People v. Lewis

• Decision Date: 24 May 2021
• Docket Number: CR-037314-19KN
• Citation: 150 N.Y.S.3d 532,72 Misc.3d 686
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Marcus LEWIS, Defendant.
• Court: New York Criminal Court

72 Misc.3d 686

150 N.Y.S.3d 532

The PEOPLE of the State of New York, Plaintiff,

v.Marcus LEWIS, Defendant.

CR-037314-19KN

Criminal Court, City of New York, Kings County.

Decided on May 24, 2021

The Legal Aid Society, Eugenie Montaigne for the defendant

Kings County District Attorney's Office, Gavrielle Kube for the People

Elizabeth N. Warin, J.

The defendant is charged with Criminal Trespass in the Second Degree (PL 140.15 [1]), Criminal Possession of Stolen Property in the Fifth Degree (PL 165.40) and Trespass (PL 140.05). By motion filed on April 6, 2021 the defendant moved to dismiss pursuant to CPL 30.30 (1) (b) and (5-a). On May 4, 2021 the People filed a response. The defendant filed a reply on May 12, 2021. For the reasons stated below, defendant's motion to dismiss is DENIED in its entirety.

I. MOTION TO DISMISS PURSUANT TO CPL § 30.30

A. Applicable Standards

Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within ninety days, less any excludable time ( CPL 30.30 [1] [b] ). The ninety-day period commences with the filing of the accusatory instrument (see CPL 1.20 [17] ); ( People v. Stirrup , 91 N.Y.2d 434, 438, 671 N.Y.S.2d 433, 694 N.E.2d 434 [1998] ). Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" ( People v. England , 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ).

As described in this Court's opinion in People v. Herrera-Aquino, 72 Misc.3d 518, 146 N.Y.S. 3d 906 [Crim. Ct., Kings County 2021], new discovery and speedy trial laws went into effect on January 1, 2020, replacing CPL 240 and amending sections of CPL 30.30. Article 245 delineates the People's expanded discovery obligation, sets out a statutory time frame for its completion, and establishes potential sanctions for late or unobtained discovery where prejudice is shown (see CPL 245.10 [1] [a] ; 245.20; 245.80). The "initial discovery" provision of CPL 245.20 (1) states:

The prosecution shall disclose to the defendant ... 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 [1] )

This same provision delineates a non-exhaustive list of items that the People must provide ( People v. Lustig , 68 Misc. 3d 234, 237, 123 N.Y.S.3d 469 [Sup. Ct., Queens County 2020] ). In effect, the overhaul of the discovery provisions have transformed New York's discovery practice into open file discovery or "at least make[s] open file discovery the far better course of action to assure compliance" ( Id . at 238, 123 N.Y.S.3d 469, citing William C. Donnino, Practice Commentary, McKinney's Cons of NY, Book 11A, CPL 245.10 ).

Under these provisions, the People must comply with their discovery obligations without any demand from the defense. Upon completion of discovery, the People must file a "certificate of compliance" affirming that "all known material and information subject to discovery" has been disclosed and provided to the defense, and that the People have exercised due diligence and made reasonable inquiries to ascertain the existence of the same ( CPL 245.50 [1] [emphasis added]). Moreover, the statute sets out a schedule for the disclosure of discovery, generally thirty-five days from arraignment, with allowances made for voluminous material and other specific circumstances, and with the risk of sanctions for delay where prejudice is shown.¹

Under the new discovery rules, a "proper" certificate of compliance must be filed before the People can be deemed ready for trial ( CPL 245.50 [3] ; see People v. Lobato, 66 Misc. 3d 1230 [A], 2020 N.Y. Slip Op. 50322 [U], *4, 2020 WL 1071377 [Crim. Ct., Kings County 2020] ; People v. Berkowitz, 68 Misc. 3d 1222 [A], 2020 N.Y. Slip Op. 51044 [U], 2020 WL 5508068 [Crim. Ct., Kings County 2020] ). Further, once the People file a certificate of compliance "preceding or accompanying" a declaration of readiness, the Court must then conduct its own on-the-record inquiry as to the People's "actual readiness," and allow the defense to be heard on whether the disclosure requirements have been met ( CPL 30.30 [5] ). However, the People may be deemed ready by the Court, upon a finding that special circumstances exist to excuse a specific non-disclosure if some discovery is "lost, destroyed, or otherwise unavailable," as long as the People have shown "diligent and good faith efforts, reasonable under the circumstances" ( CPL 245.50 [3] ); see also ( CPL 30.30 [5] ).²

CPL 245.50 (1) allows the People to file a certificate of compliance even when the People know some discoverable material has not been disclosed to the defendant if it is "subject to an order under CPL 245.70" ( CPL 245.50 [1] ). Section 245.70 allows the People to apply for a protective order under CPL 245.70 (1) to shield certain discoverable material from full disclosure, and/or allows either side to request a "good cause" extension of the discovery deadlines under CPL 245.70 (2).³ The statute also allows the People to file a certificate of compliance if some discoverable material has not been disclosed because it has been lost or destroyed ( CPL 245.50 [1] ).

In each of these scenarios, it is up to the court to decide if the People have met the requisite statutory standards of due diligence notwithstanding the outstanding discovery and can still be deemed ready for trial by having "done all that is required of them to bring the case to a point where it may be tried." ( England , 84 N.Y.2d at 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 ). For example, if the People have been granted a ‘good cause’ extension under CPL 245.70 (2) to locate some hard-to-find material but otherwise affirm their discovery compliance, they may persuade the court that the specific item is not required for the People to proceed with their case. After the requisite inquiry, the court may accept the statement of readiness, while also allowing more time for the discovery to be provided to defense (see e.g. Berkowitz , 68 Misc. 3d 1222 [A] (People deemed re ady although underlying OCME material for defendant's blood draw was still outstanding where blood draw evidence was not to be used by People at trial; diligence in obtaining data within a reasonable time afterwards also shown)). On the other hand, if the outstanding discovery is necessary for the People's case and likely available within a reasonable time, the People may persuade the Court to apply the ‘exceptional circumstances’ provision of CPL 30.30 (4) (g) to toll the speedy trial clock. Or the People may instead petition the court for a determination that special circumstances exist that should allow them to be declared ready without filing a certificate of compliance (see CPL 245.50 [3] ; see also People v. Adrovic , 69 Misc. 3d 563, 573-574, 130 N.Y.S.3d 614 [Crim. Ct., Kings County 2020] ). Under all circumstances, however, the People cannot be deemed ready where discoverable material is "lost, destroyed or otherwise unavailable" unless the People have shown that "diligent and good faith efforts, reasonable under the circumstances" were employed to try obtain the material ( CPL 245.50 [3] ).

By allowing for the possibility that the People be deemed ready even when some discovery is outstanding, the legislature acknowledged that unavoidable delays and unforeseen hurdles may prevent a diligent prosecutor from complying fully with their discovery obligations, despite their best efforts to obtain all the relevant material in a timely fashion ( People v. Weston , 66 Misc. 3d 785, 789, 119 N.Y.S.3d 841 [Crim. Ct., Bronx County 2020] (extension provisions of discovery statute designed to address realistic delays prosecutors face in gathering discovery); see also Adrovic , 69 Misc. 3d at 573-574, 130 N.Y.S.3d 614 ("by placing the issue before the Court and seeking a ruling based on individualized circumstances, the People may then be able to move forward in their prosecution of a case before disclosure of, and perhaps without ever disclosing outstanding discovery")). These exceptions to the full discovery mandate as a prerequisite to trial readiness are narrowly drawn, limited to ‘special circumstances’ and only available if the People persuade the Court that their efforts to achieve full discovery compliance were sufficient under the statutory standard ( CPL 245.50 [3] ). Incomplete discovery is further discouraged by the statutory provisions allowing for imposition of sanctions, should the belated or thwarted disclosure of discovery cause prejudice to the defendant ( CPL 245.50 [1] ; 245.80 [1] [b]).

B. Time Charged to the PeopleOctober 13, 2019 - November 19, 2019

On October 13, 2019 the defendant was arraigned, and the case was adjourned to October 18, 2019 for conversion. On October 18, 2019, upon the filing of a superseding information and supporting deposition, the case was deemed an information and adjourned to November 19, 2019 for discovery by stipulation.

The parties agree that 5 days are charged between October 13, 2019 and October 18, 2019. 5 DAYS CHARGED TOTAL = 5

November 19, 2019 - December 18, 2019

On November 19, 2019, the People filed and served partial discovery and the case was adjourned for trial to December 18, 2019.

According to the voluntary disclosure agreement in Kings County and existing precedent, adjournments for discovery by stipulation are excludable (see People v. Thomas , 26 Misc. 3d 144 [A], 2010 WL 956021 [App. Term, 2d Dept. 2010] ; People v. Dorilas , 19 Misc. 3d 75, 76, 860 N.Y.S.2d 797 [App. Term, 2d Dept. 2008] ; People v. Nazarov, 2017 N.Y. Slip Op. 50337 [U], at *3, 2017 WL 1096454 [Crim. Ct., Kings County 2017] ). Further, it is well settled that a reasonable adjournment to prepare for hearings and trial is not chargeable to the People (see People v. Greene , 223 A.D.2d 474, 637...