DECISION & ORDER The Court commenced a Dunaway/Mapp/Huntley hearing on February 24, 2022. In preparation for this hearing, the People discovered the existence of additional NYPD body-worn camera footage that had not been disclosed to defense. Defendant filed a motion to invalidate the People’s certificate of compliance pursuant to CPL 245.50[1], and for defendant’s release from custody pursuant to CPL 30.30[2]. STATEMENT OF FACTS Defendant was arrested on various weapons possession offenses and related charges on July 26, 2021. Defendant was arraigned in Richmond County Criminal Court on July 27, 2021. Defendant was subsequently indicted for Criminal Possession of a Weapon, in the Second Degree (PL 265.03[3]) and related offenses and arraigned in Supreme Court on August 18, 2021. The People filed a certificate of Compliance and a certificate of trial readiness on October 19, 2021. The certificate of compliance certifies that, after “exercising due diligence and making reasonable inquiries to ascertain the existence of discoverable material and information subject to discovery under CPL 245.20[1], the People have disclosed and made available to defendant all known material and information that is subject to discovery, except those items and information that are the subject of an order pursuant to CPL 245.70.” The certificate of trial readiness “affirms, under penalty of perjury, that the People are ready for trial” in this matter. The certificate of compliance was filed with an attached index of disclosures, which lists the discoverable items turned over to defendant. Contained within the index of disclosures is a list of body-worn cameras from police officers involved in defendant’s arrest. Included among these was a body-worn camera video from Sergeant Tiernan. On November 9, 2021, a motion schedule was set by this Court. An omnibus motion was filed by defendant on December 8, 2021, and the People filed a response to defendant’s motion on December 21, 2021. The matter was adjourned for decision on January 20, 2022. On that date, a decision was issued, and this Court adjourned the case for Dunaway/Mapp/Huntley hearings to be held on February 24, 2022. On February 24, 2022, the People announced ready for hearings, with the caveat that they had discovered the existence of additional discoverable material, which was provided to defendant that day. In preparation for the hearing, the People interviewed Sergeant Tiernan, and inquired as to why his body-worn camera was only activated for his interactions with the defendant, and not when he searched the defendant’s house. Sgt. Tiernan responded that he in fact did activate his body-worn camera upon entering the house to protect himself and fellow officers from any accusation of theft or property damage. It was at this point that the People realized they were only in possession of one video from Sgt. Tiernan, when two videos existed. The Court commenced the hearing on February 24, 2022, with testimony from Police Officer Ismael Diaz. After taking Officer Diaz’s testimony, the Court adjourned the hearing to give defendant an opportunity to review the belatedly disclosed body-worn camera before taking any testimony from Sgt. Tiernan. The Court adjourned this matter to April 11, 2022. In the interim, defendant filed a motion seeking 1.) invalidation of the People’s certificate of compliance under CPL 245.50[1], 2.) release of the defendant from custody pursuant to CPL 30.30[2][a], and 3.) granting such other relief as the Court may deem proper. The People filed opposition. Defendant argues, in sum and substance, that the certificate of compliance must be invalidated because of the categorical language of CPL 245.50[1], which states that the certificate of compliance “must state that all known material and information subject to discovery has been disclosed and made available, except for items that are lost or destroyed as provided by CPL 245.80[1][b].” Defendant further claims that good faith and due diligence on the part of the prosecution is irrelevant to this analysis. Defendant further asks the Court to impose sanctions pursuant to CPL 245.55 and 245.80. Finally, defendant asserts that more than 90 days have elapsed before the filing of a valid statement of readiness, and thus defendant should be released from custody pursuant to CPL 30.30[2]. The People argue that they acted in good faith and exercised due diligence. The People further state that at the time of defendant’s arrest, and prior to any arraignment, the arresting officer, Police Officer Diaz, provided the Richmond County District Attorney’s Office (RCDA) with a form known as a “Body Worn Camera Checklist” This form lists all officers involved in an arrest, and whether they were equipped with body-worn camera. A copy of this list was provided to the Court as People’s Exhibit A. Sgt. Tiernan is listed as a body-worn camera participant. Based on this, the People made a request for all body-worn camera footage and received said footage from the NYPD. Sgt. Tiernan’s video was uploaded to the RCDA electronic case and evidence management system at approximately 10:54 a.m. on July 28, 2021. Sometime after this, an RCDA technician noted that he would be requesting “any outstanding video + interrogation videos.” Body-worn camera videos, including Sgt. Tiernan’s video, were shared with defendant on August 17, 2021. The People further allege that at the time of the filing of their certificate of compliance, they had performed their due diligence, as they had no reason to know that a subsequent video existed, and only realized such in preparation for the pre-trial hearings. CONCLUSIONS OF LAW 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. CPL 30.30 [2] provides that a defendant, committed to custody, must be released on bail or his own recognizance if the People are not ready for trial in a felony criminal action with 90 days. Pursuant to the recent amendments to the Criminal Procedure Law, CPL 30.30[5] provides that any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of CPL 245.20. When the prosecution has provided the discovery required by CPL 245.20[1], it shall serve upon defendant and file with the Court a certificate of compliance (CPL 245.50[1]). The CPL clearly contemplated situations where not every single item of discovery would be turned over prior to the filing of a certificate of compliance,, specifically by enacting CPL 245.60, 245.55, and CPL 245.80. CPL 245.60 provides that in the event the prosecution “subsequently learns of additional material…which it would have been under a duty to disclose…it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article.” CPL 245.55 states that “no adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80.” 245.80[1][a] provides that “when material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced.” The only purpose of a certificate of compliance is to serve as a “necessary prerequisite to a valid statement of readiness” for CPL 30.30 purposes. Thus, the only legal effect of declaring a certificate of compliance to be invalid would be a finding that the People’s statement of trial readiness would be illusory (People v. Barnett, 68 Misc.3d 1000 [N.Y. County Supreme Ct. 2020]; People v. Benitez, 73 Misc.3d 804 [N.Y. County Supreme Ct, 2021]). This Court notes that “good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated” See People v. Marin, 2022 N.Y. Misc. LEXIS 858 [Bronx Co. Crim. Ct. 2022]; People v. Perez, 73 Misc. 3d 171, 177 [Queens Co. Sup, Ct. 2021]. The People have outlined the reasonable steps taken to obtain discovery in this case (Marin, supra). The People received a checklist from the NYPD listing all body-worn camera participants involved in defendant’s arrest; requested videos from all members of service listed; and had an RCDA technician follow up to request “any outstanding video” which was met with negative results. The fact that the People had a video in their possession from Sgt. Tiernan, and disclosed such video, led them to believe that they were compliant with their discovery obligations. Sgt. Tiernan was not the arresting officer, and not a necessary Grand Jury witness. As such, the only time the People spoke with him, and reasonably so, was during preparations for pre-trial hearings. The recently discovered body-worn camera video of Sgt. Tiernan is indisputably discoverable. The People indicated that they turned this video over to defendant once they learned of its existence and obtained it, on February 24, 2022. However, this is not a situation where the People knew this piece of discovery was outstanding and nonetheless filed a certificate of compliance regardless (People v. Aquino, 72 Misc 3d 518 [Kings Co. Sup. Ct. 2021]). The “mere fact that the People have committed a discovery violation does not render the statement of readiness illusory, particularly when the People are otherwise actually ready to try the case” (People v. Deas, 2022 N.Y. Misc. LEXIS 927 [Westchester Co. Sup. Ct. 2022]). Further, defendant has not shown that he has been prejudiced by the People’s belated disclosure of the body-worn camera video. In fact, this Court adjourned the pre-trial hearings to give defendant time to review the late disclosure before his cross-examination of Sgt. Tiernan. As such, defendant’s motion to invalidate the People’s certificate of compliance is denied. Defendant’s motion for release pursuant to CPL 30.30[2][a] is denied as moot. The Court will entertain additional motions only to the extent that such motions are based upon new and formerly unavailable information. Dated: April 11, 2022
