People v. Pennant, 2021-21277

CourtNew York District Court
Writing for the CourtANDREW M. ENGEL, J.D.C.
PartiesThe People of the State of New York, v. Gerald Pennant, Defendant.
Docket Number2021-21277
Decision Date15 October 2021

The People of the State of New York,
v.

Gerald Pennant, Defendant.

No. 2021-21277

District Court of Nassau County, First District

October 15, 2021


Andrew M. Engel, J.

Papers Submitted:

Notice Motion 1

Affirmation in Support 2

Memorandum of Law 3

Affirmation in Opposition 4

ANDREW M. ENGEL, J.D.C.

On August 4, 2019, the Defendant was arraigned on the charges of driving while intoxicated, refusing to submit to a breath test, driving at an unreasonable and imprudent speed, disobeying a traffic control device, moving from lane unsafely, failing to use a designated lane, driving on the shoulder, stopping standing or parking on a highway, and driving in a matter interfering with other vehicles, in violation of VTL §§ 1192(3), 1194(1)(b), 1180(a), 1110(a), 1128(a), 1128(c), 1131, 1201(a), and Parkway/Thruway Regulations § 3781(l), respectively. The matter was adjourned to Part 8 for August 13, 2019.

On July 6, 2020 the People filed a form entitled "Automatic Discovery Form and 710.30 Notices" dated July 2, 2020, which contained a Certificate of Compliance ("COC") and was accompanied by a Certificate of Readiness ("COC") dated July 1, 2020. The Defendant acknowledges receipt of the "Automatic Discovery Form and 710.30 Notices," which contained an unsigned COC, on July 1, 2020, although the copy he received did not contain the People's COR.

Eleven months later, on June 2, 2021 the People provided the Defendant with three letters of censure involving two troopers involved in the Defendant's arrest. These letters of censure were dated January 18, 2019, October 30, 2019 and September 25, 2020 and involved incidents dated December 3, 2018, September 5, 2019 and July 9, 2020, respectively. On June 3, 2021 the People served and filed a supplemental COC and a new COR.

The Defendant now moves for an order deeming the People's COCs to be invalid. The Defendant's motion is based, in part, upon the fact that at the time they filed their COC and COR, on July 6, 2020, the People had not made available to the Defendant any disciplinary "evidence and information" as mandated by CPL § 245.20(1)(k)(iv). The Defendant's motion is further based upon the fact thatwhen the People provided the Defendant with the aforesaid letters of censure and a supplemental COC, they failed to provide any other documentation or records regarding the alleged events underlying the letters of censure.

The People argue that on July 6, 2020, when they filed their COC and COR, they had "disclosed and turned over to the defendant all documents and information that the People were aware of both with respect to CPL 245.20(1)(k) as well as the other subdivisions of CPL 245.20." (Kavanagh Affirmation, 8/20/21, ¶ 24) The People assert that by July 6, 2020, when they filed their COC, they had "disclosed all evidence that existed[.]" [1] The People further argue that their original COC should be found valid, since they eventually provided the Defendant with the letters of censure and then filed a supplemental COC. The People also take the position that they are only obligated to make available to the Defendant items and information related to the subject matter of the case in their possession, custody or control, and seek to blame the New York State Police for any CPL § 245.20(1)(k)(iv) discovery deficiencies, decrying the "lack of cooperation from police agencies statewide[.]" (Kavanagh Affirmation, 8/20/21, ¶ 57)

On January 1, 2020 the newly enacted CPL Article 245 became effective and CPL Article 240 was simultaneously repealed. The new discovery statute significantly expanded the People's discovery obligations. "[T]he prosecution's obligation to provide discovery under the current statute is so broad as to virtually constitute 'open file' discovery, or at least make open file discovery the far better course of action to assure compliance." [William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 245.10] Defendants no longer need to demand discovery, as CPL Article 245 places the affirmative obligation on the People to comply with their automatic discovery obligations, as set forth in CPL §§ 245.10 and 245.20(1)(a-u). See: People v. Villamar, 69 Misc.3d 842, 132 N.Y.S.3d 593, (Crim. Ct. NY Co. 2020); People v. DeMilio, 66 Misc.3d 759, 117 N.Y.S.3d 830 (County Ct. Dutchess Co. 2020); People v. Lobato, 66 Misc.3d 1230 (A), 122 N.Y.S.3d 492 (Crim. Ct. Kings Co. 2020)

CPL § 245.20(1) provides a non-exhaustive list of the items the People must disclose. This list is not to be interpreted narrowly, as CPL § 245.20(7) mandates, "There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article." See: People v. Porter, 71 Misc.3d 187, 142 N.Y.S.3d 703 (Crim. Ct. Bronx Co. 2020); People v. Georgiopolos, 71 Misc.3d 1215(A), 144 N.Y.S.3d 344 (Sup. Ct. Queens Co. 2021)

Among the items the People are mandated to disclose are, "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: impeach the credibility of a testifying prosecution witness." CPL § 245.20(1)(k)(iv) Contrary to the People's argument, this obligation is not merely a codification of their Brady [2] and Giglio [3] obligations, as they existed prior to the enactment of Article 245. This is evident by New York State's adoption and ultimate abandonment of Brady's "materiality" requirement.

In People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 521 (1990), addressing Brady's materiality requirement, the Court of Appeals adopted the "two-tiered framework for determining whether favorable evidence was 'material'" as set forth in United States v. Agurs, 427 U.S.97, 96 S.Ct. 2392 (1976). Where a defendant made a specific discovery request of the People, that the defendant considered material, "a showing of a 'reasonable possibility' that the failure to disclose the exculpatory report contributed to the verdict remain[ed] the appropriate standard to measure materiality[.]" People v. Vilardi, supra. at 77, 556 N.Y.S.2d 518, 523 (1990) Where a defendant made a general request of the People, or made no request at all, "evidence [would] not be considered material unless it was so obviously supportive of a claim of innocence that elementary fairness suggests it should have been disclosed." People v. Vilardi, supra. at 79, 556 N.Y.S.2d 518, 524 (1990) [Simons, J. concurring] See also: People v. McGhee, 36 N.Y.3d 1063, 142 N.Y.S.3d 863 (2021); People v. Rong He, 34 N.Y.3d 956, 112 N.Y.S.3d 1 (2019); People v. Ulett, 33 N.Y.3d 512, 105 N.Y.S.3d 371 (2019); People v. Garrett, 23 N.Y.3d 878, 994 N.Y.S.2d 22 (2014) and People v. Hunter, 11 N.Y.3d 1, 862 N.Y.S.2d 301 (2008)

The court in People v. Agurs, supra. at 107, 96 S.Ct. 2392, 299 (1976) made clear that it was:

not considering the scope of discovery authorized by the Federal Rules of Criminal procedure, or the wisdom of amending those Rules to enlarge the defendant's discovery rights. We are dealing with the defendant's right to a fair trial mandated by the Due Process Clause of the Fifth Amendment of the Constitution

Likewise, the court in People v. Vilardi, supra. at 77, 556 N.Y.S.2d 518, 523 (1990) found this two-pronged definition of materiality preferable "as a matter of State constitutional law[.]"

Thereafter, pursuant to the Report on Attorney Responsibility in Criminal Cases, issued by the New York State Judicial Task Force in February 2017, New York State expanded the People's Brady and Giglio obligations. Pursuant to 22 N.Y.C.R.R. §§ 200.16 and 200.27 a model order was promulgated "requiring criminal trial judges to issue Brady orders to prosecutors, i.e., orders to timely disclose exculpatory evidence favorable to the accused." People v. Portillo, 73 N.Y.3d 216, __ N.Y.S.3d __ (S.C. Suffolk Co. 2021) That order provides, inter alia:

The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case
Favorable information could include, but is not limited to a) Information that impeaches the credibility of a testifying prosecution witness.
Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.

Noticeably absent from the model order is any reference to the two tiered analysis in People v. Vilardi, supra. and to the "materiality" requirement of Brady itself . This is due, at least in part, to the Report on Attorney Responsibility in Criminal Cases, which, in referring to the model order, explicitly provided, "The order should not contain any reference to materiality."

Thereafter, as we now know, adopting much of the language from the Rule 200.16 and 200.27 model order, either verbatim or in sum and substance, the New York State Legislature further broadened the People's discovery obligation beyond these constitutional and administrative requirements. CPL § 245.20(1)(k)(iv) now mandates that the People make available to a defendant "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf, that tends to impeach the credibility of a testifying prosecution witness[.]"

In so doing, the Legislature omitted the "materiality" requirement of Brady and replaced it with the far lesser standard of "tends to impeach," which has appropriately been defined, in these circumstances, as "'that which tends to demonstrate an...

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