Injury/Accident

Criminal Case dismissed - Lack of Discovery Due Diligence


New York Criminal Defense Attorneys now get automatic discovery. The New York Criminal Procedure Law requires the prosecutor to turn over certain evidence under CPL Article 245 and this case highlights that the failure to do so results in the criminal case dismissal.


Here, "The Court acknowledges that the prosecutor made some efforts to obtain the text messages; however, these efforts were not made until after two certificates of discovery compliance had already been filed." The important thing to note is that the criminal defense attorney in this case did not just sit on its hands, it showed that the prosecutor failed to exercise due diligence in obtaining the discovery it knew and had reason to know existed. Indeed, "defense counsel who alerted the prosecution to the missing discovery...discovery materials previously disclosed to the defense clearly referred to undisclosed threatening text messages," and yet the prosecutor failed to make this production to the defense attorney.


Prosecutors must turn over evidence to the Defense. Upon request from the prosecutor, the police “shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article” (CPL §245.55[2]). The New York Criminal Defense Attorney is then entitled to a Certificate of Compliance from the prosecutor, ensuring that the prosecutor represents that the obligations of discovery are complete.


Such a Certificate of Discovery Compliance in the New York Criminal Case can be challenged: "a certificate of discovery compliance may also be deemed proper within the meaning of CPL §245.50(3), when a court determines that it was filed in good faith and reasonable under the circumstances." The Court notes that "By allowing for the possibility that the prosecution may be deemed ready even when some discovery remains outstanding, the Legislature acknowledged that unavoidable delays may prevent a diligent prosecutor from complying fully with the prosecution’s discovery obligations, despite the prosecutor’s best efforts to obtain all the relevant material in a timely fashion (People v. Aquino, 2021 NY Slip OP 21135 [Crim. Ct. Kings County, May 7, 2021]" Here, however, The Court holds that "a claim of good faith alone is not sufficient to find that a certificate of discovery compliance is proper." Why? Because the Criminal Defense Attorney vigorously pursued its entitlement to evidence.


The Court recites the current state of affairs in the law, which is now subject to amendment:

A certificate of discovery compliance is proper when “all known” discoverable materials have been disclosed after the prosecutor has exercised due diligence and made reasonable inquiries. The statute also permits a court to deem a certificate of discovery compliance proper even where discoverable material has not been disclosed if that material has been lost or destroyed within the meaning of CPL §245.80(1)(b) or is the subject of a protective order (CPL §245.50[1]). Notably, the statute does not exempt from disclosure materials subject to CPL §245.80(1)(a); thus, a certificate of discovery compliance is not proper when required discovery is simply late, and not actually lost or destroyed. Indeed, when the prosecution is aware of outstanding discovery which, despite diligent efforts, it does not yet have in its possession, the law requires the prosecution to affirmatively move the Court for additional time if it cannot provide the discovery in accordance with the time periods delineated in the statute.
The statute permits the prosecution to serve a supplemental certificate of discovery compliance when additional discovery is provided pursuant to CPL §245.60, specifically where the prosecutor “subsequently learns of additional material or information” that must be disclosed pursuant to the statute (emphasis added). Thus, CPL §245.60 applies in situations where, despite the prosecution’s diligent and reasonable inquiries to ascertain the existence of material subject to mandatory disclosure, new material or information later surfaces. When this occurs, the statute requires the prosecution to disclose this subsequently unearthed discovery expeditiously and to certify discovery compliance anew by filing a supplemental certificate of compliance (People v. Adrovic, 69 Misc3d 563 [Crim. Ct. Kings County, 2020]). As such, a supplemental certificate of discovery compliance under CPL §245.50(1) is proper only if discovery is provided pursuant to CPL §245.60. A supplemental certificate of compliance may not be used to cure a defect in the original certificate. The statute further specifies that, “[n]o adverse consequence to the prosecution…shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances” (CPL §245.50[1]; emphasis added).

Some think, contrary to caselaw, that the New York Criminal Defense Attorney no longer needs to make written demands (see People v. Villardi) or Freedom of Information Law ("FOIL") demands but, still, the criminal defense attorney must show that the prosecutor had access but failed to provide the discovery sought in seeking a dismissal of the criminal case. Here, the criminal defense attorney highlighted that the evidence provided to the accused showed text messages existed and there was some discussion (likely a source of discussion as we move forward with the 2022 amendments), some communication, that these text messages existed and were not produced by the prosecutor to the criminal defense attorney. In New York Criminal Defense practice, the failure to produce this evidence after some discourse results in the dismissal of the case.


The case was highlighted by the New York Law Journal, People v. Diaz. Now, with the amendments to the New York Criminal Procedure Law, it appears that the prosecution can appeal this dismissal. Let us see what occurs next!


If you are facing an accusation, subject to arrest, criminal prosecution or seeking a Criminal Appellate Lawyer, contact Cory H. Morris. Cory H. Morris, attorney and counselor at law; New York and Florida, Injury, Addiction, Accident, Call tthe Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

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