People v. Perez

• Decision Date: 14 June 2021
• Docket Number: 00477-2020
• Citation: 150 N.Y.S.3d 868,73 Misc.3d 171
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Ashley PEREZ, Defendant.
• Court: New York Supreme Court

73 Misc.3d 171
150 N.Y.S.3d 868

The PEOPLE of the State of New York, Plaintiff,
v.
Ashley PEREZ, Defendant.

00477-2020

Supreme Court, Queens County, New York.

Decided on June 14, 2021

150 N.Y.S.3d 870

The People by: Assistant District Attorney Danielle Catinella, Queens County District Attorney's Office, 125-01 Queens Boulevard, Kew Gardens, New York 11415

The Defendant by: Steven Sternberg, Esq. and Cassandra Kelly, Esq., Queens Defenders, 118-21 Queens Boulevard, Suite 212, Forest Hills, New York 11375

Gene R. Lopez, J.

73 Misc.3d 173

The defendant, Ashley Perez, is charged with five counts of Aggravated Vehicular Assault ( Penal Law §§§ 120.04[A][1], [3], [4] ), five counts of Vehicular Assault in the First Degree ( Penal Law §§§ 120.04[1], [3], [4] ), two counts of Vehicular Assault in the Second Degree ( Penal Law § 120.03[1] ), two counts of Assault in the Second Degree ( Penal Law § 120.05 ), two counts of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree ( VTL § 511[3][a][i] ), Aggravated Driving While Intoxicated ( VTL § 1192[2][a] ), two counts of Driving While Intoxicated ( VTL §§ 1192[2], [3] ), and Reckless Driving ( VTL § 1212 ).

The People filed a certificate of compliance, pursuant to CPL § 245.50[1], on October 19, 2020. Thereafter, they filed supplemental certificates on October 23, 2020, November 10, 2020, November 30, 2020, January 4, 2021, January 29, 2021, and April 7, 2021. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials.

150 N.Y.S.3d 871

The People oppose the defendant's motion.

Relevant Law

On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia , expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Sess Law News of NY Ch 56 [S 7506-B] Part HHH [McKinney's].)

Pursuant to CPL § 245.20(1), prosecutors are required to disclose "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 and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. ( CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.

73 Misc.3d 174

In making such disclosures, the statute explains:

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [ CPL § 245.20(1) ] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.

( CPL § 245.20[2].) And, importantly, "all 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].) Congruent with that provision, CPL § 245.55(1) directs that, "The district attorney and the assistant responsible for the case, ... shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged...." The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245 ( CPL § 245.20[7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." ( CPL § 245.60.)

Significantly, the law also ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL § 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL § 245.20(1). ( CPL § 245.50[1].) Therein, the People must affirm 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." (Id. ) In addition to this statement,

73 Misc.3d 175

the certificate must include a list of the discovery materials provided. (Id. ) Moreover, if the People provide additional discovery

150 N.Y.S.3d 872

in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information provided." ( CPL § 245.50[1].) Notably, the statute also specifies, "No adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." ( CPL § 245.50[1].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL § 30.30. Pursuant to CPL § 245.50(3), "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The statute further clarifies that, "[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [ CPL § 245.80(b) ], despite diligent and good faith efforts, reasonable under the circumstances."¹ And CPL § 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 ...." ( CPL § 30.30[5] ).

73 Misc.3d 176

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL § 30.30[5] ; People v. Barnett , 68 Misc. 3d 1000, 1002, 129 N.Y.S.3d 293 [Sup. Ct. N.Y. County 2020].) And the statute requires that "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." ( CPL § 245.50[4].) However, for the purposes of evaluating a claim concerning the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper" certificate, which it makes the prerequisite to an announcement of trial readiness. ( CPL § 245.50[3].) Given that the statute specifies that "[n]o adverse consequences" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances," ( CPL § 245.50[1] ), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v. Bruni , 71 Misc.3d 913, 144 N.Y.S.3d 544, 2021 N.Y. Slip Op. 21076 [Albany County Ct. 2021]

150 N.Y.S.3d 873

People v. Erby , 68 Misc. 3d 625, 633, 128 N.Y.S.3d 418 [Sup. Ct. Bronx County 2020] ; People v. Gonzalez , 68 Misc. 3d 1213(A), *1, 3, 2020 WL 4873901 [Sup. Ct. Kings County 2020] ; People v. Knight , 69 Misc. 3d 546, 552, 130 N.Y.S.3d 919 [Sup. Ct. Kings County 2020] ;...