People v. Gutierrez

78 Misc.3d 411

184 N.Y.S.3d 876

The PEOPLE of the State of New York,

v.Rafael GUTIERREZ, Defendant.

Index No. 1930-2019

Supreme Court, Bronx County, New York.

Decided on January 27, 2023

Darcel D. Clark, District Attorney (Sara Jacobson of counsel), for the People.

The Legal Aid Society (Kyla Wells of counsel) for defendant.

Tara A. Collins, J.

Through the instant motion filed on November 28, 2022, the defendant asks the charges against him to be dismissed pursuant to CPL § 30.30 (1) (a). The People oppose.

At the heart of the defendant's contention is the Court's ruling, made after a discovery hearing on March 3, 2022, that the People would be charged speedy trial time until certain discovery is provided. As relevant to the decision, the Court directed the People to ascertain the existence of materials related to the ShotSpotter activation, and make them available to defense counsel if they existed. The People failed to do so until September 21, 2022. The defendant persistently and steadfastly demanded the materials during this period.

For the reasons stated below, the Court finds 219 days of chargeable time. Accordingly, the defendant's motion to dismiss is granted.

PROCEDURAL HISTORY

The defendant was arrested along with co-defendant German Rivera on September 5, 2019. Both defendants were indicted on Attempted Murder in the Second Degree (PL § 110/125.25 [1]), Assault in the First Degree (PL § 120.10 [1]), Reckless Endangerment in the First Degree (PL § 120.25), Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [1] [b], [3]), and other related charges. The defendant was arraigned in Supreme Court on October 29, 2019, while the co-defendant was arraigned on October 15, 2019.

The People served on defense counsel an Automatic Disclosure Form on January 13, 2020. The prosecution also served a Certificate of Compliance ("COC") and Statement of Readiness ("SOR") on February 24, 2020. Throughout the case, supplemental COCs were filed on July 8, 2020, January 13, 2021, March 23, 2022, and September 21, 2022.

On December 7, 2021, one day before a regularly-scheduled court date, defense counsel filed a motion challenging the prosecution's COCs filed on February 24, July 8, and January 13, alleging that the People have failed to comply with the disclosure requirements contained in Article 245 of the Criminal Procedure Law in a myriad of ways. She claimed that the People failed to turn over, for example, "Photo Array Documents and Reports," "DD5s," "Body Worn Camera Metadata, Audit Trail Logs and Master Log," "Debriefing Documents," "Shot Spotter Audio and Records," "Adequate Contact Information Civilians With Relevant Information," "Roll Call Log," "RTRD Reports,"¹ "Domain Awareness System (DAS) Records,"² "The Investigation Cards (I-Cards)," "SAFETNet Application," "IAB Referral," "Online Arrest Report Worksheet," "Aided Reports," "Latent Print Section (LPS) Laboratory Information Management System Records (LIMS)," "Co-defendant's Rikers Calls and Call Log," "Underlying documents regarding any CCRB and IAB investigations, police disciplinary records, and any other Brady/Giglio material," and many others (Defense Motion Challenging Certificate of Compliance Under CPL § 245.50 [4], 5-16 [Dec. 7, 2021]).

On December 8, 2021, the prosecutor informed the court that the Assistant District Attorney ("ADA") that was handling the matter had left the office and she would be taking over, making her the third ADA to handle the case. She further stated that many of the items listed on the defense's motion filed on December 7 had previously been furnished by the former ADAs who handled the case, but she would re-send them to ensure that defense counsel is in possession of the requested materials. Based on this representation, the court directed defense counsel to review the new batch of discovery and submit a "reduced" motion, listing only the items that she is missing. The court also ordered the People to respond to the defendant's motion if both sides are unable to resolve the discovery dispute. The case was adjourned to January 25, 2022.

On January 25, 2022, the ADA requested additional time to file a response as she had limited ability to come into the office due to medical reasons. The application was granted, and the case was adjourned to March 3, 2022. The People never filed a response.

The case was heard for the first time by this Court on March 3. Given the People's failure to respond in writing, the Court conducted an oral COC hearing on March 3, 2022. Following the hearing, the Court rejected the defense's request to find the prosecution's COC to be invalid and found that the People had discharged their discovery obligations, and that they exercised due diligence and good faith until that point in time. However, the Court directed the People to determine, among others, what, if any, Shot Spotter materials existed and to disclose them to defense counsel. The case was adjourned to April 25, 2022, for hearings and trial.

In between the court dates, the Court issued a written decision on March 4, 2022, providing further clarification of its oral decision. The Court reiterated that the People's COCs and SORs were valid and that many of the items listed in the defense motion were either non-discoverable or already given to counsel. The Court also ruled that the People "need to either file and serve the remaining discovery by close of business on March 10, 2022 or report to defense counsel that it does not exist" (Court's Decision, 3 [Mar. 4, 2022]). If the People failed to perform the obligation by March 10, the Court held that speedy trial time would run, and the People could be subject to further sanctions (id. ).

The People provided additional materials to defense counsel and filed a SOR on March 22, 2022, and a supplemental COC on March 23, 2022. However, as relevant to this decision, they did not provide any ShotSpotter materials.

On April 25, the People answered not ready for trial because necessary witnesses were unavailable and requested May 3, 2022. Defense counsel noted that the People served additional discovery since the last court date, but a few items were still outstanding, including ShotSpotter records. In response, the assigned prosecutor stated, "ShotSpotter belongs to a private company. So I have not—so the reason why defense counsel does not have paperwork in relation to it is because I do not have that paperwork. They are not in my custody and control. It doesn't appear as if my colleagues have ordered them either" (tr at 7 lines 15-21 [April 25, 2022]). When the Court asked whether ShotSpotter records had been ordered, the ADA stated, "I have not specifically ordered that material yet" (id. at 8 lines 9-12). Once again, the Court directed the prosecution to obtain ShotSpotter materials and make them available to defense counsel. The case was adjourned for hearings and trial on June 8, 2022.

On June 8, the People were not ready for trial as the assigned ADA had a pressing 180.80 matter. They requested June 10, 2022. Once again, defense counsel stated on the record that ShotSpotter materials were still outstanding. The case was adjourned to July 19, 2022, for hearings and trial in Part TRP.

On July 19, 2022, the case was heard in Part TRP for the first time. The People stated that the co-defendant's attorney contacted them the day before and stated that he would not be ready for trial because he was newly assigned to the case on June 8, 2022, and required additional time to review the materials. Based on this information, the case was adjourned to September 14, 2022, for hearings and trial.

On September 14, the People answered not ready and requested September 19, 2022. The assigned prosecutor stated that because the co-defendant's counsel indicated that he would not be ready, she did not make a necessary witness available for trial. Defense counsel stated, once again, that she was still missing ShotSpotter and Giglio materials. The People responded by stating, "at the time ShotSpotter was actually handled by a separate agency. It's not in the People's custody and control. We ordered it. I am following up on it. I don't physically have it. It was not part of the police department. It was a separate agency" (tr at 8 lines 3-8 [Sept. 14, 2022]). Relying on the Court's written decision from March 4, 2022, Justice Fabrizio asked, "Do you want to tell me anything about when you ordered it, how you ordered it?" The ADA responded, "No, Your Honor. I am not going to—I want to make sure any record I make it accurate. I don't want to—I don't want to be in the position to make this argument at this time" (id. at 9 lines 9-14).

Based on this record, Justice Fabrizio ruled, "The People are charged until they actually comply with the discovery request and I don't have any information about when or how they sought to obtain ShotSpotter before me" (id. at 8 lines 17-20). He further held, "This is part of the law of this case as I understand it. It was ordered by a judge that the People had to comply with a specific item that is relevant because this is a case where gunshots are fired and I had ShotSpotter arguments before. So you will be charged until you comply ..." (id. ). The People stated that they would expedite the request and obtain the materials as soon as possible (id. at 10 lines 7-8). The case was adjourned for hearings and trial on October 6, 2022.

The People provided ShotSpotter materials off-calendar on September 21, 2022, and filed a supplemental COC and SOR on the same day. The ShotSpotter material consisted of a multi-page document titled "Investigative Lead Summary." The report shows the incident date to be August 23, 2019, while the Report Date is listed as September 20, 2022. The document contains the incident number, longitude and latitude of the alleged shooting including the street address, rounds fired, and incident audio picked up by four different sensors (Defense Supplemental Exhibit 1)...