Recitation, as required by CPLR §2219(a) of the papers considered on review of the defendant’s motion. Papers Numbered Notice of Motion and Affidavits 1 Affirmation in Opposition 2 Replying Affidavits 3 DECISION AND ORDER By motion filed February 17, 2021, defendant moved to dismiss the accusatory instrument for violating defendant’s due process rights and for exceeding the speedy trial requirements pursuant to CPL §30.30. Defendant also seeks an order directing the People to comply with all discovery requirements mandated pursuant to CPL §245.20 and §245.50; deeming the People’s Certificate of Compliance filed as invalid and, deeming null the People’s declaration of readiness pursuant to CPL §245.50. The defendant was charged with one count of Assault in the Third Degree, pursuant to PL §120.00[1] and one count of Criminal Mischief in the Fourth Degree, pursuant to PL §145.00[4]. The defendant was arraigned on February 21, 2019 and the People announced their readiness for trial. CPL §30.30 The People’s declaration of “ready”, under the law as it existed at that time, was sufficient to stop the speedy trial clock. Accordingly, prior to January 1, 2020, the only time chargeable to the People are “post readiness delay[s]” that are “ attributable to [the People's] inaction and directly implicates their ability to proceed to trial.” People v. Carter, 91 N.Y. 2d 795, 799 [1998] citing People v. McKenna, 76 N.Y.2d 59, 63-64 (1990); People v. Anderson, 66 N.Y.2d 529, 534, 536 [1985]. If the delays did not directly impede the People’s ability to proceed to trial, same cannot be charged to the People. As of January 1, 2020, the People could not be ready and could not be found to be ready until they filed a Certificate of Compliance. CPL §245.50(3). These discovery reforms nullified the People’s previous statement of readiness as the reforms apply retroactively. See, People v. DeMilio, 66 Misc. 2d 759, [Duchess Co. Ct. 2020]; People v. Roland, 67 Misc. 3d 330 [N.Y. Crim. Ct. 2020]. However, discovery provided after January 1, 2020 in compliance with the new legislation does not automatically render the People’s prior declaration of readiness illusory. Adjournments “granted by the court at the request of, or with the consent of, the defendant or his counsel” are also excludable. CPL §30.30[4][b]. The People argued that other than the adjournments from February 3, 2020 through February 18, 2020 and November 6, 2020 through November 18, 2020, the adjournments were made at the defendant’s request and are thus excludable. CPL §30.30(4)(b); People v. Worley, 66 N.Y. 2d 523, 527 [1985]; People v. D’Aquino, 163 Misc. 2d 788, 791 [Yonkers City Ct., 1995]; People v. Percell, 67 Misc. 3d 190 [N.Y. City Crim. Ct., 2020]. The defendant maintains that all adjournments must be charged to the People. CPL §30.30(40(b) provides that the court may exclude any “[p]eriod of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his [or her] counsel.” The “consent”, however, must be clearly expressed. A failure to object does not constitute consent. People v. Smith, 82 N.Y.2d 676, 678 [1993]. Unless “[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable proof”, the Court may not deny the motion without a hearing. People v. Reid, 102 A.D.2d 835, 836 [1984], quoting CPL §210.45 [5] [c][6]. Thus while the Court’s records of time indicate that the adjournments were requested by the defendant, “calendar and file jacket notations” do not constitute unquestionable proof to meet the People’s “burden of demonstrating sufficient excludable time” People v. Jackson, 225 A.D.2d 794, 795 [1996]; see also People v. Brady, 167 A.D.3d 927 [2d Dept., 2018]. The People consent to a total of thirty-five (35) days chargeable, representing the adjournments from February 3, 2020 through February 18, 2020 and from November 6, 2020 through November 18, 2020. Further, there is no dispute that the time from March 20, 2020 through October 4, 2020 is excludable. The Governor’s Executive Orders issued in relation to the COVID-19 pandemic suspended CPL §30.30 deadlines and is excluded from the calculation and not chargeable to the People. (See, Executive Orders 202.14; 202.28; 202.38; 202.48; 202.55; 202.60 and 202.67. After considering the papers submitted and the relevant legal authority, this branch of the defendant’s motion is denied with leave to renew. Any subsequent motion by the defendant must be accompanied by the submission of all official court transcripts in the above entitled proceeding. In the event the Court is unable, after a review of the transcripts to decide the motion, a hearing will be scheduled to determine to whom the adjournment should be charged. People v. Jackson, supra; People v. Brady, supra. The Court declines, at this time, to entertain a hearing which would otherwise deprive other litigants from their day in court as the Court believes a review of the full record of the above entitled proceedings is likely dispositive. Accordingly, this aspect of the defense’s motion to dismiss is denied with leave to renew. Certificate of Compliance Challenge Turning then to the defense’s contention that the People failed to submit or failed to affirmatively state the non-existence of discovery, this branch of the motion is denied. At the outset, the defendant outlines the following alleged outstanding discovery: (i) Complaints, police reports or further information regarding the criminal history of the complaining witness (ii) Criminal history or impeachment material regarding the complaining witness (iii) All photographs of the complaining witness or defendant’s injuries (iv) Video or recording of the police investigation including but not limited to police car video, interview video, dash cam video, parkway video, interview video, bodycam video and or street surveillance video (v) All medical photos, x-rays, films, MRI or CAT scan films of the complaining witness’ medical treatment and evaluation (vi) Any photos of the defendant after his arrest (vii) Reports or photos of the defendant’s injuries upon his arrest (viii) Copies of the officers ‘personnel files and disciplinary records (ix) Photographs, invoices, repair bills or specific reports relative to the phone which was allegedly broken/disabled during the incident The People contend that they certified that they made a diligent search and inquiry and turned over discovery. They further argue that after conducting this search, they are unaware of any additional discoverable evidence or material and are not required under CPL §245.20 to state all possible items that do not exist in the case. (People’s Opp. p 12). Rather, the People contend that their obligation under CPL §245.50[1] is to certify that they have “disclosed and made available all known material and information subject to discovery.” CPL §245.50[1]. The People contend not only is this very language contained in their Certificate of Compliance, but after making a diligent search and inquiry, the People are unaware of any additional discoverable evidence or information. CPL §245.20[2] mandates the People make a “diligent, good faith effort to ascertain the existence of material or information…and to cause such material or information to be made available where it exists but is not within the prosecutor’s possession, custody or control provided that the prosecutor shall not be required-to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.” There is a presumption in favor of disclosure and the statute imposes broad obligations upon the People to disclose information that is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses” (People v. Baxley, 84 N.Y.2d 208, 213 [1994]), the People’s Brady/Giglio obligations were previously found to extend only to information or material which is within the People’s “custody, possession or control.” People v. Garrett, 23 N.Y.3d 878, 886 [2014]. Complaining Witness Criminal History The People argued that they satisfied their Brady/Giglio obligation by advising the defendant that the alleged victim was involved in a single interaction sealed pursuant to C.P.L. §160.55 in Scarsdale Village Court. They argued there is no basis for them to move to unseal the records. The victim’s prior criminal history is potentially evidence favorable to the defendant which must be disclosed under CPL §240.20(1)(k). However, as here, when a case is sealed under CPL §160.55, “all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency or prosecutors office” are unavailable to “any person or private agency”. CPL §160.55[1][c]. While a case may be unsealed in limited circumstances, there is no exception for People’s discovery obligations and the People may not be compelled to seek an unsealing under the provisions of the foregoing statute. Further, C.P.L. §245.20(1)(k) codified Brady. Under Brady, information and materials from a sealed case are not within the People’s possession, custody or control and not subject to disclosure. People v. Hayes, 17 N.Y.3d 46, 51[2011]. As there is no constitutional or statutory obligation on the People to obtain an unsealing order from the Court. The People’s Brady/Giglio obligation was fully discharged by the disclosure of the information within their possession. Photographs/Medical Records The Court notes that the Discovery Disclosure Index filed with the Court indicates that photographs, medical records from Empress Ambulance, White Plains Hospital, Dr Maki Kano, Westmed Medical Group, and White Plains Hospital Radiology were provided to the defendant. It further appears that the People provided a HIPAA release form and the People maintain they turned over all records in their possession. As additional records may be obtained by the defendant, this branch of the defendant’s application is denied. Videos/Photographs The defense further posits that the People failed to disclose videos and photographs. The Discovery Disclosure Index indicates that surveillance videos, booking videos as well as photographs and booking photographs were disclosed to defendant. Defendant failed to allege the purported deficiencies or expand on what defendant believes may have been used in the investigation, could be offered to prove an element of the crime or would be related to a defense or influence a trial strategy. (Compare People v. Lustig, 68 Misc.3d 234 [Sup. Ct., Queens Co. 2020] [material used as an investigative tool, relevant to a defense or Sandoval/Molineaux hearing relates to the subject matter of the case]; see also, People v. Askin, 68 Misc. 3d 372 [Co. Ct. Nassau Co. 2020]. Accordingly, this branch of the defendant’s motion is denied. Damaged Property The defense also sought photographs, invoices, repair bills or specific reports relative to the phone which was allegedly broken or disabled during the alleged incident. The People did not address this contention directly other than to state that they have turned over all items in their custody or control. Accordingly, to the extent the People have or obtain any additional discovery with respect to the foregoing, they are directed to turn over same. Police Officer’s Personnel Files Finally, that branch of the defendant’s motion which sought the People provide copies of the six potential police witnesses’ personnel files and disciplinary records is granted in part and denied in part. The People in a Discovery Addendum annexed to the defendant’s moving papers appear to have provided the defense a list of potential police witnesses from the Westchester County Police Department pursuant to C.P.L. §245.20(1)(D). C.P.L. §245.20 requires that the People disclose “items and information that relate to the subject matter of the case.” As the Court stated in People v. Garrett, 23 NY 3d 878 [2014], “[T]here is a distinction between the nondisclosure of police misconduct; which has some bearing on the case against the defendant,’ and the nondisclosure of such material which has ‘no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes.’ In the latter circumstance, the offending officer is not acting as ‘an arm of the prosecution’ when he or she commits the misconduct, and the agency principles underlying the imputed knowledge rule are not implicated.” However, C.P.L. §245.20[1][k][iv] mandates the People disclose “evidence and information…that tends to…impeach the credibility of a testifying prosecution witness” and further requires the People to “serve upon the defendant and file with the court a certificate of compliance.” CPL §245.50[1]. The People, on serving the Certificate of Compliance, certify that they have exercised” due diligence” and made “reasonable inquiries: to obtain and provide discoverable materials. CPL §245.50[1]. The Certificate of Compliance must be filed “in good faith” and “identify the items provided.” Id. “The Court’s primary obligation is to determine and give effect to the Legislature’s intent.” People v. Dewall, 15 A.D. 3d 498 [2d Dept. 2005]. The Court does not “sit in review of the discretion of the Legislature, to determine the expediency, wisdom or propriety of its action on matters within its powers.” People v. Friedman, 302 NY 75 [1950]. C.P.L. §245 details what the People are required to provide. The defendant’s argument that all personnel records is an overly expansive interpretation and not supported by the plain language of C.P.L. §245. The Court finds that People are not required to turn over the officers’ complete personnel records. The repeal of Civil Rights Law §50-a in June of 2020 does not automatically entitle the defendant to an officer’s entire police personnel file. See, People v. Randolph, 69 Misc. 3d 770, 772 [Sup.Ct. Suffolk Co, 2020]; People v. Davis, 70 Misc. 3d 467, 473-474 [Crim. Ct., Bronx Co. 2020]; People v. Suprenant, 69 Misc. 3d 685, 693 [City Ct., Glens Falls 2020]; People v. Akhlaq, 2021 N.Y. Slip. Op. 21060 [Sup. Ct., Kings Co. 2021]. Rather, same is subject, under Public Officers Law and Freedom of Information, to inspection. The People’s obligations under C.P.L. §245.20[1][k][iv] is to provide impeachment information from the files of testifying officers. People v. Maruo, 2021 N.Y. Slip. Op. 21035 [Co. Ct., Westchester Co. 2021]. The discovery statutes require disclosure of “information that is favorable to the defendant but not necessarily the underlying material as well.” People v. Davis, 70 Misc. 3d 467 [Crim. Ct. Bronx Co. 2020]. The People in providing impeachment information, discharged their obligations pursuant to CPL §245.20[1][k][iv]. The defendant’s challenge to the Certificate of Compliance on this basis is denied. Form Letter The defense, in a one line statement, argued that the “check a box form letter” is insufficient to comply with the statue. The Court is unable, without further explanation or clarification, to rule on this allegation. Additional Motions Finally, that branch of the defendant’s motion which sought to reserve the right to make additional motions is denied with leave to renew. C.P.L. §255.20[3]; People v. Rasoully, 52 Misc.3d 1225[a][Dist. Ct. Nassau Co. 2016]; People v. Ramirez, 47 Misc. 3d 1211[a] [Crim. Ct. Bronx Co., 2015]; People v. Evans, 41 Misc.3d 1204[A] [Dist. Ct. Nassau Co. 2013]. The foregoing constitutes the Decision and Order of the Court. Dated and Entered: May 13, 2021
