By motion filed March 1, 2022, defendant moves for an order deeming invalid the People’s certificates of compliance (COC), and dismissing the accusatory instrument pursuant to Criminal Procedure Law §30.30 (1) (b). The People filed a response on March 17, 2022.Defendant replied on March 29, 2022. On May 18, 2022, the court, after a review of the motion papers, exhibits, and the court file, on the record in open court, granted defendant’s motion to dismiss. This Decision and Order provides the court’s reasoning. Relevant Facts and Procedural History On August 18, 2021, defendant was arraigned on an accusatory instrument charging him with forcible touching (Penal Law §130.52 [1]) and forcible touching (Penal Law §130.52[2]), class A misdemeanors, and sexual abuse in the third degree (Penal Law §130.55), a class B misdemeanor. Bail was set and the case was adjourned to August 23, 2021, pursuant to CPL 170.70, for conversion of the criminal complaint to an information. On the court date of August 23, 2021, supporting depositions were filed, the complaint was deemed an information, and the securing order was modified from bail to supervised release. The case was adjourned to October 4, 2021, for trial. On the court date of October 4, 2021, the People were not ready for trial, and the case was adjourned to November 9, 2021, for trial. On October 18, 2021, the People filed and served a purported COC, certificate of readiness (COR), automatic discovery form (ADF), and list of discovery and Rosario materials, including disclosure advisory forms (DAF) for three testifying officers, off-calendar. On November 8, 2021, the People served a purported supplemental COC, off-calendar. On the court date of November 9, 2021, the People announced ready for trial. Defendant was not ready, and the case was adjourned to December 9, 2021, for trial. On this date, defense counsel emailed the People requesting discovery that had not been disclosed, including the following items that are relevant to this motion: a property voucher, clarification on which officers would be testifying, underlying disciplinary records for the testifying officers, a New York City Police Department (NYPD) “scratch 61″ complaint report worksheet, and NYPD Special Victims Unit (SVU) officers’ names and DD5s. On November 16, 2021, the People filed and served a second purported supplemental COC, a new ADF, and a COR, off-calendar. This purported COC included all documents and information requested in defense counsel’s aforementioned email, with the exception of NYPD disciplinary records. On November 30, 2021, defendant filed and served an omnibus motion, off-calendar. The People filed their response on December 8, 2021. On the court date of December 9, 2021, the court granted Wade, Mapp, and Dunaway hearings, and the case was adjourned to January 26, 2022, for hearings and trial. On the court date of January 26, 2022, the People were not ready for hearings and trial because the assigned Assistant District Attorney was unavailable and requested an adjournment to February 1, 2022. The case was adjourned to February 8, 2022, for hearings and trial. On the court date of February 8, 2022, the People announced ready. At defendant’s request, a motion schedule was set. The case was adjourned to April 18, 2022, for decision. On February 22, 2022, the People filed a third purported supplemental COC, ADF, and COR, off-calendar. On March 15, 2022, the People filed a superseding information dated September 4,2021, which had never been filed or disclosed, off-calendar. On the court date of April 18, 2022, the case was adjourned to May 18, 2022, for decision.1 Discussion Criminal Procedure Law §30.30 Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL30.30 [1] [b] [4]). Computation for speedy trial purposes commences on the day after arraignment (People v. Stiles, 70 NY2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v. Santos, 68 NY2d 859[1986]; People v. Berkowitz, 50 NY2d 333 [1980]). Defendant argues that more than 90 days of includable time have elapsed since the commencement of the criminal action because the People’s purported COCs were invalid, as the People failed to disclose items within their possession either at all, or in accordance with CPL 245.20 and 30.30 (5) (a). According to defendant, the People declined to disclose underlying records related to substantiated and unsubstantiated misconduct for testifying officers, names and contact information for civilian outcry witnesses, and written statements by the complaining witness to those witnesses. Also according to defendant, the People belatedly disclosed an NYPD property voucher and photographs for a Metro card seized as evidence, a “scratch 61″ worksheet and online booking system arrest worksheet, names and affiliation of SVU personnel, SVU DD5s, a video-taped interrogation, designation of testifying law enforcement witnesses, and a signed criminal court complaint. The People’s refusal to disclose the information and material underlying the misconduct allegations requires that defendant’s motion be granted. Thus, this decision does not address the other items that, according to defendant, were disclosed belatedly or not at all. Trial Readiness is Contingent on Compliance with CPL 245.20 Pursuant to CPL 245.20 (1), the People must automatically disclose to defendant “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.”"[A]ll 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” (CPL 245.20 [2]). CPL 245.20 (2) further directs the People to make a diligent, good faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control. Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and 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” (CPL 245.50[1]). The filing of a COC cannot 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 ex rel. Ferro v. Brann, 197 AD3d787, 787 [2d Dept 2021], citing People v. Aquino, 72 Misc 3d 518, 523 [Crim Ct, NY County2021]). Pursuant to CPL 30.30 (5), the People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense. Additionally, pursuant to CPL245.50 (3), “the prosecution shall not be deemed ready for trial for purposes of section 30.30of this chapter until it has filed a proper certificate pursuant to subdivision one of this section.” Police Officer’s Disciplinary Records that Tend to Impeach Must Be Disclosed This court has addressed this issue several times since article 245 was enacted. Each time, the court has rejected the People’s generic assertion that they need not disclose materials and information underlying substantiated and unsubstantiated disciplinary findings. Criminal Procedure Law §245.20 (1) (k) (iv) requires that the People disclose: [a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to…impeach the credibility of a testifying prosecution witness.…Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form. Consistently, this court has held that that CPL 245.20 (1) (k) (iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of misconduct before a valid COC can be filed (see People v. Darren, 2022 NY Slip Op 50415(U), 2022 WL1614380 [Crim Ct, NY County 2022]; People v. Soto, 72 Misc 3d 1153 [Crim Ct, NY County2021]; People v. Williams, 72 Misc 3d 1214 [A] [Crim Ct, NY County 2021]). Other judges in this courthouse have likewise rejected the People’s generic claims in this regard (see People v. Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021 (Weiner, J)]; People v, Barralaga, 73Misc 3d 510 [Crim Ct, NY County 2021 (McDonnell, J)]; People v. Kelly, 71 Misc 3d1202 [A] [Crim Ct, NY County 2021 (Gaffey, J)]); People v. Ahmed Mohammed, CR-026662-21NY [Crim Ct, NY County, Apr. 28, 2022 (Wang, J)]; People v. Abdul Salaam, CR-019124-21NY [Crim Ct, NY County, Apr. 19, 2022 (Maldonado Cruz, J)]). Courts of other jurisdictions have ruled similarly (see People v. Perez, 71 Misc 3d 1214 [A] [Crim Ct, Bronx County 2021]; People v. Herrera, 71 Misc 3d 1205 [A][Dist Ct, Nassau County 2021]; Peoplev Cooper, 71 Misc 3d 559 [County Ct, Erie County 2021]; People v. McKinney, 71 Misc 3d1221 [A] [Crim Ct, Kings County 2021]; People v. Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020]; People v. Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v. Rosario, 70 Misc 3d 753 [Albany County Ct 2020]). Significantly, in Matter of Jayson C (200AD3d 447, 449 [1st Dept 2021]), the First Department held, on Equal Protection grounds, that respondents in juvenile proceedings are entitled to the same impeachment material as defendants in criminal cases, and that a mere summary of substantiated allegations is insufficient to comply with CPL 245.20 (1) (k) (iv), “which broadly requires disclosure of all impeachment evidence.” The ability to test — to confront — an adverse witness’ credibility through impeachment is a fundamental right. Several courts considering the scope of CPL 245.20 (1) (k) have found that there can be a good faith basis to cross-examine police witnesses about substantiated allegations that are clearly supported by facts — and even as to unsubstantiated allegations when sufficient evidence is available (see People v. Kelly, 71 Misc 3d 1202 [A]; People vKayjon Yizar, Ind No. 2105/19 [Crim Ct, Bronx County 2021]; People v. Randolph, 69 Misc3d 770). Indeed, underlying disciplinary records — rather than summaries of those records — may well be necessary to establish a good faith basis for cross-examination about specific disciplinary matters. The People’s assertion that they are not required to disclose material and information underlying the allegations of the testifying officers’ misconduct is not based on the facts or circumstances of this case. The People do not claim to have encountered any impediments to obtaining the materials at issue here, or that there would have been any difficulty in providing them to defendant. Nor do the People describe any good faith efforts made to ascertain the existence of the disciplinary actions or to disclose the materials and information underlying them. The People do not allege that evidence of any particular instance of the testifying officers’ substantiated or unsubstantiated misconduct would not tend to impeach those officers’ credibility as witnesses in this case. Rather, in the boilerplate fashion that has been offered time and again, the People claim that they need not disclose any underlying materials and information because disciplinary findings are a “collateral issue,” not related to the subject matter of the case, unless the misconduct occurred in this particular case, and because disclosure “would impose an insurmountable burden on police departments, prosecutors, and the criminal justice system.” The People argue too that dismissal is inappropriate, as the irrefusal to disclose caused no prejudice. The People’s assertions are of no avail. The People’s claim that disclosure of the underlying materials presents an insurmountable burden on their office is inapposite in this case, which, like most cases in courts of criminal jurisdiction, involves a limited number of police witnesses and a small number of disciplinary findings. The People’s failure to describe any efforts or difficulty in obtaining records in this case evidences the minimal burden that might be caused by disclosing disciplinary records here. To the contrary, given the summaries included in the DAFs, it is reasonable to assume that the People are in actual possession of the documents at issue.2 Likewise, the People’s claim that their COCs should be deemed valid because their failure to disclose the underling materials did not cause prejudice to the defendant is also misplaced. Prejudice is not a factor relating to the validity of a COC (People v. Adrovic, 69Misc 3d 563, 574 [Crim Ct, Kings County 2020]). To file a valid COC, the People must be able to state that “after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, they have disclosed and made available all known material and information subject to discovery” (CPL 245.50 [1]). This is not the case here. Impeachment evidence concerns the credibility of the officer witness — the trustworthiness of a witness, whether the witness is believable or whether the witness’ history of behavior and actions undermine that witness’ claims. The Court of Appeals has repeatedly made clear that impeachment concerns the characteristics of the witness, not the limited subject matter of the crime charged. In People v. Walker (83 NY2d 455, 461 [1994]), for instance, the Court recognized impeachment questioning that “demonstrates an untruthful bent” or “reveals a willingness or disposition…voluntarily to place the advancement of…individual self-interest ahead of principle or of the interests of society.” The Court restated that imperative in People v. Smith (27 NY3d 652, 661 [2016]) and again in People v. Rouse (34 NY3d 269 [2019]), where impeachment of a testifying officer was at issue. The People contend that information and material underlying substantiated and unsubstantiated allegations of misconduct against a testifying officer need not be disclosed unless the officer’s misconduct is directly related to the particular case in which the defendant is being prosecuted. That is, according to the People, even when substantiated allegations of misconduct against a testifying officer are numerous, frequent, or severe, and even when those claims reveal the officer’s “untruthful bent” and “willingness [and] disposition [to]voluntarily place the advancement of [the officer's] individual self-interest ahead of principle or of the interests of society,” and even though that testimony, at the very least, would “tend to impeach” the testifying officer, the People are free to withhold the underlying evidence and information concerning that misconduct unless it occurred during the investigation and prosecution of the very complaint on which the defendant is being prosecuted. That contention is rejected. Limiting CPL article 245 discovery to that rule espoused by the People would undermine the purpose and practice of cross-examination affirmed by the Court of Appeals, as well as the language and purpose of the discovery statute.3 The ruling urged by the People is particularly unjustifiable in this case, where the People’s DAFs include summaries of serious misconduct bearing on the officers’ credibility — as officers and as witnesses. The DAF for one officer summarizes misconduct substantiated by the NYPD that the officer sent text messages of a personal nature to the girlfriend of a suspect he arrested (including a photograph of himself, stating “so u remember my face” [sic]), and that on another occasion, the same officer was unfit for duty due to intoxication — which resulted in a physical altercation with other officers. Unsubstantiated charges against that officer concern property missing from search warrant premises. The DAF for another officer includes substantiated findings based on his arrest and misdemeanor conviction for driving while intoxicated. The evidence of the willingness and disposition of the testifying officers in these instances to “voluntarily place the advancement of [their own]individual self-interest ahead of principle or of the interests of society” would certainly — at the very least — tend to impeach their credibility, and would be critical to cross-examination in this case, or any case in which these officers would testify. According to the People’s argument, however, because the officers’ acts of misconduct were not committed in the context of the instant docket number, the materials and information underlying these instances of misconduct need not be disclosed.4 Such a constricted reading of CPL 245 (1) (k) (iv)would critically undermine a defendant’s right to impeach the People’s witnesses, so consistently articulated by the Court of Appeals, as well as by article 245 (see People v. Edwards, 74 Misc 3d at 440-441; but see People v. Florez, 74 Misc 3d 1222 [A] [Sup Ct, Nassau County 2022]; People v. Hutchins, 2022 NY Slip Op 50327 [U], WL 1219631 [SupCt, Kings County 2022]).5 Where, as here, a substantiated or unsubstantiated disciplinary finding against a testifying officer bears on that officer’s credibility such that it would tend to impeach the officer’s testimony by demonstrating an “untruthful bent” or “willingness[and] disposition [to] voluntarily place the advancement of [the officer's] individual self-interest ahead of principle or of the interests of society,” the People must disclose the materials and information underlying that disciplinary finding in order to file a valid COC. Finally, the People’s contention that dismissal would be an extreme and unwarranted sanction misconstrues the law. Dismissal pursuant to CPL 30.30 is not a sanction. According to CPL 245.50 (3), the prosecution shall not be deemed ready for trial for purposes of CPL30.30 until a proper COC has been filed (see People v. Lobato, 66 Misc 3d 1230 [A] [Crim Ct, Kings County 2020] ["discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case"]).The People have not complied with their discovery obligations, and therefore they did not do what was necessary, pursuant to CPL 245 and CPL 30.30 to stop the speedy trial clock (See People v. Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021] [deeming COC invalid and charging the People with speedy trial time "is not an 'adverse consequence' as contemplated by CPL 245.80"]). Accordingly, the People have not filed a valid COC and have thus not properly answered ready for trial. Speedy Trial Calculation As to defendant’s motion to dismiss pursuant to CPL 30.30 (1) (b): August 18, 2021 to August 23, 2021 The adjournment for conversion of the complaint to an information is charged to the People. (5 days; 5 days total). August 23, 2021 to October 4, 2021 The adjournment for trial and discovery compliance is charged to the People. (42 days;47 days total). October 4, 2021 to November 30, 2021 As the People failed to file a valid COC on October 18, 2021, November 8, 2021, or November 16, 2021, all time is charged to the People until defendant filed his omnibus motion on November 30, 2021 (See CPL 30.30 [4] [a]). (57 days; 104 days total). November 30, 2021 to January 26, 2022 On November 30, 2021, defendant filed his omnibus motion. That motion was decided on December 9, 2021, and the case was adjourned for hearings and trial. This period of motion practice and adjournment for court-ordered hearings is excludable (CPL 30.30 [4] [a]; Matter of People ex rel. LaBrew v. Vance, 192 AD3d 645 [1st Dept 2021]; People v. Green, 90AD2d 705, 705-706 [1st Dept 1982], lv denied, 58 NY2d 784 [1982]; see also People v. Davis, 80 AD3d 494, 494-95 [1st Dept 2011]). (0 days; 104 days total). January 26, 2022 to February 8, 2022 On January 26, 2022, the People were not ready for hearings and trial and requested February 1, 2022, as a new date. As there had been no valid COC filed, this entire period is charged to the People. (13 days; 117 days total). Conclusion By the court’s calculation, the total includable speedy trial time amounts to 117 days. As such, the 90-day period in which the People are required to be ready for trial has elapsed. Defendant’s motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is granted. The foregoing constitutes the opinion, decision, and order of the court. Dated: June 8, 2022
