People v. Figueroa
| Decision Date | 07 September 2022 |
| Docket Number | Docket No. CR-018891-21BX |
| Citation | 173 N.Y.S.3d 907 |
| Parties | The PEOPLE of the State of New York v. FIGUEROA, Defendant. |
| Court | New York Criminal Court |
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Marline Paul)
For Mr. Figueroa: The Bronx Defenders (by William John)
The defense's C.P.L. § 30.30 motion alleges that the People did not discharge their discovery duties before stating ready for trial. First, the defense argues that the People did nothing regarding documents held by the Fire Department of New York ("FDNY"). The People respond that they have no duty to discover FDNY records because the discovery statute does not deem those records to be in their possession. Second, the defense argues that the People did nothing regarding " Giglio material"—or records about extrinsic prior misconduct—for all except two of the police witnesses in this case. The People respond that they have no discovery duty regarding misconduct records for these officers because they do not intend to call them to testify.
On both counts, the Court disagrees with the People. First, when information is not in the People's possession, the discovery statute does not ask them to do nothing. Instead, the statute requires them to make "diligent, good faith effort[s]" to ascertain the existence of such information and make it available. ( C.P.L. § 245.20[2] ). Where the People fail to establish any such efforts, they fail to adequately defend their COC. Second, the discovery statute requires that the People disclose information favorable to the defense in their possession or in the possession of law enforcement. (See C.P.L. § 245.20[1][k] ). That includes information tending to "negate the defendant's guilt" and "support a potential defense." (Id. ) Prior misconduct by officers involved in this case—regardless of whether the People call them to testify—is such favorable information. Accordingly, the People cannot categorically refuse to do anything regarding an officer's prior misconduct simply because they have decided not to call them to testify.
For each reason, the People's certificates of compliance and statements of readiness were illusory. Nonetheless, the defense requested a motion schedule before the C.P.L. § 30.30 clock had expired. As a result, the Court finds that 90 days are charged, and so the defense's motion to dismiss must be DENIED.1
The People's specific discovery burden depends on whether information is in their possession. If discoverable material is in their possession, they must "actually produce" it to the defense. ( People ex rel. Ferro v. Brann , 197 A.D.3d 787, 787-88, 153 N.Y.S.3d 194 [2d Dep't 2021] ; C.P.L. § 245.20[1] ). By law, the People's "possession" includes "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency." ( C.P.L. § 245.20[2] ). For information that is not within the People's possession, the discovery statute requires them to make "diligent, good faith effort[s]" to do two things. (Id. ). First, they must make a "diligent, good faith effort" to "ascertain the existence" of discoverable material. (Id. ). Second, they must make a "diligent, good faith effort" to "cause" that material to "be made available for discovery." (Id. ).
Once the People complete these steps, Article 245 directs them to certify it in a certificate of discovery compliance ("COC"). ( C.P.L. § 245.50[1] ). Tracking the steps above, that COC must certify that the People exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." ( C.P.L. § 245.50[1] ). It must also certify that the People then "made available all known material and information subject to discovery." (Id. ).
A proper COC is one that truthfully certifies these facts and is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20." ( C.P.L. §§ 245.50[3], [1] ). Such a proper COC is a prerequisite to a valid statement of readiness. ( C.P.L. § 245.50[3] ). As many courts have made clear, the People's repeated belief that the statute's "adverse-consequence" clause applies to this trial readiness determination is incorrect. (See People v. Vargas , ––– N.Y.3d ––––,171 N.Y.S.3d 877, 880-81, ––– N.E.3d –––– [Crim. Ct., Bronx County 2022] ; People v. Darren , 75 Misc. 3d 1208[A], at *6, 2022 WL 1614380 [Crim. Ct., N.Y. County 2022] ; People v. Aquino , 72 Misc. 3d 518, 526-27, 146 N.Y.S.3d 906 [Crim. Ct., Kings County 2021] ; People v. Quinlan , 71 Misc. 3d 266, 272, 142 N.Y.S.3d 305 [Crim. Ct., Bronx County 2021] ). Indeed, earlier this year, the Legislature rejected an amendment to the adverse-consequence clause that would have applied it to trial readiness determinations. .
When the defense alleges that the People's COC was not proper, it is incumbent on the People to come forward and establish that they met the relevant statutory burden. (See People v. Payne , 75 Misc. 3d 1224[A], at *2, 2022 WL 2899377 [Crim. Ct., Bronx County 2022] [People established they disclosed "any and all" documents held by the New York City Law Department]; People v. Alvia , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 3023372, 2022 N.Y. Slip Op. 22233, at *2-*3 [Crim. Ct., Bronx County 2022] [People established they disclosed body-worn camera videos]). That is because the People are the only party who know about the efforts they made. Efficiency and general principles of law suggest that "[t]he party in possession of information should bear the burden of producing it." (See People v. Spaulding , 75 Misc 3d 1219[A], at *4, 2022 WL 2349737 [Crim. Ct., Bronx County 2022] ).
The discovery statute is not impracticable. Should the People face any difficulties in ascertaining the existence of discovery or actually producing it, the statute provides the People numerous opportunities to petition a court for relief. For instance, the People may ask a court to modify the discovery periods for "good cause." ( C.P.L. § 245.70[2] ). Or they may ask a court for permission to state ready on an improper COC because of "special circumstances." ( C.P.L. § 245.50[3] ). Or they may ask for a protective order to withhold some materials entirely. ( C.P.L. § 245.70 ).
According to the People, this case concerns an alleged DWI in which police arrested Mr. Figueroa at the scene of a "damage[d]" vehicle "in the middle of the road," FDNY was then "called to the scene," and Mr. Figueroa was afterwards taken to the hospital. (Pr. Resp at 15-16). As a result, from the beginning of this case, it was plain to the People that FDNY was substantively involved. Indeed, the People's recitation of events suggests that the NYPD may have been the ones who called FDNY in the first place.
Despite these circumstances, the People present no information about any efforts they made to ascertain the existence of or disclose discoverable material from FDNY. (See id. at 6-8). Instead, the People only state that because "FDNY reports are not in the People's possession" or "in the possession of law enforcement," they "are not required to gather it in order to file a valid COC." (Id. at 8).
The People misapprehend their discovery duties. Under C.P.L. § 245.20[2] —entitled "[d]uties of the prosecution"—where discoverable material exists "but is not within the prosecutor's possession, custody, or control," the People must make "a diligent, good faith effort to ascertain [its] existence" and "cause [it] to be made available for discovery." Thereafter, in their COC, the People must certify that they took these steps. (See C.P.L § 245.50[1] ). "Upon a challenge, it is incumbent on the People to articulate what efforts they made to ascertain the existence of the challenged discoverable material and to make it available for discovery." ( People v. Francis , 75 Misc. 3d 1224[A], at *5, 2022 WL 2840487 [Crim. Ct., Bronx County 2022] ).
Here, the People fail to articulate any efforts whatsoever to ascertain the existence of FDNY reports and make them available for discovery. "Instead, the People only claim, incorrectly, that they have no obligations regarding this material at all, simply because it was not in their control" or with a law enforcement agency. ( Id. ). But here, "[i]t is of no moment that the agency that responded was not a law enforcement agency." ( People v. Rahman , 74 Misc. 3d 1214[A], at *2, 2022 WL 553426 [Sup. Ct., Queens County 2022] ). Failure to do anything regarding FDNY records when that agency responded to an arrest involving an allegedly intoxicated person, who was thereafter transported to the hospital, "falls far short of the due diligence the statute requires of the People in this context." (See id. ).
Where FDNY records related to a case are reasonably likely to exist, the People must make a "diligent, good faith effort" to ascertain their existence and "cause" them to be made available for discovery before filing their COC. ( C.P.L. §§ 245.20[2], 245.50[1] ; Rahman , 74 Misc 3d 1214[A], at *2 ; Francis , 75 Misc. 3d 1224[A], at *5 ; People v. Ajunwa , 75 Misc 3d 1220[A], at *3, 2022 WL 2525665 [Crim. Ct., Bronx County 2022] ). Here, they failed to establish any such efforts. Therefore, their COC was not proper and ineffective to support a valid statement of readiness.
The next question is whether the People...
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