People v. Sherman

• Docket Number: Docket No. CR-015730-22SU
• Decision Date: 22 March 2023
• Citation: 78 Misc.3d 975,187 N.Y.S.3d 906
• Parties: PEOPLE of the State of New York v. Ryan SHERMAN, Defendant
• Court: New York District Court

78 Misc.3d 975
187 N.Y.S.3d 906

PEOPLE of the State of New York
v.
Ryan SHERMAN, Defendant

Docket No. CR-015730-22SU

District Court, New York, Suffolk County, First District.

Decided on March 22, 2023

187 N.Y.S.3d 907

Raymond A. Tierney, Esq., District Attorney of Suffolk County, Raymond Buitenkant/Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722, for the People.

Cory H. Morris, Esq., 135 Pinelawn Rd, Suite 250S, Melville, NY 11747, (631) 450-2515, for Defendant.

Eric Sachs, J.

78 Misc.3d 976

It is,

ORDERED that this omnibus motion by the defendant is decided as follows: The defendant's motion to strike the CoC/SoR is DENIED. The defendant's motion to dismiss the accusatory instrument based upon an alleged violation of his statutory speedy trial rights is DENIED. The defendant's motion to dismiss the accusatory instruments for the People's failure to provide discovery is DENIED. The defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is DENIED. The defendant's motion to file additional motions is GRANTED, to the extent indicated herein.

On May 23, 2022, the defendant was charged under Docket No. CR-015730-22SU with one count of Driving While Intoxicated in violation of New York State Vehicle & Traffic ("VTL") Law § 1192.3, an unclassified misdemeanor, and one count of Driving While Intoxicated Per Se in violation of VTL § 1192.2, an unclassified misdemeanor. He was arraigned on June 20, 2022.

By motion dated January 26, 2023, the defendant now moves this court for an order (1) striking the CoC/SoR as invalid;

187 N.Y.S.3d 908

(2) dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instruments for the People's failure to provide discovery; (4) granting an adverse inference instruction based upon the People's failure to comply with discovery demands; and (5) allowing him to file additional motions.

This Court addresses each motion, in turn, below.

78 Misc.3d 977

A. Prior Motion, Hearing, and Decision

1. Motion to Dismiss

On September 6, 2022, the defendant filed an omnibus motion to dismiss for failure to comply with the discovery requirements of Criminal Procedure Law ("CPL") article 245, which the People opposed on October 7, 2022. In an order dated November 18, 2022, the court denied the defendant's motion to dismiss and granted the defendant's request for Mapp/Dunaway and Huntley hearings. See People v Sherman , CR-15730-22SU [Dist Ct, Suffolk Cnty Nov. 18, 2022] [Orlando, J.].

2. Hearing

On January 24, 2023, this Court held a combined Mapp/Dunaway and Huntley hearing, which hearing continued on January 25 and January 26, 2023. During the hearing, the defendant made an oral motion to dismiss pursuant to CPL § 30.30(5), on the ground that he had not received all of the impeachment material to which he was entitled. In addition, the People made an oral motion in limine to preclude cross-examination regarding disciplinary files.

3. Decision

In an oral decision on preliminary motions read on the record on January 24, 2023, this Court denied the defendant's motion to dismiss based on speedy trial grounds, noting that, in this case, the People had turned over impeachment materials containing all categories of findings (substantiated, unsubstantiated, unfounded, exonerated). (See 1/24/2023 Tr. at pp. 116-121). This Court further held that the People's disclosures were sufficient, and the People did not have to disclose the entirety of the underlying files in the first instance. (Id. at pp. 119-120). If the defendant believed he needed the underlying files, he could make a motion for such upon a showing of necessity. (Id. ). In addition, the Court held that the People had demonstrated good faith to the extent they had disclosed materials in accordance with their understanding of existing — and conflicting — caselaw in People v. Portillo , 73 Misc. 3d 216, 153 N.Y.S.3d 758 [Sup. Ct., Suffolk Cnty July 23, 2021] and People v. Randolph , 69 Misc. 3d 770, 773, 132 N.Y.S.3d 726 [Sup. Ct., Suffolk Cnty September 15, 2020]. (Id. at 116).

In addition, this Court held that the redaction of personally-identifying information, such as tax identification numbers and social security numbers from the IAB files was permissible. (See 1/24/2023 Tr. at p. 119). However, the redaction of other information would require the People to apply for a protective order. (Id. ).

78 Misc.3d 978

Finally, this Court reserved decision on the People's motion in limine , until such time as an officer testified during hearing, "in which case the defense attorney can then determine from the materials that he has, what, if any, of those summaries he believes would be necessary for the cross examination and then why the underlying files, which are not turned over, are necessary." (See 1/24/2023 Tr. at pp. 119-120).

The defendant filed a written omnibus motion on January 26, 2023, which motion is pending.

187 N.Y.S.3d 909

B. Pending Omnibus Motion

As noted above, the defendant now moves this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instruments for the People's failure to provide discovery; (4) granting an adverse inference instruction based upon the People's failure to comply with discovery demands; and (5) allowing him to file additional motions.

The parties' arguments are addressed in turn, below.

1. Motion to Strike the CoC/SoR

The defendant first moves to strike the People's CoC/SoR, filed on July 5, 2022, as invalid because the People failed to comply with their automatic discovery obligations pursuant to CPL § 245.20(1) inasmuch as they failed to disclose (a) all impeachment materials, including the underlying IAB files (rather than mere summaries) (see Def.'s Aff. at ¶ 11; Reply at ¶ 7); (b) unredacted copies of relevant records (contained in Exhibit C) (see Def.'s Aff. at ¶¶ 6, 11; Reply at ¶ 7); and (c) radio run records (see Def's Aff. at ¶ 12).¹

In their opposition, the People contend that (1) the defendant is not entitled to unredacted copies of the documents, and the People were never ordered to turn over unredacted copies and (2) the People previously disclosed so-called "radio run" records (referred to as "communications" in the People's disclosures). (See People's Mem. of Law in Opp. (2/15/2023) at Point I).

78 Misc.3d 979

(a) Scope of the Disclosure of IAB Files

CPL § 245.20[1] provides that the automatic discovery requirement applies to "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." The statute contains a nonexclusive list of "items and information" to be disclosed automatically (see CPL § 245.20[1][a]—[u] ). This list includes "[a]ll evidence and information that tends to impeach the credibility of a testifying prosecution witness. " CPL § 245.20[1][k][iv] (emphasis added).

The defendant contends that CPL § 245.20[1][k][iv] must be interpreted to require "all evidence" to be disclosed, namely: (1) impeachment materials containing all categories of findings ("substantiated," "unsubstantiated," "unfounded," and "exonerated") and (2) the entire underlying IAB files, not merely summaries.

Although there is no appellate-level decision in the Second Department addressing the interpretation of CPL § 245.20[1][k][iv], two thoughtful trial courts in this District have addressed similar arguments. In People v. Randolph , 69 Misc. 3d 770, 773, 132 N.Y.S.3d 726 [Sup. Ct., Suffolk Cnty September 15, 2020] [Cohen, Mark, J.], the court held that IAB files must be turned over only where the finding was "substantiated" or "unsubstantiated." Randolph , 132 N.Y.S.3d at 772. The court in that case reasoned that such records could be deemed to "tend to impeach," due to the existence of sufficient evidence, but where the finding was "exonerated" or "unfounded," such records

187 N.Y.S.3d 910

lacked evidentiary reliability and could not be deemed to "tend to impeach." ( Id. ) The court reasoned as follows:

[A] case is "substantiated" where it is determined that the facts clearly support the allegation, "unsubstantiated" when the allegation cannot be resolved because sufficient evidence is not available, "exonerated" where the act was legal, proper and necessary and "unfounded" when there is evidence establish that the act did not occur. Therefore, in cases involving exonerated and unfounded allegations, there is no good faith basis for cross examination by the defendant's counsel and as such it is not evidence or information that tends to

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