Buffalo City Court Judge Rebecca L. Town dismissed a drunk driving case because the prosecution did not provide police body-worn camera footage to the defense. Defendant was charged with driving while intoxicated under Section 1192 (3) of the Vehicle and Traffic Law, and other charges. The timeline was as follows:
- Defendant was arraigned on May 1, 2023.
- On July 31, 2023 Defendant’s attorney, emailed the prosecutor requesting all body-worn camera footage. When the prosecutor received the email, he called the Buffalo Police Department that day to confirm whether outstanding body worn camera footage existed.
- On August 4, 2023 the Buffalo Police Department uploaded two videos without notifying the prosecutor. He did not become aware of the videos until September 19, 2023.
- On August 25, 2023, the Defendant’s attorney filed a motion to dismiss the charges under Criminal Procedure Law Section 30.30 for delay of prosecution. Under 30.30 the deadline for the prosecution to turn over to the defense all discoverable materials was July 29, 2023.
Judge Town ruled that:
- There were two discoverable body worn camera videos that were not turned over within the speedy trial time as prescribed by Criminal Procedure Law Section 30.30.
- The email request is particularly pertinent because VTL Section 1192(3) is a common law intoxication charge, which requires the police to make a determination of the defendant’s level of intoxication based upon physical symptoms without any blood alcohol level testing or breath test.
- The prosecution is not deemed ready for trial unless their statement of readiness is accompanied or preceded by a certification of good faith compliance with the disclosure requirements,
- The People are deemed ready for trial only where they have done all that is required to bring the case to the point of immediate trial.
- The pivotal question under consideration pertains to the validity of the certificate of compliance issued by the People. The crux of this case hinges upon whether the People exercised due diligence in the issuance of their certificate of compliance. What constitutes “due diligence” is undefined by statute.
- The timeline of events brings into sharp focus a glaring oversight. While the People made a single attempt to ascertain the existence of the relevant footage upon the defendant’s request, it is manifestly evident that such efforts fell short of the mark.
- While our jurisprudence does not precisely define due diligence, a mere single email issued to obtain discoverable material made towards the end of the statutory time period allotted for the People to turn over discoverable material to the defendant, in the vast expanse of the legal universe, can hardly be deemed sufficient effort constituting due diligence.
- The People failed to exercise due diligence in the issuance of their certificate of compliance in the instant action.
- The People’s contention that they were unaware of the existence of the body worn camera footage due to the Buffalo Police Department’s independent actions is of no moment. Their duty is not solely to await evidence but to actively seek it out.
- Since the People failed to exercise due diligence in issuing their original certificate of compliance, this Court finds that the certificate of compliance is invalid and the People’s statement of readiness is therefore illusory.
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