DECISION By Notice of Motion, filed November 27, 2020, Defendant moves to deem the Prosecution’s Certificate of Compliance (hereinafter “COC”) filed, February 25, 2020 invalid pursuant to Criminal Procedure Law (hereinafter “CPL”) §§245.20(1) and 245.50(1) and for the Court to dismiss the accusatory instrument pursuant to CPL §§30.30 and 210.20(1)(g). Having reviewed the Defendant’s moving and reply papers, the People’s Affirmation in Opposition and sur-reply and the relevant documents in the official court file, this Court finds the People’s February 25, 2020 COC invalid but due to special circumstances and an unreasonable delay by the Defendant denies the Defendant’s Motion to Dismiss RELEVANT PROCEDURAL BACKGROUND Defendant was charged by criminal complaint and arraigned on September 14, 2019, with, Operating a Motor Vehicle while under the influence of Alcohol or drug in violation of Vehicle and Traffic Law (hereinafter “VTL”) §§§1192(3); 1192(2) and 1192(1). On January 14, 2020, the People filed an Automatic Disclosure Form (hereinafter “ADF”) pursuant to CPL §245.20(1). On February 25, 2020, the People filed their COC, Disclosures and Statement of Readiness (hereinafter “SOR”). On November 27, 2020, the Defendant filed the instant motion. On December 11, 2020, the People filed their Affirmation in Opposition. On December 18, 2020, the Defendant filed a Reply to the People’s Affirmation. On January 22, 2021, the People filed their Sur-Reply. RELEVANT STATUTES CPL §30.30(1)(b). Speedy trial. Time limitations. (1) Except as otherwise provided in subdivision three, a motion made under paragraph (e) of subdivision one of §170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within: (b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. CPL §170.30(1)(e). Motion to dismiss information, simplified information, prosecutor’s information or misdemeanor complaint. (1) After arraignment upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: (e) The defendant has been denied the right to a speedy trial. CPL §245.20(1)(k)(s). Timing of discovery. (1) Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control, including but not limited to: (k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to: (i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article. (s) In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court information, prosecutor’s information, information, or simplified information, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person’s breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date. CPL §§245.50(1) and (3). Certificates of compliance; readiness for trial. (1) By the prosecution. When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article. (3) Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section. CPL §245.60. Continuing duty to disclose. If either the prosecution or the defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article. This section also requires expeditious disclosure by the prosecution of material or information that became relevant to the case or discoverable based on reciprocal discovery received from the defendant pursuant to subdivision four of section 245.20 of this article. DISSCUSSION Certificate Of Compliance The Defendant moves to have the People’s COC dated February 25, 2020, and SOR, declared invalid due to the People’s failure to turn over all Civil Compliant Review Board (hereinafter “CCRB”) and NYPD Internal Affairs Bureau (hereinafter “IAB”) records relating to the officers in the case; and, for failing to timely disclose the records of inspection, calibration or repair of machines used to perform tests. The People argue they complied with their discovery obligations in February 2020 when they provided all substantiated personnel police records, and calibration and field inspection unit reports (hereinafter “FIUR”) that they were aware of. The People further assert that the reports provided in October 2020 (two notes between highway officers regarding out of service incidents) corroborate information initially disclosed rather than offer new information. Article 245 of the CPL requires the People to openly provide a non-exhaustive list of discovery materials including, but not limited to, impeachment, exculpatory and mitigating evidence or information known to the police or other law enforcement agencies; and, a year of records of calibration, certification, inspection, repair or maintenance of machines used to perform scientific tests and experiments in VTL cases. See CPL §245.20(1)(k), (s) and (7). The Prosecution, with limited exception, is required to “make a diligent, good faith effort to ascertain the existence of material or information discoverable under 245.20(1) and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control.” CPL §245.20(2); see People v. Porter, 2020 NY Slip Op 20362 (Crim Ct Bronx County 2020) [People must provide the entirety of any substantiated records to comply with their discovery obligation]. Some trial courts have held unfounded or exonerated personnel claims against police officers are not required to be produced because they lack impeachment value. See People v. Davis, 70 Misc 3d 467 (Crim Ct Bronx County 2020); People v. Randolph, 69 Misc 3d 770 (Sup Ct Suffolk County 2020); People v. Lustig, 68 Misc 3d 234 (Sup Ct Queens County 2020); People v. Knight, 69 Misc 3d 546 (Sup Ct Kings County 2020). Trial courts vary on whether the People’s discovery obligation is satisfied by providing a summary of disciplinary action in lieu of a full record and attendant materials. See People v. Suprenant, 69 Misc 3d 685 (Glens Falls City Court 2020) [People met discovery obligation by disclosing the existence of disciplinary records and directing the police to provide copies to defense counsel]; People v. Gonzalez, 68 Misc 3d 1213(A) (Sup Ct Kings County 2020); People v. Davis, 70 Misc 3d 467 (Crim Ct Bronx County 2020); People v. Lustig, 68 Misc 3d 234 (Sup Ct Queens County 2020); People v. Knight, 69 Misc 3d 546 (Sup Ct Kings County 2020); Cf. People v. Porter, 2020 NY Slip Op 20362 (Crim Ct Bronx County 2020) [to comply with discovery requirement, the People must provide substantiated records in their entirety]; People v. Randolph, 69 Misc 3d 770 (Sup Ct Suffolk County 2020); People v. Rosario, 2020 NY Slip Op 20322 (County Ct Albany County 2020). Additionally, the trial courts diverge regarding whether substantiated personnel records alone suffice to comply with discovery obligations. See People v. Davis, 70 Misc 3d 467 (Crim Ct Bronx County 2020) [the People have no duty to disclose the unsubstantiated allegations of misconduct under new discovery statute]; People v. Gonzalez, 68 Misc 3d 1213(A) (Sup Ct Kings County 2020); Cf. People v. Cooper, 2021 NY Slip Op 21039 (Erie County Ct 2021) [the People are required to provide substantiated and unsubstantiated allegations for compliance with discovery obligations]; People v. Randolph, 69 Misc 3d 770 (Sup Ct Suffolk County 2020). This Court finds the recent decision in People v. Herrera, supra, most elucidative and sound. In reliance upon People v. Cooper, (2021 NY Slip Op 21039 [Erie County Ct 2021]) the court in People v. Herrera reasoned that: “…the legislative intent in repealing 50-a was to make law enforcement disciplinary records fully available. The definition of ‘law enforcement disciplinary records’ is expansive and inclusive. It does not distinguish between unfounded, exonerated, substantiated or unsubstantiated. Indeed, there is no indication that any of these terms are used with any uniformity between law enforcement agencies and across the State. Additionally, the definition of ‘law enforcement disciplinary records’ is a non-exhaustive list referencing ‘any record created in furtherance of a law enforcement disciplinary proceeding’ (Public Officers Law §86[6], see also Buffalo Police Benevolent Association, Inc. v. Brown, 69 Misc 3d 998, 134 N.Y.S.3d 150 [Sup Ct, Erie County October 9, 2020]).” People v. Herrera, 2021 NY Slip Op 50280(U), 5 (Nassau Dist Ct, April 5, 2021). The greatest quest in American democracy, to provide equal protection and due process under the law as guaranteed by the 14th Amendment of the U.S. Constitution requires, among a litany of challenges, that members of law enforcement be subject to public scrutiny in the way they exercise their official duties. Moving New York State along the path in that quest, towards equity, transparency, and accountability was the main thrust of the Legislature’s intent when codifying Brady in the 2020 discovery reform and subsequently repealing section 50-a of the Civil Rights Law. Brady v. Maryland, 373 US 83 (1963). The legislative transcript of the debate on the issue is replete with remarks detailing the majority’s position — that the transparency sought could not be achieved without disclosing both substantiated and unsubstantiated records. In fact, the main sponsor of the Assembly Bill, Mr. O’Donnell stated, “if you don’t include ‘unsubstantiated claims’, […] that information will be filed away by the NYPD as […] if it never existed.” NY Assembly Debate on Assembly Bill A10611, June 9, 2020 at 219. This Court finds the Eastern District of New York District Court’s decision in Fowler-Washington v. City of New York instructive as well. That court held, “by repealing Section 50-a, the State of New York has legislatively required that police officers’ personnel records should be available to the public […] [and] if police personnel records are available to the public, they are certainly available to civil rights plaintiffs if relevant to the litigation under [Federal Rule of Civil Procedure 26].” Fowler-Washington v. City of New York, 2020 U.S. Dist. LEXIS 184364, 8 [E.D.N.Y. Oct. 5, 2020]. This Court reasons that the right of a criminal defendant, who faces the loss of personal liberty, to such information is undoubtedly consistent with a civil rights plaintiffs’ entitlement to same. CPL 30.30 The top count of the accusatory instrument is an unclassified misdemeanor requiring that the People be ready for trial within ninety days of commencement of the criminal action. CPL §30.30(1)(b). Successful motions under CPL §30.30 must demonstrate the existence of an unexcused delay in excess of the statutory maximum. See People v. Santos, 68 NY2d 859 (1986). The People are considered ready for trial when there is no legal impediment to trying their case and the People communicate their actual readiness in open court or serve written notice of readiness to the court and defense counsel. See People v. Brown, 28 NY3d 392 (2016); People v. Kendzia, 64 NY2d 331 (1995). When the People are in a post-readiness posture, the People are only charged with the time requested for an adjournment. See People v. Cortes, 80 NY2d 201 (1992); People v. Pierre, 8 AD3d 201 (1st Dept 1992). Under CPL §30.30(4)(a), proceedings concerning defendant, including pre-trial motions, toll the speedy trial clock. See People v. Bruno, 300 AD2d 93 (1st Dept 2002); People v. Veras, 48 Misc 3d 1227(A) (Crim Ct Bronx County 2015). The People are given a reasonable period to prepare following the court’s decision on motion papers. CPL §30.30(4)(a); see People v. Davis, 80 AD3d 494 (1st Dept 2011); People v. Wells, 16 AD3d 174 (1st Dept 2005). The People’s “failure to declare readiness within the statutory time limit will result in dismissal of the prosecution unless the People can demonstrate that certain time periods should be excluded.” People v. Price, 14 NY3d 61, 63 (2010). Prior to January 1, 2020 there was a presumption that a statement of readiness was truthful and accurate. See People v. Sibblies, 22 NY3d 1174 (2014). Post January 1, 2020, no such presumption exists under the new discovery scheme. In fact, pursuant to CPL §245.50(1), the People are now required to file a certificate confirming their exercise of due diligence in fulfillment of their discovery obligations as a condition precedent to being deemed ready for trial. Although, the newly enacted May 2020 statute allows the Court to consider an individualized finding of special circumstances when deciding trial readiness, the previous statute indicated exceptional circumstances which this Court finds instructive and comparable. CPL §245.50(3) Exceptional circumstances have been found where a necessary witness was not available due to a medical reason or some circumstance outside the control of the prosecutor. See People v. Goodman, 41 NY2d 888 (1977) (unavailability of complainant for medical reasons); People v. McLeod, 281 AD2d 325 (1st Dept 2001) (exceptional circumstances found where police officer was disabled due to arm cast). The Defendant argues this matter should be dismissed due to the invalidity of the February 2020 COC and the lapse of statutory time at one hundred four (104) days. The People maintain the validity of their February 2020 COC and SOR and assert sixty-three (63) days chargeable. I) Law Enforcement Personnel Records The Defendant contends the summary Central Personnel Indexes (hereinafter “CPI”) provided by the People in February 2020 regarding Officers Savastano, Comiskey, Weiglen and Boho, and additional IAB details provided via email on November 30, 2020 are insufficient to meet the discovery obligations of CPL 245.20(1)(k). Defendant contends that the People must turn over all CCRB and IAB personnel records for all officers involved herein, including any underlying documents. The People assert, inter alia, prior to filing their COC on February 25, 2020, they provided all substantiated CPI’s in full, not summary form, and no substantiated CCRB records or lawsuits exist for the officers herein. They further maintain that they are not required to provide records of unsubstantiated, unfounded or exonerated claims. The People assert the additional IAB memoranda provided on November 30, 2020 should not invalidate their February COC/SOR as it was filed in good faith and based on information available to them at the time. The People believe their burden was unchanged by the repeal of section 50-a of the Civil Rights Law. The People are mistaken in their position regarding unsubstantiated records. This Court agrees with the Defendant and directs the People to disclose the full substantiated and unsubstantiated personnel records, in their possession, for all officers herein to comply with their discovery obligation. This Court finds the IAB memoranda provided by the People on November 30, 2020 was properly disclosed pursuant to their continuing obligation under to CPL §245.60. However, the People are forewarned that withholding of same by law enforcement agencies cannot excuse the People of their discovery obligation. This Court finds the February 24, 2020 COC invalid with respect to law enforcement personnel records. II) Calibration Reports The Defendant asserts the People did not provide calibration reports for six months prior to and six months after being used in the instant matter. The People assert no calibration was done within the six-month window after use in the instant matter. This Court finds the February 24, 2020 COC valid with respect to calibration reports. III) Field Inspection Unit Reports The Defendant asserts the People did not provide documentation regarding a malfunction in the Intoxilyzer on July 25, 2019 and August 2, 2019 until October 30, 2020, after speedy trial time had elapsed. The People contend they were unaware of the two documents and two notes between highway officers regarding the malfunction when they filed their February COC. They contend the documents serve to corroborate the initial disclosure because Defendant had already been noticed that the machines had been taken out of service during the summer of 2019. Therefore, this Court finds the February 24, 2020 COC valid with respect to field inspection unit reports as the People properly adhered to their continuing duty to disclose information pursuant to CPL §245.60. IV) Calculation Of Time September 14, 2019 — October 30, 2019 (0 days chargeable) On September 14, 2019, the Defendant was arrested and arraigned in Part AR3 of the Bronx Criminal Court. The People were ready, and Defendant was released on his own recognizance. He was represented by Masooma Javaid, Esq. The matter was adjourned to AP4 on October 30, 2019 for response and decision. See People v. Bruno, 300 AD2d 93 (1st Dept 2002); People v. Veras, 48 Misc 3d 1227(A) (Crim Ct Bronx County 2015). October 30, 2019 — December 5, 2019 (0 days chargeable) On October 30, 2019, the matter was heard in AP4. The Court ordered 1194/Mapp/Huntley/Wade/Dunaway/Atkins/Odum/Ingle hearings and adjourned the matter to AP4 on January 5, 2020 for hearings and trial. See People v. Davis, 80 AD3d 494 (1st Dept 2011); People v. Wells, 16 AD3d 174 (1st Dept 2005). December 5, 2019 — January 6, 2020 (13 days chargeable) On December 5, 2019, the case was heard in Part AP4. The People were not ready and requested December 13, 2019. The assigned ADA was on trial, thus unavailable. The Court adjourned the case to AP4 on January 6, 2020 for hearings and trial. See People v. Cortes, 80 NY2d 201 (1992); People v. Pierre, 8 AD3d 201 (1st Dept 1992). January 6, 2020 — February 18, 2020 (43 days chargeable) On January 6, 2020, the case was heard in Part AP4. The People were not ready and were directed to file an SOR. The matter was adjourned to February 18, 2020 for hearings and trial. On January 14, 2020, The People filed an Automatic Disclosure Form. February 18, 2020 — March 19, 2020 (7 days chargeable) On February 18, 2020, the case was heard in AP4. The People were not ready. The matter was adjourned to AP4 on March 19, 2020 for hearings and trial. On February 25, 2020, the People filed a COC and SOR. March 19, 2020 — June 18, 2020 (0 days charged) On March 19, 2020, the matter was calendared in AP4. The matter was administratively adjourned to June 18, 2020, due to the public health crisis of COVID-19, pursuant to an administrative order issued by Chief Judge Lawrence K. Marks dated March 16, 2020. On March 20, 2020, pursuant to Executive Order 202.8 issued by New York State Governor Andrew Cuomo, and subsequent extensions, CPL §30.30 was suspended through October 4, 2020. June 18, 2020 — September 18, 2020 (0 days chargeable) On June 18, 2020, due to the ongoing public health crisis, the matter was again administratively adjourned to September 18, 2020. September 18, 2020 — October 22, 2020 (0 days chargeable) On September 18, 2020, due to the ongoing public health crisis, the matter was again administratively adjourned to October 22, 2020. October 22, 2020 — November 10, 2020 (0 days chargeable) On October 22, 2020, the matter was heard in AP4. The Defendant waived CPL §30.30 time to submit a pre-pleading information. The matter was adjourned to AP4 on November 10, 2020 for possible disposition. November 10, 2020 — January 14, 2021 (0 days chargeable) On November 10, 2020, the matter was heard in AP4. The Defendant requested a CPL §30.30 motion schedule. The Court ordered the Defendant to file their motion by November 30, 2020 and the People’s response by December 11, 2020. The matter was adjourned to Part AP4 on January 14, 2021 for this Court’s decision. See People v. Bruno, 300 AD2d 93 (1st Dept 2002); People v. Veras, 48 Misc 3d 1227(A) (Crim Ct Bronx County 2015). On November 27, 2020, the Defendant filed the instant motion. On December 11, 2020, the People filed their Affirmation in Opposition. On December 18, 2020, the Defendant filed a Reply to the People’s Affirmation. January 14, 2021 — March 15, 2021 (0 days chargeable) On January 14, 2021, the matter was heard in AP4. The Court ordered the People to file their sur-reply by January 22, 2021. The matter was adjourned to March 15, 2021 for decision. On January 22, 2021, the People filed their Sur-Reply. CONCLUSION This Court finds the People’s February 25, 2020 COC to be invalid due to incomplete disclosure of law enforcement personnel records. However, this Court finds special circumstances exist due to the public health crisis which warrant excludable time. Similar to previous findings of exceptional circumstances COVID-19 is a circumstance, out of the control of the Prosecution. The People are ordered to provide all substantiated and unsubstantiated law enforcement personnel records and file a new COC and SOR to be deemed in compliance and ready for trial. The People may redact all legally permissible information. CPL §245.20(6); Public Officers Law §89(2)(b). Although the Defendant informally made the Court and the People aware of an objection via email in August 2020, no official record was made in open court or documentation filed until November 2020. In view of the foregoing, this Court finds a total of sixty-three (63) days chargeable to the People. Consequently, Defendant’s Motion to Dismiss pursuant CPL §§30.30(1)(b) and 170.30(e), and for a hearing in the alternative is denied. This constitutes the Decision and Order of the Court. Dated: April 8, 2021
