People v. Taveras

2023 NY Slip Op 50309(U)

The People of the State of New York v. Walmer Paulino Taveras, Defendant.

Docket No. CR-004492-22BX

Criminal Court of the City of New York, Bronx County

March 16, 2023

Unpublished Opinion

ADA Marline Paul, Office of the Bronx District Attorney, for the People.

Marissa Balonon-Rosen, Esq., The Bronx Defenders, for the Defendant.

Michael J. Hartofilis, J.

The People have filed a motion pursuant to CPLR § 2221 for leave to re-argue and/or renew the decision and order of the previous motion court dated February 3, 2023, which granted Defendant's motion to deem invalid the People's certificate of discovery compliance ("COC") and statement of trial readiness ("SOR") for the People's failure to fully comply with their discovery obligations under CPL article 245.

In determination of the instant motions, this court has reviewed the contents of the court file and all proceedings heretofore had herein. As set forth fully below, the court now grants the People's motion for re-argument of the prior court's decision and order; upon reconsideration, the court deems the People's May 11, 2022 COC valid as reasonable under the circumstances and based on due diligence; finds that the May 11, 2022 SOR was filed in good faith within the speedy trial period; and recalls and vacates the February 3, 2023 order to the People to file an application for an unsealing order.

Procedural Background

Defendant was arraigned on March 20, 2022 on charges of Driving While Intoxicated (VTL § 1192[3]) and Driving While Impaired (VTL § 1192[1]). On May 11, 2022, the People filed their COC and SOR, followed by several supplemental COCs. To comply with CPL § 245.20 [1][k][iv], the People shared two CCRB files for the arresting officer, Dmitriy Lyubchenko, which disclosed a total of five allegations of misconduct with the following dispositions: exonerated, unfounded, complainant uncooperative, victim unidentified. (see, Taveras at *3). In an additional" Giglio letter," the prosecutor disclosed that in a 2018 case in Bronx Criminal Court, Hon. Linda Poust-Lopez had found the testimony of Officer Lyubchenko to be "incredible" after a suppression hearing in a case charging similar violations of VTL § 1192, after which the case was dismissed by the People and sealed by the court. The ADA shared the case information and the written hearing decision which was published in the New York Law Journal. (People v Francis Alifonso, NYLJ, April 19, 2019, p. 40, vol 261, no. 75 [Poust-Lopez, J.]). ^[1]

On August 26, 2022, Defendant filed an omnibus motion to dismiss all charges under CPL § 30.30 for the People's failure to fully comply with their discovery obligations under CPL § 245.20, or in the alternative, to suppress evidence and statements of Defendant. Defendant asserted that the following items of automatic discovery were not timely provided: i) underlying documents of CCRB allegations; ii) underlying documents of Officer Dmitriy Lyubchenko's incredibility finding in the 2018 case; iii) daily roll call log; iv) unexpired health permit; v) NYPD policy re field testing in DWI cases; vi) calibration, etc., records of the breath testing machine.

In opposition, the People contended that they had shared all CCRB material in their possession, and that based on their understanding of the law, they were not required to disclose underlying CCRB documents for exonerated or unfounded misconduct allegations. Nonetheless, after being ordered to do so by Hon. Valentina Morales at a discovery conference on August 2, 2022, the prosecutor made two follow-up requests for such material through her office's Discovery Compliance Unit ("DCU"). The DCU is the formal procedural channel created by the District Attorney's Office ("DAO") to facilitate a flow of information for discovery compliance, as required under CPL § 245.55. The ADA received no additional discovery material. She informed the court that the DCU had explained to her that the CCRB does not respond to requests for materials; instead, the CCRB provides to the DAO quarterly updates of CCRB reports of substantiated "or other" misconduct. (People's Affirmation in Opposition, October 28, 2022, p. 4). The prosecutor disputed Defendant's arguments that CPL § 245.20 [1] required them to provide sealed case records, noting that the DA's office does not have access to sealed files under CPL § 160.50. (People's Affirmation in Opposition, pp. 6-7). The People also asserted that they had earlier shared the daily roll call log, unexpired health permit for Officer Lyubchenko, and all calibration records for the six months on either side of the Defendant's arrest date, as required by CPL § 245.20 [1][s]. These items are reflected on the COC as supplemented.

On February 3, 2023, Judge Morales issued an amended decision and order which invalidated the People's May 11, 2022 COC but denied dismissal of the charges on speedy trial grounds, as 90 days of time chargeable to the People had not elapsed. (People v Taveras, 77 Misc.3d 1231 (A), *2-3 [Crim Ct Bronx County 2023]). Judge Morales discounted the prosecutor's recitations of the efforts she had made to obtain the underlying CCRB and 2018 case documents and rejected the ADA's explanations for the inability to do so, which had been thwarted by the existence of CCRB procedures and the broad scope of the sealing statute. The judge held that because the People only consulted and relied on their internal DCU regarding the missing CCRB documents and had not moved to unseal the records of the 2018 case, they did not demonstrate the diligent, good faith efforts to obtain and provide discoverable impeachment material not in their possession as required under CPL § 245.20 [2]. (Id.). The court distinguished binding appellate caselaw denying People's unsealing applications as materially inapposite and thus inapplicable to the facts at bar and concluded that only the People had the authority to move to unseal the record in the 2018 case. (Id., at *6-8). Judge Morales ordered the ADA to file an application to unseal the 2018 case record to meet the People's Giglio disclosure obligations. On February 8, 2023, after Judge Morales had been transferred out of Bronx County Criminal Court, the People duly submitted the application to unseal the 2018 case to the court in part AP-3, which order remains unsigned. On February 17, 2023, the People filed the instant motion to reargue the February 3 decision and order of the prior court. Defendant opposes such motion.

People's Motion to Reargue

The provisions of CPL § 2221 permitting reconsideration of a court's decision may be applied in a criminal action. (People v Merly, 51 Misc.3d 858, 860 [Sup Ct Bronx County 2016] [internal citations omitted]; People v DeFreitas, 48 Misc.3d 569 [Crim Ct NY County 2015]). Even were CPLR § 2221 inapplicable, however, the power to grant "re-argument" to correct mistakes or misapprehensions is inherent to judicial authority. (see, e.g., People v Godbold, 117 A.D.3d 565, 566 [1st Dep't 2014]; People v Baptiste, 70 Misc.3d 706, 708 [Crim Ct NY County 2020]). Here, the People have moved for "re-argument" under CPLR § 2221[d][2], and not "renewal" under CPLR § 2221[e][2], as they have asserted no new facts, but contend that the prior court overlooked or misapprehended matters of fact and law in determining the August 26 COC challenge motion.

A motion to reargue must be made to the judge who signed the order unless they are unavailable. Judge Morales is no longer sitting in Bronx County Criminal Court; thus the motion is properly before this court for determination. (CPLR § 2221 [a]; C & N Camera & Electronics, Inc. v Service Mutual Insurance Company, 210 A.D.2d 132, 133 [1st Dep't 1994], cited in People v Davis, 27 Misc.3d 1226 (A) [Sup Ct Bronx County 2010]; Billings v Berkshire Mut. Ins. Co., 133 A.D.2d 919, 919-20 [3d Dep't 1987]). This court finds it a prudent exercise of discretion to grant the People's motion to reargue Defendant's August 26, 2022 omnibus motion, (see, People v Oceanside Institutional Indus., Inc., 15 Misc.3d 22, 25 [App Term 2d Dep't 2007], and upon reconsideration, the Court finds as follows:

1. The People demonstrated diligence in their effort to provide the required material under CPL § 245.20[1][k][iv], and their compliance was reasonable under the circumstances.

2. The People were improperly ordered to file an application for an unsealing order, as such is prohibited under CPL § 160.50. Such order is recalled and vacated.

3. Defendant is entitled to have access to the records in the 2018 case.

4. The May 11, 2022 COC as supplemented is valid, and the SOR of the same date was a good faith declaration of the People's trial readiness, tolling the speedy trial time.

5. Suppression of evidence is denied except to the extent that pre-trial hearings are ordered pursuant to Huntley/Dunaway/Mapp/1194/Sandoval/Ventimiglia.

COC Challenge

The COCs filed by the People indicate that three of the six items alleged to be missing already have been shared with Defendant (the daily roll call log, unexpired health permit, and calibration, etc. records of the breath testing machine), and Defendant's contention regarding the fourth item (that the People are required to disclose NYPD policy regarding alcohol field testing of non-English-speaking suspects) is unsupported by the express terms of the statute. The court will address only the potential impeachment material under CPL § 245. 20 [1][k][iv] (the underlying CCRB records and the records from the 2018 case).

CCRB Records

The extent of police impeachment material required to be disclosed preceding the filing of a valid COC remains an evolving area of litigation with little clear appellate guidance. (People v Montgomery, 74 Misc.3d...