DECISION and ORDER Defendant, Rafael Moran, is charged with two counts of Assault in the Third Degree (Penal Law §§120.00[1] and 120.00[2]), Endangering the Welfare of a Child (Penal Law §260.10[1]), Aggravated Harassment in the Second Degree (Penal Law §240.30[4]) and other related charges. Pursuant to Criminal Procedure Law §§30.30(1)(b), defendant moves to dismiss the accusatory instrument on speedy trial grounds. Defendant further challenges the People’s Certificate of Compliance (“COC”) and Certificate of Readiness (“COR”) under CPL §§245.20 and 245.50. Specifically, defendant argues that these documents are invalid because the People failed to turn over numerous documents prior to filing the COC. Finally, defendant argues that the People could not have been ready on the September 15, 2021 court date because their witnesses were unavailable and therefore this time should be chargeable to them. The People oppose the motion, arguing that since the August 27, 2021 COC was filed in good faith, there is no basis to deem the COC invalid. Moreover, the People maintain that they had contacted the necessary witnesses prior to September 15, 2021 and confirmed their availability prior to announcing ready for trial. Accordingly, for the reasons stated below, this Court holds the August 27, 2021 COC and COR valid and finds that a total of eighty-six (86) are chargeable to the People. As such, defendant’s motion to dismiss pursuant to §30.30 is DENIED. PROCEDURAL HISTORY Defendant was arraigned on June 2, 2021 in Criminal Court. The case was adjourned to July 1, 2021 for supporting deposition. On July 1, 2021, after the People filed and served a Domestic Incident Report (“DIR”), the accusatory instrument was deemed an information and the matter was adjourned to August 11, 2021 for trial. On August 11, 2021, the People announced not ready and the case was adjourned to September 15, 2021 for trial. On August 27, 2021, the People filed and served an off-calendar COR, COC, Automatic Discovery Form and Discovery List. According to the People, they disclosed arrest photos of defendant and inadvertently shared the same package containing body-worm camera recordings twice. They had intended to share an additional package containing police paperwork, images of the complainant’s injuries, 911 recordings and other materials but mistakenly did not. Included with the discovery actually turned over to defendant was an email, dated August 27, 2021, requesting that defense counsel contact the assigned assistant district attorney (“ADA”) if there was any outstanding discovery. On September 14, 2021, the ADA reiterated this request to defense counsel via email but did not receive a reply to either correspondence. When the parties appeared in Court on September 15, 2021, defendant argued that the People’s COR and COC were invalid due to outstanding discovery and that this case must be dismissed pursuant to §30.30. This Court then set a motion schedule. DISCUSSION CPL §30.30 (1) (b) requires dismissal of an accusatory instrument when the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, the charges carry the potential sentence of imprisonment of more than three months. The determination as to whether the People have satisfied their obligation under CPL §30.30 is done by computing the time between the filing of the accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under CPL §30.30(4) and then adding any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. In a motion to dismiss pursuant to CPL §30.30, the defendant bears the initial burden of demonstrating that the People were not ready within the statutory time period (People v. Sibblies, 22 NY3d 1174[2014]), People v. Santos, 68 NY2d 859 [1986]). The burden then shifts to the People to establish that a period should be excluded (CPL §30.30[4]). 1) June 2, 2021 to July 1, 2021: 29 Days Chargeable The accusatory instrument in this case was filed on June 2, 2021 and the matter was adjourned to July 1, 2021. This time — a total of twenty-nine days — is chargeable to the People. 2) July 1, 2021 to August 11, 2021: 41 Days Chargeable; 70 Total Days Chargeable While the complaint was deemed an information on this date, the People had not yet announced ready or filed a COC or COR. As such, an additional forty-one days are charged to the People. 3) August 11, 2021 to August 27, 2021: 16 Days Chargeable; 86 Total Days Chargeable The People announced not ready on August 11, 2021 and did not file a COC or COR until August 27, 2021. Therefore, an additional sixteen days are chargeable to the People. 4) August 27, 2021 to September 15, 2021: 0 Days Chargeable; 86 Total Days Chargeable The People filed and served an automatic discovery form with addendum, discovery list, COC and COR on August 27, 2021. Admittedly, the People did not provide all the necessary materials in this disclosure. While they did not turn over certain materials prior to the filing of these documents, this Court finds that the COC and COR to be nonetheless valid as the People filed them in good faith and in a reasonable manner under the circumstances (see CPL §245.50; People v. Knight, 69 Misc 3d 546, 552 [Sup. Ct., Kings Co. 2020]; People v. Androvic, 69 Misc 3d 563 [Crim. Ct., Kings Co., 2020]). That they later discovered that the materials were missing and moved to rectify the mistake quickly does not invalidate their prior COC since they have demonstrated good faith (see Androvic, supra). Moreover, defendant has failed to allege, let alone show, any prejudice from the missing discovery that is now in his possession. Additionally, this Court finds the People’s representation that they had spoken to the complainant and confirmed her availability for trial on September 15, 2021 a sufficient basis for their announcement of readiness. That the complainant told defense counsel and a private investigator that that “she does not wish [to] testify against her husband” is of no moment; that does not mean that she was unavailable to testify if called by the People. Moreover, while the complainant’s son and only other witness to the incident was reportedly out of the county, his unavailability did not negate the People’s readiness as the complainant and arresting officer were available. Turning now to the names of three 911 callers, the Court finds that defendant is not entitled to this information as the People maintain that they do not intend to call any of these individuals as witnesses (see CPL §245.20[1][g]). In any event, last names and phone numbers of at least two of the 911 callers were previously disclosed to defendant by the People. CONCLUSION The People have eight-six days charged of speedy trial time pursuant to CPL §30.30. Accordingly, it is hereby ORDERED that defendant’s motion to dismiss the accusatory instrument pursuant to CPL §30.30 is DENIED. This constitutes the decision and order of the court. Dated: October 20, 2021
