People v. Dorsey

• Decision Date: 26 April 2022
• Docket Number: Case 21080231
• Parties: The People of the State of New York v. Jerry L. Dorsey, Defendant.
• Court: New York Justice Court

2022 NY Slip Op 22125

The People of the State of New York v. Jerry L. Dorsey, Defendant.

Case No. 21080231

Justice Court of the Town of Webster, Monroe County

April 26, 2022

Sandra Doorley, District Attorney, Monroe County (Ryan R. Mulcahy of Counsel), for plaintiff.

Melchor E. Castro, for defendant.

HON THOMAS J. DISALVO WEBSTER TOWN JUSTICE

History of the Case.

The defendant was charged with speed not reasonable and prudent VTL § 1180(a) ^[1] and common law driving while intoxicated, VTL § 1192(3) on August 21, 2021. He was issued e-ticket uniform traffic informations for both charges by Officer Timothy J. Brewer of the Webster Police Department, directing the defendant to appear in court on September 1, 2021. In addition the defendant was provided with an electronic "Supporting Deposition / CPL 710.30 Notice to Support Simplified Traffic Information Local Criminal Court", relative to the speeding charge. Finally, the defendant was provided with a "Supporting Deposition/Bill of Particulars", which was directed toward the charge of driving while intoxicated. The initial appearance was changed to September 15, 2021 at which time the defendant appeared with his attorney and was arraigned. The matter was then adjourned for disposition and motion argument.

Subsequently the People filed a Discovery Disclosure Cover Letter, Certificate of Compliance, Statement of Readiness, [hereinafter referred to as "C of C & S of R"] on September 29, 2021. In addition another said C of C & S of R was filed with the court on October 18, 2021. In the section entitled "Statement of Readiness for Trial, i.e. Section C(3) of both of said documents it states" That the People are ready for trial as the case exists in its current state. Nevertheless, the People intend to continue investigating the matter and any materials created or received as part of that continued investigation will be made available to the defendant as soon as practicable. People v. Kendzia, 64 N.Y.2d 331, 338 (1985)."

Arguments of Counsel

Defense counsel submitted a motion to dismiss the charge of common law driving while intoxicated on February 22, 2022 alleging that the defendant's right to a speedy trial pursuant to CPL § 30.30 (1) (b), was violated. Said section would require that the people be ready for trial within "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony."It is the position of defense counsel that the People's statements of readiness were illusory because he was not provided with the body worn camera footage taken by the arresting officer, within the time frames required by CPL §§ 245.10(1)(a)(ii), CPL 30.30(1)(b) and CPL 30.30 (5-a). This was the result of the inability of defense counsel to download said body worn camera footage from the district attorney's on-line discovery portal. In support of that allegation defense counsel states in his motion to dismiss that

"On September 27, 2021, I received an email from ADA Jacqueline Moyer, regarding my access to the electronic discover portal.... Following receipt of that letter, I received instructions for the use of the discovery materials stored on the electronic portal. On or about September 29, 2021, the People served me with a multi-page document consisting of a Discovery Disclosure Cover Letter, a Certificate of Compliance, and a Statement of Readiness. Paragraph 8, at page 3, which is also marked with the letter 'x' indicates that the People have requested preservation of all tapes or other electronic recordings.... Notably, the paragraph goes on to say that the People will arrange for inspection of any recordings for which a copy was not provided upon the defendant's request."

Subsequently, defense counsel sent the district attorney a letter, a copy of which was attached to his motion papers but was not dated, requesting as follows: "inspection of police body-worn camera and dashboard camera recordings relating to my client's seizure or arrest by members of the Police Department on August 21, 2021". ^[2] In addition, defense counsel states that he advised the prosecutor at a January 19, 2022 court appearance that he had not

"... yet received the tapes, and was unable to open the portal to see the videos. He indicated to me to let him know, if I was having any trouble with the DA Portal. After spending the balance of the week unsuccessfully trying to download the videos, I telephoned the prosecutor at his office to tell him I was still unable to get the videos. He told me that he mihjt [sic] need to give me the recordings. I told Mr. Mulcahey that it might be easier to attach the videor [sic] to an email and send them to me."

Defense counsel argues that as of the date of his motion, i.e. February 18, 2022, which would be 156 days from the date of the arraignment, he was not in receipt of the said recordings.

The assistant district attorney filed a Notice of Cross Motion and Responding Affirmation dated March 4, 2022, wherein it was argued that the filing of Certificate of Compliance on September 29, 2021 and the filing of an additional C of C on October 18, 2021 satisfied the People's responsibility to be ready for trial within the required ninety (90) days. Nevertheless, the People acknowledge defense counsel's difficulty in viewing the videos in question. The prosecutor states in his affirmation that "Mr. Castro has alleged difficulties viewing the uploaded body worn camera, and we have offered the opportunity to discuss alternative means of viewing the footage. However, to date Mr. Castro has not made contact to schedule a time to view the footage."The People go on to allege their compliance with CPL 245 and to state that defense counsel has not alleged any prejudice that warrants dismissal of the charge. In addition, the prosecutor indicated in his response affirmation of March 4, 2022 that "As a show of good faith that they will be mailing Mr. Castro a hard copy of any footage in their file with his copy of this motion response."

Defense counsel next submitted to the Court a sixteen page reply, dated April 7, 2022, to the affirmation of the assistant district attorney. In that response defense counsel evidences his frustration in having dealt with the district attorney's discovery portal. ^[3] That frustration is not unique and is experienced by just about every defense counsel after having grappled with the said discovery portal. The court takes judicial notice of the inordinate amount of time required to download documents and videos. ^[4] The court is also familiar with the ease with which one is booted from the portal for clicking on the wrong arrow, requiring the user to start the process from scratch. The necessity of moving from one list to another and downloading each item separately is another annoying aspect of the portal. The inability of being able to download certain videos such as in custody interrogations can also be a problem. In his reply Mr. Castro acknowledges receipt of a CD containing the body cam video on March 7, 2022, which he was able to open. However, there are times when one is not able to open the CD either. Many of these problems are technical ones, wherein computer software of a defense attorney is not compatible with the software of the discovery portal for whatever reason. Defense counsel argues that the body worn camera [BWC] footage was not uploaded to the portal till March 7, 2022. That is based on a copy of a page from the discovery portal set out as one of the exhibits in defense counsel's reply, which indicates that the "BWC" was uploaded on March 7, 2022. However, the court is aware that some of the items that are put on the portal are "timed out". When that happens that item is no longer downloadable by defense counsel. In fact, the district attorney addressed that issue in its responding affirmation of March 4, 2022, wherein he stated:

"ADA Moyer, initially assigned to this case, and ADA Mulcahy viewed and uploaded the disputed footage without issue in early October, 2021. However, today while drafting this response the People became aware that the footage was no longer viewable on the portal. As soon as this defect was noticed, the People requested the footage again. Within minutes they acquired a new copy of the footage."

Thus the BWC footage was re-uploaded to the portal on March 7, 2022 for a second time.

Nevertheless, the court is not unsympathetic to the time limits imposed on the district attorney by the new discovery law set out in CPL Article 245. ^[5] The portal with its obviouslimitations and peculiarities assists the district attorney in providing discovery within the time constraints in question.

Issue Presented.

Is the fact that the defense counsel was unable download discovery from the district attorney's discovery portal make the People's Certificate of Compliance and Statement of Readiness illusory?

Was there a lack of good faith and/or a systematic denial of the defendant's due process rights on the part of the district attorney's office as alleged by defense counsel?

Legal Analysis.

In researching the issue of technological difficulties of defense counsel in accessing the district attorney's discovery portal, the court found no cases addressing that subject. Neither have the prosecution nor the defense provided the court citations of any cases on said point. As a result this appears to be a case of first impression.

The time limits required to provide "initial discovery" to the defense are set out in CPL § 245.10 (1) (a) (i) and (ii). However, there is no specific definition of what is meant as initial discovery. CPL § 245.20 (1)...