People v. Mauro

• Decision Date: 18 February 2021
• Docket Number: 18-1315
• Citation: 71 Misc.3d 548,143 N.Y.S.3d 511
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Tony MAURO, Defendant.
• Court: New York County Court

71 Misc.3d 548

143 N.Y.S.3d 511

The PEOPLE of the State of New York, Plaintiff,

v.Tony MAURO, Defendant.

18-1315

County Court, New York, Westchester County.

Decided on February 18, 2021

HON. MIRIAM E. ROCAH, District Attorney, Westchester County, Attorney for Plaintiff, 111 Dr. Martin Luther King Jr. Blvd., White Plains, New York 10601, BY: John Astarita, Esq., Assistant District Attorney.

DOUGLAS G. RANKIN, ESQ., Attorney for Defendant, 26 Court Street, Suite 714, Brooklyn, NY 11242.

David S. Zuckerman, J. Defendant stands accused of two counts of Robbery in the First Degree ( Penal Law § 160.15[2] ), three counts of Kidnaping in the Second Degree ( Penal Law § 135.20 ), Attempted Assault in the First Degree (Penal Law § 110/120.10), and related charges. As set forth in the Indictment, it is alleged that, on or about November 16, 2018, Defendant, in Westchester County, New York, inter alia, forcibly stole property from two persons while armed with a deadly weapon, abducted three persons, and attempted to cause serious physical injury to a person by means of a deadly weapon.

By Notice of Motion dated November 5, 2020, with accompanying Affirmation, Defendant moves to strike the prosecution's Certificate of Compliance and compel discovery. In response, the People have submitted an Affirmation in Opposition, dated December 2, 2020. On January 13, 2021, the court held a virtual conference during which both counsel were heard on the motion.

The motion is disposed of as follows:

A. CONTENTIONS OF THE PARTIES

Defendant moves, pursuant to CPL § 245.50(4), "for an order finding the prosecution's Certificate of Compliance invalid and directing full compliance with [Criminal Procedure Law] § 245.20." Notice of Motion, p. 1. Particularly, Defendant asserts that the People have violated the automatic discovery provisions of CPL § 245.20(1) by not providing him with unspecified police disciplinary records. In support, Defendant asserts that the recent repeal of Civil Rights Law § 50-a, which previously shielded police disciplinary records from disclosure, coupled with recent amendments to the criminal discovery statutes, mandates that the prosecution now automatically provide him with any and all disciplinary records of police officers who may be witnesses in his trial. Since the People have not provided those records, he continues, their Certificate of Compliance is invalid.

In response, the People first argue that, procedurally, Defendant's motion to invalidate their Certificate of Compliance is untimely and, therefore, should be summarily denied. They assert that, almost one year ago, on March 24, 2020, Defendant was served with a filed Certificate of Compliance. Subsequently, after inquiry, the court found that the People were actually ready for trial. Defendant failed, at that time, to contest the filing. Nor did he do so shortly after CPL § 245.50 was amended (to provide that challenges to certificates of compliance must be made by motion). Instead, Defendant filed the instant motion some six months after the statute was amended and almost eight months after the certificate was filed. Since Defendant did not make the instant arguments earlier, he is, the People argue, precluded from asserting them now.

The People further oppose the motion on the grounds that they have provided Defendant with all discovery materials (including any handwritten notes sought by Defendant as "memo book entries"). Particularly with respect to police disciplinary records, the People assert that they inquired of police witnesses whether any exculpatory and/or impeachment material exists (see CPL § 245.20(1)(k) ). The inquiry included questions regarding any lawsuits and/or complaints within their personnel files. The People assert that the police officer witnesses informed them, not later than March 12, 2020, that there were none; except that one of the police witnesses indicated that he had a 2001 DUI conviction from another state and that two detectives had each been the subject of a separate civil action. Shortly thereafter, while preparing for pre-trial hearings scheduled for March 24, 2020, the People again inquired of all police witnesses as to civil actions in which they had been named parties, or complaints contained within their personnel files, which questions were all answered in the negative. The People assert that this is the only information that they know of which is specified by CPL § 245.20(1)(k). Upon disclosing this information to Defendant, the People claim that they have fulfilled their CPL Article 245 disclosure requirements and, therefore, Defendant's motion should be denied.

Lastly, the People assert that CPL Article 245 does not specifically reference police disciplinary records and therefore should not be read to include such records within its reach, at least insofar as request and review of such records for production to defendants is concerned. At a minimum, on its face, the statute does not impute possession of those records to the People nor require their production. Therefore, notwithstanding the repeal of Civil Rights Law § 50-a, they are not required to provide them to Defendant.

B. DISCUSSION

1. Timeliness of the Motion.

CPL Article 245 sets no clear procedure for a defendant seeking to challenge a Certificate of Compliance. Pursuant to CPL § 245.50(4), "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." As Judge Donnino points out in his Practice Commentary, however, the statute is silent regarding the timing of such motion and whether it need be in writing. (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Criminal Procedure Law § 245.50 ).

Nonetheless, there is much to be said for the People's argument that Defendant waived his right to litigate this issue. The People provided Defendant with discovery materials in early 2020. At that time, the People also filed a Certificate of Compliance and announced readiness for trial. Defendant waited some eight months to challenge the People's Certificate of Compliance. The People argue that, since Defendant did not challenge their representations when they filed the Certificate of Compliance nor reasonably soon thereafter, he is precluded from asserting in the instant motion some nine months later.

Certainly, Defendant's eight month delay in filing his motion supports a determination that he waived his objection. There are, however, numerous reported decisions wherein courts have addressed untimely defense motions seeking to strike a Certificate of Compliance on the grounds of what are asserted to have been deficiencies in discovery production. See e.g., People v. Randolph, 69 Misc.3d 770, 132 N.Y.S.3d 726 (Sup. Ct. Suffolk County, September 15, 2020) ; People v. Knight, 69 Misc. 3d 546, 130 N.Y.S.3d 919 (Sup. Ct., Kings County, 2020) ; People v. Gonzalez, 68 Misc. 3d 1213(a), 2020 WL 4873901 (Sup. Ct., Kings County, 2020) ; People v. Lustig, 68 Misc. 3d 234, 123 N.Y.S.3d 469 (Sup. Ct., Queens County, 2020) ; see also People v. Suprenant , 69 Misc.3d 685, 130 N.Y.S.3d 633 (Glens Falls City Ct., 2020). In addition, the court was effectively closed for four months and many deadlines have been tolled for even longer. This, coupled with the lack of a statutory deadline for the motion, compels the court to reject the People's argument that Defendant's motion must be denied on the grounds that counsel failed to move more promptly. Therefore, the court will address the asserted merits of Defendant's motion.

2. Discovery under CPL Article 245

In 2019, the New York State legislature dramatically amended the long-standing discovery provisions of the Criminal Procedure Law (L. 2019, c. 59, pt. LLL, § 2ff, eff. Jan. 1, 2020). The legislation, inter alia , repealed former Article 240 (relating to discovery) and added a new discovery statute, Article 245. These changes not only mandated that the prosecution provide significantly more discovery. They also directed that the materials be provided at an earlier stage of the proceedings. In 2020, CPL Article 245 was amended with regard, inter alia , to the timing of such disclosures (L. 2020, c. 56, pt. HHH, § 1, eff. May 3, 2020).

Without question, the new CPL Article 245 evinces a clear legislative intent to expand the prosecutor's obligation to provide information to the defendant. In addressing any discovery disputes, the court is guided by a "presumption in favor of disclosure." CPL § 245.20(7).

The legislature also added a new requirement that, upon providing all discovery materials, the prosecution must "serve upon the defendant and file with the court a Certificate of Compliance." CPL § 245.50(1). Defendant asserts that the instant Certificate of Compliance is invalid because the prosecution has not provided him with unspecified "police disciplinary records." Defense counsel Affirmation, p. 2. During a virtual conference, counsel elaborated by stating that Defendant is automatically entitled to the entire personnel file of every potential police officer witness.

3. Applicable Statutes

Defendant does not cite any case law in support of his motion. Rather, he relies on CPL § 245.20(1)(k)(iv). That statute requires disclosure of All 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:

(iv) impeach the credibility of a testifying prosecution witnessIn response, the People point to CPL § 245.55 and certain trial level decisions to argue that the new discovery provisions mandate that they only need to provide police reports related to the specific case. That section provides

1. Sufficient communication for compliance. The district attorney and the assistant responsible for the case, or, if the matter is not being prosecuted by the district attorney, the prosecuting agency and its assigned representative, shall endeavor to ensure that a flow of information is

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