One cannot but be troubled by several assertions made by the prosecutor with regard to his Brady obligations and the general sentiment present throughout the prosecutor's response that he has determined unilaterally that the substance of the call from the 911 caller is not exculpatory. The prosecutor asserts in the first instance that the failure of two separate courts to give him a specific time period on which to turn over the information excuses or mitigates his failure to do so in a timely manner. This position is, of course, flatly inconsistent with the rule 3.8(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) 2, and standard 3–3.11 of the American Bar Association Standards for Criminal Justice 3, both of which require a prosecutor to make timely disclosure at the earliest feasible opportunity. If the prosecutor felt the court erred in its determination that the substance of the 911 call made by the unidentified caller constituted Brady information, his remedy was to ask for re-argument and not act in a dilatory manner that may yet jeopardize defense counsel's own independent investigation of the Brady witness.
The second assertion made by the prosecutor was the notion that the posture of the case is somehow related to when a prosecutor should discharge his or her Brady obligations. Here, the prosecutor, in his response opposing an alleged speedy trial violation and a request that a sanction be imposed on the prosecution for failure to disclose the contact information of the Brady witness, maintains that “even if the 911 caller did possess knowledge of how the outbreak of violence began, which she does not, it would have no bearing on a Mapp/Wade/Dunaway hearing as she was never interviewed by the arresting officer because she did not wish to be involved.” In a subsequent passage of the response also opposing the same alleged speedy trial violation and request for a sanction, the prosecutor again asserts that “given the sensitive nature of the information requested, the lack of a specific deadline by the court and that this matter is not at a trial phase, it is obvious that the court would not have held the case stagnant for this information.”
Both of these arguments by the prosecutor miss by a wide margin any rational explanation for delaying by nearly seven months the disclosure to the defense attorney of the contact information for the Brady witness. While the prosecutor states the sensitive nature of the information requested as a concern that somehow contributed to the delay in disclosing contact information of the Brady witness to the defense attorney, the record is absolutely silent as to whether the prosecution ever sought a protective order “given the sensitive nature of the information requested”. Nor does the posture of the case have any bearing on the timely disclosure of Brady information at the earliest feasible opportunity. The timeliness of a Brady disclosure should not depend on the eccentric, arbitrary, or capricious legal arguments offered by the prosecutor that essentially disclaims an “ever cognizant” understanding of his obligations to disclose Brady information. In effect, the prosecutor gave short shrift to Brady's requirements of prompt disclosure and to the orders of two separate criminal courts to disclose the contact information of the Brady witness to the defense attorney.
In this case it is worth considering the comments of a Justice who wrote the majority opinion for the Supreme Court. In that case the Court reversed the Court of Appeal's affirmation of the District Court's finding that the respondent was liable for Brady violations committed by subordinate prosecutors. The Justice made clear that prosecutors are ethically bound to know what Brady entails and have a “unique duty to produce Brady evidence to the defense.” Justice Thomas also observed that “an attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” Thus, this court finds the delay of nearly seven months in disclosing the contact information of the Brady witness to the defense attorney inconsistent with the prosecutor's overriding and fundamental duty to promptly disclose such information and constitutes a clear and unequivocal breach of his responsibility to do so.
Twice in the People's response, the prosecutor states his intention to make the Brady witness available to the defense but only when the case has reached the trial stage. The stated intention of the prosecutor to delay disclosing the contact information of the Brady witness despite a judicial ruling that the information sought by the defense is Brady material and two directives by two separate courts to release the information to the defense attorney raises a reasonable inference that the prosecutor's delay was wilful and motivated by a desire to gain a tactical advantage notwithstanding that he subsequently disclosed the contact information of the Brady witness to the defense attorney. As such, this court orders that a hearing be held to determine whether the prosecutor's actions in belatedly turning over the information to defense counsel were “willful and motivated by a desire to obtain a tactical advantage” and whether a sanction is warranted.
Turning to the defendant's motion to dismiss on the ground that her statutory right to a speedy trial has been violated, it is well settled, however, that while Brady material is discoverable pursuant to CPL 240.20(1)(h), time is not chargeable to the People merely on account of their failure to comply with their discovery obligations. The People's failure to comply with their discovery obligations does not implicate their ability to proceed to trial, although it may affect the defendant's ability to do so. For this reason, the defendant's argument that the time period from February 18, 2011 to the present should be charged to the People because they did not respond to her discovery demands is rejected.
The People, however, are charged with some delay from this time period. On February 18, 2011, the People were not ready to proceed and requested an adjournment to February 25, 2011. The court adjourned the case to March 2, 2011. Since this is a post-readiness adjournment (the People announced their readiness for trial on October 4, 2010), the People are charged with only the actual period of the adjournment requested. Thus, the People are charged the 7 days they requested; the balance of the adjournment is excluded.
On March 2, 2011, defense counsel was actually engaged on another matter. The court adjourned the case to April 13, 2011. This period is excluded. On April 13, 2011, the People were ready to proceed. The court adjourned the case to June 27, 2011. This period is excluded. On June 27, 2011, the People were not ready to proceed and requested an adjournment to July 5, 2011. The court adjourned the case to July 15, 2011. Since this is a post-readiness adjournment, the People are charged with only the actual period of the adjournment requested. Thus, the People are charged the 8 days they requested; the balance of the adjournment is excluded.
On July 15, 2011, the People were not ready to proceed. The court adjourned the case to September 9, 2011. On August 31, 2011, the defendant filed with the court and served upon the People this instant motion. The court file does not reflect that the People requested a particular date. Since the record is silent as to the length of this post-readiness adjournment sought by the People, the People are charged with the 47 day period from July 15, 2011 to August 31, 2011. On September 9, 2011, the court adjourned the case to October 20, 2011 for decision. This period is excluded. For the time period of February 18, 2011 to the present, the total amount chargeable to the People is 62 days, an amount that does not exceed the ninety day speedy time limitation. Therefore, the defendant's motion to dismiss, pursuant to CPL 30.30, is denied. Credit card fraud was not charged.
The defendant seeks dismissal of the information on the ground that she has been denied her constitutional right to a speedy trial. The defendant fails to set forth any arguments to show how her constitutional right to a speedy trial has been violated. For this reason, defendant's motion to dismiss pursuant to CPL 30.20 is denied.
Thus, this court is not convinced that dismissal is required due to any compelling factor, consideration or circumstance that clearly demonstrates that the conviction or prosecution of this defendant would constitute or result in injustice.
Accordingly, the court held that the defendant's motion to dismiss the information in the interest of justice is denied.