People v. Rosario

• Decision Date: 20 November 2020
• Docket Number: DA 120-20
• Citation: 70 Misc.3d 753,139 N.Y.S.3d 498
• Parties: The PEOPLE of the State of New York v. Francisco ROSARIO, Defendant.
• Court: New York County Court

70 Misc.3d 753

139 N.Y.S.3d 498

The PEOPLE of the State of New York

v.Francisco ROSARIO, Defendant.

DA 120-20

County Court, New York, Albany County.

Decided on November 20, 2020

FOR THE PEOPLE: HON. P. DAVID SOARES, ESQ., Albany County District Attorney, Albany County Judicial Center, DAVID J. SZALDA, ESQ., CHRISTOPHER D. HORN, ESQ., Assistant District Attorneys, 6 Lodge Street, Albany, New York 12207

FOR THE DEFENDANT: MATTHEW C. HUG, ESQ., 21 Everett Road Extension, Albany, New York 12205

William A. Carter, J.

By indictment filed on August 14, 2020, defendant was arraigned on murder in the second degree, a class A-I felony ( Penal Law § 125.25 [1] ) and criminal contempt in the second degree, a class A misdemeanor ( Penal Law § 215.50 [3] ).

Applicable Procedural History

On September 16, 2020, the People filed a certificate of compliance (CoC) and statement of trial readiness (STR) (see CPL 245.50 [1], 30.30 [5] ). After oral argument at the September 17, 2020 CoC inquiry, defendant opted to file a written challenge to the People's September 16, 2020 CoC and STR (see CPL 30.30 [5] ). By letter dated September 24, 2020, defendant asserted the People failed to comply with CPL 245.20 (1)(c), with respect to names and adequate contact information for all witnesses to the incident and with CPL 245.20 (1)(k)(iv) in failing to provide the disciplinary records and adequate supporting documentation with respect to the People's thirteen (13) law enforcement witnesses. After service of additional discovery upon defendant, on September 30, 2020, the prosecutor filed and served a supplemental CoC (Supp CoC), pursuant to CPL 245.50 (2). By affirmation and memorandum of law filed on October 2, 2020, the People oppose defendant's challenge to their September 16, 2020 CoC and STR. At the October 22, 2020 continuation of the judicial inquiry, inter alia , defendant orally responded to the People's arguments set forth in their October 2, 2020 memorandum of law.

Independence of Judicial CoC Inquiry: CPL 245.50, 30.30 (5)

As noted in the supplemental statutory commentaries, the newly enacted CPL 30.30 (5), mandates that, "irrespective of a challenge by the defense," upon the People's STR, the court shall make inquiry into the People's " ‘actual readiness’ (or in decisional law language, whether the statement of readiness is ‘illusory,’ that is, not truthful or accurate" (Donnino, Supplemental Practice Commentaries, McKinney's Cons Laws of NY, CPL 30.30 [online version]). If, after inquiry, "the court determines that the People are not ready to proceed to trial [due to an improper CoC], the prosecutor's statement or notice of readiness shall not be valid for purposes [of stopping CPL 30.30 time from accruing]" ( CPL 30.30 [5] ).

Statutory Interpretation: Presumption in Favor of Disclosure: CPL 245.20 (7)

As applicable here, in enacting CPL 245.20 (7) the Legislature unequivocally instructs that when interpreting statutes governing the timing of discovery, the prosecution's automatic disclosure obligations and disclosures required for certain guilty pleas "[t]here shall be a presumption in favor of disclosure [emphasis added])."¹ Thus, this court must employ a presumption in favor of disclosure when interpreting all subsections of CPL 245.20, including CPL 245.20 (1)(k)(iv), when assessing whether the People have filed a proper CoC and whether the People's STR was valid to stop the CPL 30.30 clock from running.

People's Discovery Compliance Timeline

Effective January 1, 2020, New York State's newly enacted discovery statute, CPL Article 245 and associated amendments to CPL 30.30, inter alia , took effect. CPL 245.20 (1) now requires the People to disclose twenty-one non-exhaustive categories of discoverable material (entitled "automatic discovery") to defendant "as soon as practicable" but not later than a fixed period of time (see 245.20 [1][a]-[u]; CPL 245.10 [1] ). Barring certain exceptions (see CPL 245.20 [1][a][iv] ), and depending on defendant's custodial status (see CPL 245.10 [1][a][i],[ii] ), a prosecutor is required to serve defendant with automatic discovery "as soon as practicable" but not later than 20-35 days after defendant's arraignment on a criminal instrument (see CPL 245.10 [1][a][i], [ii] ). Beyond these timelines, the Legislature has further shortened the People's timeline for service of the seven forms of exculpatory evidence set forth at CPL 245.20 (1)(k)(i-vii). This unique timeline, among other prosecutorial mandates, is set forth within CPL 245.20 (1)(k), and provides:

"Information under [ CPL 245.20 (1)(k) ] 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 " (emphasis added).

If the People require additional time to comply with their discovery obligations, CPL 245.70 (2) directs the prosecutor to move for additional time, which may be granted "upon a showing of good cause" ( CPL 245.70 [2] ). No good cause extensions were requested in this case.

Prosecutor's Discovery Obligations

Discovery compliance now requires the People, upon disclosing "all known" materials, to certify that due diligence was exercised to ascertain the existence of any other materials (see People v. Adrovic , 69 Misc. 3d 563, 130 N.Y.S.3d 614 [Kitsis, J., N.Y. Crim. Ct., 2020] ). Specifically, CPL 245.20 (2) provides, in relevant part:

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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. For purposes of subdivision one of this section, 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 " ([emphasis added]).

Any assessment of a prosecutor's due diligence with discovery compliance must be considered in conjunction with the provisos contained within CPL 245.55 (1) and (2).

CPL 245.55 (1), entitled, "Sufficient communication for compliance" provides in relevant part, 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, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article [emphasis added].

CPL 245.55 (2), entitled, "Provision of law enforcement agency files" provides:

Absent a court order or a requirement that defense counsel obtain a security clearance mandated by law or authorized government regulation, upon request by the prosecution, each New York state and local law enforcement agency shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article [emphasis added].

Certificate of Compliance: CPL 245.50 ; 30.30 (5)

Unless the court makes an "individualized finding of special circumstances" the People "shall not be deemed ready for trial until [they have] filed a proper certificate [of compliance] pursuant to CPL 245.50 (1) (see CPL 245.50 [3] ). Pursuant to CPL 245.50 (1), after the prosecutor provides all automatic discovery (see CPL 245.20 [1][a]-[u] ), excepting discovery lost or destroyed (see CPL 245.80 [1][b] ) or items subject to a protective order (see CPL 245.70 ), the prosecutor shall file and serve a certificate of compliance, which:

"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" ( CPL 245.50 [1] [emphasis added]).

The sole "condition precedent to the prosecutor's ability to file a [CoC] is the discovery of all material considered [a]utomatic [d]iscovery" ( People v. Napolitano , 67 Misc. 3d 1241(A), N.Y. Slip Op. 50802(U) [Kate Paek, J., Sup. Ct., N.Y., June 11, 2020] ). It was recently observed that a CoC "serves only one practical purpose: It is a necessary prerequisite to a valid statement of readiness under C.P.L. § 30.30" ( People v. Barnett , 68 Misc. 3d 1000, 1002, 129 N.Y.S.3d 293 [Statsinger, J., N.Y. Sup. Ct. 2020] ). Inasmuch as defendant is charged with murder in the second degree, CPL 30.30 (1) is inapplicable to his case (see CPL 30.30 [3][a] ).² While Supreme Court's observation in People v. Barnett (supra ) is understandable in the context of the case before it, surely the People's full compliance with their automatic discovery obligations is just as practically purposeful, if not more so, for defendants charged with crimes falling outside the time constraints of CPL 30.30 (1). In fact, in this court's judgment, the absence of CPL 30.30 -time constraints to incentivize discovery compliance seemingly requires greater judicial scrutiny over the People's discovery compliance. Accordingly, for purposes of this decision, the court's determination concerning the validity of the People's CoC, relates solely to defendant's request for sanctions for...