the People timely responded on September 14, 2020.

LEGAL DISCUSSION

The People Have No Obligation to Provide Documents from the IAB Investigation

After the oral argument on January 23, 2020, the People provided a two-page document titled "New York City Police Department Central Personnel Index" for Officer Lyubchenko ("CPI"). They also represented that this document constituted all of the records in their possession related to the partially substantiated complaint against the officer. This document listed the charges filed against the officer and the results of the investigation. At the same time, it did not have any attached reports nor contain information about the underlying facts.

In the February 20 decision, the Court held that CPL § 245.20 (1) (k) is a codification of existing Brady case law and did not expand the prosecutor's duties (February 20 Decision, 6-7; see also William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 ) [Note: online version]. In other words, if something is Brady material, not only do the federal and New York State constitutions require the prosecution to disclose it, but the discovery statute does so as well — and it must be disclosed as part of the "automatic discovery" without a specific demand from the defendant ( CPL § 245.20 [1] [k] ).¹ By the same token, if something is not Brady material, the new discovery statute does not mandate more from the prosecutor and there is no added duty to disclose.

Under this framework, since the People would have no obligation to disclose the exonerated claims against the officers to the defense under the traditional Brady analysis, the Court held that "the District Attorney had no duty [under the new discovery statute] to disclose the unsubstantiated allegations of misconduct that had been filed against the officers" (February 20 decision, at 12, citing People v. Ortega , 12 Misc.3d 1182(A), 2006 WL 1982648, *5 [Sup. Ct., N.Y. County 2006] ).² As for the partially substantiated charge of incomplete/inaccurate property clerk invoice, the Court conducted a balancing test between the interest in protecting the confidentiality of personnel and disciplinary records of law enforcement officers against the defendant's Sixth Amendment right to confront and cross-examine adverse witnesses (see id. at 12-13). Ultimately, the Court ruled that the defendant failed to make a "clear showing of facts sufficient to warrant the judge to request records for review" and denied the defendant's motion (id. , citing CRL § 50-a [2], [3] [repealed June 12, 2020] ).

In the instant motion, the defendant asks the Court to reconsider the February 20 decision based on the repeal of 50-a. Because Officer Lyubchenko's privacy interests are not protected by the statute any more (subject to Public Officers Law §§ 86 and 87 in the case of requests arising under the Freedom of Information Law), the defendant contends that the balancing test is no longer required and the only reigning consideration is his constitutional right to confront and cross-examine witnesses. In that regard, the defendant claims that only the broad mandate of the discovery statute is controlling, and it extends to the underlying materials from the investigation. In addition, he argues that under People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016], even the unsubstantiated claims of misconduct give him a good faith basis to ask questions about them. If he can ask questions about them, he maintains, he is entitled to obtain such records from the prosecution. Finally, the defendant argues that CPI is merely a summary, and the People must review all of...