People v. Davis

67 Misc.3d 391

120 N.Y.S.3d 740

The PEOPLE of the State of New York

v.David DAVIS, Defendant.

2019BX007394

Criminal Court, City of New York.

Decided February 20, 2020

ADA Madeline Smith, Bronx County District Attorney's Office

Willoughby Jenett, Esq., The Legal Aid Society, for Defendant

Tara A. Collins, J.

The defendant is charged with Driving While Intoxicated ("DWI") and other related charges. The primary issue presented in this case is whether the People are required to ask for an unsealing order from the Court to obtain Brady / Giglio materials from an unrelated and sealed criminal case in order to satisfy their constitutional and statutory obligation (see Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972] ; Brady v. Maryland 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ; CPL § 245.20[1][k] ).

After a careful consideration, the Court concludes that the People's Brady / Giglio obligation was fully discharged by the disclosure of the information within their possession and they are under no constitutional or statutory obligation to obtain an unsealing order from the Court. At the same time, in light of the recent Court of Appeals decision in People v. Rouse , 34 N.Y.3d 269, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019) that underscores the importance of safeguarding the defendant's right to cross examine the witnesses about their prior incredible testimony, the Court orders unsealing in the interest of justice to conduct an in camera inspection of the evidence in the sealed case ( Hynes v. Karassik , 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015 [1979] ).

FACTUAL AND PROCEDURAL BACKGROUND

The defendant is charged with two counts of Driving While Intoxicated ( VTL § 1192[2], [3] ) and one count of Driving While Ability Impaired ( VTL § 1192[1] ). The criminal court information alleges that on or about March 15, 2019, at the Southeast corner of West 230th Street and Major Deegan Expressway, Bronx County, State of New York, Police Officer Dmitry Lyubchenko observed the defendant operating a gray 2007 Mercury Grand Marquis at a high rate of speed. When the officer pulled over the defendant's vehicle, he observed the defendant to have bloodshot, watery eyes, slurred speech with a strong odor of an alcoholic beverage emanating from his breath. The accusatory instrument further alleges that the defendant admitted, in sum and substance, "I had one beer about one hour ago" (see Davis complaint). The defendant was taken to a police precinct where a chemical test was performed. The test result showed the defendant to have blood alcohol level of .16 of one per centum by weight of alcohol. The defendant was arraigned in Bronx County Criminal Court on the same day and released on his own recognizance.

On January 23, 2020, the People filed and served a certificate of compliance ("COC") along with a one-page document titled, "Giglio Material." It stated,

PO Lyubchenko received a partially substantiated IAB, where no action was taken for an incomplete/inaccurate property clerk invoice on 08/05/2019.

PO Lyubchenko and PO Vitale were found not credible in a Driving While Intoxicated hearing.

(see Defense Exhibit A). Critically, both Officer Lyubchenko and Officer Vitale are necessary witnesses in the instant case (see People's Automatic Disclosure Form, 3). The People further announced that they were ready to proceed to trial.

Defense counsel challenged the COC's validity based on the People's Brady / Giglio disclosure. He argued that the newly enacted discovery statute, CPL § 245.20(1)(k), required the People to provide all of the underlying materials including court documents and transcript from the court proceeding where their witnesses were found incredible. He further averred that the People should provide pertinent exculpatory and impeachment evidence from the police department's investigation conducted by the Internal Affairs Bureau ("IAB investigation"). Based on the failure to provide this evidence, defense claimed that the People did not to meet their constitutional and statutory obligation and their statement of readiness for trial was invalid.

The People opposed defense challenges in their entirety. They argued that the IAB investigation records were privileged internal police documents that may not be made available to the defense without a subpoena or an order by the court (see e.g. Civil Rights Law § 50-a ; People v. Gissendanner , 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ). They further objected on relevance grounds because there were no issues relating to accuracy of the property invoice in the instant case. Also, the People asserted that they neither possessed nor had access to documents or materials from the sealed case. Accordingly, they argued that their Brady / Giglio obligation was fully discharged by the disclosure of the information in their possession and they were under no obligation to seek an unsealing order or a subpoena to obtain the records for the defense.

After the oral argument, the Court directed the People to provide all of the documents in their possession from the IAB investigation for an in camera inspection. The People provided a two-page document titled, "New York City Police Department Central Personnel Index." The Court then adjourned the case for further written submissions by the parties and adjourned the case for decision to February 20, 2020. Each side timely submitted a memorandum of law on February 10, 2020.

LEGAL DISCUSSION

In a criminal trial, a prosecutor has a broad obligation to disclose any information that is "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses," irrespective of whether the prosecution credits the information ( People v. Baxley , 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 639 N.E.2d 746 [1994] ; see also Giglio, supra ; Brady , supra ). Prosecutor's duty extends only to the materials or information within his or her "custody, possession or control" ( People v. Garrett , 23 N.Y.3d 878, 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ; People v. Santorelli , 95 N.Y.2d 412, 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000] ). Favorable information in the law enforcement's possession is imputed to the prosecution ( People v. Lewis , 125 A.D.3d 1109, 3 N.Y.S.3d 454 [3d Dept. 2015] ) and an individual prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case" ( Kyles v. Whitley , 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 [1995] ; see also Garrett , supra , at 887, 994 N.Y.S.2d 22, 18 N.E.3d 722 ).

The newly enacted discovery statute, CPL § 245.20(1)(k), codifies the Brady doctrine (William C. Donnino, Practice Commentary, McKinney's Cons. Laws of N.Y., CPL 245.10 ) [Note: online version]. It mandates the prosecutor to disclose "[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 (1) negate the defendant's guilt, (2) reduce the degree or mitigate the defendant's culpability, (3) support a potential defense, (4) impeach the credibility of a prosecution witness, (5) undermine evidence of the defendant's identity as a perpetrator, (6) provide a basis for a suppression motion, or (7) mitigate punishment ( CPL §§ 245.20[1][k][i]-[vii] ). The statute further commands,

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.

( CPL § 245.20[2] ).

On the face of it, the new statute does not seem to place any limitations on how far the prosecutor's Brady obligation extends. More specifically, CPL § 245.20(1)(k) calls on the prosecutor to disclose "all" evidence and information that is favorable to the defense and does not distinguish between the evidence in the prosecutor's possession, custody or control and those outside. Rather, the following subsection provides that where the material or information exists outside of the prosecutor's possession, custody or control, the prosecutor has a duty to "to cause such material or information to be made available for discovery" ( CPL § 245.20[2] ). The only carve out is that there is no obligation to subpoena such materials (id. ).¹ The question presented in this case is whether there is a limit to the prosecutor's obligation despite the broad statutory language.

1. Evidence from the Sealed Case

In the case at bar, both sides agree that a prior negative judicial determination about the officers' credibility, albeit in a different criminal case, is evidence favorable to the defense that must be disclosed (see e.g. Rouse , supra , at 277-80, 117 N.Y.S.3d 634, 140 N.E.3d 957 ["trial court abused its discretion as a matter of law in precluding cross-examination of both officers with respect to prior judicial determinations that addressed the credibility of their prior testimony in judicial proceedings"]; Giglio , supra [evidence related to witness credibility constitutes Brady material]; People v. McGhee , 180 A.D.3d 26, 116 N.Y.S.3d 206, 2019 N.Y. Slip Op. 09116 [1st Dept. 2019] [prosecutor should have disclosed a witness statement that could have aided the defense in attempting to impeach the only eyewitness]; People v. Garcia , 46 A.D.3d 461, 848 N.Y.S.2d 137 [1st Dept. 2007] [same]; People v. Anderson , 55 Misc. 3d 511, 513, 45 N.Y.S.3d 914 [Sup. Ct., Bronx County 2017] [issuing a subpoena for an in camera review of arresting officer's personnel records related to two federal cases in which the officer was found incredible as a matter of law] )....