People v. Nisanov

2023 NY Slip Op 50337(U)

The People of the State of New York v. Nisanov, Defendant.

Docket No. CR-002377-22QN

Criminal Court of the City of New York, Queens County

April 17, 2023

Unpublished Opinion

For the People: Melinda Katz, District Attorney (by Kristina Colon & Denise Tirino)

For Mr. Nisanov: Queens Defenders (by Daniel Santos)

Wanda L. Licitra, J.

The discovery statute has clear rules. The People must automatically disclose "[a]ll evidence and information including that which is known to police... that tends to impeach the credibility of a testifying prosecution witness." (C.P.L. § 245.20[1][k][iv]). That includes police witnesses' underlying disciplinary records that are in the possession of the People or the police department. (See id.; C.P.L. § 245.20[2] [deeming materials in the police's possession to be in the People's possession]). Summary letters authored by the People are not sufficient to discharge this obligation.

Many courts-including the appellate courts-have repeatedly affirmed these rules. (E.g., People v Rodriguez, 77 Misc.3d 23 [App. Term, 1st Dep't 2022]; Matter of Jayson C., 200 A.D.3d 447, 448-49 [1st Dep't 2021]; People v. Eleazer, 2023 NY Slip Op. 50316[U] [Crim. Ct., NY County 2023] [Maldonado-Cruz, J.]; People v. Payne, 2023 NY Slip Op. 23101 [Crim. Ct., Bronx County 2023] [Bowen, J.]; People v. Toussaint, 78 Misc.3d 504 [Crim. Ct Queens County 2023] [Licitra, J.]; People v Rugerio-Rivera, 77 Misc.3d 1230 [A] [Crim. Ct., Queens County 2023] [Gershuny, J.]; People v. Goggins, 76 Misc.3d 898 [Crim. Ct., Bronx County 2022] [Morales, J.]; People v. Martinez, 75 Misc.3d 1212 [A] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People v. Edwards, 74 Misc.3d 433 [Crim. Ct., NY County 2021] [Weiner, J.]; People v. McKinney, 71 Misc.3d 1221 [A] [Crim. Ct., Kings County 2021] [Kitsis, J.]; People v. Rodriguez, CR-002613-20BX [Crim. Ct., Bronx County May 20, 2021] [Johnson, J.]; People v. Cooper, 71 Misc.3d 559 [County Ct., Erie County 2021] [Eagen, J.]).

Nonetheless, the People here did not follow the discovery statute's commands. Instead, they unilaterally decided, incorrectly, that their police witnesses' misconduct records could not constitute impeachment material and so did not fall within the discovery statute. They developed this opinion even though they knew that the statute mandates that they always err on the side of disclosure. (C.P.L. § 245.20[7]; see Pr. Resp. Exs. 5, 6 [explicitly recognizing the presumption of disclosure]). To this day, the People have not disclosed their police witnesses' misconduct records.

Before the People could state ready for trial, the law required them to fulfill their automatic discovery duties. (C.P.L. §§ 245.50[3], 30.30[5]). Because they failed to fulfill those duties, their certificate of discovery compliance was improper, and their statement of readiness illusory. The People failed to comply with their discovery obligations for over 90 days after commencing this case. As a result, the defense has filed a C.P.L. § 30.30 motion, the motion must be granted, and the case must be dismissed.

LEGAL ANALYSIS

A "proper" certificate of discovery compliance is necessary to stop the speedy-trial clock. (C.P.L. § 245.50[3]). The statute defines a "proper" certificate in "subdivision one" of C.P.L. § 245.50. (Id.). It requires that the People certify in good faith, two things. First, that the People exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of "material and information subject to discovery." (C.P.L. § 245.50[1]). And second, that "after" doing so, "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.; see also People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021] [holding that a certificate was not complete until the People "actually produced" automatic discovery to the defense]). These are two separate statements that the People must certify, in good faith, to each be true. (See C.P.L. § 30.30[5]). If the People do not file such a proper certificate, their statement of readiness is invalid and ineffective to stop the speedy-trial clock. (C.P.L. §§ 245.50[3], [1], 30.30[5]; Ferro, 197 A.D.3d at 788; People v. Guzman, 75 Misc.3d 132 [A], at *3 [App. Term, 2d Dep't 2022]; People v. Rodriguez, 77 Misc.3d 23 [App. Term, 1st Dep't 2022]). The only exception is for "special circumstances." (C.P.L. § 245.50[3]; see also Guzman, 75 Misc.3d 132[A], at *3). ^[1]

Contrary to the People's contention, C.P.L. § 245.80, "prejudice," and "sanctions" are all irrelevant to a C.P.L. § 30.30 motion. (E.g., People v. Gaskin, 2023 NY Slip Op. 01415 [4th Dep't 2023]). Such analyses are for situations where the People only violate the 20-day or 35-day discovery deadlines, not where they also fail to state ready for trial within the entire 90-day speedy trial timeframe. (People v. Darren, 75 Misc.3d 1208 [A], at *5 [Crim. Ct., NY County 2022]; People v. Diaz, 75 Misc.3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc.3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; People v. Quinlan, 71 Misc.3d 266, 272 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020]). "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Adrovic, 69 Misc.3d at 574). "Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).

The statute defines automatic discovery to include, amongst other things, "[a]ll evidence and information, including that which is known to police... that tends to... impeach the credibility of a testifying prosecution witness." (C.P.L. § 245.20[1][k][iv]). It also provides special instruction regarding that category of material. It mandates that "[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form." (C.P.L. § 245.20[1][k]). It mandates that it "shall be disclosed... irrespective of whether the prosecutor credits the information." (Id.). And it mandates that the People "shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier" than the normal statutory "time period for disclosure." (Id.).

Here, before filing their certificate of discovery compliance, the People disclosed only summary letters about their police witnesses' disciplinary matters. Those letters simply stated: "This officer was the subject of allegations that were found to be, 'unsubstantiated' following an investigation." (Pr. Resp. Exs. 5, 6). Before filing their certificate, the People disclosed no other information about any of these allegations. Six months later, they disclosed "updated" letters that listed each allegation, but with little detail. (See Pr. Resp. Exs. 8, 9). Here is an example:

DATE: 7/13/2011

SERIAL NUMBER: M11-1606

I/ANo.11-31841 JULY 13, 2011 ALLEG: DRV-MOS/MOS ALTERCATION ASSIGN UNIT: PBQS I/U DISPO: UNSUBSTANTIATED CASE CLOSED: 01/20/2012.

(Pr. Resp. Ex. 9). Clearly, these disclosures are not "[a]ll evidence and information" that the police and prosecutors have about these incidents. (See C.P.L. § 245.20[1][k][iv] [requiring disclosure of "[a]ll evidence and information" that tends to impeach a witness]; Matter of Jayson C., 200 A.D.3d 447, 448-49 [1st Dep't 2021] [holding that summary letters authored by the government do not fulfill C.P.L. § 245.20[1][k][iv]]; People v. Toussaint, 78 Misc.3d 504 [Crim. Ct., Queens County 2023] [explaining the holdings of Jayson C. ]).

In their defense, the People argue that "unsubstantiated" police disciplinary matters do not fall within the discovery statute at all. They claim this is so because "unsubstantiated" matters "by their very nature, are not matters that would 'tend' to impeach the credibility of a police witness." (Pr. Resp. at 8-9). "[S]ince the allegations lack evidentiary support, they cannot be relied upon in good faith as a basis for cross examination." (Id. at 9). "Thus, these documents are not impeachment material." (Id. at 9-10).

The People's articulation of what provides a good-faith basis to cross-examine a witness is incorrect. In NYPD discipline "unsubstantiated" is a term of art-it only means there is an "absence of evidence [that] precludes resolution of the allegation one way or the other." (People v. Edwards, 74 Misc.3d 433, 442 [Crim. Ct., NY County 2021] [Weiner, J.]). And it is black-letter law that such allegations may provide a good-faith basis for cross-examination. In People v. Smith, defense attorneys had sought to cross-examine police officers on allegations from civil complaints that had never been proved in court. (27 N.Y.3d 652 [2016]). The Court of Appeals held that "[s]pecific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct." (Id. at 667). Reversing the lower courts that held otherwise, the Court of Appeals explained that "there is no prohibition against cross-examining a witness about bad acts that have never been formally proved" in another forum. (Id. at 661; cf. Pr. Resp. at 9 [stating the...