People v. Cumbe

2024 NY Slip Op 50524(U)

The People of the State of New York, v. Wilson Cumbe, Defendant.

Docket No. CR-036747-23KN

Criminal Court of the City of New York, Kings County

April 19, 2024

Unpublished Opinion

Defendant's Attorney: Jennifer Kovacs, The Legal Aid Society

People: Jonathan Batista, Kings County District Attorney's Office

Sherveal Mimes, J.

HON SHERVEAL MIMES, J.C.C.

In this matter, defendant moves by notice of motion to dismiss the accusatory instrument due to the People's failure to file a valid Certificate of Compliance ("COC") within the speedy trial timeframe (CPL 30.30 [1] [b]). Defense counsel filed the instant motion ("Defense Motion") on February 5, 2024. The People interposed written opposition ("People's Response") on February 28, 2024. On March 11, 2024, defense counsel filed a reply ("Defense Reply").

The court arraigned defendant on Vehicle and Traffic Law § § 1192 (1) Driving While Ability Impaired, 1192 (2) Driving While Intoxicated per se, and 1192 (3) Driving While Intoxicated, on October 7, 2023. The court adjourned the matter to December 7, 2023, for the People to file their COC. On the next court date (December 7, 2023) the People were not ready, and the court adjourned the matter to January 22, 2024. On December 26, 2023, the People served and filed their COC and Statement of Readiness ("SOR"). Defense counsel sent the People a letter highlighting missing discovery on January 18, 2024 (Defense Motion, p. 2). On the next court date (January 22, 2024), the court issued a motion schedule.

After careful review of the defendant's motion, the People's response, defense counsel's reply, and all relevant legal authority, the motion to dismiss is granted.

Defense counsel contends that the COC is invalid and SOR illusory, because the People failed to disclose discoverable material within the speedy trial timeframe. Defense counsel maintains that the following items were listed in the COC but not disclosed to defense: (1) page 11 of the complaint report worksheet was cut off and needs to be re-scanned; (2) scratch arrest checklist; (3) scratch online booking system arrest worksheet; (4) all HIDTA photographs (defense argues that they need the other side of the individual's face and that there is at least one color photograph missing from the HIDTA pictures); (5) pages 29, 30, 32, and 34 of the scratch arrest worksheet are cut off; and (6) color prisoner movement slip (Defense Motion, p. 5).

Defense counsel also argues that there are other discoverable materials, not included in the COC and that were not disclosed (Defense Motion, p. 6-9). Those materials are as follows: (1) PBT calibration reports for serial number 254658 (defense argues that the one provided was expired as of May 20, 2023); (2) calibration reports for serial 90-001960 for six months before October 6, 2023 (defense argues that defense only has tests for August 20, 2023); (3).2,.3, and.4 gas chromatogram reports for Lot 23270; (4) simulator solution material for the period prior to August 2023 for Lot 23270 (defense argues defense was provided the wrong solution lot); (5) audit trail logs for the three IDTU videos from Officer Bell and the four body-worn camera ("BWC") provided for the responding officers; (6) color photographs for the Modelo can and prisoner movement slip (defense argues that only black and white photographs were provided); (7) PETS inventory slip for other property vouchered (defense argues that defense only has PETS for the car, but defense wants to know if there are any for other property seized); (8) health card for Officer Schlitt who administered the PBT on scene; (9) photographs taken by Officer Byfield as evidenced by BWC (defense counsel argues that a fellow officer administered the PBT and stated "here is the serial number, just take a picture of this I will double check for you"); (10) RALL; (11) VSA Superform; (12) Underlying CCRB report for one case for Officer Woodburn as well as recent CCRB materials (defense argues that the ones provided were from March 3, 2020); (13) updated CCRB for Officer Byfield (defense argues that the ones provided are from July 14, 2024); (14) Giglio disclosures from Officer Iakovlev, including CCRB disclosures; (15) Giglio disclosure sheet for Officer Schlitt (who defense argues administered the PBT on scene), including the CCRB report; (16) Letter of instruction provided to Officer Woodburn for his failure to activate his BWC during a fatality and the IAB logs that this particular log was grouped with; (17) five attachments referenced in the underlying disclosure for Officer Woodburn; (18) unredacted CCRB report for Officer Bell and the full CCRB investigatory file for the materials that are redacted (defense contends that five charges and four cases exist); and (19) spinoff and ICMT case logs for Officer Bell (defense listed 22 IAB Logs here) (Defense Motion, p. 6-9).

In response, the People maintain that the COC and SOR are valid, because they filed same in good faith, after exercising due diligence (People's Response, p. 5-6). With respect to materials that have been disclosed but are not complete, the People argue that defense has failed to show how defendant was prejudiced by this (People's Response, p. 9). The People argue that the cut off portions for the re-scanned material either has no value such as the edge of a blank area of a page, or the information is restated on the next pages (People's Response, p. 9). The People argue that two HIDTA photographs have already been disclosed (People's Response, p. 9). The People further argue that the color copies of all the photographs defendant request would be superfluous and should not vitiate the COC (Peoples' Response, p. 9). With respect to the photograph of the PBT, the People contend that they attempted to confirm its existence but that no information has been obtained as to whether it was ever taken or has since been deleted (People's Response, p. 9). However, the People explain that the serial number for the PBT is visible on BWC and Officer Schlitt, on BWC, clearly states the serial number (People's Response, p. 9). The People argue that they have disclosed the scratch online booking sheet, which the People assert was provided in its entirety on pages 8 and 9 of the arrest packets (People's Response, p. 10). The People also argue that they have already disclosed all simulator solution gas chromatography reports (People's Response, p. 10).

The People recount their efforts of due diligence with respect to the remaining items in contention. The People argue that on November 2, 2023, they contacted the discovery liaison requesting activity logs for officers on scene and the IDTU operator (People's Response, p. 2). On November 3, 2023, the People continue that they requested all footage from the Intoxicated Driver Testing Unit (People's Response, p. 2). The People affirm that they also requested Giglio materials for all officers that could be potential prosecution witnesses who did not have up-to-date impeachment information (People's Response, p. 2).

Additionally, the People explain that certain items the defense has requested do not exist (People's Response, p. 6). The People claim there is no VSA Superform in this case, because the NYPD was unable to identify the victim at the time of the arrest and NYPD only creates this material when the case involves an identifiable victim (People's Response, p. 7). The People argue that a "RALL" is not typically generated and that the defense may instead be referring to a DALL report (People's Response, p. 7). In any event, the People argue that there are only certain instances that a DALL is created, and this matter did not trigger the creation of such report (People's Response, p. 7). With respect to the health card for Officer Schlitt, the People argue that a PBT is not a scientific or physical test that requires advanced skill or knowledge and any individual can own and operate one (People's Response, p. 7). Thus, the People argue that Officer Schlitt was likely never issued a health card (People's Response, p. 8). With respect to the PETS Inventory SLIPS, the People state that they contacted the precinct of arrest to determine whether there were outstanding vouchers related to the case and no additional vouchers were provided (People's Response, p. 8).

Regarding the calibration reports for the intoxilyzer, the People argue that those reports are typically only generated biannually (People's Response, p. 8). The People continue that they provided calibration reports from August 18, 2023, and that the prior report in their possession is from February 15, 2023 (People's Response, p. 8). Thus, the People argue that what defense is seeking does not exist. The People argue that they disclosed all the PBT calibration records in their possession (People's Response, p. 8). The People contend that though the PBT records disclosed are from July 27, 2022, PBT calibration is infrequently performed (People's Response, p. 8). The People further argue that the ethanol used to test the PBT has expired, but that nothing in the report indicates that the PBT was expired (People's Response, p. 8). The People argue that there is no scratch arrest checklist, but they argue that that they did disclose the arrest checklist (People's Response, p. 9).

The People continue that they disclosed the BWC audit trail logs that were created by the recording officer for other uses such as categories, tags, or any other information under CPL 245.20 (1) (e) (People's Response, p. 10). However, the People maintain that the remaining audit trail information is electronically stored data generated by a third-party contractor and contains no factual assertions underlying the charged crimes and...