DECISION & ORDER Upon review and consideration of the submissions, court file and relevant law, defendant’s motion to deem the certificate of compliance (“COC”) filed on November 18. 2021 to be improper under CPL §245.50 (1) and to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL §§30.30 and 210.20 (1)(g), as a result of the defective COC. is granted. The reasons for the court’s decision are explained below. Procedural Background Defendant Jaime Perez was arrested on September 4, 2021 and charged with three (3) counts of operating a motor vehicle while under the influence of alcohol or drugs (Vehicle and Traffic Law §1192 [1], [2] and [3]). He was arraigned on the same day and released on his own recognizance. The People provided various discover) materials to the defense and on November 18, 2021, served and filed a certificate of compliance (COC) and statement of readiness. On December 7, 2021, the parties appeared in All-purpose Part 3 (“AP3″) and the People asked to be found in compliance with their discovery obligations, which was challenged by the defense. The court (Hon. Joseph J. McCormack) instructed defendant to put his objections to the COC in writing and a motion schedule was set. By notice dated February 10, 2022, defendant moved for an order: (1) deeming the November 18. 2021 COC to be a nullity under CPL §245.50 (1) on the ground that certain materials discoverable pursuant CPL §245.20 (1) were not disclosed and made available to the defense: and (2) dismissing the accusatory instrument pursuant to CPL §§30.30 and 210.20 (1)(g), as a result of the defective COC. Specifically, defendant asserts that prior to filing the certificate of compliance, the prosecution failed to comply with CPL §245.20 (1)(e) and (s) because the following items were not provided: (1) memo books for three of the five police officers involved in defendant’s arrest — explaining that the prosecution turned over body worn camera footage for five officers but memo books for only two of the officers; (2) NYDP Scratch Report for the Arrest Report Worksheet; (3) a formalized and finalized copy of the Collision Information Exchange (PD 302-257); (4) a formalized and finalized copy of the police accident report (MV 104AN); (5) a formalized and finalized copy of the motor vehicle accident report (MV 104); (6) a Truck and Bus Supplemental Police Accident Report (MV 1045); and (7) calibration reports. By affirmation dated March 4. 2022, the People opposed, arguing that they met their burden under CPL §245.50 (1) as they filed a COC and statement of readiness after exercising due diligence and making reasonable inquiries to ascertain the existence of material subject to discovery. The People urge that they turned over all discoverable items provided to them, substantially complied with their discovery obligations, and made good faith efforts to provide discovery materials under CPL §245.20 (1).1 The People simply state that: (1) the memo books of all five officers were provided to the defense on March 4, 2022; (2) the NYPD arrest report was “re-shared” with the defense on March 4, 2022 and they made inquiries of the arresting officer and precinct discovery liaison regarding the scratch report for the arrest report worksheet, which has yet to be provided: (3) collision information was “re-shared” with the defense on March 4, 2022 and they made inquiries of the arresting officer and precinct discovery liaison regarding the Collision Information Exchange, which has yet to be provided: (4) the NYPD Motor Vehicle Worksheet was “re-shared” with the defense on March 4. 2022; (5) they inquired of the arresting officer and precinct discovery liaison with respect to the Truck and Bus Supplemental Police Accident Report, which has yet to be provided; and (6) calibration reports were provided on March 4, 2022.2 The People further maintain that they recognize their continuing duty to supply disclosure and the minimal amount of discovery that remains outstanding is not due to a lack of a good faith effort on their part. The People argue that the defense failed to set forth any harm, to warrant the imposition of remedies or sanctions by this court. In reply, the defense maintains that the prosecution conceded that the memo books for all five (5) officers, calibration reports, and NYPD Arrest Report were not provided to it until March 4, 2022 (which was more than 90 days after this action was commenced), and the prosecution failed to explain why these materials were not previously provided. The defense further maintains that while the prosecution stated that they “re-shared” the NYPD Arrest Report, Collision Information, NYPD Motor Vehicle Collision Worksheet as of March 4, 2022, the prosecution did not state when the materials were originally provided. The defense contends that the materials claimed to be “re-shared” were not in fact supplied prior to the filing of the prosecution’s certificate of compliance and statement of trial readiness. Discussion Pursuant to CPL §30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time period set forth by the relevant speedy trial provision. In this case, it is undisputed that the prosecution must be ready for trial within ninety (90) days of the commencement of the action, because defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three (3) months (see CPL §30.30 [1] [b]).3 Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (see People v. Stiles, 70 NY2d 765, 767 [1987]). Here, all parties do not dispute that the speedy trial clock started on September 5, 2021. To satisfy the initial burden under CPL §30.30, a defendant need allege “only that the prosecution failed to declare readiness within the statutorily prescribed time period” (People v. Luperon, 85 NY2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v. Berkowitz, 50 NY2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v. Cortes, 80 NY2d 201. 208 [1992]). Trial readiness means that the prosecutors must have “done all that is required of them to bring the case to a point where it may be tried” (People v. England. 84 NY2d 1, 4 [1994]) and a proper certificate of compliance with the disclosure requirements of CPL §245.20 must have been filed (see CPL §§245.50 [3]; 30.30 [5]; People v. Adrovic, 69 Misc 3d 563, 575 [Crim Ct. Kings County 2020]). Under the “initial discovery” provision of CPL §245.20 (1), soon after the commencement of an action, “[t]he prosecution shall disclose to the defendant and permit the defendant to discover, inspect, copy, photograph and test, 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, including but not limited to” a non-exhaustive list of materials. The prosecution is to make a diligent and good faith effort to ascertain the existence of the discovery materials and make them available to the defense, even if the information is not in the prosecution’s physical possession, except for lost or destroyed material, and materials subject to a protective order (see CPL §§245.20 [2]; 245.70 [1]; 245.80 [1][b]). Unless the court has made “an individualized finding of special circumstances…the prosecution shall not be deemed ready for trial for purposes of section 30.30…until it has [fulfilled its discovery obligations under CPL §§245.20 (1) and] filed a proper certificate [of compliance]” (CPL §245.50 [3]; see also People v. Aquino, 72 Misc 3d 518. 520 [Crim Ct. Kings County 2021]). CPL §245.50 (1) sets for the requirements for a COC as follows: [t]he certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries 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 (emphasis supplied). The statute further states that where “additional discovery is subsequently provided prior to trial pursuant to section 245.60 [under the prosecution's continuing duty to disclose material discovered after the initial discovery has been exchanged and a COC filed], a supplemental certificate shall be served…identifying the additional material and information provided” (CPL §245.50 [1]). The last sentence of CPL §245.50 (1) states: “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 only logical way to interpret CPL §§245.50(1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, is to first examine the People’s “actual readiness” (CPL 30.30 [5]); that is, whether the prosecution has “done all that is required of them to bring the case to a point where it may be tried,” including filing a valid COC (People v. England, 84 NY2d at 4). In order to find the COC to be valid, the Court must be satisfied that it was filed in “good faith and reasonable under the circumstances” (CPL §245.50 [1]). If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged (see People v. Pierna, __ Misc 3d ___. 163 NYS 3d 897, 909 [Crim Ct. Bronx County 2021]). They must detail the reasonable inquiries made to obtain these discoverable materials (see id.; CPL §245.50 [1]). If after review of the details provided by the prosecution, the court is satisfied that the COC was filed in good faith despite the discovery that was not exchanged, it may consider appropriate sanctions pursuant to CPL §245.80, the severity of which may depend on any prejudice the defense suffered as a result of the discovery that was not exchanged prior to the filing of the COC (see CPL §245.50 [1]). If the court finds that the COC was not filed in good faith, the certificate of compliance shall be deemed invalid and there is no need to consider the sanctions under CPL §245.80, or to consider if the defense was prejudiced, (see People v. Georgiopoulos, 71 Misc 3d 1215 [A], *3 [Sup Ct, Queens County 2021]; People v. Adrovic, 69 Misc 3d at 574). Thus, “discovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith nor an absence of bad faith, standing alone, can exempt the People from these requirements” (People v. Aquino, 72 Misc 3d at 5; People v. Georgiopoulos, 71 Misc3d 1215[A]. *3 [Sup Ct. Queens County 2021] ["good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated"]). Rather. “[w]hen the People submit documentation to the court certifying their compliance with their statutory obligation, they must do more than merely mouth the words” (People v. Adrovic, 69 Misc 3d at 574-75). Here, the court finds that the People failed to meet their discovery obligations when the COC was filed and therefore, the certificate is deemed invalid. It is undisputed that on November 18, 2021, when the COC and statement of readiness were served and tiled, several items of discovery that were known to exist — including three (3) out of five (5) of the police officers’ memo books and calibration reports — had not been provided to the defense. Notably, the People’s COC lists that “memo books” were provided to defendant, yet the People conceded in response to the within motion that “all known” memo books were not supplied to defendant until March 4, 2022, almost four months after the COC was filed (CPL §245.50 [1]). “[C]ontrary to the People’s contention, their filing of the certificate of compliance pursuant to CPL 30.30 (5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery…was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)” (People v. Brann, 197 AD3d 787. 788 [2nd Dept 2021] [emphasis supplied]; see also People v. Diaz, ___ Misc 3d ____, 2022 NY Slip Op 22083, *3 [Crim Ct. Bronx County March 16, 2022] ["[w]ithout the express permission of the court, the statute does not permit the prosecution to file a certificate of discovery compliance [claiming] to have exercised due diligence and turned over all know material and information when the prosecution has not actually done so”]). Additionally, the People failed demonstrate or detail any “due diligence” or how they made reasonable inquiries or provide any details of the good faith efforts they made to obtain the discovery not disclosed prior to their filing of the COC (see People v. Adrovic, 69 Misc 3d at 575-76 [People's unexplained failure to provide discovery rendered the certificate of compliance and statement of readiness illusory]; People v. Aquino, 72 Misc 3d at 523-24 [certificate of compliance invalidated where People failed to provide known discovery and no showing of diligence]: People v. Georgiopoulos, 71 Misc3d 1215[A], *6 [CPL §245.50 [1] [given the deficiencies in both the certificate of compliance and People's explanation, the court found no showing of due diligence and certificate deemed invalid]).4 The prosecution’s conclusory assertions of due diligence, without specific details regarding actual steps they took to obtain the discovery prior to filing the COC, are insufficient (see People v. Georgiopoulos, 71 Misc3d 1215[A] *3). Significantly, the People offered no explanation whatsoever as to their attempts to obtain the three (3) memo books and calibration reports, that were admittedly not disclosed with the COC and which were ultimately disclosed almost four (4) months after the COC was filed (and approximately one month after defendant moved to dismiss). Rather, the People merely list in their response to the motion that “[m]emo [b]ooks for all five officers were provided to [d]efense…on March 4. 2022″ and “[calibration reports…were provided to the defense…on March 4, 2022" (Response in Opposition, at 6-7). Further, the People fail to state when the items they claim were "reshared" to the defense (the NYPD Arrest Report. Collision Information, NYPD Motor Vehicle Collision Worksheet) were originally disclosed and in particular, whether the original disclosure was prior to the filing of the COC. The People did not request a protective order or additional time to comply with their discovery obligations upon a showing of good cause pursuant to CPL §245.70 (1) and (2), and they also did not seek "an individualized finding of special circumstances" from the court, as permitted by CPL §245.50 [3]). Nor did they assert that any of the missing discovery was “lost or destroyed” (id.). Moreover, “the People’s obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant” (People v. Adrovic, 69 Misc 3d at 574; see also People v. Diaz, ___ Misc 3d ____. 2022 NY Slip Op 22083, *4 [prejudice analysis not to be considered when assessing validity of a certificate of discovery compliance]).5 Since the COC has been deemed invalid, the People’s statement of readiness filed on November 18, 2021 was ineffective to stop the speedy trial clock under CPL §30.30 (see People v. England, 84 NY2d at 4 ["A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock"]). The speedy trial clock therefore continued to run through December 7, 2021, the date the motion schedule was set. The court finds a total of 94 days6 are chargeable to the prosecution for the time period from arraignment (September 4, 2021), through December 7, 2021. Since the prosecution was not ready for trial within 90 days of commencement of this criminal action, defendant’s motion to dismiss pursuant to CPL §30.30 is granted, and it is ordered that this matter is hereby dismissed.7 Dated: May 6, 2022
