People v. Pealo

• Decision Date: 15 February 2021
• Docket Number: xxxx
• Citation: 142 N.Y.S.3d 751,71 Misc.3d 337
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Justin L. PEALO, Defendant.
• Court: New York County Court

71 Misc.3d 337

142 N.Y.S.3d 751

The PEOPLE of the State of New York, Plaintiff,

v.Justin L. PEALO, Defendant.

xxxx

Justice Court, New York, Town of Penfield, Monroe County.

Decided on February 15, 2021

Sandra Doorley, Esq., Monroe County District Attorney (By Nicholas T. Fletcher, Esq.)

For Defendant: James Riotto II, Esq.

James P. Mulley, J.

The issue before the court is whether defendant is entitled to an order striking the certificate of compliance (CoC) and statement of trial readiness (SoR) based on alleged violations of the People's discovery obligations under CPL Article 245. The court finds that the CoC was valid, even though it identified discovery material the prosecution was aware of, but did not yet possess.

On January 15, 2020, defendant was arraigned in Penfield Town Court on two counts of driving while intoxicated ( VTL §§ 1192[2] and 1192[3] ), and three traffic infractions. The offenses allegedly occurred on December 28, 2019. The People filed a CoC and a SoR on March 25, 2020, and supplemental CoC's and SoR's April 15, 2020 and November 2, 2020. Defendant filed objections to the CoC's and SoR's, contending that the original CoC was untimely and filed before the prosecutor obtained and made available all the material identified in the CoC. Defendant seeks a ruling striking the CoC and SoR. The People contend that they have complied with their discovery obligations, stating that they made good faith and diligent efforts to obtain the material identified in the initial CoC, and that other items sought have previously been disclosed or do not exist.

DISCUSSION

CPL Article 245, part of discovery reform legislation, took effect January 1, 2020. The legislation prescribes an extensive, but non-inclusive, list of materials that the People are obligated to disclose to defendant ( CPL § 245.20 ). The legislation also sets forth time periods within which discovery must be provided ( CPL §§ 245.10 ; 245.20[s]). When the prosecution has provided the required discovery, they must serve upon the defendant and file with the court a CoC ( CPL § 245.50 ). The legislation links the new discovery requirements to CPL § 30.30 speedy trial provisions (CPL §§ and 245.50[3] and 30.30[5]). Unless the court makes an individualized finding of exceptional circumstances, the People shall not be deemed ready for trial until they have filed a proper CoC ( CPL § 245.50[3] ).

The following dates are relevant in resolving the issues presented:

December 28, 2019 - Defendant arrested for driving while intoxicated ( VTL §§ 1192[2] and 1192[3] ) and three traffic infractions.

January 15, 2020 - Defendant arraigned. Assistant District Attorney acknowledged that discovery was not complete. No CoC or SoR filed.

February 19, 2020 - Plea offer placed on the record. No CoC or SoR filed. Case adjourned to March 18, 2020, for response to plea offer.

March 7, 2020 - Governor Cuomo signed Executive Order 202 declaring a state disaster emergency for the entire state due to COVID-19 pandemic.

March 11, 2020 - No appearances. Defendant filed omnibus motion.

March 18, 2020 - No appearances. Court closed due to pandemic.

March 20, 2020 - Governor Cuomo signed Executive Order 202.8, essentially tolling and suspending all criminal statutes of limitations and other statutory time frames and deadlines.

March 25, 2020 - People emailed CoC and SoR to court and counsel. The CoC indicated that the People requested preservation of all electronic recordings of 911 calls and computer-aided dispatch reports, but did not have that information in their possession.

April 15, 2020 - Court closed due to COVID-19 pandemic. People emailed supplemental CoC and SoR to court and counsel. People obtained 911 calls and computer aided dispatch reports not previously in their possession and control and turned the material over electronically.

April 21, 2020 - Court closed due to pandemic. People's response to defendant's omnibus motion emailed to court.

July 23, 2020 - Pretrial conference held telephonically. Plea offer reviewed. Case adjourned for plea or argument of motions.

October 21, 2020 - Motions argued. Court granted defendant's request for probable cause hearing. Counsel advised the court that defendant wished to waive the pretrial hearings and proceed to a bench trial. Case adjourned to November 4 to set bench trial date.

October 26, 2020 - Defendant emailed court and counsel objections to People's CoC and SoR. Defendant claimed that the March 25 CoC was invalid because the People filed it before acquiring and providing all discovery material known to exist.¹

November 18, 2020 - Motions argued. Defense claims People did not meet discovery obligations. Defense claims that the March 25, 2020 CoC was defective because it was filed before the People obtained the 911 records. Defense does not seek sanctions; only request is to strike CoC and SoR. People asserted that they acted in good faith and diligently in an effort to meet their discovery obligations. The court reserved decision and permitted counsel the opportunity to submit additional written arguments.

The court now turns to the legal issues presented.

I. Validity of the Certificate of Compliance filed March 25, 2020

The CoC filed March 25, 2020 advised defendant of the existence of 911 recordings, but did not make the information available because the recordings were not yet in the prosecution's possession.

CPL § 245.50 governs the filing of certificates of compliance. That section requires that the CoC "state that ... the prosecutor has disclosed and made available all known material and information subject to discovery .... If additional discovery is subsequently provided prior to trial pursuant to section 245.60 ..., a supplemental certificate shall be served ... (emphasis added).

CPL § 245.60, referenced in CPL § 245.50, allows the prosecution or the defendant to disclose information if either party "subsequently learns of additional material" which it would have been under a duty to disclose (see e.g., People v. Davis , 70 Misc. 3d 467, 134 N.Y.S.3d 620 [2020] ).

Defendant contends that CPL § 245.50 requires the prosecution to acquire and make available all material before a valid CoC may be filed. Defendant further contends that the CPL § 245.60 exception allows subsequent disclosure of newly discovered information; not information the prosecution is aware of, but has not yet obtained.

The courts that have considered this issue agree that where new information is discovered after the filing of the CoC, CPL § 245.60 permits the People to disclose the newly discovered information and file a supplemental CoC without penalty. However, the courts are split on the whether the People can file a valid CoC and declare readiness for trial in cases where the prosecution is aware of, but has not obtained the information or material.

In People v. Askin, 68 Misc. 3d 372, 124 N.Y.S.3d 133 [2020], the court considered two supplemental CoC's. The first concerned the belated disclosure of the curriculum vitae of a prosecution witness. The second concerned the belated disclosure of medical records. The court concluded that the subsequent filing of the documents did not negate the People's initial CoC:

"the curriculum vitae was not within the control of the People and filing same upon receipt does not negate the People's compliance certificate and statement of readiness for trial. The same is true for medical records obtained via subpoena they have no control over when an outside agency will fill a subpoena request. As long as the People timely submit the subpoena and advise defense of the same, this court finds that they may certify compliance while awaiting documents."

The court reached the same conclusion in People v. Nelson, 67 Misc. 3d 313, 119 N.Y.S.3d 837 [2020], where the prosecution advised defendant of the existence of radio logs they had not yet obtained from the New York State Police.

Thus, there is authority to support the People's position that as long as the prosecutor is acting in good faith, and advises defendant of the existence of the information not in their possession or control, they may file a valid CoC and SoR before obtaining the information and providing it to the defense.

Other courts have taken a contrary view ( People v. Adrovic, 69 Misc. 3d 563, 130 N.Y.S.3d 614 [2020] ; People v. Rosario , 70 Misc. 3d 753, 139 N.Y.S.3d 498 ; People v. Quinlan, 71 Misc. 3d 266, 142 N.Y.S.3d 305 ). In Adrovic , the court criticized the approach taken in Askin and Nelson regarding known but unattained discovery, reasoning that such an approach "ignores the solution provided by the legislature: if there is discoverable material which the prosecution knows of but doesn't yet possess, it should either move for an extended timeline pursuant to CPL § 245.70(2) or seek an individualized finding of exceptional circumstances pursuant to CPL § 245.50(3)" ( People v. Adrovic, supra at 576, n.4, n.7, 130 N.Y.S.3d 614 ). The court detailed what it determined to be the two options available to the prosecution when confronted with this situation:

... despite the People's diligent and reasonable inquiries to obtain material subject to required disclosure, they may from time to time identify some particular items they have not yet acquired. When that occurs the legislature gave the People the option to apply, under CPL 245.70(2) for a good cause extension for additional time in which to deliver the required discovery.... Under these circumstances, the People must make a motion in which they establish good cause for extending the discovery period.... By following the prescribed procedure and upon the granting of the motion the People would get additional time to disclose these hard-to-obtain items without penalty.

The statute provides one additional option for prosecutors who are unable to provide known-but-unobtained discovery. CPL 245.50(3) allows the People to request the Court to find exceptional circumstances for the non-disclosure. If the...