The moving and opposition papers were read on this motion to dismiss. Second motion1 by defendant Robert Moss for an order deeming the prosecution’s certificate of compliance improper under CPL 245.50(1) and dismissing the information pursuant to CPL 30.30, and 170.30(1)(e), or, in the alternative, for an order of preclusion is denied. BACKGROUND On March 28, 2022, as is relevant here, a judge of this court denied the branch of defendant’s prior motion seeking an order deeming the prosecution’s December 17, 2021 certificate of compliance improper. In the same decision and order, the motion judge ordered Mapp, Johnson, Huntley, and Dunaway hearings. The motion judge also found that, from September 21, 2021, the date of the arraignment, to December 17, 2021, 87 days were chargeable to the prosecution. In the instant motion, defendant’s sole allegation, in a single, half-page paragraph, is that, on May 18, 2022, four days before the next scheduled court date, which defendant characterizes as for “trial,” the prosecution attempted to serve certain expert witness documents on the defense (defendant’s affirmation in support 8). Defendant then affirms that the defense could not open the provided .zip file. Defendant argues that the prosecution “routinely uses the same expert in its [similar] trials” and should have already disclosed the documents (id.) Defendant further argues that all time from December 17, 2021, is chargeable to the prosecution and that, consequently, the case should be dismissed. Defendant argues in the alternative that the prosecution should be precluded from introducing testimony or evidence from this witness. The prosecution affirms in opposition, in sum and substance, that it had not confirmed the specific expert who would be testifying at trial at the time of the filing of the certificate of compliance. The prosecution further affirms that it did timely disclose the names of possible experts on its supplemental automatic discovery form on January 21, 2022, pursuant to its ongoing disclosure obligations. The supplemental automatic discovery form provides the name of the expert in question, along with the names of two others, and states, “[t]he People currently expect to call on their direct case an expert…as a witness at a future hearing or trial and hereby make the following disclosures regarding expert opinion evidence. Where we have not determined who the specific expert will be, we have summarized, where possible, the topics of the expected testimony, based upon the nature of the expert topic. We will provide further information required pursuant to [CPL §245.20(1)(f)] once specific witness determinations are made and additional discoverable material becomes available.” (The prosecution’s affirmation in opposition, exhibit 1, g.) The form then states that “the expert’s education in the field” “will be included in any report the expert may prepare” (ibid.). The prosecution affirms that it did not know months in advance who would be available for trial, but that once it confirmed the availability of the subject expert with the Office of the Chief Medical Examiner (hereinafter OCME), it “promptly served his two-page curriculum vitae, and two pages of analyst permits,” along with a supplemental certificate of compliance, on May 18, 2022 (id. at 4, 7. The prosecution argues, in sum and substance, that its certificates of compliance were filed in good faith and reasonably under the circumstances. On June 13, 2022, defendant’s reply papers were due, but defendant did not submit reply papers or reach out to the court. In response to an email inquiry from the court on June 15, 2022, counsel for defendant replied, after business hours the following day, June 16, 2022, indicating that defendant would not be filing reply papers as counsel would be “relying on the arguments [] made in [the] motion and d[id] not believe [the defense] need[ed] to reply to the People’s motion to oppose” (counsel for defendant’s emails to the prosecution and court, June 16, 2022, at 7:11 p.m. and 7:22 p.m.). DISCUSSION Based on the papers submitted, the court finds pursuant to CPL 245.50(3) that the certificate of compliance filed in this case was proper pursuant to CPL 245.50(1), as the prosecution fulfilled its duties under CPL 245.20(2) by making a diligent, good faith effort to ascertain the existence of discoverable material and to make it available to defendant for discovery. CPL 245.20(1)(f) provides, in pertinent part, that “[t]he prosecution shall disclose to the defendant…all items…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:…[e]xpert opinion evidence, including the…current curriculum vitae…and a list of proficiency tests and results administered or taken within the past ten years of each expert witness whom the prosecutor intends to call as a witness at trial or a pre-trial hearing…If in the exercise of reasonable diligence this information is unavailable for disclosure within [thirty-five calendar days after the defendant's arraignment], that period shall be stayed without need for a motion…except that the prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than sixty calendar days before the first scheduled trial date….” Here, the court accepts the prosecution’s affirmation that it did not know whether the subject expert would be available to testify at trial prior to obtaining confirmation from OCME and shortly before disclosing the subject curriculum vitae and analyst permits to defendant. The court further accepts the prosecution’s affirmation that it served the subject documents on defendant on May 18, 2022. Defendant alleges in the moving papers that the defense could not open a .zip file yet does not indicate that the defense did not receive the documents on that or any other date. If defendant sought to challenge the prosecution’s specific affirmation of having served the subject documents on defendant, it would have been for defendant to make those assertions in reply, but this was not done, as defendant elected not to file a reply. The court finds further that obtaining such confirmation from OCME constitutes reasonable diligence regarding an uncertain future trial date that had not yet been scheduled. Specifically, while defendant indicates that the case was on next for “trial” after May 18, 2022, the date of service, the case was in fact on for the pre-trial hearings three days later, on May 21, 2022, as ordered in the prior motion decision. Pursuant to CPL 245.20(1)(f), as the subject documents were not available for disclosure within thirty-five days of arraignment, the automatic discovery period was stayed. Further, the court finds that the prosecution did satisfy the other requirements of the statute. First, the proper notice was given by informing defendant in the supplemental automatic discovery form that the subject documents had not been disclosed but would be as soon as practicable. Second, the disclosure was made as soon as practicable, as there is no dispute that the prosecution made the disclosure promptly after learning from OCME that the subject expert would be available to testify at trial. Third, there is no dispute that the disclosure was made at least sixty days before the first scheduled trial date. The case was not on for trial on May 21, 2022, but for pre-trial hearings. CPL 245.20(1)(f) distinguishes between pre-trial hearings and trial. Pursuant to the statute, all required items must be disclosed as to any expert witness expected to testify either at trial or at a pre-trial hearing. Yet, as to the timing of such disclosure, it need only be done 60 days or more before the first scheduled trial date. Because there is no showing that the first scheduled trial date was less than 60 days away on May 18, 2022, the prosecution’s disclosure requirement under the statute remains stayed by operation of law. As such, the prosecution has satisfied all requirements under CPL 245.20(1)(f) presented in the motion. Accordingly, the prosecution’s original and supplemental certificates of compliance were proper, and defendant is entitled neither to an order dismissing the complaint pursuant to CPL 30.30 nor to an order of preclusion. CONCLUSION Accordingly, it is ORDERED that the motion by defendant Robert Moss for an order deeming the prosecution’s certificate of compliance improper under CPL 245.50(1) and dismissing the information pursuant to CPL 30.30, and 170.30(1)(e), or, in the alternative, for an order of preclusion is denied. The foregoing constitutes the decision and order of the court. Dated: June 21, 2022
