People v. Georgiopoulos

• Decision Date: 29 April 2021
• Docket Number: 01396-2019
• Citation: 144 N.Y.S.3d 334 (Table),71 Misc.3d 1215 (A)
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Nick GEORGIOPOULOS, Defendant.
• Court: New York Supreme Court

71 Misc.3d 1215 (A)

144 N.Y.S.3d 334 (Table)

The PEOPLE of the State of New York, Plaintiff,

v.Nick GEORGIOPOULOS, Defendant.

01396-2019

Supreme Court, Queens County, New York.

Decided on April 29, 2021

People by: Assistant District Attorney Candi Green125-01 Queens Boulevard Kew Gardens, New York 11415

The Defendant by: Lisa Saltzman, Esq. Queens Defenders 118-21 Queens Boulevard, Suite 212 Forest Hills, New York 11375

Gene R. Lopez, J.

The defendant, Nick Georgiopoulos, is charged with Driving While Intoxicated ( VTL § 1192[3] ), as a class E felony, Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree ( VTL § 511[3][a][i] ), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree ( VTL § 511[2][a][ii] ), Operating a Motor Vehicle Without a License ( VTL § 509[1] ), Driving in Excess of the Maximum Speed Limit ( VTL § 1180[d][1] ), and Operating a Motor Vehicle Without an Ignition Interlock Device ( VTL § 1198[9][d] ).

The People filed a certificate of compliance, pursuant to CPL § 245.50[1], on October 30, 2020. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials. The People oppose the defendant's motion.

Relevant Law

On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia , expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Sess Law News of NY Ch 56 [S 7506-B] Part HHH [McKinney's].)

Pursuant to CPL § 245.20, prosecutors are now required to disclose "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 and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. ( CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.

In making such disclosures, the statute explains:

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [ CPL § 245.20(1) ] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.

( CPL § 245.20[2].) And, importantly, "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 shall be deemed to be in the possession of the prosecution." ( CPL § 245.20[2].) Congruent with that provision, CPL § 245.55(1) directs that, "The district attorney and the assistant responsible for the case, ... shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged ...." The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245 ( CPL § 245.20[7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." ( CPL § 245.60.)

The new discovery law also, for the first time, ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL § 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL § 245.20[1]. ( CPL § 245.50[1].) Therein, the People must affirm 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." (Id. ) In addition to this statement, the certificate must include a list of the discovery materials provided. (Id. ) Moreover, if the People provide additional discovery in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information provided." ( CPL § 245.50[1].) Notably, the statute also specifies, "No adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." ( CPL § 245.50[1].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL § 30.30. Pursuant to CPL § 245.50(3), "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The statute further clarifies that, "[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [ CPL § 245.80(b) ], despite diligent and good faith efforts, reasonable under the circumstances."¹ And CPL § 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 ...." ( CPL § 30.30[5] ).

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL § 30.30[5] ; People v Barnett , 68 Misc 3d 1000, 1002 [Sup Ct NY Co 2020].) And the statute requires that "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." ( CPL § 245.50[4].) However, for the purposes of evaluating a claim concerning the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper" certificate, which it makes the prerequisite to an announcement of trial readiness. ( CPL § 245.50[3].) Given that the statute specifies that "[n]o adverse consequences" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances," ( CPL § 245.50[1] ), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Erby , 68 Misc 3d 625, 633 [Sup Ct Bronx Co 2020] ; People v Gonzalez , 68 Misc 3d 1213(A), *1, 3 [Sup Ct Kings Co 2020] ; People v Knight , 69 Misc 3d 546, 552 [Sup Ct Kings Co 2020] ; People v Lustig , 68 Misc 3d 234, 247 [Sup Ct Queens Co 2020] ; People v Randolph , 69 Misc 3d 770, 770 [Sup Ct Suffolk Co 2020] ; People v Davis , ––– NYS3d ––––, 2020 NY Slip Op 20298, 2020 WL 6576095, at *5-7 [Crim Ct Bronx Co, October 9, 2020].) Indeed, in People v Erby, 68 Misc 3d at 633, a court of coordinate jurisdiction addressing a discovery challenge observed:

As the legislative history of Article 245 indicates, and as the Article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20.

Similarly, in People v Knight, another court addressed a situation in which the People had provided "a very few [additional] discovery items" to the defendant after filing their certificate of compliance. ( 69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that, "[b]y any measure it was filed ‘in good faith’ and ‘reasonable under the circumstances’ " and, thus, was "valid." (Id. )

In this court's view, good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated. Accordingly, upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL § 245.20(1) with respect to the statutory subsections or specific items of discovery at issue. If the...