People v. Toussaint

• Decision Date: 31 January 2023
• Docket Number: Docket No. CR-026391-21QN
• Citation: 182 N.Y.S.3d 586
• Parties: The PEOPLE of the State of New York v. TOUSSAINT, Defendant.
• Court: New York Criminal Court

182 N.Y.S.3d 586

The PEOPLE of the State of New York
v.
TOUSSAINT, Defendant.

Docket No. CR-026391-21QN

Criminal Court, City of New York, Queens County.

Decided on January 31, 2023

For the People: Melinda Katz, District Attorney of Queens County (by ADA Jairo Z. Coronado)

For Mr. Toussaint: The Legal Aid Society (by Sade Stephenson)

Wanda L. Licitra, J.

In a misdemeanor prosecution with a maximum sentence of 364 days in jail, the People have 90 days from arraignments to validly state ready for trial. Validly stating ready for trial requires the People to first properly certify that they have complied with automatic discovery. That is a task which, in this case, the law mandated the People complete within 35 days of arraignments.

Here, the People filed their certificate of discovery compliance on the 84th day after arraignments. But when the People certified compliance with discovery, late, they did so knowing they had "not yet obtained" the memobooks of three police officers in the case. They provide little information about their efforts to obtain these memobooks before filing their certificate.

182 N.Y.S.3d 589

They only state that they "reached out" to the "NYPD" two days beforehand—on the 82nd day after arraignments. Then, even though they "knew of the missing memobooks," they certified compliance with discovery, anyway. The People only disclosed the memobooks over two weeks later, on the 102nd day after arraignments.

But that was not the only problem here. When the People claimed to certify compliance, they also had not disclosed disciplinary records relating to charges against two of their police witnesses. Instead, the People had disclosed only summary letters, which they authored, containing little information about the officers’ misconduct. After over 200 days past arraignments, the People finally provided some of the underlying records for one officer. They have never provided any underlying documents for the second.

Under these circumstances, the People failed to properly certify discovery before stating ready for trial. ( C.P.L. §§ 245.20[1][e] ; 245.20[1][k]; People v. Rodriguez , 77 Misc.3d 23, 182 N.Y.S.3d 481 [App. Term, 1st Dep't 2022] ; Matter of Jayson C. , 200 A.D.3d 447, 448-49, 159 N.Y.S.3d 40 [1st Dep't 2021] ; C.P.L. §§ 245.50[1], 245.50[3], 30.30[5] ; People ex rel. Ferro v. Brann , 197 A.D.3d 787, 787-88, 153 N.Y.S.3d 194 [2d Dep't 2021] ). As calculated below, the People have exceeded the 90 days the law allows them to validly state ready for trial. (See C.P.L. § 30.30[1][b] ). Therefore, the court must dismiss the case. (See id. ).

LEGAL ANALYSIS

I. The discovery statute

The discovery statute's plain text is clear. A "proper" certificate of discovery compliance is necessary to stop the speedy-trial clock. ( C.P.L. § 245.50[3] ). The statute defines a "proper" certificate of compliance in "subdivision one" of C.P.L. § 245.50. (Id. ). That section provides several "necessary conditions" to a proper certificate. (See generally People v. Vargas , 76 Misc.3d 646, 649, 171 N.Y.S.3d 877 [Crim. Ct., Bronx County 2022] ). One such necessary condition is that the certificate be filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for material that is lost, destroyed, or under a protective order. ( C.P.L. § 245.50[1] ). Another is that the People certify, in good faith, that "after exercising due diligence and making reasonable inquiries to ascertain the existence" of discoverable material, "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id. ; see also C.P.L. § 30.30[5] ).

Appellate courts have analyzed whether the People filed a proper certificate of compliance by relying upon this clear plain text. ( People ex rel. Ferro v. Brann , 197 A.D.3d 787, 787-88, 153 N.Y.S.3d 194 [2d Dep't 2021] ; People v. Guzman , 75 Misc.3d 132[A], 2022 WL 1763621 [App. Term, 2d Dep't 2022] ). They are right to do so. "[T]he text itself is generally the best evidence" of "the legislature's intent." ( People v. Francis , 30 N.Y.3d 737, 740, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] [internal quotation marks omitted]). Therefore, "courts should construe unambiguous language to give effect to its plain meaning." ( Daimler-Chrysler Corp. v. Spitzer , 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] ). Notably, the appellate courts have not relied on caselaw about discovery violations predating the 2020 discovery reforms, back when discovery had almost nothing to do with C.P.L. § 30.30. (Compare Ferro , 197 A.D.3d 787, 153 N.Y.S.3d 194 ; People v. Rodriguez , 2022 N.Y. Slip Op. 22393, ––– Misc.3d ––––, ––– N.Y.S.3d –––– [App. Term, 1st Dep't 2022] ;

182 N.Y.S.3d 590

Guzman , 75 Misc.3d 132[A] [App. Term, 2d Dep't 2022] ; with Pr. Resp. at 4 [citing cases about discovery violations from 2003, 2008, and 2016, when discovery was not tied to prosecutorial readiness]).

II. The missing memobooks

When applying these standards to the People's approach to the police memobooks in this case, it is clear their certificate of compliance was not proper. On that certificate, the People certified they had "disclosed and made available all existing known material and information subject to discovery, except for any items that are the subject of a protective order." (Cert. of Comp. at 1). But this was patently false. The People "knew of discoverable material, i.e., memo books" that they had not disclosed. (Pr. Resp. at 6). Indeed, they readily admit that when they filed their certificate, they "did not have every document to comply with the discovery rules." (Id. ).

What the People did here is not what the discovery statute requires. Even though the People "knew of the missing memo books," they nonetheless two days later "filled [sic] the [certificate of compliance] and the SOR." (Id. [emphasis added]). But a "certificate" is a document that is supposed to contain "a certified statement ... as to the truth of something." (Certificate , Merriam-Webster Dictionary [2022] [emphasis added]). It should go without saying: the People cannot file a certificate in which they certify they have "turned over ‘all known material and information,’ while at the same time not actually turning over all known material and information." ( People v. Quinlan , 71 Misc.3d 266, 271, 142 N.Y.S.3d 305 [Crim. Ct., Bronx County 2021] ; People v. Adrovic , 69 Misc.3d 563, 574, 130 N.Y.S.3d 614 [Crim. Ct., Kings County 2020] ).

Nor can the court endorse the People's claim that they "exercised due dillegence [sic] in obtaining the missing documents." (See Pr. Resp. at 5-6). "Due diligence" refers to the People's efforts before filing a certificate. That is why the certificate must state that "after exercising due diligence," the prosecutor "has disclosed and made available all known material." (See C.P.L. § 245.50[1] [emphasis added]).

Assessing "due diligence requires the People to demonstrate how due diligence was exercised." ( People v. Critten , 77 Misc.3d 1219[A], at *3, 2022 WL 17999523 [Crim. Ct., N.Y. County 2022] [internal quotation marks omitted]). To do so, the People must show a "factual basis" for the court to find "due diligence." ( People v. McKinney , 71 Misc.3d 1221[A], at *7, 2021 WL 2006850 [Crim. Ct., Kings County 2021] ; see also People v. Carrillo , 75 Misc.3d 1227[A], 2022 WL 2978163 [Crim. Ct., Bronx County 2022] [same]). And that makes sense. "The party in possession of information should bear the burden of producing it." (See People v. Spaulding , 75 Misc.3d 1219[A], at *4, 2022 WL 2349737 [Crim. Ct., Bronx County 2022] ; see also Campbell v. United States , 365 U.S. 85, 86, 81 S.Ct. 421, 5 L.Ed.2d 428 [1961] ["[T]he ordinary rule ... does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."]; National Communications Ass'n v. AT & T Corp. , 238 F.3d 124, 130 [2d Cir. 2001] ["[A]ll else being equal, the burden is better placed on the party with easier access to relevant information."]; 9 J. Wigmore, Evidence § 2486 [J. Chadbourn rev. ed. 1981] ["[T]he burden of proving a fact is said to be put on the party who presumably has a peculiar means of knowledge."]). Only the People know what efforts they made, if any.

182 N.Y.S.3d 591

But the People here provide little information about any efforts to obtain these memobooks before filing their certificate. (See Pr. Resp. at 5-6). They do not provide anything more than that they "reached out" to the "NYPD" two days before filing. (Id. ). They do not explain, for instance, who they talked to, why the memobooks were missing, or whether they followed up before filing their certificate. They do not relay the substance of any communications with any member of the police department. They do not explain why the first time they contacted the police regarding these memobooks was 82 days after arraignments—well beyond the 35-day deadline for discovery. (See C.P.L. § 245.10[1][a][ii] ). And they do not explain why, knowing that this material was missing, they never petitioned a court for any of the numerous opportunities for relief that the discovery...