The papers considered in review of this motion: Defendant’s Notice of Motion, filed February 7, 2020, Don A. Murray, Esq. People’s Response, filed February 25, 2020, Erin Lafarge, Assistant District Attorney, affirm Court File DECISION AND ORDER By Notice of Motion filed and served on February 11, 2020, the defendant moved this court to find the People’s February 7, 2020 Certificate of Compliance (herein after C.O.C.) and Certificate of Readiness (herein after C.O.R.) ineffective and illusory. On February 25, 2020 the People filed with the court and served on defense counsel their response. The defendant’s motion to find the C.O.C. invalid and the C.O.R. illusory is DENIED. On January 9, 2020, the defendant was arraigned and charged by criminal court complaint with one count of failure to yield the right of way (Administrative Code of the City of New York §19-190[b]), a misdemeanor punishable by up to 30 days in jail, and one count of failure of a driver to exercise due care (Vehicle and Traffic Law §1146[c][1]), a traffic infraction. The defendant is charged by criminal court information that alleges, in sum and substance, that on or about December 20, 2019 at about 4:45 A.M., at the north west corner of West 49th Street & 10th Avenue in the County and State of New York, the defendant drove a motor vehicle over a pedestrian when the pedestrian had the right of way resulting in the pedestrian’s death. The court adjourned the case to February 7, 2020 in Part E for the People to file the required supporting deposition.1 The accusatory instrument was signed by Detective Frank Cardamone on December 27, 2019 under penalty of making a false statement pursuant to Penal Law §210.45. The factual portion of the accusatory instrument reads: While viewing surveillance video of West 49th Street and 10th Avenue, I [Detective Frank Cardamone] observed a green 2012 Volvo roll-off truck, New Jersey Plate AW256B, at the above stated time and date, traveling northbound on 10th Avenue, a public highway. I further observed the vehicle make a left turn onto West 49th Street with the green signal in his favor. At the same time, I observed a pedestrian, Joshua Geyer, crossing from the northwest corner of West 49th Street and 10th Avenue to the southwest corner while inside a marked crosswalk and with the pedestrian walk signal in his favor. I then observed the green 2012 Volvo roll-off truck strike Mr. Geyer in the crosswalk, knock him to the ground, and run over his body. I also viewed video of the inside of the cab of the above described vehicle and observed that the defendant was driving said vehicle at the above stated time and date. I am informed by Detective Gach, that he observed Mr. Geyer lying in the roadway, not breathing, with a crushed skull, and brain matter in the roadway. Off-calendar on January 16, 2020, the People filed with the court and served on defense counsel an Automatic Discovery Form and the supporting deposition of Detective Robert Gach signed on January 9, 2020 under penalty of making a false statement pursuant to Penal Law §210.45 (CPL 100.20). Included in the Automatic Discovery Form was the notice required under Criminal Procedure Law §§710.30[1][a] and 245[1][a] of three statements allegedly made by the defendant to law enforcement officers on December 20, 2019. The Automatic Discovery Form also indicates that several other items of discovery under Criminal Procedure Law §245 have been or will be disclosed. On the record on February 7, 2020, the court deemed the accusatory instrument an information and adjourned the case to March 20, 2020 in Part E for hearings and trial and for the People to comply with their discovery obligations under Criminal Procedure Law §245. Off-calendar on February 7, 2020 the People filed with the court and served on the defense counsel a C.O.C. wherein the People state discovery was served through “the electronic discovery system” on defense counsel. Along with this C.O.C. the People filed and served a 4-page discovery list beginning with item “a. DA Datasheet” and concluding with item “uu. CTG Crime Scene Video (x2).” Additionally, on February 7, 2020, the assigned Assistant District Attorney filed and served a C.O.R. wherein the People certified that all counts in the accusatory instrument meet the requirements of Criminal Procedure Law §§100.15 and 100.40 (CPL 30.30[5-a]). On February 11, 2020, the parties appeared, and, at their request, the court advanced the case to the calendar. In court and on the record, defense counsel served and filed the instant motion and the court heard arguments regarding the C.O.C. and C.O.R. The court granted the People’s request for time to respond to the defendant’s motion and adjourned the case to March 13, 2020 in Part E for its decision. The defendant argues the February 7, 2020 C.O.C., and therefore the People’s C.O.R., were invalid and illusory because the People had not provided all of the discovery required under Criminal Procedure Law §245. The People respond that they have exercised due diligence and made reasonable inquires to acquire and disclose all materials required. Defense counsel received the first Automatic Discovery Form by letter dated January 16, 2020, but states that “not a single actual document or photograph was attached” to the form and that the People failed to provide any discovery by January 24, 2020, the 15th day after the defendant’s arraignment (CPL 245.10[1][a]). The People respond that the preliminary Automatic Discovery Form indicated the status of pending discovery and that all available discovery would be provided on February 7, 2020. Furthermore, the assigned Assistant District Attorney was sick and out of the office for four days prior to the February 7, 2020 court date. Defense counsel specifically mentions the People’s failure “to supply the medical examiner’s report, the toxicology report, and [the People's] failure to provide a clear and unambiguous certification regarding materials relating to pending requests for information from the NYPD” as support for his argument that the C.O.C. is invalid. Defense counsel also affirms that as of January 24, 2020, the 15th day after the defendant’s arraignment, the People had not provided any discoverable material, nor had they requested additional time from the court. Defense counsel alleges that the defendant was arrested on December 20, 2019 but given a Desk Appearance Ticket thus delaying his arraignment and giving the People an additional 20 days to comply with their discovery obligations. After the case was adjourned on February 7, 2020, defense counsel received emails containing discoverable materials and the People’s C.O.C. and C.O.R. The People admit that some of the discoverable materials are currently unavailable but that the People state such material “will be disclosed expeditiously once received.” Defense counsel labels the People’s explanations for not turning over discoverable materials as “boilerplate,” “confusing,” and “vague.” The People respond that they have complied with their discovery obligations in this case by turning over extensive materials including 350 pages of documents, three surveillance videos, two body camera videos, three 911 calls, 4 radio run recordings, 61 crime scene photos, and two crime scene videos. The People also expect their continuing investigation of this civilian death will likely result in more discoverable materials. The People state that they are ready to proceed to trial and have complied with their discovery obligation even though they are continuing to investigate. Criminal Procedure Law §245.10[1][a] provides: “The prosecution shall perform its initial discovery obligation under subdivision one of section 245.20 of this article as soon as practicable but not later than fifteen calendar days after the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, simplified information, misdemeanor complaint, or felony complaint.” The prosecution may request an additional 30 days “when the discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution” or move for a protective order under Criminal Procedure Law §245.70 (245.10[1][a]). Although this section provides these two avenues for the prosecution to extend the 15-day period, the People did not avail themselves of either and, as explained below, neither is relevant here. Furthermore, this section “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 non-compliance with a court order under section 245.80 of this article.” (CPL 245.20[5]). Criminal Procedure Law §245.80 provides: “when material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced.” Additionally, a “statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met.” (CPL 30.30[5]). This court granted defense counsel an opportunity to be heard on the record on February 11, 2020 and with the submission of the instant motion. The People were also accorded an opportunity to be herd on the validity of their February 7, 2020 C.O.C. and C.O.R. As of February 11, 2020, there were no disputed facts. The People affirm they have turned over everything in their possession and will continue to do so. Although the defendant specifically argues that reports and documents from the Officer of Chief Medical Examiner have not been turned over, these items, if they do exist, are not within the possession or control of the People (People v. Washington, 86 NY2d 189 [1995]). While the People may not have complied with the 15 day requirement under Criminal Procedure Law §245.10[1][a], the court realizes that discovery in this case is exceptionally voluminous and that some items listed by the defendant are not in the actual possession of the prosecutor (CPL 245.10[1][a]). More importantly, as stated on the record and in the People’s response, the prosecution continues to diligently gather and disclose discoverable material to the defendant in accordance with the presumption of openness (CPL 245.20[7]). Furthermore, this court declines to impose any sanction on the People at this point because the defendant has failed to allege, let alone show, any prejudice as required (CPL 245.80). Accordingly, the court denies the defendant’s motion to find the C.O.C. invalid. According, the court denies the defendant’s motion to find the C.O.R illusory because the People had failed to comply with their discovery obligations (People v. Brown, 28 NY3d 392 [2016] [courts presume certificates of readiness are truthful and accurate unless the defendant demonstrates otherwise]). Additionally, this court finds the People’s certification that each charge is facially sufficient is valid. “Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter.” (CPL 30.30[5-a]).2 So called “sufficiency on face” of a criminal court accusatory instrument is the basis for the court’s jurisdiction (People v. Dumas, 68 NY2d 729 [1986] [conclusory allegations are a jurisdictional defect]; People v. Alejandro, 70 NY2d 133 [1987] [failure to allege sufficient non-hearsay factual allegations is a jurisdictional defect]; People v. Jones, 9 NY3d 259 [2007] [failure to allege facts to support an element of the charged offense a jurisdictional defect that may be raised on appeal even when not raised prior to a guilty plea]; cf People v. Casey, 95 NY2d 354 [2000] [non-hearsay requirement waived by failure to object]). To be sufficient on its face, an accusatory instrument must allege “facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15[3]) and demonstrate “reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40[4][b]). It must contain non-hearsay factual allegations that “establish, if true, every element of the offense charged and defendant’s commission thereof’ (CPL 100.40[1][c]; People v. Dumay, 23 NY3d 518 [2014]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, a standard which does not require the same level of proof needed at trial (People v. Suber, 19 NY3d 247, 252 [2012]). The court’s analysis is limited to the four corners of the accusatory instrument and any supporting depositions (CPL 100.40[1][b] & [c]; People v. Thomas, 4 NY3d 143, 146 [2005]). At this point in the case, where the defendant has not argued the facial sufficiency of the charges, the court denies the defendant’s motion to find the C.O.R. invalid because the court finds the People have provided reasonable cause to believe the defendant committed the offenses charged and non-hearsay allegations to support every element of the offenses charged and the defendant’s commission thereof (CPL 100.40[1][b] & [c]). Finally, the court orders the parties to “diligently confer” to reach an agreement or accommodation as to any discovery dispute prior to seeking a further ruling from the court (CPL 245.35[1]). This constitutes the opinion, decision and order of the Court. Dated: March 13, 2020
