People v. Soto

• Citation: 72 Misc.3d 1153,152 N.Y.S.3d 274
• Decision Date: 30 July 2021
• Docket Number: Docket No. CR-007995-21NY
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Eliezer SOTO, Defendant.
• Court: New York Criminal Court

72 Misc.3d 1153

152 N.Y.S.3d 274

The PEOPLE of the State of New York, Plaintiff,

v.Eliezer SOTO, Defendant.

Docket No. CR-007995-21NY

Criminal Court, City of New York, New York County.

Decided on July 30, 2021

The Legal Aid Society (Rebecca Heinsen of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Meral Kerim of counsel), for plaintiff.

Robert Rosenthal, J. Defendant is charged by information with violating Penal Law § 130.52 (1) and (2), Forcible Touching, and Penal Law § 130.55, Sexual Abuse in the Third Degree. Defendant moves for an order deeming invalid the People's Certificate of Compliance (COC) for the People's failure to disclose material and information required by Criminal Procedure Law § 245.20 (1)(k) and (p).

Defendant's motion is granted with regard to his request for additional information concerning the complaining witness’ record of convictions and the records underlying the police officer witness’ substantiated allegations of misconduct. Pursuant to defendant's request, the People's COC is invalidated as is the People's certificate of readiness (COR).

Introduction

The People served discovery material on defendant on May 2, 2021, and served a certificate of compliance, discovery list, and certificate of readiness on May 3, 2021. Also on May 3, the People served an Automatic Discovery Form, which indicated the People's intention to call Police Officer George Xarthoulakos as a law enforcement witness, along with a District Attorney's Office form entitled "Disclosure Advisory" ("DAF"), listing the date and nature of two allegations against the officer that had been deemed substantiated by the New York City Police Department (NYPD) and providing, in addition, the date and nature of one incident of misconduct found by the New York City Civilian Complaint Review Board (CCRB). The People did not provide any documents, evidence, or other materials or information from which that "DAF" was compiled.

By Notice of Motion on June 21, 2021, defendant moved for an order deeming the People's COC to be invalid, and "deferring the defense's COC" until 30 calendar days after the People serve a valid COC. Defendant argues that the People failed to provide sufficient information concerning the complaining witness’ conviction history, pursuant to CPL 245.20 (1)(p) and CPL 245.20 (1)(k), and failed to provide the reports underlying the substantiated allegations set out in the "DAF," pursuant to CPL 245.20 (1)(k). The People filed their Affirmation and Memorandum of Law in opposition on July 6, 2021.

Discussion

Effective January 1, 2020, the New York State Legislature significantly broadened the prosecution's discovery obligation, enacting Criminal Procedure Law Article 245 and repealing former Article 240. In addition to expanding the types of material and information that must be disclosed by the prosecution and establishing an expeditious discovery schedule, Article 245 contains an express "presumption of openness," favoring disclosure when interpreting the discovery provisions ( CPL 245.20 [7] ; see William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Criminal Procedure Law § 245.10 ["the prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute ‘open file’ discovery, or at least make ‘open file’ discovery the far better course of action to assure compliance. Thus, a prosecutor who fails to engage in ‘open file’ discovery (except for ‘work product’ and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution"]).

Criminal Procedure Law § 245.20 (1) provides a non-exhaustive list of items that the People must automatically disclose to the defendant. Pursuant to CPL 245.20 (2), the People must make a diligent, good faith effort to ascertain the existence of those items and cause them to be made available for discovery, even if the material is not within their possession, custody or control. In addition, 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 People's possession.

When the People have provided the automatic discovery required, they shall serve and file a certificate of compliance, stating 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" ( CPL 245.50 [1] ). The People cannot be deemed ready for trial until a proper COC is filed ( CPL 30.30 [5] [statement of trial readiness must be accompanied by a COC]; CPL 245.50 [3] [but for special circumstances, People not ready for trial absent COC]).

At issue in this motion is defendant's assertion that the People have failed to provide sufficient discovery material and information concerning the complaining witness’ record of judgments of conviction and concerning a police officer witness’ disciplinary history.

Complete Record of the Complaining Witness’ Judgments of Conviction

Criminal Procedure Law § 245.20 (1)(p) requires that the People disclose to defendant "[a] complete record of judgments of conviction for all persons designated as witnesses."

Here, the People provided only a statement that the complaining witness was convicted of Florida Statute 817.034 on October 20, 2003. The People did not specify which subsection was the basis for the conviction (the statute contains felony and misdemeanor provisions) or the sentence imposed. Nor did the People provide the docket number or even the Florida court or jurisdiction in which the conviction occurred. While CPL 245.20 (1)(p) does not define "complete record of judgments of conviction," the People's disclosure here — devoid even of docket number, jurisdiction, or sentence imposed — is all but meaningless. Such a meager disclosure could not have been the Legislature's intent.

Knowledge of a witness’ past judgments of conviction is an essential component of any defense case. Convictions — the nature of the crime, the circumstances of the conviction, and the sentence imposed — are critical areas for investigation and preparation, as well as confrontation of adverse witnesses by impeachment at trial ( People v. Beale , 73 A.D.2d 547, 423 N.Y.S.2d 6 [1st Dept. 1979] [witnesses may be cross-examined concerning any immoral vicious or criminal act which may affect their character and show them to be unworthy of belief]). The statute under which the complaining witness here was convicted, Florida Statute 817.034, is the Florida Communications Fraud Act, concerning "schemes to defraud." A fraud conviction — whether felony or misdemeanor — is so immediately relevant to impeachment that the People's disclosure is mandated not only by CPL 245.20 (1)(p), but also by CPL 245.20 (1)(k)(iv), which requires disclosure of "all evidence and information" that "tends to impeach the credibility of a prosecution witness."

For these reasons, the People are ordered to provide the docket number of the case in which the witness was convicted, the particular section of the statute that was the basis for the conviction, the court in which the conviction occurred, the sentence imposed, as well as any other materials concerning that conviction that are in the People's possession custody or control.¹ How that material may be used remains for the trial court (see People v. Smith , 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ).

Police Officer's Disciplinary Records

Concerning the police witness’ disciplinary records, the prosecution provided its own "DAF" — a list containing summaries of two allegations against prosecution witness Officer Xarthoulakos that had been substantiated by the New York City Police Department (NYPD) and one finding of misconduct by the CCRB.² The People did not provide any documents or disciplinary records related to those findings or from which the "DAF" list was prepared.

Defendant requests an order directing the People to provide "all underlying reports pertaining to substantiated and unsubstantiated allegations of misconduct for the officer," specifically, "a copy of the underlying NYPD personnel file, NYPD complaints and reports, the CCRB complaint and report, or other documents relied upon to craft the ["DAF"]." Defendant argues also that the People's COC should be invalidated for their failure to provide those materials.

In opposition, the People argue that they are not required to produce underlying records, "when the allegations do not (1) relate to the subject matter of the case or (2) ... serve as impeachment material of a prosecution witness." The People argue also that they have "no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witnesses," and that it would be unreasonable to "require the prosecution to produce every single underlying record related to every single disclosable allegation of law enforcement misconduct, no matter how minor or remote in time the misconduct, no matter how unrelated such misconduct may be to the actual subject matter of the case, and no matter how voluminous the records or intractable the problems of their production."

Defendant's request is overbroad. The statute does not require disclosure of the officer's entire personnel file (see People v. Altug, 70 Misc.3d 1218(A), 139 N.Y.S.3d 791 [Crim. Ct. N.Y. County 2021] ; People v. Randolph, 69 Misc.3d 770, 772, 132 N.Y.S.3d 726 [Sup. Ct. Suffolk County 2020] ).

The People's disclosure is insufficient, however, and their arguments are unpersuasive.

Criminal Procedure Law § 245.20 (1)(k)(iv) requires the People to provide to the defense:

[a]ll evidence and information, including that which is known to police or other law enforcement

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