People v. Martinez
| Citation | 2022 NY Slip Op 50476 (U) |
| Decision Date | 08 June 2022 |
| Docket Number | Docket No. CR-018924-21NY |
| Parties | The People of the State of New York v. Ezequiel Martinez, Defendant. |
| Court | New York Criminal Court |
Unpublished Opinion
Defense counsel: Aleksandra Ciric, Legal Aid Society of New York
For the People: Alvin Bragg, District Attorney, New York County by Thomas Kendris
By motion filed March 1, 2022, defendant moves for an order deeming invalid the People's certificates of compliance (COC), and dismissing the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) (b). The People filed a response on March 17, 2022. Defendant replied on March 29 2022. On May 18, 2022, the court, after a review of the motion papers, exhibits, and the court file, on the record in open court, granted defendant's motion to dismiss. This Decision and Order provides the court's reasoning.
On August 18, 2021, defendant was arraigned on an accusatory instrument charging him with forcible touching (Penal Law § 130.52 [1]) and forcible touching (Penal Law § 130.52 [2]), class A misdemeanors, and sexual abuse in the third degree (Penal Law § 130.55), a class B misdemeanor. Bail was set and the case was adjourned to August 23, 2021, pursuant to CPL 170.70, for conversion of the criminal complaint to an information.
On the court date of August 23, 2021, supporting depositions were filed, the complaint was deemed an information, and the securing order was modified from bail to supervised release. The case was adjourned to October 4, 2021, for trial.
On the court date of October 4, 2021, the People were not ready for trial, and the case was adjourned to November 9, 2021, for trial.
On October 18, 2021, the People filed and served a purported COC, certificate of readiness (COR), automatic discovery form (ADF), and list of discovery and Rosario materials including disclosure advisory forms (DAF) for three testifying officers, off-calendar.
On November 8, 2021, the People served a purported supplemental COC, off-calendar.
On the court date of November 9, 2021, the People announced ready for trial. Defendant was not ready, and the case was adjourned to December 9, 2021, for trial. On this date defense counsel emailed the People requesting discovery that had not been disclosed, including the following items that are relevant to this motion: a property voucher, clarification on which officers would be testifying, underlying disciplinary records for the testifying officers, a New York City Police Department (NYPD) "scratch 61" complaint report work sheet, and NYPD Special Victims Unit (SVU) officers' names and DD5s.
On November 16, 2021, the People filed and served a second purported supplemental COC, a new ADF, and a COR, off-calendar. This purported COC included all documents and information requested in defense counsel's aforementioned email, with the exception of NYPD disciplinary records.
On November 30, 2021, defendant filed and served an omnibus motion, off-calendar. The People filed their response on December 8, 2021.
On the court date of December 9, 2021, the court granted Wade, Mapp, and Dunaway hearings, and the case was adjourned to January 26, 2022, for hearings and trial.
On the court date of January 26, 2022, the People were not ready for hearings and trial because the assigned Assistant District Attorney was unavailable and requested an adjournment to February 1, 2022. The case was adjourned to February 8, 2022, for hearings and trial.
On the court date of February 8, 2022, the People announced ready. At defendant's request, a motion schedule was set. The case was adjourned to April 18, 2022, for decision.
On February 22, 2022, the People filed a third purported supplemental COC, ADF, and COR, off-calendar.
On March 15, 2022, the People filed a superseding information dated September 4, 2021, which had never been filed or disclosed, off-calendar.
On the court date of April 18, 2022, the case was adjourned to May 18, 2022, for decision. [1]
Criminal Procedure Law § 30.30
Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b] [4]). Computation for speedy trial purposes commences on the day after arraignment (People v Stiles, 70 N.Y.2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 N.Y.2d 859 [1986]; People v Berkowitz, 50 N.Y.2d 333 [1980]).
Defendant argues that more than 90 days of includable time have elapsed since the commencement of the criminal action because the People's purported COCs were invalid, as the People failed to disclose items within their possession either at all, or in accordance with CPL 245.20 and 30.30 (5) (a). According to defendant, the People declined to disclose underlying records related to substantiated and unsubstantiated misconduct for testifying officers, names and contact information for civilian outcry witnesses, and written statements by the complaining witness to those witnesses. Also according to defendant, the People belatedly disclosed an NYPD property voucher and photographs for a Metrocard seized as evidence, a "scratch 61" worksheet and online booking system arrest worksheet, names and affiliation of SVU personnel, SVU DD5s, a video-taped interrogation, designation of testifying law enforcement witnesses, and a signed criminal court complaint.
The People's refusal to disclose the information and material underlying the misconduct allegations requires that defendant's motion be granted. Thus, this decision does not address the other items that, according to defendant, were disclosed belatedly or not at all.
Pursuant to CPL 245.20 (1), the People must automatically disclose to 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." "[A]ll 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]). CPL 245.20 (2) further directs the People to make a diligent, good faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control.
Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and shall state 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" (CPL 245.50 [1]). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery... was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 A.D.3d 787, 787 [2d Dept 2021], citing People v Aquino, 72 Misc.3d 518, 523 [Crim Ct, NY County 2021]).
Pursuant to CPL 30.30 (5), the People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense. Additionally, pursuant to CPL 245.50 (3), "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."
This court has addressed this issue several times since article 245 was enacted. Each time, the court has rejected the People's generic assertion that they need not disclose materials and information underlying substantiated and unsubstantiated disciplinary findings.
Criminal Procedure Law § 245.20 (1) (k) (iv) requires that the People 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... impeach the credibility of a testifying prosecution witness.... Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form.
Consistently, this court has held that that CPL 245.20 (1) (k) (iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of misconduct before a valid COC can be filed (see People v Darren, 2022 NY Slip Op 50415(U), 2022 WL 1614380 [Crim Ct, NY County 2022]; People v Soto, 72 Misc.3d 1153 [Crim Ct, NY County 2021]; People v Williams, 72 Misc.3d 1214 [A] [Crim Ct, NY County 2021]). Other judges in this courthouse have likewise rejected the People's generic claims in this regard (see People v Edwards 74 Misc.3d 433 [Crim Ct, NY County 2021 (Weiner, J)]; People v, Barralaga, 73 Misc.3d 510 [Crim Ct, NY County 2021 (McDonnell, J)]; People v Kelly, 71 Misc.3d 1202 [A] [Crim Ct, NY County 2021 (Gaffey, J)]) People v Ahmed Mohammed, CR-026662-21NY [Crim Ct, NY County, Apr. 28, 2022 (Wang, J)]; People v Abdul Salaam, CR-019124-21NY [Crim Ct, NY County, Apr. 19, 2022 (Maldonado Cruz, J)]). Courts of other jurisdictions have...
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