People v. Fortty

2023 NY Slip Op 50379(U)

The People of the State of New York v. Carlos Delgado Fortty, Defendant.

No. CR-006525-22BX

Criminal Court of the City of New York, Bronx County

April 24, 2023

Unpublished Opinion

For the People: Oliver Lee, Assistant District Attorney Office of the Bronx District Attorney

For the Defendant: William John, Esq. The Bronx Defenders

Carmen A. Pacheco, J.

Defendant moved for an Order: (i) dismissing the proceeding pursuant to CPL §§ 30.30 and 170.30 alleging that the People's Certificate of Compliance and Statement of Readiness were illusory; (ii) granting sanctions pursuant to CPL § 245.80(2) for failure to disclose evidence; (iii) barring introduction of evidence related to defendant's chemical breath analysis test; and (iv) suppressing statements taken from defendant by law enforcement pursuant to CPL § 60.45(2)(b)(ii) and CPL § 710.20(3).

For the reasons set forth herein, the court grants defendant's motion for pre-trial hearings pursuant to Mapp/ Dunaway/ Huntley and denies the additional relief requested. The court also deems valid the People's Certificate of Compliance and Statement of Readiness filed on June 27, 2022.

Factual and Procedural History

On April 17, 2022, defendant was arrested and charged with Vehicle and Traffic Law §§1192.3 (common law driving while intoxicated, an unclassified misdemeanor) 1192.2 (driving while intoxicated, per se), and 1192.1 (driving while impaired). The arresting officer was Dmitriy Lyubchenko. He is the same officer who was determined in People v. Alifonso to have provided phantastic testimony. N.Y.L.J. 2018BX042208 (Crim. Ct. Bronx Cnty 2019).

In Alifonso, Officer Lyubchenko and Officer Joseph Vitale pulled over defendant's vehicle for speeding. The stop resulted in defendant's arrest for driving while impaired. At a suppression hearing, both officers testified that defendant's walk was "unsteady," had a "little sway in his stance," and was "swaying." The officers also testified that defendant had "watery bloodshot eyes." However, the officers' testimony was contradicted by dash cam footage and by the gaze nystagmus test taken at the 45 Precinct's Intoxicated Driver Testing Unit. Thus, the court found both officer's testimony refuted by hard evidence. The case therefore, was dismissed and sealed.

Subsequently Alifonso commenced a civil lawsuit against the City of New York, the New York City Police Department, and Officer Joseph Vitale. See Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019). Officer Lyubchenko was not named in the lawsuit. The defendant now requests that the People provide information regarding the civil lawsuit beyond the documents publicly available on the New York State Courts Electronic Filing System.

On June 27, 2022, the People filed a Certificate of Compliance ("CoC") and Statement of Readiness ("SoR") off calendar. The People did not affix a signature to those documents. On August 4, 2022, at the next court appearance, the People confirmed their readiness for trial. During that court appearance, defendant raised objections to the People's CoC and requested an adjournment for a discovery conference. The court granted defendant's request and adjourned the matter to September 13, 2022. Noteworthy, the court cautioned the People that absent a protective order, the Civil Complaint Review Board ("CCRB") records must be served unredacted for the CoC to be deemed valid.

Between August 4, 2022 and September 13, 2022, the parties engaged in discovery related discussions. The discussions related to missing police reports and unredacted CCRB records for testifying Officers Lyubchenko and Natoli. Also at issue was the People's failure to affix an attorney signature to the CoC and SoR.

Specifically in an e-mail dated August 4, 2022, defendant requested that the People disclose any police reports and unredacted CCRB records for Officer Lyubchenko. Defendant also alerted the People that the filed CoC and SoR were missing signatures. On August 11, 2022, the People confirmed that police reports were served previously on defendant. Moreover, the People requested that defendant save a specific e-mail as a form of digital signature for the unsigned CoC and SoR. Defendant remained silent as to any matters surrounding the signature. Discovery disputes remained unresolved regarding the redacted CCRB records.

On September 1, 2022, the People served two unredacted CCRB reports. On that same day, defendant filed with the court a joint discovery letter annexing the parties e-mail exchanges. In the joint letter, defendant argued that the People were obligated to obtain an unsealing order to disclose the Decision and Order and transcripts from the hearing in People v. Alifonso, N.Y.L.J. 2018BX042208, (Crim Ct. Bronx Cnty. 2019). Consequently, at the scheduled court appearance of September 13, 2022, defendant requested a motion schedule which request halted the speedy trial clock. See CPL § 30.30. On that date, there was no determination as to the validity of the People's CoC or the People's readiness for trial.

Defendant argued that the People's CoC and SoR should be deemed illusory since the Peopled failed to: (i) provide the Decision and Order from People v. Alifonso; (ii) provide information related to Alifonso v. The City of New York; (iii) file a Supplemental Certificate of Compliance after providing unredacted CCRB records; and (iv) sign the CoC and SoR. Specifically, defendant believes that the People were obligated to obtain an unsealing order and disclose the Decision and Order and transcripts from People v. Alifonso, N.Y.L.J. 2018BX042208 (Crim. Ct. Bronx Cnty. 2019) as they constitute impeachment material under CPL § 245.20(1)(k). The defendant also contends that the People were required to produce all documents regarding the civil action Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019).

Conversely, the People maintain that they fulfilled their obligations by providing information regarding People v. Alifonso, N.Y.L.J. 2018BX042208 (Crim. Ct. Bronx Cnty. 2019). The People are unable to seek an unsealing order since there is no statutory authority permitting the People to request the unsealing of an unrelated sealed criminal case. Moreover, the People allege that they are not required to turnover information regarding the civil lawsuit, Alifonso v. The City of New York, Index No. 29924/2019E (Sup. Ct. Bronx Cnty. 2019) since they were unaware of the civil action. Also, the People are not required to obtain and turn over all lawsuits involving testifying officers.

Legal Analysis

Since defendant was charged with a misdemeanor the People must be ready for trial within 90 days of the commencement of the criminal action. People v. Alvia, CR-003225-22BX (Crim. Ct. Bronx Cnty. 2023); CPL § 30.30(1)(b); see CPL § 1.20 (16-17). "A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court." CPL § 1.20 (17). However, when a desk appearance ticket is issued the criminal action "must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to a ticket." CPL § 30.30(7)(b); but see People v. Weaver, 166 Misc.2d 488, 491-492 (Crim Ct. NY Cnty. 1995) (defendant's presence in courthouse on an unrelated matter is not an appearance in response to an appearance ticket).

The People cannot be deemed ready for trial "until it has filed a proper certificate." CPL § 245.50(3); People v. Erby, 68 Misc.3d 625, 630 (Crim. Ct. Bronx Cnty. 2020) (noting that CPL § 245.50(3) requires the People to file a proper certificate of compliance before being deemed ready for trial). A valid CoC can only be filed after "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). Moreover, the People must certify that they disclosed all known material and information subject to discovery and identify the items provided. Id. "No adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate in good faith....". CPL § 245.50; see People v. Alvia, CR-003225-22BX (Crim. Ct. Bronx Cnty. 2023) citing People v. Gonzalez, 68 Misc.3d 1213(A) (Sup. Ct. Kings Cnty. 2020) ("absence of certain discovery items from the disclosure memorialized in the original CoC (such as the scratch complaint report, an updated disclosure letter pertaining to a detective, and the resume of an expert) does not vitiate the original certificate."). However, sanctions are authorized when an aggrieved party shows prejudice by untimely disclosure. CPL § 245.80(1). The court may therefore grant an aggrieved party additional time to "prepare and respond to the new material." Id.

In addition to filing a valid CoC, the People must declare their readiness for trial. CPL § 245.50. The People must declare their readiness after "bring[ing] the case to a point where it may be tried." People v England, 84 N.Y.2d 1, 4 (1994). The People's readiness can be announced either by making a statement of readiness on the record or by "written notice of readiness sent... to both defense counsel and the appropriate court clerk, to be placed in the original record." People v. Kendzia, 64 N.Y.2d 331, 337 (1985). Once the People are deemed ready, the CPL § 30.30 speedy trial time is halted. See People v. Anderson, 66 N.Y.2d 529 (1986) (speedy trial right under CPL § 30.30 is tied to prosecutorial readiness for trial); cf. People v. Quinlan, 71 Misc.3d 266 (Crim. Ct. Bronx Cnty. 2021) ("Declaring 'readiness at a time when the People are not...