People v. Perez

• Decision Date: 08 April 2021
• Docket Number: 2019BX024675
• Court: New York Criminal Court
• Parties: The PEOPLE of the State of New York v. Juan PEREZ, Defendant.

71 Misc.3d 1214 (A)

144 N.Y.S.3d 332 (Table)

The PEOPLE of the State of New York

v.Juan PEREZ, Defendant.

2019BX024675

Criminal Court, City of New York, Bronx County.

Decided on April 8, 2021

For the People: Stephanie McCarthy, Esq., Assistant District Attorney, Bronx District Attorney's Office, 198 East 161st Street, Bronx, NY 10451

For the Defendant: Masooma Javaid, Esq., The Legal Aid Society - Bronx County, Criminal Defense Practice, 260 East 161st Street, 10th Floor, Bronx, NY 10451

Jeanine R. Johnson, J.

By Notice of Motion, filed November 27, 2020, Defendant moves to deem the Prosecution's Certificate of Compliance (hereinafter "COC") filed, February 25, 2020 invalid pursuant to Criminal Procedure Law (hereinafter "CPL") §§ 245.20(1) and 245.50(1) and for the Court to dismiss the accusatory instrument pursuant to CPL §§ 30.30 and 210.20(1)(g).

Having reviewed the Defendant's moving and reply papers, the People's Affirmation in Opposition and sur-reply and the relevant documents in the official court file, this Court finds the People's February 25, 2020 COC invalid but due to special circumstances and an unreasonable delay by the Defendant denies the Defendant's Motion to Dismiss.

RELEVANT PROCEDURAL BACKGROUND

Defendant was charged by criminal complaint and arraigned on September 14, 2019, with, Operating a Motor Vehicle while under the influence of Alcohol or drug in violation of Vehicle and Traffic Law (hereinafter "VTL") §§§ 1192(3) ; 1192(2) and 1192(1).

On January 14, 2020, the People filed an Automatic Disclosure Form (hereinafter "ADF") pursuant to CPL § 245.20(1). On February 25, 2020, the People filed their COC, Disclosures and Statement of Readiness (hereinafter "SOR"). On November 27, 2020, the Defendant filed the instant motion. On December 11, 2020, the People filed their Affirmation in Opposition. On December 18, 2020, the Defendant filed a Reply to the People's Affirmation. On January 22, 2021, the People filed their Sur-Reply.

RELEVANT STATUTES

CPL § 30.30(1)(b). Speedy trial. Time limitations.

(1) Except as otherwise provided in subdivision three, a motion made under paragraph (e) of subdivision one of § 170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within:

(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.

CPL § 170.30(1)(e). Motion to dismiss information, simplified information, prosecutor's information or misdemeanor complaint.

(1) After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:

(e) The defendant has been denied the right to a speedy trial.

CPL § 245.20(1)(k)(s). Timing of discovery.

(1) Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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 or control, including but not limited to:

(k) 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: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article.

(s) In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court information, prosecutor's information, information, or simplified information, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date.

CPL §§ 245.50(1) and (3). Certificates of compliance; readiness for trial.

(1) By the prosecution. When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state 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. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or 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.

(3) Trial readiness. Notwithstanding the provisions of any other law, 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 purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section.

CPL § 245.60. Continuing duty to disclose.

If either the prosecution or the defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article. This section also requires expeditious disclosure by the prosecution of material or information that became relevant to the case or discoverable based on reciprocal discovery received from the defendant pursuant to subdivision four of section 245.20 of this article.

DISSCUSSION

Certificate Of Compliance

The Defendant moves to have the People's COC dated February 25, 2020, and SOR, declared invalid due to the People's failure to turn over all Civil Compliant Review Board (hereinafter "CCRB") and NYPD Internal Affairs Bureau (hereinafter "IAB") records relating to the officers in the case; and, for failing to timely disclose the records of inspection, calibration or repair of machines used to perform tests. The People argue they complied with their discovery obligations in February 2020 when they provided all substantiated personnel police records, and calibration and field inspection unit reports (hereinafter "FIUR") that they were aware of. The People further assert that the reports provided in October 2020 (two notes between highway officers regarding out of service incidents) corroborate information initially disclosed rather than offer new information.

Article 245 of the CPL requires the People to openly provide a non-exhaustive list of discovery materials including, but not limited to, impeachment, exculpatory and mitigating evidence or information known to the police or other law enforcement agencies; and, a year of records of calibration, certification, inspection, repair or maintenance of machines used to perform scientific tests and experiments in VTL cases. See CPL § 245.20(1)(k), (s) and (7). The Prosecution, with limited exception, is required to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under 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." CPL § 245.20(2) ; see People v Porter, 2020 NY Slip Op 20362 (Crim Ct Bronx County 2020) [People must provide the entirety of any substantiated records to comply with their discovery obligation].

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