People v. Jawad

• Docket Number: Docket No. CR-016573-22QN
• Decision Date: 30 March 2023
• Citation: 78 Misc.3d 1217 (A),185 N.Y.S.3d 653 (Table)
• Parties: The PEOPLE of the State of New York v. JAWAD, Defendant.
• Court: New York Criminal Court

78 Misc.3d 1217 (A)

185 N.Y.S.3d 653 (Table)

The PEOPLE of the State of New York

v.JAWAD, Defendant.

Docket No. CR-016573-22QN

Criminal Court, City of New York, Queens County.

Decided on March 30, 2023

Wanda L. Licitra, J.

Amongst other relief, the defense moves for orders deeming invalid the People's certificate of discovery compliance and statement of readiness. A proper, good-faith certificate of automatic discovery compliance is a prerequisite to a valid statement of readiness. ( C.P.L. § 245.50[3] ). Criminal Procedure Law § 245.50[1] defines a proper certificate of compliance, and it requires the People to certify, in good faith, two things. First, that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. ( C.P.L. § 245.50[1] ). Second, that they "made available all known material and information subject to discovery." (Id. ; see also People ex rel. Ferro v. Brann , 197 AD3d 787, 787-88 [2d Dep't 2021] [holding that a certificate is not complete until the People "actually produce[ ]" automatic discovery to the defense]).

The statute defines automatic discovery to include, amongst other things, information that is favorable to the defense. ( C.P.L. § 245.20[1][k] ). Specifically, it mandates disclosure of "[a]ll evidence and information, including that which is known to police" that tends to:

(i) negate the defendant's guilt as to a charged offense;

(ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense;

(iii) support a potential defense to a charged offense;

(iv) impeach the credibility of a testifying prosecution witness;

(v) undermine evidence of the defendant's identity as a perpetrator of a charged offense;

(vi) provide a basis for a motion to suppress evidence; or

(vii) mitigate punishment.

( C.P.L. § 245.20[1][k] ). It also provides special instruction regarding these categories of material. It mandates that "[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form." (Id. ). It mandates that it "shall be disclosed ... irrespective of whether the prosecutor credits the information." (Id. ). And it mandates that the People "shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier" than the normal statutory "time period for disclosure." (Id. ).

At issue here is whether the People discharged these duties regarding police disciplinary records before certifying compliance. In their certificate, the People named eight police officers who were involved in this case. Each of these officers was sufficiently involved to have their body-worn camera activated and recording events in connection with the charged incident. (See Cert. of Compl. at 4-5). However, the People only intend to call two of these officers at trial.

The People state that they have only disclosed "LEOW letters" and only for the two officers whom they intend to call to testify. A "LEOW letter" is the Queens nomenclature for a letter, authored by the People, summarizing a police officer's disciplinary matters. The summary disclosed here contains a "date," "serial number," "IAB log" number, "ICMT case" number, a one-word case "status," and an allegation summary. (Pr. Resp. Ex. 2). The allegation summary is less than a sentence. (See id. ). It contains five words, and not a single verb. (See id. ).

The disclosure of a mere LEOW letter implies that the People reviewed the disciplinary files—and thereby "ascertain[ed] the existence" of discoverable material—but then failed to actually disclose them. (Cf. C.P.L. § 245.50[1] [requiring the People to certify that "the prosecutor has disclosed and made available all known" discoverable material]).

Under appellate law, that is plainly insufficient. ( Matter of Jayson C. , 200 AD3d 447, 448-49 [1st Dep't 2021] ; People v. Rodriguez , 77 Misc 3d 23, 24-25 [App. Term, 1st Dep't 2022] ; see also People v. Toussaint , 182 N.Y.S.3d 586, 591-94 [Crim. Ct., Queens County 2023] [reviewing the appellate law]; People v. Figueroa , 78 Misc 3d 1203[A], at *1-*4 [Crim. Ct., Queens County 2023] [same]).

Many trial courts—including this one—have previously explained in depth why the minimal disclosure of a summary letter is insufficient. (People v. Brown , ind. 73394-22 [Sup. Ct., Queens County 2023] [Wang, J.]; People v. Dowling , ind. 1123-2021 [Sup. Ct., Queens County 2022] [Gopee, J.]; Toussaint , 182 N.Y.S.3d 586 [Licitra, J.]; People v. Quintero , CR-010636-22QN [Crim. Ct., Queens County 2023] [Lentz, J.]; People v. Tamayo , CR-003869-22QN [Crim. Ct., Queens County 2022] [Johnson, J.]; People v. Best , 76 Misc 3d 1210[A] [Crim. Ct., Queens County 2022] [Gershuny, J.]; People v. Guzman , 77 Misc 3d 1223[A] [Crim. Ct., NY County 2023] [Maldonado-Cruz, J.]; People v. Cox , CR-013205-19BX [Crim. Ct., Bronx County 2022] [Chin, J.]; People v. Critten , 77 Misc 3d 1219[A] [Crim. Ct., NY County 2022] [Wang, J.]; People v. Goggins , 76 Misc 3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Darren , 75 Misc 3d 1208[A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People v. Edwards , 74 Misc 3d 433 [Crim. Ct., NY County 2021] [Weiner, J.]; People v. Sozoranga-Palacios , 73 Misc 3d 1214[A] [Crim. Ct., NY County 2021] [Stein, J.]; People v. McKinney , 71 Misc 3d 1221[A] [Crim. Ct., Kings County 2021] [Kitsis, J.]).

Nonetheless, the court will provide a quick synopsis here. If the People call an officer to testify, the officer's prior disciplinary material tends to "impeach" their "credibility." ( C.P.L. § 245.20[1][k][iv] ). That is because evidence of "a police witness’ prior bad act ... can be proper fodder" to impeach their credibility on cross-examination. ( People v. Smith , 27 NY3d 652, 661 [2016] ). Such evidence can show that the witness has an "untruthful bent" or a "willingness or disposition ... voluntarily to place the advancement of individual self-interest ahead of principle or the interests of society." ( People v. Walker , 83 NY2d 455 [1994] ).

"Courts have ruled time and again that case summaries prepared by the People are insufficient to satisfy the mandates imposed by C.P.L. § 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witness, should not be filtered through the prosecution." ( Goggins , 76 Misc 3d at 901 [also collecting cases]). "It is not for the People to decide, in the first instance, if a particular item from a disciplinary record might be admissible or might impeach a witness." ( People v. Pennant , 73 Misc 3d 753, 761 [Dist. Ct., Nassau Cty. 2021] ). "As the Court of Appeals has long recognized, the best judge of the impeachment value of evidence is the ‘single-minded counsel for the accused.’ " ( Edwards , 74 Misc 3d at 443 [quoting People v. Rosario , 9 NY2d 286, 290 [1961] ). "To permit the single-minded counsel for the accused to be permitted only to see filtered allegations of misconduct impinges on counsel's ability to represent the accused." (Id. ) It also violates the plain text of C.P.L. § 245.20[1][k][iv], which demands that the People disclose "all" impeachment information relating to their testifying officers—not to pick and choose which they think would have "impact" on the officer's credibility. "The clear scope of the statute removes that discretion from the People." ( Pennant , 73 Misc 3d at 761 ; see also C.P.L. § 245.20[1][k] [mandating disclosure "irrespective of whether the prosecutor credits the information"]).

For the other six officers involved in this case, whom the People do not intend to call to testify, the People take a more hardline position. They argue that they need not even author "LEOW letters" for these officers. In other words, they believe that they need not even review these officers’ disciplinary files at all, let alone disclose any favorable material that may exist within them. (Cf. 245.50[1] [requiring the People to exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of discoverable material]). This court has rejected this position before, ( People v. Cartagena , 76 Misc 3d 1214[A], at *5-*6 [Crim. Ct., Bronx County 2022] ; People v. Amir , 76 Misc 3d 1209[A], at *5-*6 [Crim. Ct., Bronx County 2022] ; People v. Figueroa , 76 Misc 3d 888, 894-96 [Crim. Ct., Bronx County 2022] ), and does so here again.

In support of their position, the People rely entirely upon a single trial-court case from the Bronx, People v. Edwards , 77 Misc 3d 740 [Crim. Ct., Bronx County 2022]. Its reasoning was as follows. The text of the discovery statute includes, as automatically discoverable material, evidence that would " ‘impeach the credibility of a testifying prosecution witness.’ " ( Id. at 744 [quoting C.P.L. § 245.20[1][k][iv] ). Therefore, the statute does not include disciplinary records for officers who are not testifying prosecution witnesses. (Id. ). And even if disciplinary records could be favorable for some other purpose—like negating a person's guilt or reducing culpability (see C.P.L. §§ 245.20[1][k][i], [ii] )—"there needs to be some limit on the People's obligation to search for such information." ( Edwards , 77 Misc 3d at 745 ). Citing a 2018 trial-court decision about constitutional due-process requirements, Edwards fashions its own such limit: that there must first be "some reason to believe such material exists." (Id. ). It notes that in its case, the defense "advances no specific argument" as to how the disciplinary records would be favorable. (Id. ). Therefore, it concludes, the People could not be held responsible for refusing to review those records. (See id. ). Having surveyed the current cases on this issue, Edwards provides the best articulation for the People's position. The court takes each of its errors in turn.

Edwards begins by erroneously reporting that the text of the discovery statute only...