The following papers numbered 1 to 3 were read and considered on the defendant’s motion to dismiss Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation in Opposition 2 Replying Affidavits 3 Factual Background Defendant was charged with Criminal Contempt in the Second Degree and Harassment in the Second Degree with respect to an incident which allegedly took place on November 14, 2021. The information alleged that the defendant violated an Order of Protection by calling and sending various text messages to the complaining witness causing him to fear for his safety and become harassed and annoyed. On February 1, 2022, the defendant was arraigned. The matter appeared on the court’s calendar several times before the People filed their certificate of compliance and statement of readiness on March 22, 2022. The defendant’s attorney objected to the certificate of compliance, arguing that discovery was outstanding. The validity of the certificate of compliance was held in abeyance and the case was adjourned to April 19, 2022. On April 19, 2022, defense counsel continued his objection to the certificate of compliance. The People related that they had “given everything that they had” and the case was adjourned to May 10, 2022. On the return date the People represented that they were looking for the text messages and the audio and the case was adjourned to May 17, 2022. On May 11, 2022, the People e-mailed defense counsel acknowledging the missing audio and video materials and advised that they uploaded the material to the discovery portal. On May 17, 2022, defense counsel continued to object on the grounds that the portal did not contain any text messages. The case was adjourned to May 24, 2022. On May 24, 2022, the People filed a supplemental certificate of compliance and defense counsel objected on the grounds that there was no compliance with CPL §245.50[1-a] in that the People failed to state a basis for their delayed disclosure. The defendant now moves to dismiss. The defendant alleged that the People failed to comply with CPL §245.50[1-a] in that they did not state a basis for their delayed disclosure of the voicemail recordings. The defendant further alleged that the certificate of compliance was not filed in good faith and the People have not shown that they exercised due diligence prior to filing the certificate of compliance. The defendant thus argues that the matter must be dismissed on speedy trial grounds. The People opposed and alleged that throughout the pendency of the case they have worked assiduously to ascertain the existence of and to disclose to the defendant all discoverable material in compliance with their objections under the Criminal Procedure Law Article 245. The People further assert that the text messages were not gathered from the complaining witness and thus the discovery is not within the People’s possession, and they are not responsible for turning it over. Finally, the People claim the certificate of compliance and supplemental certificate of compliance were properly filed and complied with the discovery requirements of Criminal Procedure Law §245.20. Validity of Certificate of Compliance CPL §245.50[3] provides that the People are not deemed ready for trial for purposes of CPL §30.30 until they have filed a proper certificate of compliance. The People are required to exercise due diligence and make reasonable inquiries to ascertain material which is subject to discovery. People v. Adrovic, 69 Misc 3d 563 [Kings County Crim. Ct. 2020]. “If any known discoverable materials are not exchanged prior to the filing of the [certificate of compliance], the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged.” People v. Grant, 2022 NY Slip Op 50549[U] [Yonkers City Ct., 2022] citing People v. Perez, 75 Misc 3d 1205[A] [Bronx County Crim. Ct 2022]. “Here, contrary 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 and electronically shared with the defendant was actually produced to the defendant .” People ex, rel. Ferro v. Brann, 197AD3d 787 [2d Dept, 2021]. CPL §245.20[2] states that “all items and information related to the prosecution of a charge in the possession of any New York State of local police or law enforcement agency shall be deemed to be in the possession of the prosecution.” CPL §245.55[1] further requires the People to “endeavor to ensure that a flow of information is maintained between the police and other investigative personnel in his or her office sufficient to place within his or her possession or control all material and information pertinent to the defense and the offense or offenses charged.” There is nothing contained within the People’s opposition to indicate the diligent efforts made to determine, prior to filing the certificate of compliance, whether any additional discovery in the form of voicemail messages or text messages, subject to discovery under CPL §245.20[g], existed. Thus, the fact that the People were unaware of the existence of these items is irrelevant as the People were first required to ascertain whether they existed. Then, upon the defendant’s objection to the certificate of compliance, the People represented that they had turned over all items of discovery. The Court is unable to find that the People certified these statements in good faith. Furthermore, CPL §245.50[1-a] provides that a “supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance.” There is no impact on the validity of the original certificate if it was filed after exercising due diligence and in good faith pursuant to CPL §245.20 or if the material did not exist at the time the original certificate was filed. In the present matter, the People alleged their failure for not including the information initially was as they were unaware that it existed. The People acknowledge that they later determined the material was in the possession of the Yonkers Police Department. Information in the possession of law enforcement is deemed to be in the possession of the People. CPL §245.20 [2]. “[A]ll police paperwork is imputed to be in the People’s control and it is the prosecutor’s duty to work with the police to obtain such materials. As a result, it is never sufficient for the People to affirm that an item is not in their physical possession to defeat a certificate of compliance challenge.” People v. Georgeiopoulos, 71 Misc 3d 1215[A] [Sup. Ct. Queens County, 2021]. The People must indicate their efforts to obtain the discoverable material through reasonable inquiry, good faith and due diligence. CPL 245.50[1]; People v. Perez, 40 Misc 3d 448 [Crim. Ct., Queens County, 2013]; People v. Aquino, 72 Misc 3d 518 [Crim. Ct. Kings Co. 2021]. Good faith may be demonstrated by the People’s recitation of the steps taken to obtain the materials and the outcome of these efforts. “On the other hand, where the People fail to set forth their efforts to locate items of discovery or determine that that do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated.” Perez, supra; Georgiopolous, supra at *3. The People here do not explain why the material was not obtained nor set forth any steps that may have been taken to obtain it. The lack of effort demonstrates a lack of good faith. A “bare-bones assertion does not provide the Court with the necessary factual basis to make a finding” of “good faith” or “due diligence.” People v. McKinney, 71 Misc 3d 1221 [A] [Crim. Ct, Kings County 2021]. “[W]here the prosecutor has failed to demonstrate diligence and reasonableness in obtaining and disclosing required information and, as a result of that lack of diligence and reasonableness, has failed to make a necessary disclosure, then the certificate of compliance is invalid.” People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct. Kings County, 2020]. The Court is constrained to find that the People failed to certify their disclosure and diligence in good faith. As such, the certificate of conformity and supplemental certificate, which failed to specify the basis for the delay as required by CPL §245.50[1-a] are deemed invalid. A sanction or remedy may be imposed pursuant to CPL §245.80 which is “appropriate and proportionate to the prejudice suffered by the party entitled to disclosure.” CPL §245.80[a]. Here, as the defendant has failed to allege any prejudice from the delay, the court is unable to fashion an appropriate sanction for nondisclosure. However, as the Court finds that the People’s filing of the certificate of compliance was not in good faith and with due diligence, it did not operate to stop the CPL §30.30 speedy trial clock. This finding does not automatically result in all time being charged to the People. Rather, the court must conduct an analysis under the provisions of CPL §30.30 to determine the chargeable time. People v. Florez, 74 Misc 3d 1222[A] [Sup. Ct. Nassau Co, 2022]. Speedy Trial Calculation After reading and considering the papers submitted by the parties and after reviewing and considering the relevant law, the defendant’s motion is pursuant to CPL §30.30 is denied. The Court finds that 49 chargeable days have accrued since the defendant’s arraignment. CPL §30.30 “was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial and its provisions must be interpreted accordingly. People v. Sinistaj,67 NY2d 236, 239 [1986]. Under the provisions of CPL §30.30, “the applicable speedy trial time is determined based on the highest charge in the accusatory instrument.” People v. Brito, 61 Misc 3d 1208 [Crim. Ct, Kings County, 2018]. Where, as here, the highest charge is a misdemeanor, the People are required to declare their readiness within 90 days from the filing of the accusatory instrument. CPL §30.30[1][b]; People v. Stirrup, 91 NY2d 434, 438 [1998]. The defendant bears the initial burden on a motion to dismiss on speedy trial grounds to demonstrate that the “prosecution failed to declare readiness within the statutorily prescribed time period.” People v. Luperon, 85 NY2d 71, 77-78 [1995]. The burden then shifts to the People to establish that certain periods within that time should be excluded. People v. Amrhein, 128 AD3d 1412 [4th Dept., 2015]. “The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded.” People v. Price, 14 NY3d 61, 63 [2010]. The definition of “readiness” changed with the legislature’s passing of discovery and speedy trial amendments to the Criminal Procedure Law which took effect January 1, 2020. “Article 245 now delineates the People’s expanded discovery obligation and sets out a statutory time frame for its completion. [CPL §245.20, CPL §245.10]. Under these provisions, the People must comply with their discovery obligations without any demand from the defense, unless the defense explicitly waives the receipt of discovery.” People v. Mashiyach, 70 Misc 3d 456, 458 [2020]. CPL §245.10[1][a] now requires the People to automatically disclose all items in its custody or possession within fifteen days from the defendant’s arraignment. Furthermore, the People must declare ready by filing a certificate of compliance on the defense and the court. CPL §245.50. The discovery amendments were also incorporated into CPL §30.30[5], “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. February 1, 2022 — February 15, 2022 — 14 days The defendant was arraigned on February 1, 2022, on one count of Criminal Contempt in the Second Degree and one count of Harassment in the Second Degree. The People requested an adjournment for February 15, 2022. The defendant requested February 17, 2022. The People’s time equals 14 days. February 17, 2022 — March 10, 2022 -21 days On February 17, 2022, a conference was held. The defendant requested a non-jury trial. Discovery was sent by the People, and they requested an adjournment for March 10, 2022. These 21 days are chargeable to the People. March 10, 2022 — March 17, 2022-7 days The matter appeared on the court’s calendar on March 10, 2022, and the People requested an adjournment to March 17, 2022. Defendant requested an adjournment to March 22, 2022. 7 days are chargeable to the People. March 22, 2022- April 19, 2022- 0 days On March 18, 2022, the People by way of Assistant District Attorney Pauline Haynes submitted a certificate of compliance and a statement of readiness. A conference was held on March 22, 2022. The defendant objected to the certificate of compliance due to missing audio and text messages. The certificate of compliance was held in abeyance. The People contend and the defendant does not deny that counsel requested April 19, 2022 for a motion schedule. CPL 30.30[4][b] states that, in computing the time within which the People must be ready for trial, the period of delay resulting from a continuance granted by the court at the request of or with the consent of defendant or his or her counsel is excluded. As the request was made by the defendant, this time is excluded. April 19, 2022 — May 10, 2022 — 0 days On April 19, 2022, a conference was held. The defendant continued to object to the certificate of compliance and requested an adjournment for May 10, 2022, As the request was made by defense counsel, this time is excluded pursuant to CPL §30.30[4][b]. May 11, 2022 — May 24, 2022 — 7 days On May 11, 2022, an additional disc with missing audio was turned over to the defendant. Thereafter, on May 17, 2022, a conference was held. The People made an offer which the defendant requested. The People requested an adjournment to May 24, 2022. These 7 days are chargeable to the People. May 24, 2022 — June 7, 2022 -0 days On May 24, 2022, a conference was held, and the People filed a supplemental certificate of compliance and reaffirmed that they were ready for trial. The defendant continued to reject the certificate and requested time to file a motion objecting to the certificate of compliance. The defendant does not deny requesting an adjournment to June 7, 2022. As the defendant requested the time for motion practice, this time is excludable from the CPL §30.30 calculations. A total of 49 days of includable time has lapsed and is properly chargeable to the People. As the People are within their 90-day timeframe to declare ready for trial, the defendant’s motion to dismiss pursuant to CPL §30.30 is denied. Conclusion While the People are currently within the 90-day timeframe to declare ready for trial, a new certificate of compliance in conformity with the foregoing is required. The speedy trial clock will continue to run until same is filed and served. Accordingly, it is hereby ORDERED, that the People are to file an additional certificate of compliance within 20 calendar days confirming they have provided all discovery required and indicating a basis for the delay consistent with this decision. Dated: August 4, 2022
