People v. Kosowski

Considering Police Body Cameras, 128 Harv. L. Rev. 1794, 1795 (2015). See also Mary D. Fan, Justice Visualized: Courts and the Body Camera Revolution, 50 U.C. Davis L. Rev. 897, 935 (2017)

On January 23 of this year, a Bill was proposed in the NYS Assembly relating "to the discoverability of recordings found on police body cameras and vehicle cameras." 2017 New York Assembly Bill No. 2825, New York Two Hundred Thirty-Ninth Legislative Session.

Considering Police Body Cameras, 128 Harv. L. Rev. 1794, 1803 (2015).

Id. at 1809 ("some departments have already spent hundreds of thousands or even millions of dollars managing their data. ").

This decision focuses on defendants who may have had portions of their police investigations or arrests video-taped by law enforcement body cameras. Obviously, the thrust of this ruling may also apply to car mounted, pole positioned or precinct videotaping relating to these criminal actions as well as similar privately produced recordings which are secured by police or prosecutors. Should defendants or defense counsel wish to introduce any such digital representations produced by them or private citizens at pre-trial hearings or trial, they must also provide reciprocal discovery as required by law. See CPL §§ 240.10(3); 240.20(g); 240.30(1)(b).

Putting aside constitutional guidelines, pre-trial discovery is clearly a statutory creation which does not apply to petty offenses which charge only a violation level offense or non-criminal traffic infraction. See CPL § 240.20(1) and CPL § 1.20(39). In addition, because statements of the defendant made "in the course of the criminal transaction" are specifically exempted from the discovery statute, many of the statements made by a defendant recorded on the body camera may not be discoverable. CPL § 240.20(1)(a).

Compare People v. Mendoza, 82 NY2d 415, 422 (1993)("Hearings are not automatic or generally available for the asking by boilerplate allegations. Rather...we conclude that factual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and defendant's access to information.")(emphasis added) with People v. Jones, 95 NY2d 721, 728 (2001)("In this case, there had been no disclosure on the part of the People, by either voluntary discovery or otherwise, of the description radioed by the purchasing officer to the arresting officer. Because it would be unreasonable to construe the CPL to require precise factual averments when defendant does not have access to or awareness of the facts necessary to support suppression the absence of any factual allegations with respect to the description conveyed to the arresting officer cannot be held against defendant.")(internal citations, quotation marks and some punctuation omitted).
A pair of federal cases involving body camera and video evidence are also instructive on the issue of "good faith basis" See Scott v. Harris, 550 U.S. 372, 38081 (2007)(the court ...should have viewed the facts in the light depicted by the videotape.") and Addona v. D'Andrea, 2016 WL 5107054 (D. Conn. Sept. 19, 2016)(body camera).

People v Rosario, 9 NY2d 286 (1961). The CPL requires production of "[a]ny...recorded statement... made by such witness...which relates to the subject matter of the witness's testimony." CPL § 240.44(1). The same essential provisions apply to both parties at time of trial. CPL §§ 240.45(1)(a) and 240.45(2)(a).

Brady v. Maryland, 373 U.S. 83 (1963). As noted by Mr. Justice Marshall in United States v. Bagley, 473 U.S. 667 (1985)(Marshall, J., in dissent) "[t]o implement Brady, courts must of course work within the confines of the criminal process. Our system of criminal justice is animated by two seemingly incompatible notions: the adversary model, and the state's primary concern with justice, not convictions. Brady, of course, reflects the latter goal of justice, and is in some ways at odds with the competing model of a sporting event. Our goal, then, must be to integrate the Brady right into the harsh, daily reality of this apparently discordant criminal process." Id. at 696. See also People v. Hunter, 11 NY3d 1 (2008). As the Court of Appeals noted in People v Geaslen, "where ...there is in the possession of the prosecution evidence of a material nature which if disclosed could affect the ultimate decision on a suppression motion, and that evidence is not disclosed, such nondisclosure denies the defendant due process of law." 54 NY2d 510, 516 (1981).

Geaslen supra at 516. The duty to provide constitutionally compelled material pursuant to CPL §240.20(1)(g) is a continuing one. § CPL 240.60.

As to sanctions for failure to produce body camera tapes which are in existence, CPL § 240.70(1) provides that if "the court finds that a party has failed to comply with any of the provisions of this article, the court may order such party to permit discovery of the property not previously disclosed, grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action."
This order focuses on the obligation to produce discovery, not spoilation. As to the latter, it should be noted that the "nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice. If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault. The focus, though, is on the need to eliminate prejudice to the defendant. " People v. Martinez, 22 NY3d 551, 567 (2014). For instance, the Court of Appeals has noted that "the trial court typically must issue an adverse inference charge as a penalty where the State, through its agents, has destroyed existing material evidence in its possession, such as an existing video recording that has been requested by the defense. And, where the State violates its disclosure obligations, an adverse inference charge, and sometimes more severe penalties, are authorized." People v. Durant, 26 NY3d 341, 347 (2015)(emphasis added)(citations omitted).

While this court's opinion will not further address the respective ethical responsibilities of the parties regarding body camera footage, the Fourth Department had an opportunity to do so. See In re Bissell, 141 AD3d 150,152 (4th Dept., 2016)("Respondent admits that, had he viewed the body camera video recording prior to the Huntley hearing, he would have known that one of the deputies had issued Miranda warnings to the client and that the client had made the alleged threats to the deputies.")

People v. Davis, 13 NY3d 17, 29(2009).

People v. Lawrence, 64 NY2d 200, 207(1984). As noted in one local case, "[i]nherent judicial powers derive not from legislative grant or specific constitutional provision, but from the fact it is a court which has been created, and to be a court requires certain incidental powers in the nature of things." People v. Little, 89 Misc 2d 742, 745(Yates Co. Ct.,Dugan, J., 1977), aff'd, 60 AD2d 797(4th Dept., 1977)(citations omitted). See also People v. Green, 170 Misc 2d 519 (NYC Sup. Ct., Massaro, J., 1996), which thoroughly traces New York common law antecedents of this integral power to Blackstone's Commentaries.

NY Const. art. VI, § 28. See also 22 NYCRR § 200 et. seq. and UCCA § 2001.

Plachte v. Bancroft Inc., 3 AD2d 437, 438(1st Dept., 1957)("this power exists independently of statute. Indeed, a statute which would impose a mandate upon the court in the otherwise discretionary handling of time of trial is unconstitutional."). These words written in a civil case seem pertinent to criminal cases as well.

Campaign for Fiscal Equity, Inc. v. State, 100 NY2d 893, 925 (2003). Certainly, "enforcement of a clear constitutional or statutory mandate is the proper work of the courts." Hurrell Harring v. State, 15 NY3d 8, 26 (2010) .

Campaign for Fiscal Equity supra at 931.

Excerpt from Israeli President Netanyahu's speech before the United Nations General Assembly on October 1, 2013.

Article 7A of the Judiciary Law, the enabling legislation for the constitutional imperative, vests broad rule making authority in the Office of the Chief Judge and the Chief Administrator of the Courts. See Judiciary Law, Art. 7A; Uniform Rules for Trial Courts, 22 NYCRR, parts 200—221. See also Gershman, Supervisory Power of the New York Courts, 14 Pace L. Rev. 41 (1994).

See Little and Green,supra. A number of cases clearly limit the contours of a court's inherent power to control calendars. Compare People v. Douglass, 60 NY2d 194, 200 (1983)(it was an abuse of judicial discretion to "dismiss for failure to prosecute") with Lawrence, supra at 207 (a court may not consider a pre-trial speedy trial motion once trial commences) and Veloz v. Rothwax, 65 NY2d 902, 903 (1985)(it was an abuse of judicial discretion "to shorten the statutory time period in which to make pretrial motions.").

Our highest court has noted that: "[t]he criminal discovery procedure embodied in article 240 ... evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice." People v. Copicotto, 50 NY2d 222, 226 (1980)(citations omitted).

As noted by the New York Court of Appeals over three decades ago: "[t]hat the defendant may be required to disclose his defense prior to trial does not render the discovery scheme invalid, for "(n)othing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense. 'Like the notice-of-alibi rule upheld in Williams, the procedure employed in this case involved no compulsion violative of the Fifth Amendment, for defendants were directed only to accelerate disclosure of information which they apparently intended to disclose at trial.'" Copicotto, supra at 229—30 (1980)[citing to Williams v. Florida, 399 U.S. 78, 85(1970)]. Accord People v. Sirmons, 242 AD2d 883, 884 (4th Dept., 1997)(noting that Copicotto was decided before the legislature amended CPL § 240 to make it clear that a prosecutor now has an independent right to discovery). --------