People v. Surgick, 2021-51007

CourtNew York City Court
PartiesPeople of the State of New York, v. Quashon Surgick, Defendant.
Decision Date15 October 2021
Docket Number2021-51007,File 1872-20

People of the State of New York,

Quashon Surgick, Defendant.

No. 2021-51007

File No. 1872-20

City Court of Albany, Albany County

October 15, 2021

Unpublished Opinion

P. David Soares, Esq. Albany County District Attorney

Alexandra vonStackelberg, Esq. Emily Schultz, Esq. Assistant District Attorneys

Albany City Court - Criminal Part Stephen Herrick, Esq. Albany County Public Defender

Kelly D. Vidur, Esq. Assistant Public Defender Albany City Court - Criminal Part


Defendant stands charged with Criminal Impersonation in the Second Degree and Unlawful Dissemination or Publication of an Intimate Image. These charges allege that defendant, on April 16, 2021, impersonated his ex-girlfriend B.S. [1] by posting an intimate video of her on her own Facebook account. The video allegedly depicted B.S. performing sexual acts. Needless to say, B.S. alleges that she did not consent to the posting. Defendant entered a plea of not guilty to the charges on April 30, 2021 and discovery commenced. Motion practice has been extensive, both before and after this Court's July 30, 2021 trial ready inquiry ("TRI"). The motions are all now fully submitted and the issues raised are each addressed separately below.

Defendant's Challenge to the People's Certificate of Discovery Compliance

Defendant's challenge to the People's Certificate of Discovery Compliance (hereinafter "CoC") is granted only to the extent that the People failed to demonstrate that their "police personnel files" disclosure was sufficient. Defendant's challenge is otherwise denied.

CPL §245.50(1) requires the People to file and serve a CoC confirming 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." Of course, and as explicitly set forth in the statute, the People must automatically provide defendant with the discovery materials outlined in CPL §245.20(1) prior to filing their CoC. However, CPL §245.50 recognizes that not all discovery will be turned over to the defense prior to CoC filing. CPL §245.50(1) provides an explicit exception for discovery that is "lost or destroyed" or subject to a CPL §245.70 protective order.

While recognizing that some discovery may not be provided to the defense, CPL §245.50(1) makes no allowance for CoC non-filing. Even where some discovery items are not provided to the defense, the People's CoC filing obligation remains. The People must still "exercis[e] due diligence and mak[e] reasonable inquiries" and then provide the defense with all "known material and information." CPL §245.50(1).

[The People's] requirement of providing "known material and information" is wholly dependent on the People first "exercising due diligence and making reasonable inquires." While neither "due diligence" nor "reasonable inquires" are statutorily defined, their plain meaning proscribes an absolute requirement. Instead, due diligence is understood as: "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. - Also termed reasonable diligence" Black's Law Dictionary (11th ed. 2019). Paired with the phrase "reasonable inquiries," the most natural and ordinary meaning of "due diligence" in this context requires the People to conduct a "reasonable" search for discovery material. To be sure, this reasonableness standard requires the People to go to great effort. The prosecution of a criminal charge where liberty is at stake demands no less. The standard, however, cannot be construed as an absolute requirement to provide the defense with all discovery material, whether known or unknown regardless of the reasonableness of the People's searches, investigations, and inquiries

People v Smith, Albany City Court, July 20, 2021, Farrell, J. Index No. 1872-20.

Here, the defense contests the People's discovery disclosures as set forth in four CoCs. [2] The People initially filed a CoC, dated June 16, 2021, and then filed a second, dated July 13, 2021. By a CPL §245.35(1) Order of this Court, the People and defense counsel were directed to "diligently confer to reach an accommodation" on their discovery disputes. Then, following the conferral, the People filed their third CoC, dated July 29, 2021. This Court conducted its TRI the next day. The parties briefed the CoC disputes twice, and defense counsel has identified three final unresolved issues: "911 / station calls; additional radio transmissions disclosed" and "police personnel files." The People thereafter filed a fourth CoC, dated August 10, 2021, identifying newly created discovery materials which are not at issue. On this record, defendant failed to demonstrate his entitlement to relief on his "911 / station calls; additional radio transmissions" challenges but did so on the "police personnel files" issue he raised.

Defendant first concedes that his request for "911 / station calls" has been satisfied and the People demonstrated that their search for such discovery material was reasonable. The record demonstrates that on April 18, 2021 the Albany County District Attorney's Office (hereinafter "DA") sent to the New York State Police (hereinafter "NYSP") a request for "a complete copy" of their records and files in this action. The NYSP responded with a "Discovery Checklist," dated April 19, 2021, that did not indicate the existence of any "911 Calls & /or Telephone Calls." It is uncontested that this request and response provided the People with no information about the existence of "911 / station calls" Nor is it contested that the People provided defendant with all of the materials identified in the NYSP Discovery Checklist. When defendant raised the "911 / station calls" issue in his omnibus motion, the People sought more information from the NYSP on July 12 and 26, 2021. Then, on July 29, 2021, the People "received confirmation that no such recording ever existed." Defendant concedes the non-existence of such material. On this record it is uncontested that the "911 / station calls" were never turned over because, in fact, they never existed. The People fully complied with their discovery obligations, and defendant's objections to the CoC are entirely unfounded.

Similarly unavailing is defendant's related challenge to the" additional radio transmissions disclosed" by the People's third CoC. On July 29, 2021, the People provided defendant, for the first time, with a: CAD Log, Radio Log, Radio Transmissions (5 files), and Email from NYSP re Phone Call Information. It is uncontested that the People obtained these materials by continued inquiries to ascertain the existence of discovery material, and then disclosed them to the defense expeditiously upon their receipt. The NYSP Discovery Checklist made no mention of such items, and defendant has not claimed that the People's late disclosure was in bad faith, unreasonable under the circumstances, or caused him any prejudice. Rather, in accord with CPL §§245.60 and 245.50(1), it appears that the People fully complied with their continuing duty to investigate and disclose. Because the People demonstrated that their" additional radio transmissions" were disclosed in good faith and reasonable under the circumstances, "no adverse consequences shall result" (CPL §245.50[1]) and Defendant's objections are rejected.

Defendant did, however, demonstrate that the People's "police personnel files" disclosure failed to comply with CPL §245.20(1)(k)(iv)'s requirements.

The People's due diligence and reasonable inquiries obligations are especially significant for CPL §245.20(1)(k)(iv) discovery information and materials. This provision specifically requires the People to turn over "[a]ll 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." CPL §245.20(1)(k)(iv). Numerous courts have recognized that this obligation is a statutory expansion of the constitutional disclosure requirements of Brady v Maryland (373 U.S. 83 [1963]) and Giglio v United States (405 U.S. 150 [1972]). See People v Salters, 72 Misc.3d 1219 (A)(Nassau Dist Ct 2021); People v McKinney, 71 Misc.3d 1221 (A)(Crim Ct Kings Co 2021); People v Castellanos, 72 Misc.3d 371 (Sup Ct, Bronx Co 2021); People v Rosario, 70 Misc.3d 753 (Albany County Ct 2020).

Generally, CPL §245.20(1)(k)(iv) requires the People to turn over all impeachment material concerning their law enforcement witnesses. Recognizing the practical difficulty of the People obtaining such information from law enforcement agencies, CPL §245.55(1) specifically obligates the People to ensure that a flow of information exists for "any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20." Then, in the very next paragraph, the statute states that each 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." CPL §245.55(2). Moreover, a law enforcement agency's personnel files, like all items and information related to the prosecution of a charge, are statutorily "deemed to be in the possession of the prosecution." CPL §245.20(2). The plain language of this presumption along with the People's statutory obligations demonstrate, unequivocally, the legislature's intent: the People's due diligence and reasonable inquiries burden is exceptionally high to obtain, review, and disclose impeachment material concerning their law enforcement witnesses.

Moreover, the...

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