Opinion
File No. CR 1872-20
07-20-2021
PEOPLE of the State of New York, v. Sekou SMITH, Defendant.
P. David Soares, Esq., Albany County District Attorney, Ryan J. Murphy, Esq., Assistant District Attorney, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202 Stephen Herrick, Esq., Albany County Public Defender, Kelly D. Vidur, Esq., Assistant Public Defender, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202
P. David Soares, Esq., Albany County District Attorney, Ryan J. Murphy, Esq., Assistant District Attorney, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202
Stephen Herrick, Esq., Albany County Public Defender, Kelly D. Vidur, Esq., Assistant Public Defender, Albany City Court - Criminal Part, 1 Morton Avenue, Albany, New York 12202
Joshua L. Farrell, J.
For three separate incidents the defendant has been charged with one count of criminal mischief in the fourth degree (Docket Number CR 1873-20) and two counts of criminal trespass in the second degree (Docket Numbers CR 1872-20 and 2004-20). On October 16, 2020, he allegedly damaged J H-B's (the complainant's initials) door frame and then twice, on October 25, 2020 and November 6, 2020, unlawfully entered her home.
While these actions have not been consolidated or joined, identical discovery and readiness issues have been raised in each case. As such, this single decision and order will address each of the legal issues raised in general and as applied in each action.
Omnibus motion practice has already been conducted in all three actions, and this Court rendered a Decision and Order in each on June 9, 2021. Because of the motions’ unresolved challenges to the People's April 14, 2021 Certificate of Discovery Compliance (CoC), each Decision and Order directed the parties to "diligently confer to reach an accommodation" on their discovery disputes in accord with CPL § 245.35(1). If agreement could not be reached, the parties were directed to outline any remaining CoC challenges in a supplemental CPL § 245.50(4) "motion." The CPL § 30.30(5) trial ready inquiry would then be held on the record, to determine whether a "proper" CoC had been filed in accord with CPL § 245.50(3) and the People's "actual readiness" in accord with CPL § 30.30(5).
The parties conferred, outlined their discovery positions in writing and, on July 8, 2021, this Court conducted the requisite trial ready inquiry on the record. The parties written submissions squarely framed the remaining discovery disputes, and both parties were given an "opportunity to be heard on the record as to whether the disclosure requirements had been met." CPL 30.30(5). The record is now fully submitted to determine, first, the discovery issues underlying whether the People's CoC was "proper" ( CPL § 245.50[3] ) and, second, the People's "actual readiness." CPL § 30.30(5).
Starting with CPL § 245.20(2) ’s unambiguous directive, 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 ..." The statutory obligation is twofold, starting with the People's "diligent, good faith effort to ascertain" and concluding with their obligation to make all evidence "available." Implicitly acknowledged within the "effort to ascertain" principle lies the understanding that not all of the People's efforts will be successful. Even performing their duties with due diligence and in good faith, there will be some material and information that the People are unable to make available to the defense.
Similarly, the People's obligation to certify their discovery compliance under CPL § 245.50 explicitly recognizes the reality that, in some cases, not all discovery will be turned over to the defense prior to CoC filing. In establishing the People's CoC filing responsibility, CPL § 245.50(1) specifically identifies circumstances in which not all discovery will actually be provided to the defense. It acknowledges that some discovery may be "lost or destroyed" or subject to a CPL § 245.70 protective order. CPL § 245.50(1) still requires, however, the People to file and serve a CoC. Even when all discovery is not turned over, the CoC must state that "after exercising 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). The plain language of the statute makes the People's CoC obligations, like their CPL § 245.20(2) requirements, twofold. First, the People must "exercis[e] due diligence and mak[e] reasonable inquiries" and, second, turn over to the defense all "known material and information." CPL § 245.50(1). Because the statute first explicitly recognizes that not all known discovery will actually be provided to the defense prior to CoC filing, the "and information" clause can only be understood as permitting the People to inform the defense of material that is not being turned over. Providing "information" about discovery not turned over satisfies the statute for a "proper" CoC ( CPL § 245.50[3] ), but in turn results in CPL § 245.80 "remedies or sanctions."
The sanctions statute explicitly addresses "lost or destroyed" discovery material and information. CPL § 245.80(b). It states:
When material or information is discoverable under this article but cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue. The appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure.
Id. Thus, a proportionate sanction is mandatory when the defense establishes that a relevant item of evidence has been destroyed.
In addition to the explicit directive above, CPL § 245.50(1) ’s "due diligence / reasonable inquires" language implicitly recognizes that not all discovery will be turned over to the defense prior to CoC filing. Importantly, the twofold CoC analysis contains no absolute disclosure requirement. Rather, its requirement of providing "known material and information" is wholly dependent on the People first "exercising due diligence and making reasonable inquires." While neither "due diligence" nor "reasonable inquires" are statutorily defined, their plain meaning proscribes an absolute requirement. Instead, due diligence is understood as: "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. — Also termed reasonable diligence" Black's Law Dictionary (11th ed. 2019). Paired with the phrase "reasonable inquiries," the most natural and ordinary meaning of "due diligence" in this context requires the People to conduct a "reasonable" search for discovery material. To be sure, this reasonableness standard requires the People to go to great effort. The prosecution of a criminal charge where liberty is at stake demands no less. The standard, however, cannot be construed as an absolute requirement to provide the defense with all discovery material, whether known or unknown, regardless of the reasonableness of the People's searches, investigations, and inquiries.
Of course, if the People fail to exercise due diligence and make reasonable inquiries to obtain all CPL § 245.20(1) materials their CoC would not be "proper" and they could "not be deemed ready for trial." CPL § 245.50(3). The People must satisfy their discovery obligations, with due diligence, prior to being ready for trial. This obligation is inflexible. No trial ready statement is valid until the People have "exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery." CPL §§ 30.30(5) and 245.50(1) and (3).
Within this general statutory framework, three discovery issues remain. At issue is the appropriate sanction for the People's uncontested failure to preserve two 911 calls; whether the People have complied with CPL § 245.20(1)(e) in turning over witness statements; and whether the People are required to disclose law enforcement records concerning prior incidents between defendant and J H-B.
First, the People's failure to preserve two 911 calls requires an "adverse inference" jury instruction sanction ( CPL § 245.80[2] ) but does not invalidate the People's CoC.
The facts surrounding the existence and destruction of two 911 calls are not in dispute. Defendant stands charged with two counts of Criminal Trespass in the Second Degree from incidents that allegedly occurred on October 25, 2020 and November 6, 2020. It is uncontested that on both occasions J H-B called 911 for police assistance and that her calls were recorded. Following the 911 calls defendant was arrested by the Albany Police Department on both occasions. Before being turned over to the defense, however, both 911 calls were destroyed. There has been no showing, or even a claim, that the destruction of the two 911 calls was done intentionally or in bad faith. Rather, the People duly informed defendant of the destroyed evidence and filed their CoC.
This portion of the Decision and Order applies only to Dockets CR 1872-20 and CR 2004-20.
Notwithstanding the destruction of this evidence, because the People informed defendant of the destroyed evidence their CoC was "proper." CPL § 245.50(3).
The destruction of evidence, however, requires a sanction upon the defendant's showing that the "destroyed material may have contained some information relevant to a contested issue." CPL § 245.80(b), see also CPL § 245.55(3) (a and b)(requiring a sanction for non-disclosed and destroyed 911 recordings). Here, it is uncontested that these 911 calls contain some relevant information. They brought law enforcement to the scene of the alleged trespasses. The People, rightly, implicitly conceded that such showing was made by agreeing that a sanction must be imposed.
The appropriate sanction demonstrated on this record is an adverse inference jury instruction. CPL § 245.80(1)(b) provides the framework for the sanctions analysis. It states that "[t]he appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure." Id. CPL § 245.80(2) then sets forth a non-exhaustive list of potential sanctions. To determine CPL § 245.80(1)(b) proportionality, it is clear that the 911 recordings could have been considered helpful to the defense for their cross-examination value. Only if the 911 recordings contained information that contradicted J H-B's trial testimony would they be valuable to the defense. Of course, with the 911 recordings destroyed their actual cross-examination value cannot be established. This lack of proof, however, cannot be held against the defendant. It was the prosecution's untimely destruction of the 911 recording that caused its absence. At trial any lingering prejudice to the defendant would be cured by a jury instruction "that it may draw an adverse inference" about the destroyed 911 calls. CPL § 245.80(2). An appropriate jury charge will provide the proportionate remedy.
Next, the People have provisionally complied with CPL § 245.20(1)(e). The statue requires the People to turn over "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto" Id. In their written submissions and at the trial ready inquiry the People confirmed that they provided the defense with all of the written or recorded statements that they have created during their investigations. Specifically, the Prosecutor explicitly denied taking notes while interviewing his law enforcement witnesses or J H-B. Thus, the People have created no "written or recorded" statements and cannot turn over what does not exist. Contrary to the defense argument, the statute neither explicitly nor implicitly requires note taking. Rather, it requires disclosure only of a "writing or recording ..." Id. The use of such statutory language in no way alters the long standing rule that the People are not obligated to take notes when speaking with their witnesses. People v. Steinberg, 170 AD2d 50 (1st Dept. 1991), People v. Lustig, 68 Misc 3d 234 (NY Sup. Ct., Zayas 2020). The defense's singular reliance on People v. Consolazio (40 NY2d 446 [1976] ) to support their position is wholly misplaced. In Consolazio the Court of Appeals held that the People's failure to disclose notes was not reversible error because they were "duplicative equivalents of statements previously turned over." Id. at 454. Such holding has no applicability here.
This portion of the Decision and Order applies to all three Dockets CR 1872-20, CR 1873-20, and CR 2004-20.
On this record, however, the People have not definitively established that all CPL § 245.20(1)(e) "writings or recordings" have been disclosed. The CoC specifically indicated that, as of April 14, 2021, all of the "Police Reports and Notes" and "Electronic Recordings" had been obtained from law enforcement and provided to the defendant. The People confirmed such disclosure at the trial ready inquiry, and the defense conceded receipt of the disclosed statements and recordings. Based upon such record, the People's CoC was "proper" when filed. At the trial ready inquiry, however, the People did not know whether law enforcement has created any new "writing or recording." Because the record is silent on such issue, the People are directed to make the necessary inquiries and confirm, in a written submission, that law enforcement has created no new undisclosed "writing or recording." Such submission shall be made within seven days of the date of this decision and order and, depending on the submission, may result in a separate decision and order to address the issue.
Lastly, the defense incorrectly claims that the CoC is invalid because the People have not disclosed law enforcement records concerning prior incidents between defendant and J H-B. At the trial ready inquiry the People acknowledged that law enforcement records exist from prior incidents where J H-B was victimized by defendant. There has been no showing, or even a claim, that defendant was ever reported to be J H-B's victim. As such, the only law enforcement documents defendant seeks concern "misconduct and criminal acts of the defendant not charged in the information." CPL § 245.20(3). Because such materials are explicitly identified under subdivision three and not subdivision one of CPL § 245.20, the timing of disclosure shifts. Instead of the otherwise applicable twenty or thirty-five days for automatic discovery under CPL § 245.10(1)(a) (i and ii) and inclusion with a CoC, the prosecution must provide this "supplemental discovery not later than fifteen calendar days prior to the first scheduled trial date." CPL § 245.10(1)(b). Consequently, the People need not provide this type of material prior to filing a "proper" CoC and defendant's challenge based upon such claim is rejected.
This portion of the Decision and Order applies to all three Dockets CR 1872-20, CR 1873-20, and CR 2004-20.
Based upon the foregoing, the People's CoC was "proper" when filed. CPL § 245.50(3).
With a "proper" CoC filed, the People demonstrated "actual readiness" at the trial ready inquiry. CPL § 30.30(5). As previously set forth, although the People admitted at the trial ready inquiry that they failed to disclose two 911 calls, their CoC remains proper. The additional defense challenges to the People's CoC have similarly been addressed and rejected. At the trial ready inquiry, the People answered the following questions affirmatively:
Is all discovery, required under CPL 245.20, complete?
Has a CPL 245.50 certificate of compliance been filed and served?
Has due diligence been exercised by your office to ascertain the existence of discovery material?
Are you, or another prosecutor, presently available and ready to try this case?
Are the witnesses that are necessary for trial, including experts, available and ready?
Are all exhibits, that you deem necessary to introduce at trial, presently available?
Do all accusatory instruments meet the requirements of CPL §§ 100.15 and 100.40 ?
The People did acknowledge, however, that they had not recently spoken to J H-B. They asserted that they had good contact information for her, had previously spoken with her in preparing their case, and were otherwise ready to call her as a witness. Due to such equivocation, the People must confirm, in the supplemental discovery submission addressed below, J H-B's availability for the trial date certain of these matters.
On this record, and contingent upon the People's supplemental discovery submission, the People's trial ready statement is deemed valid and each of the actions pending against defendant (Dockets CR 1872-20, CR 1873-20, and CR 2004-20) are ready for trial.
The following scheduling order applies to all three actions (Dockets CR 1872-20, CR 1873-20, and CR 2004-20):
July 27, 2021 - the People shall submit a supplemental disclosure certificate that outlines their inquiries to determine whether law enforcement has created any undisclosed "writing or recording." If such a record exists, the supplemental disclosure shall provide the defense with a copy of it. The People shall also confirm that they have spoken to J H-B and that she is ready, willing, and able to testify at the trial date certain set forth below.
August 17, 2021 - the People shall submit, if any, a Sandoval/Ventimiglia/Molineux proffer.
August 24, 2021 at 1:30 pm — Sandoval/Ventimiglia/Molineux Hearing, and Pre-Trial Conference.
September 13, 2021 at 8:30 am — Jury Trial date certain.
The foregoing constitutes the Decision and Order of this Court.
SO ORDERED.