People v. Williams

• Decision Date: 30 July 2021
• Docket Number: Docket No. CR-009654-21NY
• Citation: 72 Misc.3d 1214 (A),150 N.Y.S.3d 234 (Table)
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Ozzie WILLIAMS, Defendant.
• Court: New York Criminal Court

72 Misc.3d 1214 (A)

150 N.Y.S.3d 234 (Table)

The PEOPLE of the State of New York, Plaintiff,

v.Ozzie WILLIAMS, Defendant.

Docket No. CR-009654-21NY

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

Decided on July 30, 2021

Robert Rosenthal, J.

Defendant is charged by information with violating Penal Law § 130.52(1), Forcible Touching, and Penal Law § 130.55, Sexual Abuse in the Third Degree. Defendant moves pursuant to Criminal Procedure Law §§ 245.20 and 245.50 to invalidate the People's Certificate of Compliance (COC) and Certificate of Readiness (COR) for the People's failure to disclose material and information required by CPL 245.20 (1)(k), and to release the defendant pursuant to CPL 30.30 (2)(b). Defendant also moves to suppress identification and statement evidence, requests a bill of particulars, and reserves the right to make any further motions.

Defendant's request that the COC be invalidated is granted. The People are directed to disclose to the defense the records of the substantiated allegations of misconduct against the police witness. Because the COC is invalid, the People were not ready for trial more than 30 days since the commencement of defendant's commitment to custody. Accordingly, defendant's motion pursuant to CPL 30.30 (2)(b) is granted. Additionally, Wade/Dunaway and Huntley/Dunaway hearings are granted and defendant's Sandoval and Ventimiglia motions are referred to the trial court.

Introduction

Defendant was arrested on May 4, 2021, and charged with one count of Forcible Touching, Penal Law § 130.52 (1), and one count of Sexual Abuse in the Third Degree, Penal Law § 130.55. Defendant was arraigned on May 5, 2021 and bail was set.

On May 11, 2021, and May 18, 2021, the People served discovery on defendant including a District Attorney's Office form entitled "Disclosure Advisory" ("DAF"), listing the date and nature of two allegations against Detective Alfred Ortiz, whom the People may call as a witness in this case, that had been substantiated by the New York City Police Department (NYPD).

On May 19, 2021, the People filed a certificate of compliance and a certificate of readiness. On May 25, 2021, the People served supplemental discovery (shelter incident reports) and filed a supplemental COC and COR.

On June 10, 2021, the People answered ready for trial. Defendant argued that there was additional discovery to which defendant was entitled that had not been disclosed. This included personnel files and disciplinary records for the police officer witness. As directed by the court, pursuant to CPL 245.35 (1), the parties conferred concerning the disputed discovery items. Ultimately, the People informed the defense of their position that their "DAF" "contains sufficient information to satisfy our discovery obligations."

In the instant Omnibus Motion, dated June 24, 2021, defendant contends that the People have not complied with their discovery obligations pursuant to CPL 245.20 and 245.50, as they have not provided personnel and disciplinary records for their police witness, and therefore, the COC and COR are invalid. The People filed an Affirmation in opposition on July 8, 2021. Defendant filed a reply Affirmation on July 14, 2021.

Discussion

Effective January 1, 2020, the New York State Legislature significantly broadened the prosecution's discovery obligations, 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]).

Police Officer Disciplinary Records

Concerning its police witness’ disciplinary records disclosure, the prosecution provided its "DAF" — a list containing summaries of two allegations against their police witness that had been substantiated by the NYPD.¹ The People did not provide any documents or records related to those findings.

Defendant requests an order deeming the COC invalid due to the People's failure to provide the personnel and disciplinary files of the police witness.

In opposition, the People argue that they are not required to provide records of substantiated disciplinary allegations. According to the People, defendant is "not entitled to receive full copies of every officer's personnel or disciplinary records," and "the People have satisfied their discovery obligation by disclosing the substance of the substantiated allegations in the DAF and are not further obligated to turn over the underlying records."

The People argue also that they need not provide disciplinary records because the substantiated allegations are not related to the subject matter of the charges against defendant. And, the People argue that disclosure of the disciplinary records "would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefits defendants would enjoy from the information ultimately disclosed." The People have offered nothing to indicate any burden that was, or might have been, borne in disclosing the disciplinary records of the single police witness in this case or that they are unable to ascertain the existence of, obtain, or disclose the records concerning the substantiated disciplinary allegations despite diligent efforts made in good faith.

Defendant's interpretation of the discovery statute is overbroad. The statute does not require disclosure of the officer's entire personnel file (see People v Altug, 70 Misc 3d 1218[A][Crim Ct, NY County 2021] ; People v Randolph, 69 Misc 3d 770, 772 [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 agencies acting on the government's behalf in the case, that tends to impeach the credibility of a testifying prosecution witness. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form.

The plain meaning of "all evidence and information that tends to impeach the credibility of a testifying prosecution witness. [w]hether or not in tangible form" encompasses all allegations, as well as the files, records and other materials "in tangible form" on which substantiated disciplinary findings against the People's officer witness are based. ( People v Kelly, 71 Misc 3d 1202[A] [Crim Ct, NY County 2021] ; People v Perez , 71 Misc 3d 1214[A] [Crim Ct, Bronx County 2021] ; People v Herrera, 71 Misc 3d 1205 [A][Dist Ct, Nassau County 2021]; People v Cooper, 71 Misc 3d 559 [Erie County Ct, 2021] ; People v McKinney, 71 Misc 3d 1221[A] [Crim Ct Kings County 2021] ; People v Porter , 71 Misc 3d 187 [Crim Ct, Bronx County 2020] ; People v Randolph , 69 Misc 3d 770 [Sup Ct, Suffolk County 2020] ; People v Rosario, 70 Misc 3d 753 [Albany County Ct, 2020] ).²

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 NY3d 652 [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 ). The ability to test — to confront — an adverse witness’ credibility through impeachment is a fundamental right. The People's argument that required disclosure is limited to that which is related to the subject matter of the case fails to acknowledge the purpose and express language of CPL 245.20(1)(k)(iv), requiring disclosure of "all evidence and information" recorded "in tangible form," and otherwise, that "tends to impeach" the officer witness. Records of substantiated charges of failure to follow procedures, dishonesty, or other improper conduct are tangible evidence and information that bear directly on an officer's credibility as a witness in any case,...