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People v. DeMilio

County Court, Dutchess County

January 7, 2020

The People of the State of New York, Plaintiff,
v.
Christopher DeMilio, Defendant.

          WILLIAM V. GRADY, ESQ. Dutchess County District Attorney Kristine M. Whelan, Esq.

          THE LAW FIRM OF WILLIAM G. SAYEGH, P.C. Attorneys for Defendant Kiersten M. Schramek, Esq.

          Michael G. Hayes, J.

         Defendant stands accused by the Grand Jury of the County of Dutchess of five counts of Attempted Murder in the First Degree, a Class A-II Felony, in violation of §§110.00 and 125.27(1)(a)(i) of the Penal Law; one count of Criminal Possession of a Weapon in the Second Degree, a Class C Armed Violent Felony, in violation of § 265.03(1)(b) of the Penal Law; one count of Criminal Obstruction of Breathing, a Class A Misdemeanor, in violation of § 121.11(a) of the Penal Law; three counts of Menacing in the Second Degree, a Class A Misdemeanor, in violation of § 120.14(1) of the Penal Law; one count of Criminal Mischief in the Fourth Degree, a Class A Misdemeanor, in violation of §145.00(1) of the Penal Law; and two counts of Endangering the Welfare of a Child, a Class A Misdemeanor, in violation of § 260.10(1) of the Penal Law.

         The Grand Jury returned the indictment on or about September 24, 2019. Defendant was produced in County Court for arraignment on the indictment on October 1, 2019. During that court appearance, the People filed and served a statement of readiness for trial. Because the results of a CPL Article 730 psychiatric examination that had been ordered by a lower court had not yet been received, the matter was then adjourned to October 16, 2019.

         At the October 16, 2019 appearance, the Court determined that Defendant is not incapacitated, and that he is fit to proceed. Defendant was arraigned on the indictment, and the People represented that they remained ready for trial. The Court directed the People to file and serve a supplemental bill of particulars by October 31, 2019, and directed Defendant to file a supplemental Notice of Intent to Present Psychiatric Evidence by January 17, 2020. Finally, the Court set an omnibus motion schedule which, inter alia, set a January 10, 2020 deadline for Defendant to file reply papers, if any, to the People's answering papers opposing that motion.

         By letter dated December 27, 2019, Defendant has requested an extension of time to file reply papers. Defendant asserts that the defense is entitled to substantial pretrial discovery under the criminal justice reform legislation that went into effect on January 1, 2020. Defendant argues that this discovery is likely to contain information that would lead to a request for permission to file papers supplementing any reply that might be filed by the original January 10 deadline, and that granting an extension of that deadline until after the anticipated discovery is received would promote judicial economy and carry out the purposes of the new legislation.

         The People oppose this application on the grounds that these discovery requirements are not applicable to cases in which the People stated their readiness for trial prior to the January 1, 2020 effective date of the criminal justice reform legislation. Specifically, the People assert that there is nothing in CPL Article 245 stating that it applies retroactively. The People also assert that the Court must issue an unsealing Order before any transcripts of Grand Jury testimony can be released to Defendant.

         It has long been recognized that "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." [ People v. Copicotto, 50 N.Y.2d 222, 226 (1980)]. Until last week, the extent of those pretrial discovery obligations was defined by CPL Article 240. However, effective January 1, 2020, CPL Article 240 has been repealed and replaced by CPL Article 245. This development represents a sea change in the statutory scheme governing pretrial discovery in a criminal action.

         Under the former Article 240 regimen, the onus was on the defendant to demand pretrial discovery. And the list of items that the People were obligated to produce upon receipt of that demand was fairly circumscribed [former CPL § 240.20]. In practice, the bulk of pretrial discovery in most criminal cases was deferred until the exchange of Rosario material, which was not statutorily mandated until after the jury was sworn [former CPL § 240.45].

         The newly enacted Article 245 shifts the discovery burden by placing the onus on the People to make early disclosure of a broad array of material that was previously deferred until the eve of trial, including the testimony of all witnesses who appeared before the Grand Jury [CPL § 245.10]. Absent an application for a protective order, the People are obligated to make this initial, mandatory disclosure as soon as practicable, but not later than fifteen days after the arraignment on an indictment (subject to an additional thirty day extension that is available under certain tightly limited circumstances) [CPL § 245.10].

         "While statutory amendments may be prospective or retrospective in effect, procedural statutes will generally be construed to operate retroactively." [ People v. Anderson, 306 A.D.2d 536 (2d Dept. 2003) (citation omitted)]. "A finding that the statute is procedural, however, does not necessarily establish its application to cases already pending. The legislative intent remains the lodestar." [ People v. Sorbello, 285 A.D.2d 88, 94 (2d Dept. 2001)].

         The legislative history to Article 245 pounds a steady beat: that broad pretrial discovery is essential to a fair and just criminal justice system; that the discovery afforded by the former Article 240 was unduly restrictive; and that the comprehensive discovery provided by Article 245 will promote better and more efficient outcomes [Memorandum in Support of Legislation, Assembly Bill A04360; Sponsor's Memo to Senate Bill S1716]. Recognizing the goals that this legislation seeks to achieve, there is no plausible basis to interpret the broad discovery provisions of Article 245 as being beyond the reach of pending indictments that were the subject of an earlier statement of readiness for trial.

         Accordingly, to the extent that the People assert that Article 245 is wholly inapplicable to this case, that argument is rejected. The People shall comply with their automatic discovery obligations under the ...


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