People v. Ferrer
| Decision Date | 28 July 2021 |
| Docket Number | CR-014748-20BX |
| Citation | 72 Misc.3d 1212 (A),150 N.Y.S.3d 232 (Table) |
| Parties | The PEOPLE of the State of New York v. Robert FERRER, Defendant. |
| Court | New York Criminal Court |
Assistant District Attorney Prodromos Tsenesidis, Bronx County District Attorney's Office (TsenesidisP@bronxda.nyc.gov)
Brittany Ashton, Esq., The Bronx Defenders, for Defendant (brittanya@bronxdefenders.org)
The Court is called upon to determine the meaning of the People's obligation to "make a diligent, good faith effort" to discover impeachment materials against testifying police officers ( CPL § 245.20 [1] [k] [iv] ). In this case, the assistant district attorney assigned to the case ("assigned ADA") relied on the information that was provided to him by the Discovery Compliance Unit ("DCU") within his office. At the hearing held on June 16, 2021, the People demonstrated that the DCU was set up to act as the principal liaison between the Bronx County District Attorney's Office ("DA's Office") and various law enforcement agencies and the Civilian Complaint Review Board ("CCRB") to obtain and maintain officers’ disciplinary records on behalf of the DA's Office.
For the reasons stated below, the assigned ADA and the DA's Office established due diligence, good faith, and reasonableness of their actions under the circumstances. The Court rejects defense counsel's argument that the People have an affirmative obligation to produce the "underlying materials" from disciplinary proceedings in this case. Further, the People's "continuing duty to disclose" does not entail obtaining the testifying officers’ personnel records on a weekly basis as the defense suggests. The defendant's motion to dismiss based on invalid certificate of compliance ("COC") is DENIED . The Court finds eighty-six (86) days of chargeable time, and the defense's motion to dismiss based on speedy trial is also DENIED . The defendant's remaining motions are discussed at the end of the decision.
On July 20, 2020, Defendant Robert Ferrer was arrested for Driving While Intoxicated ( VTL § 1192 [3] ) and Driving While Ability Impaired ( VTL § 1192 [1] ). The complaint alleges that Police Officer Enzo Morello responded to the scene of a vehicle accident and observed the defendant to be laying on the ground next to the driver's side door of a 2003 Honda Accord. The Accord was on a public sidewalk. Its engine was running, and the headlights were on. The complaint further alleges that the vehicle had collided with a metal bar. The front part of the hood was dented inward and the windshield was cracked. According to the complaint, there were no passengers in the vehicle. The complaint alleges that the defendant admitted to being the vehicle's owner and driving for approximately 5 minutes before the accident. Officer Morello observed the defendant to have watery eyes, slurred speech and a strong odor of alcoholic beverage emanating from his breath. The defendant also appeared to be confused. Officer Enzo observed one red plastic cup in the vehicle's cupholder. It contained liquid that had the odor of an alcoholic beverage, according to the complaint. The defendant was transported to the precinct for chemical testing. He refused to submit to the test.
The defendant was given a Desk Appearance Ticket. He appeared in the Bronx County Criminal Court on November 23, 2020 and he was arraigned. The arraignment judge deemed the accusatory instrument to be an information and the case was adjourned for discovery and the People to file their initial COC. On the defendant's next court date, January 8, 2021, the People did not file a COC and the case was adjourned to March 22, 2021 for the same purpose.
The People filed and served a COC and a Statement of Readiness ("SOR") off-calendar on February 18, 2021. At this point, the People disclosed that New York City Police Department's Internal Affairs Bureau ("IAB") had substantiated two allegations against Officer Morello related to failing to safeguard his department-issued helmet. It is undisputed that the People furnished to defense counsel information about "the date of the investigation, the control number, the serial number, the IAB log number, the ICMT case number, where it was referred to, the allegations, whether they're substantiated, the overall disposition, the close date and the action taken" as well as an "IAB log summary" (tr at 7-8 [June 16, 2021]). A supplemental COC and a new SOR were filed on the following day, February 19, for other discoverable items that are not relevant to this motion. The validity of these COCs were challenged by the defense counsel on the record on March 22. The case was adjourned to April 14, 2021 for a COC hearing. The defense counsel filed her reciprocal COC on April 9, 2021.
On April 14, the assigned ADA stated that pursuant to a new office policy, he made additional disclosures about several unsubstantiated IAB and CCRB claims against Officer Brandon Roman. The assigned ADA provided "general information about these cases," which consisted of "the allegation, the IAB log number, the ICMS number, who it was referred to, the disposition, the allegations, the closing date" but did not include "any information regarding ... underlying facts" (tr at 18-19 [June 16, 2021]). The assigned ADA represented that these were not Brady /Giglio or impeachment materials required to be disclosed under CPL article 245.20, but that the disclosure was being made in "an abundance of caution" (tr at 4 [June 16, 2021]). He further claimed that he was not in actual possession of any of the underlying materials from CCRB and IAB. Based on these representations, the Court ruled, over defense counsel's objection, that the disclosure about the existence of these unsubstantiated claims was sufficient, and the People did not need to produce the underlying documents. The Court accepted the People's COCs and adjourned the case to June 16, 2021 for defense motions.
The defendant filed the instant motion on May 14, 2021, and the People filed their response on June 3, 2021. Prior to filing their response, the assigned ADA again made additional disclosures about Officer Roman on June 2, and filed and served a new COC and SOR. He stated that the officer's updated Central Personnel Index ("CPI") "revealed several new allegations which the People were not aware of when the People initially certified our compliance" (People's Supplemental COC, June 2, 2021). The new disclosure involved two substantiated findings against Officer Roman for marijuana found in his police vehicle. According to the assigned ADA, the DCU first learned about these complaints on February 11, 2021. Although this predated the People's COC on February 18, it was after the assigned ADA had received a response from the DCU on February 9, stating that there were no negative complaints against the officer. As such, the assigned ADA states that he was not aware about them when he filed his initial COC (People's Response, 9 n 2).
On June 11, 2021, the People made an additional disclosure of a pending CCRB investigation concerning seven different allegations. The People also filed and served another COC and SOR dated June 11. In total, the People's disclosures consist of the following incidents: (1) Two substantiated IAB findings against Officer Morello for "Missing Department Equipment — Other" and "Fail to Safeguard Dept Equipment — Other"; (2) Two substantiated findings against Officer Roman for "found property — in department vehicle — marijuana" and "fail to properly search — vehicle — department vehicle"; (3) Five unsubstantiated IAB findings against Officer Roman for "disputed summons — parking — copy of summons not issued," "other dept rule/procedures violations feels unsafe around s/o," "fail to take police action — on other incident," "force — physical force," "Fail to respond in a timely manner — to 911 job"; (4) One "truncated" CCRB complaint against Officer Roman for "Discourtesy" in which the complainant is uncooperative; and (5) one pending CCRB investigation against Officer Roman with seven charges.
The Court held a hearing virtually on June 16, 2021. At this hearing, the assigned ADA and an ADA from the DCU were present. The defendant and his counsel were present as well. Based on all of the written submissions by the parties, oral arguments at the hearing, information contained in the court file and electronic communications, the Court makes the following conclusions of law.
Defense counsel moves for a ruling deeming the People's February COCs as invalid. She notes that as of February 11, the People were in actual possession of impeachment materials against Officer Roman — substantiated and unsubstantiated IAB complaints — regardless of whether the assigned ADA was aware of it. Defense counsel argues that the People's failure to disclose such information renders the February 18th COC invalid and the SOR illusory. The People oppose.
The People have an obligation to provide automatic discovery without a specific demand from the defense. This includes "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" ( CPL § 245.20 ). There is a "presumption in favor of disclosure" ( CPL § 245.20 [7] ). As relevant to the case at hand, the People must 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: ... (iv) impeach the credibility of a testifying prosecution witness" ( CPL § 245.20 [1] [k] [iv] ). The discovery statute further provides that the People have a duty to make a "diligent, good faith...
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People v. Alvia
...understood that the prosecution could not necessarily supply all discovery materials within the first set of timeframes." People v. Ferrer, 150 N.Y.S.3d 232 (Crim. Ct. Bronx Cnty. 2021). In addition, CPL § imposes a duty on the People to notify and disclose material or information as it bec......