Motion of the defendant, by counsel, to invalidate the People’s Certificate of Compliance and Certificate of Readiness for Trial and dismiss the Indictment, is determined as hereinafter provided. The defendant, Juan Carlos Barrios Cajilima, is indicted under two (2) counts of Course of Sexual Conduct Against a Child [Penal Law 130.75(1)(a)] and under two (2) counts of Endangering the Welfare of a Child [Penal Law 260.10 (1)]. All allegations occurred at specific times during 2017, concerning crimes that were perpetrated against two girls eight (8) years of age. The defendant was arrested on December 20, 2018 and on December 21, 2018 a voluntary disclosure form [VDF] was provided to defense counsel. On or about January 7, 2020, under the newly enacted discovery law, the People filed and served an Automatic Discovery Form [ADF]. A subsequent ADF was filed and served on or about January 27, 2020. The People had previously filed their Certificate of Readiness for Trial on June 17, 2019. On or about November 3, 2021 the attorneys were directed by the Supervising Judge to proceed and commence trial on or about February 7, 2022. Thereafter, on January 14, 2022 the People filed and served a supplementary ADF and Certificate of Readiness for Trial and Supplemental Compliance. Thereafter, on or about January 31, 2022 the People discovered there were two statements that had not been previously turned over to defense counsel. As such, they were immediately turned over to defense counsel. The court notes these statements are beneficial to the People’s case. As a result of the January 31 turnover of statements, the defendant now moves to dismiss the Indictment. The specific reason put forth by defense counsel is that, as discovery was not complete, the original Certificate of Readiness for Trial is illusory, speedy trial applies and the Indictment should be dismissed. The People oppose, claiming good faith, and other reasons as well. CPL Section 245.20 (1) requires the prosecutor to disclose “all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.” Further, CPL Section 245.20 (2) states, in pertinent part, 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; 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. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge.” After the People have complied with their discovery obligation CPL Section 245.50 (1) requires that the prosecutor shall: “Shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising due diligence and making reasonable inquires to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. 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 of this article.” The People claim good faith as to their Certificate of Compliance as it is shown by their “diligent efforts to comply with their ongoing discovery obligations”. They note that they have continued to notify defense counsel with subsequent amended ADF’s, and have consistently made disclosures throughout the course of their case, all of which indicates, as they advocate, their good faith. Good faith, due diligence and reasonableness under the circumstances are the touchstones by which the People’s Certificate of Compliance with discovery must be evaluated. People v. Bruni, 71 Misc3d 913 (Albany Co. Ct. 2021). Upon a challenge to a Certificate of Compliance, the People must outline their efforts to comply with the statute governing discovery requirements with respect to the appropriate statutory provisions under CPL 245.20 (1) and CPL 245.50. The defense counsel claims “no sinister intent” on the part of the prosecutor as to withholding the two statements until January 14, 2022. It is clear the People have had this case passed to several Assistant District Attorney’s over several years. It appears the discovery of the statements are the result of “unintentional oversight” and not an act of bad faith. People v. Moore, 72 Misc3d 903 (Kings Co. Sup. Ct. 2021). Notwithstanding an absence of bad faith, among the sanctions the Court may consider for non-compliance is a dismissal of the action under CPL 245.80 (2). Defense counsel argues that as the Certificate of Readiness for trial is allegedly illusory, all subsequent time must be charged to the People, and the Indictment must be dismissed on the grounds of speedy trial under CPL 30.30. Although CPL 245.80 (2) includes dismissal as a sanction, there is no dismissal listed anywhere in Article 245 that would connect an absence of discovery with speedy trial dismissal. CPL 245.80 (2) reads as follows: “Available remedies or sanctions. For failure to comply with any discovery order imposed or issued pursuant to this article, the court may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness’s testimony or a portion of a witness’s testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges, or make such other order as it deems just under the circumstances; except that any sanction against the defendant shall comport with the defendant’s constitutional right to present a defense, and precluding a defense witness from testifying shall be permissible only upon a finding that the defendant’s failure to comply with the discovery obligation or order was willful and motivated by a desire to obtain a tactical advantage”. In statutory construction, commonly used words must be given plain and ordinary meaning. Reagan v. Heimbach, 91 AD2d 71 (3rd Dept. 1983). Where words of a statute are clear and unambiguous, they should be literally construed. People v. Munoz, 207 A2d 418 (2nd Dept. 1994. Clearly, had the legislature so chosen, when enacting this comprehensive statute in 2019, to include a dismissal on speedy trial grounds, they had the opportunity to do so and did not. This Court reasons that the failure of the legislature to include the speedy trial issue indicates that its exclusion was intended, and this Court refuses to insert this issue in the statute on the ground that it has no power to make judicial legislation. People v. Braunhut, 101 Misc3d 684 (Queens Co. 1979). Accordingly, dismissal by speedy trial does not apply. Moreover, the Court also notes, the defense counsel admits, that all adjournments were actually on consent or at the defendant’s request. The motive or strategy of defense counsel’s reasons for the adjournment requests are not needed to be reviewed by the Court. It is simply that the request was made on consent or by the defendant and speedy trial time will not be charged to the People. People v. Ortiz, 295 AD2d 134 (1st Dept. 2002); People v. Cambridge, 230 AD2d 649 (1st Dept 1996). Nevertheless, CPL 245.80 (2) does provide the sanction of dismissal of the charges. However, this Court believes that dismissal under this statute, where the People’s conduct was not intentional and therefore was not grossly improper as to warrant a dismissal of the Indictment. People v. Rodriguez, 73 Misc3d 411 (Queens Co. 2021). Notwithstanding the fact that this Court shall not dismiss the Indictment, the Court shall entertain an appropriate sanction under CPL 245.80 (2). The Court notes that the statements in issue, and potential testimony as it may relate to the statements, are beneficial to the People’s case. This Court will rule on the appropriate sanctions, in open court, on the eve of trial, along with other appropriate issues at that time. In reaching this determination, the Court considered and reviewed the motion papers and exhibits of defense counsel and the Affirmation in Opposition of the Assistant District Attorney and the People’s attached exhibits. This determination shall constitute the decision and Order of this Court. It is SO ORDERED, Dated: March 29, 2022
