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Westchester DA Battles New Rochelle Judge in New York Supreme Court over Her Ability to Enforce the Law in his City

Mimi Rocah decries Judge Matthew J. Costa’s “improper arrogation of power”. He scoffs, citing plain language of CPL 245

Robert Cox

Jul 28, 2022 — 22 min read

WHITE PLAINS, NY (July 28, 2022) -- The Westchester County prosecutors office says the flawed decisions of a New Rochelle Judge to toss out vital evidence in two cases is an “improper arrogation of power” and brings into question her “future ability to enforce the law in New Rochelle”. The Judge scoffed at the claims in a recent court filing. He says he is applying the plain language of a new state law, which requires prosecutors to turn over more discovery material within a faster timeline.

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As a progressive prosecutor and former MSNBC Contributor, the Discovery for Justice Reform Act which radically altered the rules for discovery in New York courts is the sort of criminal justice reform many would expect the liberal District Attorney to support.

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Apparently not.

In an extraordinary legal maneuver, Westchester District Attorney Mimi Rocah initiated an Article 78 proceeding against New Rochelle Judge Matthew J. Costa in New York State Supreme Court in White Plains. The Article 78 seeks a seldom requested “writ of prohibition” to prevent Costa from enforcing his decisions to preclude evidence and testimony in two drunk driving cases, which Rocah says amount to an “improper arrogation of power terminating a prosecution without authority”.

Rocah contends Costa’s decisions have much wider implications beyond the two DWI cases, and speak to the District Attorney's “future ability to enforce the law in the City of New Rochelle”.

While Article 78s are commonplace — people file them all the time against government agencies or their employees in the performance of their job — few legal experts could recall an instance of a district attorney filing an Article 78 against a sitting judge.

“It is a rarity,” said Lucian Chalfen, a spokesperson for the New York State Court system. “But rarities happen now a days.”

The defendants in the two DWI cases — Michael Molina and Gustavo Villamares Serrano — were also named in Rocah’s Article 78.

Costa, who was the judge assigned to State of New York v. Michael Vaccaro — as the discovery issues were the subject of motion practice before Judge Costa — dealt Rocah and her agency’s newly formed Law Enforcement Integrity division a stunning blow last week in acquitting New Rochelle Police Detective Michael Vaccaro on police brutality chargesdespite cell phone video showing Vaccaro punching and kicking Malik Fogg a Mount Vernon, NY on Main Street in New Rochelle, then pressing his head into the sidewalk for 12 seconds.

A spokesperson for the Westchester County District Attorney’s Office said Rocah’s Article 78 against Judge Costa has nothing to do with the Vaccaro case.

Rocah’s social media presence became an issue in the Vaccaro case last Fall — on the day Costa ruled against Vaccaro’s Motion to Dismiss on October 25, 2021 — when Costa advised both parties that after the Westchester County District Attorney’s Office came to know that Judge Costa was assigned to the case, Mimi Rocah followed him on Twitter from her personal Twitter profile. While Costa stated on the record at the time that his Decision on Vaccaro’s pre-trial motions were made the week before and there were no substantive changes in the Decision after Rocah followed him on Twitter, he appeared discomfited in having to address the matter.

CPL 245 v. CPL 240

For the average reader (and this reporter) understanding the complex, technical arguments in the Article 78 proceedings requires a brief tutorial on recent changes in New York State law governing discovery in criminal cases.

On April 1, 2019, New York State passed landmark criminal justice reform legislation, including discovery reform, requiring prosecutors to disclose their evidence to the defense earlier in case proceedings.

The Discovery for Justice Reform Act repealed and replaced New York State’s previous discovery law, Article 240, dubbed the “blindfold law” by critics, with a new statute, Article 245 of the Criminal Procedure Law.

CPL 245, as it is known, places a heavy burden on prosecutors to produce discovery because it requires significantly greater openness and establishes specific timeframes for the sharing of evidence between the prosecution and defense during the pre-trial period. In particular, Section 245.20 (Automatic Discovery) which requires prosecutors to automatically produce discovery material without a request from the Defense. The new law is intended to accelerate discovery timelines, thereby reducing case processing times and facilitate a defendant’s ability to prepare a defense.

In 2019, the new discovery reform law took effect on January 1, 2020. There were amendments to the law in 2020 (effective on May 3, 2020) and in 2022 (effective May 9, 2022).

Discovery Amendments of 2022 (effective May 9, 2022)

Discovery Amendments of 2020 (effective May 3, 2020)

Discovery Reform Law of 2019 (effective January 1, 2020)

These recent changes to Criminal Procedure Law Article 245 (Discovery) have created problems for law enforcement.

Criminal Procedure Law Article 245 (Discovery) established new, accelerated timeframes for the sharing of evidence between the prosecution and defense during the pre-trial period. The law requires automatic discovery of materials, establishes a presumption of sharing, and sets specific timeframes for the sharing of evidence between the prosecution and defense during the pre-trial period.

When it took effect on Jan. 1, 2020, the law required that the prosecution meet its initial discovery obligations no later than 15 days after an individual’s arraignment and did not differentiate whether an individual was detained or released after arraignment. Subsequent amendments, which took effect May 3, 2020, considered an individual’s custody status and provided the prosecution with additional time to meet its initial discovery obligations.

In a recently issued report on a survey of district attorneys’ offices, police departments, sheriffs’ offices, forensic laboratories, and defense service providers, the New York State Department of Criminal Justice Services found the “overarching theme of all survey responses was lack of adequate staffing and financial resources to gather, review, compile and share an increased volume of materials during a significantly compressed timeframe than previously mandated by state law.”

What is an Article 78?

To better understand the procedural context of the dispute over discovery under CPL 245 an understanding of Article 78 is necessary as well.

Article 78 is a special proceeding under New York State Civil Practice Law and Rules (CPLR) which “establishes the procedure for challenging the determinations of administrative agencies, public bodies or officers. It is the procedure in New York State for obtaining relief by writs of certiorari to review, mandamus or prohibition.”

Parties to an Article 78 are referred to as “petitioners” and “respondents.”

The Respondent to an Article 78 has the option to file an Answer or a Motion to Dismiss. If the Motion to Dismiss is denied, the Respondent can still file an Answer.

A writ is a written judicial order to perform a specified act. Certiorari is the writ by which a petitioner seeks judicial review. Mandamus is the writ by which a petitioner seeks to compel the performance of a duty. Prohibition is the writ intended to prohibit a specified action.

“A writ of prohibition is an extraordinary remedy that is available only in rare cases,” said Judge Costa in his recent reply to Rocah’s Article 78.

Reliance on Court Records

Typically, in this day and age, court filings are uploaded as PDFs to the New York State Courts Electronic Filing system. NYSCEF is New York Courts' e-filing system to electronically file court papers.

For some reason Westchester County District Attorney Mimi Rocah chose to file her Article 78 against Judge Costa on actual paper so all the responses must be filed on actual paper. Fortunately, the people at Janet DeFiore’s Office at New York State Courts, Judge Cacace’s Chambers and the Clerk’s Office at the Westchester Supreme Court went out of their way to arrange for me to spend Monday afternoon with the paper filed in this matter — about 1,000 pages (and a return trip on Thursday to get the Costa reply filed yesterday). After reading through them once, I concluded that there was no way for me to complete my research before the end of the day, so I set about the tedious task of taking an iPhone photo of every single piece of paper. I may upload the result, but the quality of the images is not what I would get with a scanner —my fingers are in some images, some pages appear curved because they were bound into large books and so on.

As this article gets into the legal arguments, know it was difficult for me to write my summaries in a way that was better than what the lawyers wrote, with the exception that lawyers use formal language required by the courts and include many citations. So, in the parts where a sentence or paragraph reads like a lawyer wrote all or most of it, know this is most likely because I was trimming and editing what they wrote to make it more accessible to readers.

The Facts of the Molina DWI Case

On June 11, 2021, Molina was pulled over by a state trooper and failed three field sobriety tests, he was charged with Driving While Intoxicated. Discovery was provided by the People, including a "resume" or summary of the trooper's disciplinary history at the State Police. Molina filed a September 28, 2021, motion to strike the People's Certificate of Compliance and deem their statement of readiness illusory, arguing that the People had failed in their discovery obligations by not providing the underlying documents concerning the lone on-scene trooper's disciplinary history. The documents were later provided to Molina, before the People filed their motion opposition. Still, in a written decision and order dated January 14, 2022, Judge Costa found that the People had violated CPL 245.20 by not disclosing the materials as soon as possible. Judge Costa sanctioned the People by "precluding the testimony of the trooper, and "precluding the use of any evidence procured by him”.

The People filed a February 22, 2022, reargument motion in response to Costa's decision. Molina filed his opposition on March 11, 2022. The People filed a reply on March 18, 2022. The People's Reargument Motion is currently pending before Costa.

The Facts of the Serrano DWI Case

On October 1, 2021, officers responded to a motor vehicle accident involving Serrano, who proceeded to fail three field sobriety tests and later took a breath test showing that his blood alcohol content was 0.16%, twice the legal limit. Serrano was charged with driving while intoxicated and unlicensed operation of motor vehicle.

Serrano filed a January 24, 2022, motion alleging the People had committed various discovery violations — not disclosing requested manuals concerning the "Datamaster" breath test machine and administration of horizontal gaze nystagmus “HGN" field sobriety tests without applying to the court for a ruling regarding discoverability and not providing proper documentation concerning the Datamaster operator's certification and gas chromatography records.

In a written decision dated April 4, 2022, Costa faulted the People for denying Serrano's discovery request concerning the manuals without first conferring with Serrano or consulting the court, and for not providing a proper Datamaster operator's certificate or gas chromatography records. Costa precluded any testimony regarding the Datamaster chemical test and the Standard Field Sobriety Test. On April 29, 2022, the People provided Serrano with Standard Field Sobriety Test and DWI Detection training manuals, as well as a Breath Analysis Operator Course manual.

Westchester County DA Mimi Rocah filed an Article 78 on May 13, 2022

With the clock ticking, Mimi Rocah filed an Article 78 on Friday, May 13, 2022, the day before the statute of limitations on the Molina case was set to expire on May 16, 2022. Opposition papers were due on June 10, 2022. Reply papers were due on June 24, 2022.

The Article 78 seeks to prohibit Costa from enforcing that portion of his January 14, 2022, Decision and Order in People v Molina precluding the testimony of the on-scene state trooper and any evidence he obtained, as well as, enforcing that portion of his April 4, 2022, Decision and Order in People v Serrano precluding any testimony regarding Datamaster and field sobriety tests and staying the proceedings in both People v Molina and People v Serrano, pending the determination of the Article 78 proceeding.

At issue is Judge Costa’s decisions in the two DWI cases in which he found the District Attorney failed to comply with discovery requirements under the discovery requirements created by The Discovery for Justice Reform Act, part of criminal justice reform legislation which passed on April 1, 2019, and took effect on January 1, 2020. There were amendments to that law in 2020 (effective on May 3, 2020) and in 2020 (effective May 9, 2022).

New York State discovery reform legislation requires prosecutors to disclose their evidence to the defense earlier in case proceedings. CPL 245 replaced CPL 240 which critics labeled the “blindfold” law. The law requires significantly greater openness and establishes specific timeframes for the sharing of evidence between the prosecution and defense during the pre-trial period. The new law is intended to accelerate discovery timelines thereby reducing case processing times and facilitate a defendant’s ability to prepare a defense.

According to a recent report by the New York State Department of Criminal Justice Services, CPL 245 places a burden on prosecutors to “produce discovery due to a lack of adequate staffing and financial resources to gather, review, compile and share an increased volume of materials during a significantly compressed timeframe than previously mandated by state law”.

By strictly interpreting what he called the “plain language” of CPL 245 in each case, Costa precluded a New York State Trooper from testifying in one case and barring the use of breathalyzer test data in another, effectively ending the prosecution of both cases.

Rocah is arguing not only that Judge Costa exceeded his statutory authority in making his decisions, but has exhibited a pattern of behavior that makes it difficult for the DA to successfully prosecute any cases in New Rochelle.

“Respondent Costa's repeated resort to preclusion of the People's central evidence not only impairs the Petitioner's ability to prosecute the charges in the matters at hand, but speaks to the District Attorney's future ability to enforce the law in the City of New Rochelle,” wrote Philip J. Mellea, Assistant District Attorney, New Rochelle Branch.

Rocah is optimistic. She says she will likely succeed in her request for a writ of prohibition in each matter because Costa lacked statutory authority to formulate sanctions for the alleged discovery violations because no possible prejudice to Molina or Serrano existed. Costa doubly erred in People v Serrano, she says, for issuing a sanction in part based on the People's alleged failure to confer with the opposing party or seek a discovery ruling from the court despite there being no statutory authority for sanctioning a party under such circumstances.

Rocah’s Legal Arguments

Rocah asserts that in both matters, Costa exceeded his statutory authority and effectively barred the People from proving their case by precluding critical proof, that showing intoxication, because neither Molina nor Serrano demonstrated the requisite prejudice caused by the failure of the District Attorney to provide discovery within the new CPL 245 framework nor could any prejudice have existed because no testimonial proceedings had yet occurred in the case.

Rocah says, by his unauthorized preclusion orders, Costa has barred her from fulfilling her prosecutorial role. Given the average number of cases the District Attorney's Office has pending in the New Rochelle City Court (about 250 a month) and that Costa is one of just three judges in the New Rochelle City Court, Costa's repeated resort to preclusion of the People's central evidence not only impairs her ability to prosecute the charges in the matters at hand, but speaks to the District Attorney's future ability to enforce the law in the City of New Rochelle.

Because Costa lacked statutory authority to issue sanctions under these circumstances, his decision was “not mere legal error” but rather “an improper arrogation of power terminating a prosecution without authority” for which prohibition is the only remedy.

Under Article 78, a petitioner seeking a writ of prohibition must demonstrate that. "(1) a body or officer is acting in a judicial or quasi-judicial capacity, (2) that body or officer is proceeding or threatening to proceed in excess of its jurisdiction and (3) petitioner has a clear legal right to the relief requested".

Rocah says the precluded proof constituted the most probative evidence that Molina and Serrano were driving while intoxicated. Costa's decisions essentially terminated the prosecution of the driving while intoxicated charge in People v Molinaand People v Serrano, while fundamentally eroding the remainder of the People's case in the latter matter - all contrary to the controlling statute and case law. As a result, Rocah has requested a rarely sought “writ of prohibition” to block Costa from enforcing his preclusion orders.

Rocah summed up her legal arguments with harsh words for Judge Costa.

Costa’s statutory authority to impose a sanction was never triggered. Costa leapt past this impediment, and to make things worse, imposed a severe sanction akin to dismissal. It is therefore no surprise that Costa bypassed any meaningful prejudice analysis in his succinct opinions. His consistent preclusion of large swaths of critical evidence in response to defendants' discovery criticisms, without due consideration or any showing of prejudice, has for all intents and purposes eliminated the prosecution of serious charges against Molina and Serrano. Since preclusion seems to be Costa's typical recourse, his repeated conduct speaks on a larger scale to the District Attorney’s potential ability to enforce the law in the City of New Rochelle. It impacts her prerogative in determining, subject to the rules of evidence, what evidence should be presented.

Stay Pending Outcome of Article 78

Because any decision on the Article 78 petition could potentially come too late, Rocah sought a stay in the proceedings in both People v Molina and People v Serrano, pending determination of the Article 78 petition.

Rocah said Molina and Serrano will not suffer any harm from the requested stay. They are both currently at liberty, and they will not be materially affected by a brief continuation of the underlying proceedings - whereas the People’s cases will otherwise be gutted.

Judge Warhit granted the prosecution's motion for a stay on May 13, 2022.

Michael Molina filed an Answer to Rocah’s Article 78 Petition on June 9, 2022

On July 28, 2021, the prosecution filed a certificate of readiness for trial, and a Certificate of Compliance (“COC”) asserting that the People had turned over all discovery material. On September 28, 2021, Molina filed a "Notice of Objection" to the prosecution's

July 28 COC, and moved to strike that COC on the ground that the prosecution had not, prior to July 28, turned over discoverable documents containing evidence and information tending to impeach the credibility of the arresting officer in this case, Trooper Angelo Fortune.

At the September 30 appearance, the trial court directed the prosecution to file opposition papers by October 28, 2021. On November 5, 2021, the prosecution disclosed some of the required discovery missing from its earlier productions, including: (a) a July 2019 Letter of Censure, Notice of Suspension, and other documents related to Trooper Fortune's failure to properly inventory an impounded vehicle, resulting in the failure to discover narcotics therein; and (b) reports and other documents regarding the investigation of a claim that Trooper Fortune had unlawfully arrested a person. Even at this late date, the prosecution still did not disclose all the material relating to Trooper Fortune's disciplinary records.

On November 10, 2021, the prosecution turned over two additional packets of documents relating to: (a) a 2015 complaint that Fortune had behaved rudely towards the victim of a car accident and; (b) a 2018 complaint that Trooper Fortune had conducted an improper search during which he touched an arrestee's "vaginal region."

On November 11, 2021, the prosecution filed their opposition papers, arguing that the DA had exercised due diligence and made a good faith effort to comply with the prosecution's discovery obligations prior to filing the July 28 COC. In addition, the prosecutor argued that the prosecution should not be subject to having their July 28 COC stricken, or any other "adverse consequence, because the prosecution's late disclosures of impeachment and other discoverable material had occurred prior to any hearing or trial, so there had been no prejudice to Molina”.

On December 1, 2021, Molina filed a reply brief in further support of the Motion.

On January 14, 2022, Judge ruled that the July 28 COC was invalid because the impeachment material turned over more than three months after that COC was filed was discoverable.

The court concluded that a discovery sanction was appropriate because, under the totality of the circumstances, Molina was prejudiced by the late disclosure of that impeachment material and so the court precluded Trooper Fortune's testimony and any evidence procured by him.

Five weeks later, on February 22, 2022, the prosecution moved to reargue Costa's decision.

In addition to repeating the arguments previously made in opposition to Molina's motion for sanctions, the prosecution argued for the first time on reargument that "mere delay" by the prosecution in fulfilling their discovery obligations did not constitute prejudice and that the "lodestar" of that prejudice determination was a defendant's "ability to use the discovery" at hearing or trial.

In opposition to reargument, Molina noted that the prosecution could not raise new arguments, such as their argument that preclusion was unavailable for any discovery violation where a defendant ultimately was given an opportunity to use the late-disclosed material at hearings and trial on a motion for reargument.

The People replied to Molina's opposition papers on March 18, 2022.

Before Costa could decide the pending motion, the prosecution moved for — and obtained— a stay of all proceedings pending before Judge Costa in the criminal case of People v. Molina including the motion for reargument, where they had asserted additional new arguments, now pursued in the Article 78.

Costa's January 14, 2022, order precluding evidence in People v. Molina, is currently the subject of a reargument motion filed by the prosecution on or about February 22, 2022. Molina says the Court may not consider an Article 78 challenge to the January 14 Order while the reargument motion is pending.

Molina says Rocah did not raise the claim that Costa lacked statutory authority to impose any particular discovery sanction prior to the January 14, 2022, discovery ruling in People v. Molina. Instead, the prosecution waited until after Costa issued the January 14 ruling, and then raised the argument for the first time in the motion for reargument, which remains pending before Costa.

Molina says Judge Costa unquestionably has authority to entertain discovery motions, and rule on the validity of certificates of compliance and readiness. The petition does not allege that Costa has exceeded his authorized powers in People v. Molina, rather it alleges that Costa's ruling precluding evidence in that case as a remedy for a late production of mandatory discovery was incorrect or otherwise an abuse of discretion.

The fact that a ruling is incorrect is not enough to permit article 78 review. Even egregious errors in pre-trial and trial rulings, such as the erroneous exclusion of important evidence, do not form a proper basis for an article 78 challenge, regardless of the fact that the prosecution have no appellate recourse to correct the ruling.

Molina concludes that Rocah’s claims are not the jurisdiction of the court under Article 78, and the relief sought is unavailable.

Gustavo Villamares Serrano did not file an Answer to Rocah’s Article 78 Petition

Rocah filed a Reply to Molina’s Answer to Rocah’s Article 78 Petition on June 27, 2022

The Petition is not premature, nor is it barred by the rules of preservation.
The Petitioner raises a cognizable claim challenging Respondent Costa's conduct in excess of his authorized powers, and demonstrates a clear legal right to relief.

The New York State Attorney General Unilaterally Decided Not to Represent Judge Costa

When state employees are sued in the performance of their jobs, they are usually represented by the New York State Attorney General.

Judge Costa is represented by Robert A. Spolzino of Abrams Fensterman, LLP, a White Plains law firm.

Based on “investigation and review of the facts and circumstances of the case” a spokesperson for the Attorney General said the Office of the Attorney General determined that representation by the OAG would be “inappropriate” citing Public Officers Law § 17. The OAG certified for private counsel for Judge Costa, which is state-funded. There was no response to my question of what precisely was deemed inappropriate or why.

Public Officers Law § 17 (Defense and Indemnification of State Officers and Employees) applies to an employee acting within the scope of their public employment or duties, however, “this duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the state” which appears to apply in this case.

...the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the attorney general determines based upon his investigation and review of the facts and circumstances of the case that representation by the attorney general would be inappropriate, or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his choice.

The OAG must notify the employee in writing of a determination that the employee is entitled to be represented by private counsel and certify to the comptroller. that reasonable attorneys’ fees and litigation expenses shall be paid by the state to such private counsel. I requested a copy of the letter, but it was not provided by the OAG.

Judge Costa filed a Motion to Dismiss Rocah’s Article 78 Petition on July 1, 2022

Costa chose not to Answer the Article 78 as is his right. He instead filed a Motion to Dismiss.

Costa says Rocah’s petition should be dismissed because it fails to state a valid basis for a writ of prohibition. A writ of prohibition enjoining a court from taking a particular action applies only when the court is acting or threatening to act either without jurisdiction or beyond its authorized powers. In each case at issue here, Costa says he had jurisdiction over the discovery dispute, as well as authority to issue discovery sanctions for the District Attorney's noncompliance with the discovery requirements. He therefore acted in accord with his statutory authority by imposing sanctions for the discovery violations in each case.

The District Attorney, he says, concedes that he had jurisdiction over the discovery disputes and was authorized by statute to impose sanctions for discovery violations in each case.

Costa says the plain language of CPL 245.80 makes clear that he had the discretion to impose sanctions for discovery violations. The District Attorney’s petition is an attempt to obtain a writ of prohibition enjoining Judge Costa from acting in accordance with his legal authority and enforcing the statutorily authorized sanctions. The petition argues that a writ of prohibition is justified because Judge Costa's decision to impose discovery sanctions was wrong, not because he acted in excess of his powers by imposing discovery sanctions.

The District Attorney's position, although framed as an argument that Judge Costa acted beyond his authority, is nothing more than an attempt to seek collateral review of an alleged pre-trial error. This, concludes Costa, is not a basis within the jurisdiction of the court for a writ of prohibition.

Rocah filed her Opposition to Costa’s Motion to Dismiss her Petition on July 12, 2022

Rocah made three main points.

The entire premise of the Petition is that Costa acted far in excess of his statutory authority; there was no concession to the contrary.
Costa acted far in excess of his statutory authority in Molina's case, and Rocha has a clear legal right to relief.
Prejudice was required for the imposition of sanctions in Serrano's case. Costa acted outside his authorized powers by imposing sanctions where there was no determination the at-issue materials were discoverable, let alone that the timing of their disclosure was prejudicial.

Costa filed his reply to Rocah’s Opposition on July 27, 2022

Costa reiterated the main points he made in his Motion to Dismiss filed on July 1, 2022, but expanded on a case cited by Rocah to support her case. Costa says Rocah is relying on a case that supports his position the Article 78 should be dismissed — Hoover v. De Rosa (2016). He says the issue before the Appellate Division in Hoover was fundamentally different — as are cases cited in Hoover and that have since cited Hoover — in that the court ordered disclosure of material that was not discoverable as a matter of law under any provision of the now-repealed CPL article 240 (in Hoover, the names of people identified by initials in a lab report).

Unlike the court in Hoover and similar cases, Judge Costa did have statutory authority to impose sanctions and simply exercised that authority in a way that the District Attorney does not like.

The provisions that Judge Costa determined the District Attorney had violated “shall have the force and effect of a court order, and failure to provide discovery pursuant to such section or subdivision may result in application of any remedies or sanctions permitted for noncompliance with a court order under CPL 245.

Costa did make a prejudice determination in Serrano, but the statute does not require he explain his prejudice determination and that determination was not required to impose discovery sanctions for the District Attorney's discovery violations in Serrano's case.

Costa says the plain language of CPL 245 makes clear that he had the discretion to impose an appropriate sanction for the DA's discovery violations in the Serrano's case, regardless of whether Serrano suffered prejudice. Where there has been "a failure to comply with any discovery order," a court may "exclude evidence" or "preclude a witness' testimony", the sanctions he chose in Serrano. That provision does not make prejudice a precondition to the imposition of one of the available remedies or sanctions.

Costa is expressly authorized to impose a discovery sanction upon his finding that Molina suffered "prejudice." The plain language of CPL 245 provides only that a finding of "prejudice" is a precondition to the imposition of discovery sanctions for belated discovery. There is no requirement for an explanation of prejudice.

The District Attorney does not actually allege that Judge Costa acted in excess of his authorized powers; instead, the District Attorney merely challenges Judge Costa's discretionary prejudice determination — a supposed pre-trial error that is inadequate to warrant a writ of prohibition.

Next Steps

So, where do we go from here?

Now that all the papers in Costa’s Motion to Dismiss have been filed, the decision on the Motion is in the hand’s of Judge Cacace.

If Judge Cacace grants Costa’s Motion to Dismiss the Article 78 proceeding is over and, most likely, the DA drops the two DWI cases.

If Judge Cacace denies Costa’s Motion to Dismiss the Article 78 proceeding continues. Costa and Rocah will file papers until they catch up with Molina, at which point Judge Cacace has 60 days to decide the Article 78.