The District Attorney's Office will not appeal the dismissal of a DWI charge against a Bethany resident over a procedural error by prosecutors, Assistant District Attorney William Zickl says.
The case was dismissed on appeal by County Court Judge Melissa Lightcap Cianfrini, upholding an earlier ruling by City Court Judge Durin R. Rogers that a defendant's right to a speedy trial was violated because of the procedural error.
Zickl told The Batavian in a statement that filing an appeal would require the DA's office to convince judges at the appellate level that a question of law -- not facts -- was in dispute. A state appeals court taking on such a case is rare and far from automatic, Zickl said, so the DA's office would need to make a compelling case that the law was improperly applied in dismissing the charge.
"I believe there is a substantial threshold issue presented in this case regarding whether such a pure question of law exists to allow the Court of Appeals to entertain the matter," Zickl said. "Based upon the foregoing procedural backdrop and the fact that this decision will not have broad application due to its highly unusual fact pattern, we have decided not to attempt to gain leave to appeal the decision of the County Court to the Court of Appeals."
Rogers dismissed the case, according to a court document, because the DA's office was not ready for trial more than a year after the arrest of the defendant. The Sixth Amendment guarantees those accused of a crime the right to a speedy trial.
Background
On July 3, 2021, Gregory R. Solomonidis was arrested in the city of Batavia following a traffic stop on East Main Street. Solomonidis was accused of driving with a BAC of .08 or greater.
On Aug. 26, 2021, at a City Court hearing on the case, ADA Joseph Robinson filed with the court what is known as a Certificate of Compliance, which is a document that informs the court and the defense that all material in possession of the prosecution that the defendant has a right to review has been turned over to the defense. The defense has a right to review all material relevant to the charges, including material that might aid the accused.
On Sept. 17, the defense filed a motion seeking dismissal because the prosecution did not provide a copy of the dispatch center recording of police transmissions relevant to the arrest of Solomonidis. The prosecution countered that the discovery material included notice that the recording existed with instructions on acquiring a copy of the recording if the defense wished to listen to it.
According to court documents, ADA Jenna Bauer, who took over the case at this time, argued in court that as a former dispatcher, she understood the difficulty in retrieving recordings given the limitations of the communication system in the dispatch center and that retrieving recordings took considerable time for a dispatcher.
On Nov. 30, 2021, the court held a hearing to examine the evidence in the case and the arresting officer was called to the stand. During cross-examination, the officer was asked about his prior employment as a part-time police officer in the village of Perry. The officer testified that he had left the job because he believed he had violated the department's social media policy with a post or posts on Snapchat. In court documents, this is called "the Snapchat incident."
The officer said the department did not discipline him due to this incident. Batavia PD subsequently hired him, and he remains a Batavia police officer.
Even so, the defense argued that this incident, which was apparently not discussed in detail during the hearing, constituted "50-a" material, or material in an officer's personnel file that could conceivably impeach the officer's credibility.
The court gave the prosecution -- in keeping the existing case law -- more time to comply with the discovery requirements.
At a hearing on March 1, 2022, Bauer informed that no effort had been made to obtain information on the "Snapchat incident." On March 17, she requested more time to obtain the information.
"I have started my inquiry with the Perry Police Department," she told the court.
On March 28, the DA's office received a letter from the village of Perry clerk regarding the incident, and that letter was provided to the defense.
A month later, Rogers dismissed the charge against Solomonidis.
Appeal to County Court
In her ruling, Cianfrini overturned Rogers on the issue of the dispatch center recording. She determined the DA's office had complied with discovery rules by informing the defense the recording existed and providing instructions on how to obtain it and that once the defense made a request in court, the DA's office produced the recording within two days.
Cianfrini did find, however, that prosecutors failed to exercise "due diligence" in trying to acquire documents from the Perry Police Department regarding the "Snapchat incident."
Cianfrini compared prosecutors' actions with a ruling in another case, People vs. Godfred, where a prosecutor provided extensive details on how she tried to obtain discovery material but could not. The documentation provided to the court in that case demonstrated "due diligence" and "reasonable effort" as required by the law.
"... the Appellant's Brief is absolutely silent as to the steps the various prosecutors assigned to this case took to ensure that it had ascertained the existence of all discoverable information as it relates to impeachment materials, most notably the "Snapchat incident," Cianfrini wrote. "There is no explanation as to why the People were unaware of these potential impeachment materials. It is nearly impossible for this Court to gauge how obvious the missing materials would have been, given the dearth of information provided by the People. Moreover, the People provided a letter from the Perry Village Clerk. No letter was received from the PPD itself."
And she continues, "Unlike the prosecutor in Godfred, no clear record was made by any of the prosecutors assigned to this case as to specifically whom at the PPD was contacted to obtain the information (such as the police chief or supervising officer), method(s) of contact and attempted contact, or if they even spoke with the Officer himself about the violation after learning about it."
Cianfrini is a former first district attorney in Genesee County and noted in a footnote that the lack of due diligence could result from multiple ADAs handling the case, which led to the procedural issue being overlooked.
"Given the lack of record of the efforts taken to ascertain the existence of the Snapchat incident, this Court is constrained to find that the prosecutors did not exercise due diligence or make reasonable inquiries to discover the existence of the same," Cianfrini ruled. "Thus, the initial COC and any subsequently filed COC were illusory, and the People were not ready for trial."
The COC is the Certificate of Compliance that all discovery has been turned over. If evidence is missing, the legal term for the defect is "illusory."
The lack of readiness for trial denied Solomonidis his right to a speedy trial, Cianfrini ruled. Thus, she upheld the dismissal of the DWI charge.
Batavia Police Chief Shawn Heubusch expressed dismay at the case's outcome, saying that the officer in question is a valued law enforcement officer. He issued the following statement:
A recent ruling by a Genesee County Court dismissed a DWI charge made by a Batavia Police Department officer because of a prosecutorial error.
The Court determined that the prosecution did not disclose that the arresting officer resigned from his position as a part-time officer with the Village of Perry Police Department over a social media matter. The officer resigned and subsequently joined the Batavia Police Department.
Our officer fully disclosed this matter during his interview with us. The Batavia Police Department fully supports our officer, and he has an exemplary service record.
