People v. Salters, 2021-50800

CourtNew York District Court
Writing for the CourtANDREW M. ENGEL, J.D.C.
PartiesThe People of the State of New York, Plaintiff, v. Kyle Salters, Defendant.
Docket Number2021-50800,CR-027513-19NA
Decision Date20 August 2021

The People of the State of New York, Plaintiff,
v.

Kyle Salters, Defendant.

No. 2021-50800

Docket No. CR-027513-19NA

District Court of Nassau County, First District

August 20, 2021


Unpublished Opinion

Acting Nassau County District Attorney: Joyce A. Smith

Attorney for Defendant: David Zeitlin

ANDREW M. ENGEL, J.D.C.

Papers Submitted:

Notice Motion 1

Affirmation in Support 2

Affirmation in Opposition 3

Reply Affirmation 4

On October 26, 2019, the Defendant was arraigned and charged with driving while intoxicated, stopping/standing/parking on a highway and driving on the shoulder, in violation of VTL §§ 1192(3), 1201(a) and 1131, respectively.

On or about December 29, 2020, the People filed and served a Certificate of Compliance with Initial Discovery and a Certificate of Readiness for Trial. The Certificate of Compliance represented "that the People have exercised due diligence and made reasonable inquires to ascertain the existence of material and information subject to discovery under C.P.L. § 245.20(1) and have disclosed and made available all known material and information subject to discovery."

After several adjournments, on April 20, 2021, both sides indicated that they were ready to proceed with pre-trial hearings that day. Moments before calling their first witness, the People disclosed, for the first time, that had they obtained a letter of censure which had been issued against the arresting trooper, involving a motor vehicle collision in which he had been involved, and that there is a pending personnel complaint against the assisting trooper regarding an allegation of excessive force used in a driving while intoxicated matter. At that time, the People provided defense counsel with the letter of censure for the arresting trooper.

Upon questioning by the court, the People acknowledged that they had neither obtained nor provided defense counsel with disciplinary records for either the arresting or assisting trooper. When asked if the People had requested such records from the New York State Police before the People filed their Certificate of Compliance, the Assistant District Attorney ("ADA") handling the matter first responded, "No, but I believe at the time of filing that would not have been required." (Transcript 4/20/21, p. 7 l. 5-6) The ADA then indicated that she had been informed that her office "made requests of every law enforcement agency which includes the New York State Police for them to provide us with all disciplinary records of every trooper which would of course then include both testifying troopers in this case." (Transcript 4/20/21, p. 9 l. 17-22) The ADA then acknowledged that as of the hearing date she still did not have the relevant troopers' disciplinary records. When pressed about the efforts made to obtain these records, the ADA reiterated, "We've made requests." (Transcript 4/20/21, p. 9 l. 25) Finally, when specifically asked by the court when these requests were made, to whom the requests were made, who made the requests, what was the response, what was received, what was not yet received, and when they will be received, the ADA requested, "that before especially given that there hasn't been a motion made, even if one is made, I would ask that we have the opportunity as we are entitled to by statute in terms of responding to the motion, I would ask that we are given that opportunity to provide the court with the information that would substantiate my representations that we have made efforts." (Transcript 4/20/21, p. 12 l. 5-12)

The Defendant now moves for an order striking the People's Certificate of Compliance and dismissing the accusatory instruments pursuant to CPL §§ 170.30 and 30.30.

CERTIFICATE OF COMPLIANCE

The Defendant argues that the representations the People made in their Certificate of Compliance, that they "have exercised due diligence and made reasonable inquires to ascertain the existence of material and information subject to discovery under C.P.L. § 245.20(1) and have disclosed and made available all known material and information subject to discovery.," are erroneous. According to the Defendant, given the fact that four months after filing their Certificate of Compliance, the People, for the first time, acknowledged the existence of disciplinary records for the testifying troopers which had not been delivered or made available to the Defendant, "[t]he Certificate of Compliance therefore cannot be said to be 'proper' under CPL § 245.50(3)." (Zeitlin Affirmation, 5/5/21, ¶ 17)

The People acknowledge that CPL § 245.20(1)(k) requires them to disclose any information or evidence that tends to impeach the credibility of a witness before they may file a Certificate of Compliance and Certificate of Readiness. The People also concede that," Here, the filing of the certificate of compliance and certificate of readiness preceded the disclosure of the letters of censure." (Greenberg Affirmation 7/6/21, p. 2) The People, nevertheless, challenge the timing of the Defendant's motion, brought only after the court questioned the People concerning their belated and incomplete disclosure of the disciplinary records of the two New York State Trooper witnesses they intended to call at the hearing. The People also assert that the letter of censure is not impeachment material, is sufficient compliance with their discovery obligation and that the Defendant was not prejudiced by this late disclosure, given the fact that the Defendant could review the letter of censure and question the trooper about its contents.

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, providing for "a presumption in favor of disclosure[, ]" CPL § 245.20(7), 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) and relieving defendants of their former obligation to demand discovery, placing 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. Among them, CPL § 245.20(1)(k)(iv) mandates the disclosure of "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." As appropriately noted in People v. McKinney, 71 Misc.3d 1221 (A), 145 N.Y.S.3d 328 (Crim. Ct. Kings Co. 2021), this statutory obligation is broader than the People's Brady [1] and Giglio [2] obligations, as they existed prior to the enactment of Article 245:

While the list of items for which disclosure is required may have been partially drawn from Brady, see e .g. William C. Donnino, Practice Commentary McKinney's Cons. Laws of NY C.P.L. § 245.10, the People's specific discovery obligations under C.P.L § 245.20(1)(k) go beyond the Supreme Court's mandate in Brady v. Maryland, 373 U.S. 83 (1963) Importantly, the statute abandons the 'materiality' requirement of Brady, see 373 U.S. at 87, in favor of broader disclosures, encompassing 'all evidence and information' which 'tends to impeach the credibility of a testifying prosecution witness... irrespective of whether the prosecutor credits the information.' C.P.L. § 245.20(1)(k). More expansive than Brady, C.P.L. § 245.20(1) also requires the disclosure of' all evidence and information' (emphasis added), without regard for whether such evidence and information is already known to the defendant, or was previously disclosed in a different form. Compare People v. LaValle, 3 N.Y.3d 88 (2004).

See also: People v. Castellanos, 72 Misc.3d 371, 148 N.Y.S.3d652 (Sup. Ct. Bronx Co. 2021); People v. Rosario, 70 Misc.3d 753, 139 N.Y.S.3d 498 (Co. Ct. Albany Co. 2020) Similarly, "impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case." People v. Williams, 72 Misc.3d 1214(A), 2021 NY Slip Op. 50743(U) (Crim. Ct. NY Co. 2021); See also: People v. Altug, 70 Misc.3d 1218 (A), 139 N.Y.S.3d 791 (Crim. Ct. NY Co. 2021) As noted in People v. Soto, 2021 NY Slip Op. 21204, 2021 WL 3355998 (Crim. Ct. NY Co. 2021)

Impeachment evidence and information is that which concerns the credibility of the officer witness - regardless of the subject matter of the charges against the defendant (People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] [cross-examination concerning any immoral, vicious or criminal act which may affect witness' character and show unworthiness of belief]; People v. Beal, supra. (same); People v. Altug, supra.).

As this court has previously detailed, in People v. Herrera, 71 Misc.3d 1205 142 N.Y.S.3d 791 (District Ct. Nassau Co. 2021), the People's discovery obligation pursuant to CPL § 245.20(1)(k), particularly in light of the repeal of Civil Rights Law § 50-a, includes "'any record created in furtherance of a law enforcement disciplinary proceeding' (Public Officers Law 86[6], see also, Buffalo Police Benevolent Association, Inc. v. Brown, 69 Misc.3d 998 [Sup Ct, Erie County October 9, 2020])." People v. Cooper, 71 Misc.3d 559, 143 N.Y.S.3d 805 (Co. Ct. Erie Co. 2021); See also: People v. Perez, 71 Misc.3d 1214 (A), 144 N.Y.S.3d 332 (Crim. Ct. Bronx Co. 2021) This is consistent with the plain language of CPL § 245.20(1)(k)(iv), which mandates the disclosure...

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