Documents considered in review of this motion: 1. People’s Affirmation and Memorandum of Law in Support of Motion for Leave to Reargue, dated September 1, 2021; 2. Defendant’s Notice of Opposition to Prosecutor’s Motion for Leave to Reargue, dated September 16, 2021; 3. Defendant’s Affirmation in Opposition to Motion to Reargue, dated September 16, 2021. Defendant is charged by information with violating Penal Law §130.52(1), Forcible Touching, and Penal Law §130.55, Sexual Abuse in the Third Degree. On July 30, 2021, the court granted defendant’s motion pursuant to Criminal Procedure Law §§245.20 and 245.50 to invalidate the People’s Certificate of Compliance (COC) and Certificate of Readiness (COR) for the People’s failure to disclose material and information required by CPL 245.20 (1)(k) — specifically, materials underlying substantiated accusations of misconduct against the People’s police officer witness (People v. Williams, 72 Misc 3d 1214[A][Crim Ct, NY County 2021]). On September 16, 2021, the People moved for leave to reargue that motion. The request for leave to reargue is denied. Leave to Reargue A reargument motion “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (CPLR 2221[d][2]). While it is not settled that CPLR 2221 is applicable in criminal cases (see People v. DeFreitas, 48 Misc 3d 569 [Crim Ct NY County 2015]), courts have inherent power to correct their own mistakes. Thus, “reargument” is available, regardless of the applicability of CPLR 2221 to criminal proceedings (see People v. Godbold, 117 AD3d 565, 566 [1st Dept 2014]; People v. Baptiste, 70 Misc 3d 706, 708 [Crim Ct NY County 2020]; People v. Jones, 57 Misc 3d 590, 592-593 (Crim Ct Kings County 2017); People v. DeFreitas, 48 Misc 3d at 576-577). The People’s Motion for Leave to Reargue The People assert that the court “fail[ed] to distinguish between ‘good faith’ and ‘due diligence,’” and “improperly ascribed bad faith to the People’s COC filing….” That is not the case. As noted in the original decision, CPL 245.20 (2) requires that “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” (CPL 245.20 [2]). As explained in the original decision, the People here ascertained the existence of discoverable material and information — substantiated disciplinary accusations against the police witness. Thus, they fulfilled the first component of their obligation. But the People did not cause that material and information — the underlying files — to be made available for discovery. Thus, the People failed to satisfy the second part of their obligation under CPL 245.20(2). The People argue, as they did before, that because it was in “good faith” that they decided that the files were not discoverable, their failure to disclose should not affect the validity of their COC. The statute, however, does not concern the People’s rationale for failing to disclose. It requires simply that the People disclose discoverable information and material, whether or not such information is recorded in tangible form (People v. Williams, 72 Misc 3d at *4-*5; People v. Edwards, CR-003469-21NY [Crim Ct, NY County 2021]; People v. Soto, 72 Misc 3d 1153, 1163 [Crim Ct, NY County 2021]). The People did not do that here. It is for that reason that the People’s COC was deemed invalid. The People have not raised any matter that the court has misapprehended. The motion for leave to reargue is thus denied. Although leave to reargue is denied, several points are worth noting. First, in their opposition to defendant’s motion, the People argued that disclosure of the disciplinary records should not be required due to the burden and hardship that requiring disclosure of the underlying disciplinary materials would cause. That claim is belied by the fact that within 34 days of the court’s decision ordering disclosure, the People produced those materials to the defense. That is well within the allotted time period for discovery — including time allotted for voluminous materials (CPL 245.10 [1][a])1 Second, the People’s claim that the court has ascribed “bad faith” to their failure to disclose is incorrect. The People’s failure to disclose rendered their COC invalid, regardless of the rationale for that failure. Moreover, the absence of the particular diligent, good faith effort required by statute is not equivalent to “bad faith.” Third, as noted in the original decision, the court is aware of decisions by courts of concurrent jurisdiction ordering disclosure of withheld disciplinary records, while permitting COCs to stand (see People v. Porter, 71 Misc 3d 1187 [Crim Ct, Bronx County 2020]; People v. Kelly, 71 Misc 3d 1202[A] [Crim Ct, NY County 2021]). It may have been the newness of the statute that prompted those courts deciding the earliest cases under the new law to afford the People a kind of grace period to accommodate non-compliance. This court finds, however, no statutory authority for finding that a COC is valid once it is determined that the People have not met their discovery obligations. Further, to the extent a grace period was once justifiable, by the time discovery was due in the instant case, sufficient decisions requiring disclosure of substantiated disciplinary records had been handed down to place the People on notice of the peril of their nondisclosure. Fourth, to the extent the People rely on CPL 245.50 and 245.60, those provisions impose a continuing duty to disclose, without adverse consequences when the People provide additional discovery learned of “subsequent[]” to the initial discovery — that is, after the People have made their initial diligent, good-faith efforts to ascertain the existence of and then to disclose discoverable evidence. That is not the situation here, where from the outset the People decided not to disclose the disciplinary records. The People have not raised any element of law or fact that was misapprehended by the court. Accordingly, the People’s motion for leave to reargue is denied. This constitutes the decision and order of the court. Dated: October 19, 2021
