By indictment number 6601/19, the defendant is charged with: four counts of criminal contempt in the first degree; five counts of criminal contempt in the second degree; two counts of tampering with a witness in the third degree; four counts of harassment in the second degree; four counts of forcible touching; four counts of sexual abuse in the third degree; and, stalking in the third and fourth degrees, for events alleged to have occurred over a six month span and involving the same complaining witness.1 On April 19, 2021, the defendant filed a motion, pursuant to Criminal Procedure Law Section 245.50(1), challenging the People’s March 5, 2020 certificate of compliance and statement of readiness, along with a motion to dismiss the indictment pursuant to C.P.L. §§30.30 and 210.20(1)(g). The People oppose the defendant’s motion. Based on a review of the Supreme Court file, relevant transcripts, and the papers filed by the parties, this Court deems the People’s March 5, 2020 certificate of compliance and statement of readiness to be invalid and, as such, the defendant’s motion to dismiss is granted. On January 1, 2020, sweeping discovery reforms went into effect, repealing C.P.L. Article 240 and replacing it with an entirely new Article — C.P.L. §245. Newly enacted C.P.L. §245.20(1)(g) requires the People to disclose, inter alia, “all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident” and C.P.L. §245.20(1)(k)(iv) requires the People to disclose, inter alia, “evidence and information…that tends to…support a potential defense…reduce the degree of or mitigate the defendant’s culpability” or “impeach the credibility of a testifying prosecution witness.” Once the People have provided said recordings, evidence, and information, they must “serve upon the defendant and file with the court a certificate of compliance.” C.P.L. §245.50(1). The certificate certifies that the People have exercised “due diligence” and made “reasonable inquiries” in obtaining and providing discoverable materials and must be filed “in good faith.” Id. On March 5, 2020, the People filed a certificate of compliance and statement of readiness indicating that they had exercised due diligence and made reasonable inquiries to “ascertain the existence of discoverable material and information” and had disclosed “all known material and information” to the defense. On March 20, 2020, as the COVID-19 crisis surged, Governor Andrew M. Cuomo signed Executive Order 202.8, suspending C.P.L. §30.30. As a result, the case was next heard in court on October 16, 2020, when the People maintained their readiness and stated “[t]here is no additional discovery or Giglio” and asked for reciprocal discovery. The matter, therefore, was adjourned to January 11, 2021, for the defendant to file his certificate of compliance.2 On January 11, 2021, the defendant did not file a certificate of compliance, the People maintained their readiness, and the case was adjourned to April 13, 2021, once again, for the defendant’s certificate of compliance.3 Off-calendar on April 19, 2021, the defendant filed the instant motion challenging the People’s March 5, 2020 certificate of compliance and statement of readiness, arguing that: the People did not exercise appropriate diligence and/or make meaningful inquiry into the existence of discoverable material; the certificate of compliance was not filed in good faith; and, notwithstanding the Executive Order tolling the provisions of the speedy trial statute, the People’s failures prevented them from being ready for trial within the statutorily proscribed time period, and the case, therefore, must be dismissed.4 As is relevant here, on July 26, 2019 and September 21, 2019, the complaining witness called 911 with respect to two separate offenses she alleged the defendant committed either personally or by proxy. To date, neither of those 911 calls has been provided to the defendant — indeed, each has been destroyed. With respect to the July 26, 2019 call, the complaining witness called 911 as, she alleged, she had been threatened by a third party at the defendant’s behest. With respect to the September 21, 2019 call, the complaining witness called 911 to alert the police that she had just seen the defendant, against whom she had filed an earlier complaint report, and against whom she had been granted an order of protection.5 The People maintain that as the July 26, 2019 call related to threats allegedly made by a third party and not the defendant, it is not discoverable — they have no burden to provide it to him. To the contrary, newly enacted C.P.L. §245.20(1)(k)(iv) requires disclosure of “evidence and information…that tends to…support a potential defense…reduce the degree of or mitigate the defendant’s culpability” or “impeach the credibility of a testifying prosecution witness.” Here, the defendant is charged in a multi-count indictment with, inter alia, tampering with a witness and stalking. That the defendant was not charged with the specific incident described in the 911 call is of no moment. Indeed, the information contained in that 911 call could support a potential defense to the offenses charged, mitigate the defendant’s culpability, or impeach the credibility of the complaining witness.6 The Court, therefore, is unpersuaded that the 911 call was outside the scope of C.P.L. §245.20(1)(k)(iv). With respect to the September 21, 2019 call, the People contend that they were unaware that said call existed at the time the certificate of compliance was filed, and their failure to produce it, therefore, was inadvertent. Significantly, however, the People concede that paperwork prepared at the very onset of the case explicitly referenced the 911 call. And, C.P.L. §245.20(1)(g) requires the People to disclose, inter alia, “all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident.” Notwithstanding, the People filed a certificate of compliance certifying that they had exercised “due diligence” in obtaining and providing discoverable material. The Court simply cannot agree that due diligence was exercised.7 While the failure to provide a 911 call, or two 911 calls, does not per se invalidate a certificate of compliance, under the particular facts and circumstances of this case, the People’s failure to provide the July 26, 2019 and September 21, 2019 calls demonstrated a lack of due diligence and, therefore, invalidated their March 5, 2020 certificate of compliance. In light of the foregoing, the People must be charged with the time period from October 20, 2020, when the Executive Order tolling speedy trial time was lifted, to April 19, 2021, when the defendant filed the instant motion. When combined with the time periods conceded by the People in their response to the instant motion, it is plain that the People exceeded the speedy trial time allotted to them. The indictment, therefore, is dismissed. Dated: July 15, 2021
