The defendant, Matthew Kupferman, was arrested on November 19, 2019 and charged with Assault in the Third Degree [PL §120.00(1), Attempted Assault in the Third Degree [PL §110/120.00(1)], Menacing in the Third Degree [PL §120.15] and Harassment in the Second Degree [PL §240.26 (1)]. The defendant, through his attorney, Jeffrey Lichtman, Esq. moved by Notice of Motion, dated April 5, 2021, seeking the following relief on Docket # 20572V-2019: 1) Deeming the prosecution’s certificate of compliance (“COC”), and statement of readiness filed on February 14, 2020 and March 19, 2020 to be improper pursuant to CPL §30.30(5-a) due to the prosecutor’s failure to “certify that all counts charged in the accusatory instrument meet the requirements of [CPL 100.15 and 100.40] and those counts not meeting the requirements of [CPL 100.15 and 100.40] have been dismissed;” 2) Dismissing the accusatory instrument pursuant to CPL §30.30; and 3) Granting such other relief as the Court may deem proper. Assistant District Attorney Shaun Prunotto filed an Affirmation in Opposition to the defendant’s Notice of Motion dated May 4, 2021. Defendant filed a Reply Affirmation on May 7, 2021. The Law CPL 30.30 “was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly” (People v. Sinistaj, 67 NY2d 236, 239 [1986]; see People v. Price, 14 NY3d 61, 64, [2010] ["the dominant legislative intent informing CPL §30.30…(is) to discourage prosecutorial inaction"]). CPL §30.30(1)(a) requires the People to be ready for trial within six months of the commencement of a criminal action in which a felony is charged” and section §30.30(1)(b) requires that the People be ready within 90 days in misdemeanor cases (Price, supra). “The 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, supra). Once a defendant sufficiently alleges that the People were not ready within the statutory period, “the People [have] the burden of showing their entitlement to a statutory exclusion” (People v. Luperon, 85 NY2d 71, 81 [1995]; see People v. Santos, 68 NY2d 859, 861 [1986]). On January 1, 2020, CPL article 240 was replaced by CPL article 245. Notably, CPL §245.50 (3) requires the People to file a Certificate of Compliance when they have provided the automatic discovery (CPL 245.30 [1]). Until the People file [a COC], they cannot be deemed ready for trial. (People v. Ramirez-Correa, 71 Misc 3d 570 [N.Y.Crim.Ct. Feb. 25, 2021]). CPL §245.20 requires the People to disclose twenty-one (21) categories of discoverable material to the defendant “as soon as practicable” but not later than a fixed period of time. CPL §245.20 (1)(k) provides: “Information under [CPL §245.20 (1)(k)] 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” The sole “condition precedent to the prosecutor’s ability to file a [COC] is the discovery of all material considered [a]utomatic [d]iscovery” (People v. Napolitano, 67 Misc 3d 1241(A) [Sup Ct, New York County 2020]). CPL §245.20 (2) provides, in relevant part: “The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.” Any assessment of a prosecutor’s due diligence with discovery compliance must be considered in conjunction with the provisos contained within CPL §245.55 (1) and (2) (People v. Rosario, 70 Misc 3d 753, 756 [Sup Ct, Albany County 2020]). CPL §245.55 (1) provides in relevant part: “The district attorney and the assistant responsible for the case shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article.” Furthermore, CPL §30.30(5-a) now requires the People to state their readiness for trial, by serving and filing a COC which provides the following: “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 and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.” CPL §100.15 provides the following: “1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the “complainant.” The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant’s verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part. 2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also, as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein. 3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions. 4. Where a felony complaint charges a violent felony offense defined in section 70.02 of the penal law and such offense is an armed felony as defined in subdivision forty-one of section 1.20, (a) the accusatory part of the instrument must designate the offense as an armed felony, and (b) the factual part of the instrument must allege facts of an evidentiary character supporting or tending to support such designation.” CPL §100.40 provides the following: “1. An information, or a count thereof, is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof. 2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face. 3. A prosecutor’s information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35. 4. A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.” Relevant Facts On November 19, 2019 the defendant was arrested and charged with Assault in the Third Degree [PL §120.00(1), Attempted Assault in the Third Degree [PL §110/120.00(1)], Menacing in the Third Degree [PL §120.15] and Harassment in the Second Degree [PL §240.26 (1)]. On November 20, 2019 the defendant, appearing with his attorney Patrick v. Parrotta, Esq., was arraigned on the instant charges in Kings County Criminal Court Part AR-1 before the Hon Ellen E. Edwards, who issued a Temporary Order of Protection (TOP) in favor of [REDACTED BY THE COURT], the complaining witness, which was in effect until May 29, 2020. The case was adjourned to January 22, 2020 in AP-1F. On January 22, 2020, the defendant appeared in Part AP-1F and the case was adjourned to February 22, 2020. On January 23, 2020, this criminal case was transferred to IDV2 along with the defendant’s Felony drug case. The CW’s Family Offense Petition (Docket # O-00302-20) and the parties’ divorce action (Index # 55833/2020) were also transferred to IDV2. On February 4, 2020, the defendant appeared in IDV2. The People served and filed discovery as well as the Supporting Deposition (which was signed by the CW on December 19, 2019). The case was adjourned to March 31, 2020 for the People to file the COC. The TOP in favor of the CW was extended. On February 17, 2020, the People served and filed the COC and a Notice/Disclosure Form for Initial Discovery. On March 17, 2020 the Kings County IDV Court began operating virtually in response to the Covid-19 pandemic. On March 19, 2020, the People served and filed a Supplemental COC. On March 31, 2020, there were no appearances due to the Covid-19 pandemic and the case was administratively adjourned to April 22, 2020. The TOPs were extended pursuant to the Chief Administrative Judge’s March 19, 2020 Administrative Order 73/20 (AO/73/20). On April 22, 2020, the Court conducted a virtual conference with counsel. The TOPs were extended to May 13, 2020 pursuant to AO/73/20. On May 13, 2020, the Court conducted a virtual conference with defendant’s new counsel Jeffrey Lichtman, Esq. The TOPs were extended to the adjourn date of June 3, 2020 pursuant to AO/73/20. On June 3, 2020, the Court conducted a virtual conference with counsel. The Court was informed that the defendant had been re-arrested in New York County for allegedly violating this Court’s TOP. The TOPs were extended to the adjourn date of July 27, 2020 pursuant to AO/73/20. On June 8, 2020, this Court began in-court proceedings although the parties and counsel remained virtual. On July 27, 2020, all parties and counsel appeared virtually before the Court. Upon the People’s application, the defendant’s criminal cases (Docket #s 20571V-2019 and 20572V2019) were transferred to Brooklyn Treatment Court (BTC) to determine if the defendant qualified for drug treatment based upon his felony drug arrest for Criminal Possession of a Controlled Substance in the Second Degree (in excess of 4 ounces). The TOPs were extended, and the cases were scheduled for August 20, 2020 in BTC. On August 20, 2020, the defendant appeared virtually in BTC before the Hon. Joseph E. Gubbay. The People served and filed a third Supplemental COC. On September 15, 2020, this Court was informed that the defendant declined drug treatment and his two (2) criminal cases were transferred back to IDV2. On September 17, 2020, all parties and counsel appeared virtually in IDV2. The TOP was extended, and the case was adjourned to November 16, 2020. On November 16, 2020, all parties and counsel appeared virtually in IDV2. The TOP was extended, and the case was adjourned to January 12, 2021. On December 7, 2020, the Court was forced to vacate the Courthouse due to the Covid19 pandemic; all cases were then heard virtually. On January 12, 2021, all parties and counsel appeared virtually in IDV2. The TOP was extended, and the case was adjourned to March 18, 2021. On March 16, 2021 a Grand Jury voted a True Bill on the following four (4) counts on Indictment # 70621-2021: Criminal Possession of a Controlled Substance in the Second Degree [PL §220.18(1)], Criminal Possession of a Controlled Substance in the Third Degree [PL §220.16(12)], Criminal Possession of a Controlled Substance in the Fifth Degree [PL §220.06(5)] and Criminal Possession of a Controlled Substance in the Seventh Degree [PL §220.03]. On March 18, 2021, all parties and counsel appeared virtually in IDV2. The TOP was extended, and the case was adjourned to April 13, 2021. On April 5, 2021 the defendant filed the instant Motion to Dismiss Docket # 20572V2019 pursuant to CPL §30.30(5-a). On April 13, 2021, all parties and counsel appeared virtually in IDV2. The TOP was extended, and the case was adjourned to June 2, 2021. On May 4, 2021, the Court began in-Court proceedings although the parties and counsel remained virtual. The People filed a Supplemental COC which certified that all counts in the accusatory instrument met the requirements of CPL §100.15 and 100.40 as well as an Affirmation in Opposition to the Defendant’s Motion to Dismiss. On May 7, 2021, the defendant filed a Reply Affirmation in Further Support of the Motion to Dismiss. On June 2, 2021, all parties and counsel appeared virtually in IDV2. The Court denied the defendant’s Motion to Dismiss on the record and adjourned the case for a written decision. The TOP was extended, and the case was adjourned to August 4, 2021. Argument The defendant contends that pursuant to CPL §30.30(5-a) the People have failed to certify compliance with CPL §§100.15 and 100.40 and have not validly stated ready for trial. Defendant argues that on February 14, 2020 and March 19, 2020, the People filed a COC and supplemental COC, both of which stated that “[t]he prosecution is ready for trial pursuant to CPL §§30.30(5) & 245.50(1). However, the defendant contends that neither of these COC’s arc valid pursuant to CPL §30.30 (5-a), which explicitly requires that the People “certify that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40.” Defendant maintains that neither of these COC’s include this specific language. The defendant argues that the COC’s only certify that the People were in compliance with their discovery obligations under CPL §§245.50(1) and 245.60 and that the People have not validly stated ready for trial. As such, the defendant contends that speedy trial time has continued to run, and the case is well-beyond the 90 days of includable time and thus must be dismissed pursuant to CPL §30.30. The defendant cites a plethora of lower Court cases where Courts have dismissed criminal cases pursuant to CPL §30.30(5-a). The People cite CPL §30.30(5), the subdivision immediately preceding §30.30(5-a), which states that “[a]ny statements of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter ” They contend that pursuant to CPL §30.30(5) the legislature clearly required the People to file their COC before or at the same time as their Statement of Readiness. The People argue that the legislature could have used the same or similar language in CPL §30.30(5-a), as it was part of the same legislation passed in April of 2019, but did not. As such, the People interpret CPL §30.30(5-a) to require that the facial sufficiency certification be made, but not that said certification must be made prior to or accompanying the Statement of Readiness. The People cite to the Hon. Adam Perlmutter’s Decision and Order from Kings County Criminal Court in People v. Aviles ( — Misc 3d &mdash, 2021 NY Slip Op 21127 [Crim Ct, Kings County 2021]). In that the case, the Court differentiates CPL §§30.30(5) and 30.30(5a) holding that CPL §30.30(5-a) does not include language that the statement of readiness “must be accompanied or preceded by” COC with partial conversion proscription, and concludes that the differentiation between the language in the statutes was a conscious decision by the Legislature, supported by the fact that both statutes were passed together as part of the same executive budget. The case further held that the facial sufficiency certification “shall be made” for a statement of readiness to be “valid,” not that the certification must be made prior to or accompanying the statement of readiness. The People argue that upon filing their CPL §30.30(5-a) certification on May 4, 2021, the COC is now compliant and all counts in the accusatory instrument are fully converted and facially sufficient. The defendant, in his Reply, maintains that a plain reading of CPL §30.30(5-a) requires that the Court find the People’s February 14, 2020 and March 19 COC’s are invalid. The defendant contends that pursuant to CPL §30.30(5-a) the People must file the required certification before or contemporaneously with any statement of readiness for that readiness to be valid. The defendant further argues that the Legislature adopted CPL §30.30(5-a) to abrogate the practice of “partial conversion,” and that conversion is a necessary prerequisite to the People declaring readiness for the first time in such matters. Defendant contends that if the People are permitted to make a “post-hoc” certification of prior statements of readiness under CPL §30.30(5-a) it would defy logic and ignore the real legislative intent of the statute. The defendant maintains that, pursuant to the January 1, 2020 amendments to CPL §30.30, the People must now complete the following in order to state ready for trial: 1) certify full conversion and sufficiency pursuant to CPL §30.30(5-a); 2) certify discovery compliance pursuant to CPL §30.30(5); and 3) then submit to an inquiry by the Court to assess whether they are actually ready for trial. Discussion Under CPL §§30.30 (5) and (5-a), the People must certify their readiness for trial by showing a good faith compliance with the CPL §245.20 disclosure requirements and certify that the accusatory instrument is facially sufficient. The issue before this Court is when this certification is required to be filed and whether a retroactive certification is permitted under CPL §30.30(5-a). The defendant cites numerous decisions, in their Notice of Motion and Reply Affirmation, wherein the lower Courts have held that CPL §30.30(5-a) should be strictly construed such that the People must certify compliance contemporaneously with the filing of the COC and statement of readiness, and if the People do not certify in accordance with CPL §30.30(5-a) within this period their statement of readiness is per se invalid. This Court disagrees. When determining a question of statutory interpretation, the court’s primary consideration “is to ascertain and give effect to the intention of the Legislature” (McKinney’s Cons Laws of NY, Statutes §92). It is well-settled that “[t]he statutory text is the clearest indicator of legislative intent” and the court “should construe unambiguous language to give effect to its plain meaning” (Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653, 660 [2006]). This Court is well aware of the legislative history and the sweeping changes enacted in 2019 regarding CPL §30.30, which went into effect on January 1, 2020. In their papers, both the defendant and the People attempt to decipher for this Court the intent of the legislators in drafting CPL §30.30(5) and CPL §30.30(5-a), dissecting almost every word in an attempt to sway this Court to adopt their interpretation. The People, in their Affirmation in Opposition to the defendant’s Notice of Motion, cite a Decision and Order from Kings County Criminal Court, People v. Aviles, wherein the Court addresses this very issue on analogous facts. In Aviles, similar to the case at bar, the People filed a COC without including the CPL §30.30(5-a) certification language and the defendant filed a Motion to Dismiss based upon the People’s alleged failure to comply with CPL §30.30(5-a). The Aviles Court held that pursuant to CPL §30.30(5-a) the People are required to certify that all counts charged in the accusatory instrument meet the requirements of CPL §§100.15 and 100.40 prior to submitting a valid statements of readiness, but no distinct timetable is posited by the statute for this certification to be completed. This Court agrees with the Aviles Court in its interpretation of CPL §30.30(5-a) as well as its analysis: “[P]ermitting subsequent CPL §30.30(5-a) certification is consistent with the policy interests that require a court to refrain from dismissing an otherwise defective instrument that “may be cured by amendment and where the people move to so amend.” See, CPL §170.35(1)(a). Here, the defect is the lack of a boilerplate declaration that all the counts of the information are corroborated and, in the People’s view, meet the requirements for a valid accusatory instrument as to each count for which the People are announcing ready for trial. Allowing the People to make such a subsequent 30.30(5-a) declaration for a statement of readiness does not run afoul of the letter or intent of the law. To the contrary, it is in accord with the Court’s discretionary powers to bring about the intent of the Legislature in implementing. See, e.g., CPL §245.35(4) (“[t]o facilitate compliance with this article…the court in its discretion may issue an order…requiring other measures or proceedings designed to carry into effect the goals of this article”). The Court is also ever cognizant of the need to interpret statutes to not being about absurd results, which would be the effect of dismissing a valid local accusatory instrument for the omission of boilerplate language that has no effect on the charges in this matter. See People v. Santi, 3 NY3d 234, 243, 785 N.Y.S.2d 405, 818 N.E.2d 1146 (2004) (“we must interpret a statute so as to avoid ‘unreasonable or absurd’ application of the law….”).” In the case at bar, the People filed their COC and statement of readiness on February 14, 2020 as well as a supplemental COC on March 19, 2020, which, if found by this Court to be valid, would satisfy the People’s burden pursuant to §30.30. At no point prior to filing the Motion to Dismiss on April 5, 2021, over a year from the filing of the February 14, 2020 COC including approximately nineteen (19) appearances by this Court, did the defendant challenge the facial sufficiency of any of the counts in the accusatory instrument or the validity of the People’s COC. Furthermore, once the People were alerted to the fact that they had not submitted their CPL §30.30(5-a) certification, they submitted a Supplemental COC on May 4, 2021 and included the necessary certification language. While this Court acknowledges that it would certainly be in the People’s best interest to certify the accusatory instrument prior to or contemporaneously with their statements of readiness for trial in the future, the People’s failure to do so in this case is not fatal. The severity of the charges against the defendant, who is alleged to have threatened and assaulted his wife and broke her arm, the plain reading of the statute and the interests of justice provide that this Court permit the People to certify the “boilerplate” language required by CPL §30.30 (5-a) which had not been disputed by the defendant for over a year after the initial COC had been filed. As such, this Court finds that the People’s May 4, 2021 certification satisfies CPL §30.30 (5-a) and validates the People’s February 14, 2020 COC and statement of readiness. Conclusion For the foregoing reasons, this Court hereby denies defendant’s motion to dismiss in its entirety. The matter is adjourned to August 4, 2021 for hearings and trial. This constitutes the Decision and Order of the Court. Dated: June 14, 2021
