People v. Moss
| Decision Date | 21 June 2022 |
| Docket Number | Docket No. CR-021652-21NY |
| Citation | 75 Misc.3d 956,172 N.Y.S.3d 331 |
| Parties | The PEOPLE of the State of New York, v. Robert MOSS, Defendant. |
| Court | New York Criminal Court |
75 Misc.3d 956
172 N.Y.S.3d 331
The PEOPLE of the State of New York,
v.
Robert MOSS, Defendant.
Docket No. CR-021652-21NY
Criminal Court, City of New York, New York County.
Decided on June 21, 2022
Jason A. Steinberger, for defendant.
Alvin Bragg (James Clarke of counsel), for the People.
Eric Schumacher, J.
Second motion1 by defendant Robert Moss for an order deeming the prosecution's certificate of compliance improper under CPL 245.50(1) and dismissing the information pursuant to CPL 30.30, and 170.30(1)(e), or, in the alternative, for an order of preclusion is denied.
BACKGROUND
On March 28, 2022, as is relevant here, a judge of this court denied the branch of defendant's prior motion seeking an order deeming the prosecution's December 17, 2021 certificate of compliance improper. In the same decision and order, the motion judge ordered Mapp , Johnson , Huntley , and Dunaway hearings. The motion judge also found that, from September 21, 2021, the date of the arraignment, to December 17, 2021, 87 days were chargeable to the prosecution.
In the instant motion, defendant's sole allegation, in a single, half-page paragraph, is that, on May 18, 2022, four days before the next scheduled court date, which defendant characterizes as for "trial," the prosecution attempted to serve certain expert witness documents on the defense (defendant's affirmation in support ¶ 8). Defendant then affirms that the defense could not open the provided .zip file.
Defendant argues that the prosecution "routinely uses the same expert in its [similar] trials" and should have already disclosed the documents (id. ) Defendant further argues that all time from December 17, 2021, is chargeable to the prosecution and that, consequently, the case should be dismissed. Defendant argues in the alternative that the prosecution should be precluded from introducing testimony or evidence from this witness.
The prosecution affirms in opposition, in sum and substance, that it had not confirmed the specific expert who would be
testifying at trial at the time of the filing of the certificate of compliance. The prosecution further affirms that it did timely disclose the names of possible experts on its supplemental automatic discovery form on January 21, 2022, pursuant to its ongoing disclosure obligations.
The supplemental automatic discovery form provides the name of the expert in question, along with the names of two others, and states,
"[t]he People currently expect to call on their direct case an expert ... as a witness at a future hearing or trial and hereby make the following disclosures regarding expert opinion evidence. Where we have not determined who the specific expert will be, we have summarized, where possible, the topics of the expected testimony, based upon the nature of the expert topic. We will provide further information required pursuant to [ CPL § 245.20(1)(f) ] once specific witness determinations are made and additional discoverable material becomes available."
(The prosecution's affirmation in opposition, exhibit 1, ¶ g.) The form then states that "the expert's education in the field" "will be included in any report the expert may prepare" (ibid. ).
The prosecution affirms that it did not know...
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