OPINION The Defendant is charged with Forcible Touching (Penal Law §215.50 [3]), Sexual Abuse in the Second Degree (Penal Law §130.60 [1]), Endangering the Welfare of a Child (Penal Law §260.10 [1]), Sexual Abuse in the Third Degree (Penal Law §130.55), and Harassment in the Second Degree (Penal Law §240.26 [1]). Defendant now moves to strike the People’s Certificate of Compliance and Statement of Readiness and, sequentially, dismiss the information for violation of speedy trial pursuant to CPL 30.30, based upon missing items that defendant argues should have been delivered before the People announced readiness. For the following reasons, Defendant’s motion is respectfully, denied. The case will proceed to hearings and trial. CPL Article 245 “was enacted as part of sweeping criminal justice reform legislation” that became effective on January 1, 2020 (People v. Bonifacio, 179 AD3d 977, 977-78 [2d Dept 2020]). Significantly, “[Art. 245] provides for ‘automatic’ disclosure by the People to the defendant of ‘all items and information that relate to the subject matter of the case’ that are in the People’s possession or control” (id. at 978, quoting CPL 245.20 [1]). The statute creates a “presumption in favor of full disclosure” when interpreting the non-exclusive list of discoverable information enumerated in CPL 245.20 (1) (CPL 245.20 [7]). Article 245 is a remedial statute specifically designed to eliminate the “trial by ambush” that existed under Article 240 (see People v. Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[A] [Sup Ct, Queens County, Lopez, J.]). Article 245 requires the prosecution to proactively disclose qualifying material to defendant and file a “certification of good faith compliance” prior to stating their readiness for trial (CPL 30.30 [5]; CPL 245.50 [3]). However, the statute does not require the impossible. It does not demand that every scrap of qualifying paper be turned over before the People may certify their compliance under CPL 245.50 (see e.g. People v. Bruni, 71 Misc 3d 913 [Albany County Ct 2021]; People v. Erby, 68 Misc 3d 625, 629 [Sup Ct, Bronx County 2020]; People v. Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020]). “But it does demand that the People use diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC” (People v. Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]). When compared to state of discovery under the former Article 240, what is happening now was unimaginable just over two years ago. Any remaining resistance by prosecutors to their new obligation is, in the Court’s opinion, fueled by the unrealistic burdens placed upon them by the inconsistent decisional landscape in these cases. The April 2022 amendments to the statute, assigning responsibility to defense counsel to alert the People to looming discovery issues (CPL 245.50 [4]); and, granting the Courts greater authority to fashion appropriate remedies for alleged violations (CPL 245.80 [1] [a]), signal, that any decision as to whether the people have made “diligent good faith efforts” that are “reasonable under the circumstance” must consider whether, in the particular case, the omission was the product of an honest oversight — excusable — or, the product of the willful failure of the assigned ADA to embrace their new statutory obligations — intolerable — hence, the statutory link to CPL 30.30. A prosecutor who blatantly fails to exercise good faith, or who acts unreasonably, indifferently, or callously toward their Article 245 obligations, does so at their peril. Additionally, and perhaps, more importantly, the Courts, in making these decisions, should make greater use the tools included in CPL 245.35, to determine whether the non-delivery or delayed delivery of a particular qualifying CPL 245.20 item was harmless, based upon the timely delivery of a duplicative equivalent of that missing piece. That said, this motion is decided as follows: Procedural History On December 6, 2021, the 13-year-old complainant reported Defendant’s alleged conduct via a 911 phone call — a police response and investigation ensued, but no arrest was made that day. On January 13, 2022, complainant encountered the defendant on the street and, again, called 911 two more times. The police responded, and Defendant was arrested and arraigned later the same day — the case was adjourned to April 18, 2022. On March 11, 2022, the People filed their Certificate of Compliance [CoC] and Statement of Readiness [SoR], certifying delivery of CPL 245 material and their readiness for trial. From March 11, 2022, to April 12, 2022, the assigned ADA made repeated requests for the 911 recordings and associated computer files for the complainant’s second and third 911 calls, made on January 13, 2022. The assigned ADA was originally told that these recordings could not be located, however, her persistent inquiry ultimately resulted in the items being found and delivered to the defense on April 13, 2022, via Disclosure Addendum. On April 18, 2022, at the first calendar call from arraignment, the People announced their readiness and consented to a Wade/Dunaway hearing — the case was adjourned to June 7, 2022, for hearings. That same day, April 18, 2022, Defense Counsel emailed the assigned ADA requesting the People deliver all bodycam footage and the underlying case documents for all disciplinary claims leveled against the People’s police witnesses which had been summarized in the People’s Law Enforcement Officer Witness Letter (LEOW Letter) under CPL 245 (1) (k) (iv). On April 21, 2022, the assigned ADA responded to counsel’s email stating that she had spoken with the case Detective and that no bodycam footage existed for the case; and, that it was the Queens District Attorney’s Office position that the contents of their LEOW Letter satisfies their 245 (1) (k) (iv) discovery obligation — that, production of the underlying case documents of the disciplinary claims against their police witnesses was not required under the statute. On May 27, 2022, Defendant filed this motion. To date, Defendant has not filed a Defense CoC pursuant to CPL 245.50 (2). On June 3, 2022, the People filed and served a Second Supplemental CoC/SoR, confirming delivery of a limited number of underlying disciplinary records, from the case files for two officer-witnesses with disciplinary histories, that had come into the assigned ADA’s actual possession. On June 6, 2022, Defense counsel emailed the assigned ADA inquiring about a second Detective whose name had been associated with numerous police reports listed in an NYPD Case Management Index, that counsel received on March 11, 2022. Counsel requested production of any documents authored by this second Detective, and color copies of the case photos. On June 7, 2022, at the calendar call of the case, Defendant informed the court that he had filed this motion, off-calendar, but intended to file supplemental papers, also considered here. A motion schedule was set, and the case was adjourned to August 15, 2022 for decision. On June 9, 2022, the assigned ADA responded to counsel’s June 6, 2022 email about the second Detective, to wit: that she spoke with the case Detective who assured her, the second Detective, whose name appeared in the index, performed no work on the investigation; and, that it was immediately unclear why the second Detective’s name appeared in this case, at all. It was later determined that the second Detective’s name became associated with the case file when he, as a favor to the case Detective, “closed-out” the investigation after the case Detective took paternity leave before closing-out the file himself; and, that the second Detective created no 245-material. The ADA’s June 9, 2022 email also informed Defense counsel that the case Detective had located his handwritten notes from this investigation — not shared prior to the People’s CoC — these were immediately shared with counsel. Timeliness of this Motion CPL 245.50 (4) states that “challenges to, or questions related to a certificate of compliance shall be addressed by motion.” The statute is nevertheless silent on the timing of making such a motion and whether it need be in writing. Motion practice is governed by CPL Article 255. Effective January 1, 2020, CPL 255.20 (1) states: “all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial.” The court has always been authorized to provide additional time for motions based on the court’s discretion. CPL 255.20 (3) states that “any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within” the specified time frames, must be decided by the court on its merits. There is seemingly no appellate level precedent directly addressing the timeliness of a defendant’s motion to challenge a COC. However, there are several lower court cases that tackle the issue and have held that a defendant cannot unreasonably delay the filing of a challenge to a COC and then ask the court to charge that time to the People when the COC is found to be deficient (see People v. Nova-Ceballos, Sup Ct, NY County 2021, Kiesel, J., indictment No. 98/2019; People v. Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U] [Sup Ct, Nassau County 2022]; People v. Guevara-Ramirez, Crim Ct, Bronx County 2022, McCormack, J. docket No. CR-007083-21BX; People v. Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]). CPL 245.50 (1) (a) was recently amended, placing the onus on Defendant to alert the People to missing material, ostensibly, to foster the resolution of discovery issues without court intervention. However, CPL 255.20 has not been amended to accommodate the evolution of criminal practice under Article 245. Arguably, Defendant’s 45-day filing window should be measured from the date of the People’s most recent CoC, since Article 245 allows for, and contemplates successive CoCs and SoRs. In this Court’s view, that would serve to reduce the number of motion sequences now common in the lower criminal courts…at least, within New York City. Many lower courts have decided defense challenges to valid COCs and, have either stood silent on the timeliness issue or determined that the timing of the motion, despite a significant delay, did not invalidate the merits of the motion (see People v. Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U] [Sup Ct, Nassau County 2022]; People v. Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020]; People v. Lustig, 68 Misc 3d 234 [Sup Ct, Queens County 2020]; see also People v. Mauro, 71 Misc 3d 548, 551-552 (Westchester County Ct 2021) This Court, likewise, elects to address the merits of Defendant’s motion. Challenge to the Certificate of Compliance Defendant argues the People failed to disclose necessary items rendering their readiness illusory. The People contend that they have met their 245-obligations having made “diligent good faith efforts” that were “reasonable under the circumstances”; and, having made “reasonable inquiries to ascertain the existence of material and information subject to discovery” to “ensure the flow of information between law enforcement and the prosecution.” Defendant claims dismissal is warranted based upon the non-delivery or delayed delivery of the following items: 911/Radio Recordings and Associated Communications Files To reiterate, complainant made a total of three 911-calls — one on the day of occurrence, and two on the day of arrest. Defendant argues that the delayed delivery of the latter two recordings and associated computer files, renders the People’s readiness illusory, warranting dismissal. People represent that despite being informed that these calls could not be located, the assigned ADA persisted in her search for those recordings, which, ultimately, were found and delivered to Defendant. The Court will not invalidate the CoC under these circumstances. Granting Defendant’s motion on these grounds would produce an anomalous and illogical result. If these items were actually lost and were unavailable to Defendant in the preparation of his case, his remedy under CPL 245.80 would be commensurate with the level of prejudice suffered — Defendant has not articulated any prejudice suffered here — the remedy of dismissal available only as a last resort. CPL 245.80. The Court cannot ignore the efforts made by the assigned ADA, which are to be encouraged, as an example to other prosecutors. Here, the assigned ADA made, not simply. a diligent effort, but rather an extraordinary effort, to satisfy her discovery obligations under the statute. To repeat, after initially being informed that two 911 recordings could not be found, the assigned ADA’s persistence produced the two items and related communications files which were immediately delivered to Defendant. The court will not strike CoC based on late disclosure of this item under these circumstances. Defendant’s application is respectfully, denied. Police Disciplinary Records Police Officer Disciplinary Records come, from two main sources, the Civilian Complaint Review Board and the Internal Affairs Bureau of the NYPD and, in several forms — substantiated, unsubstantiated, exonerated and unfounded. The respective files contain the substance of the allegations leveled against a police officer for a myriad of reasons — Discourtesy; Abuse of Authority; Lost Equipment, Failure to Effectuate an Arrest; Failure to Complete required paperwork and, of course, acts of Dishonesty. CPL 245.20 (1) (k) (iv) requires the People to disclose to defendant “all items and information that relate to the subject matter of the case” including “[a]ll evidence and information, including that which is known to police…that tends to…impeach the credibility of a testifying prosecution witness.” Thus, CPL 245.20 [1] [k] [iv] is clearly derived from the principle that the prosecutor’s “duty to disclose encompasses impeachment evidence as well as exculpatory evidence” (People v. Ulett, 33 NY3d 512, 515 [2019], citing Strickler v. Greene, 527 US 263, 280 [1999]; Giglio v. United States, 405 US 150, 154-155 [1972]). Thus, the underlying disciplinary records in unsubstantiated, exonerated, or unfounded claims would not support a good faith basis for cross-examination of the officer — such records are not evidence or information that tends to or is inclined to impeach a witness (see People v. Smith, 27 NY3d 652 [2016]; People v. Garrett, 23 NY3d 878 [2014]; People v. Brooks, 123 AD3d 448 [2014]; People v. Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; cf. People v. Rouse, 34 NY3d 269 [2019]; see also Guide to NY Evid rule 6.17, Impeachment by Instances of Misconduct.) “Consequently, disciplinary files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery.” (People v. Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; see People v. Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020]; People v. Lustig, 68 Misc 3d 234 [Sup Ct, Queens County, Apr. 28, 2020].) Regarding disciplinary records from the files of substantiated or founded complaints, the issue of whether this material may be used for impeachment must be determined, in limine, by the hearing/trial judge, based, inter alia, but primarily, on whether the substance of the allegation bears on the credibility of the witness. Very often these substantiated allegations are based upon conduct which, by description, seemingly have no bearing on the witness’ credibility, to wit: lost parking plaques, incomplete paperwork, missed court appearances, discourtesy to a member of the public, and lost equipment. The question, therefore, is whether CPL 245.20 (1) (k) (iv) requires the People to produce the underlying documents created during the investigation of a substantiated disciplinary matter, as opposed, simply, to a summary of the incident? To comply with CPL 245.20 (1) (k) (iv) here, the Queens District Attorney’s Office delivered “LEOW letters” for the police witnesses they intend to call at trial. These letters include summaries of substantiated or founded CCRB/IAB disciplinary complaints, but no underlying documents from those files. Regarding unsubstantiated and unfounded disciplinary complaints, the Queens DA’s “LEOW Letter” includes a statement that the officer was the subject of such a complaint, without either a summary of the allegation or the underlying records. In addition, the LEOW Letter for one of these witnesses included the captions of civil cases in which this witness was named as a defendant, with no underlying records. Since this is an evolving and unsettled area of the law, the Court finds the People have made a diligent, good faith effort to comply with their CPL 245 obligations and will not strike the CoC/SoR based upon the non-delivery of the underlying records of substantiated disciplinary matters for the police witnesses. Instead, the Court finds that the appropriate remedy to this situation is found within CPL 245.30 (3) and 245.80, pertaining to discretionary discovery and belated disclosure. Pursuant to CPL 245.30 (3), the Court directs the People to make diligent, good faith efforts to obtain the underlying records of substantiated disciplinary claims within 30 days of this decision. The People will have leave to request additional time under CPL 245.70 (2) to comply. Once received, any requests for sanctions pursuant to CPL 245.80, or motions in limine as to how this information bears logically and reasonably on the witness’s credibility and whether there is no good faith basis for the inquiry (People v. Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]), will be reserved the hearing/trial Court. The Case Detective’s Handwritten Notes As stated earlier, the People disclosed the case Detectives handwritten notes on June 9, 2022 when they became aware the items existed. Defense counsel claims that delayed disclosure of the notes should invalidate the original CoC. People argue that they certified compliance and readiness in good faith after being informed by the Detective the notes did not exist. People have continuing obligation to disclose material coming into their possession (CPL 245.60), and did so here. Significantly, copies of the detectives handwritten notes, as well as a number of police reports prepared by the same Detective were made exhibits to this motion — the reports having been delivered to Defendant prior to the People’s 3/11/22, CoC/SoR. A comparison of the handwritten notes and the reports reveals that the case Detective incorporated his notes into those reports, nearly verbatim, the substance and import of the notes conveyed accurately. The Court therefore finds that Defendant was in actual possession of the duplicative equivalent of the handwritten notes; and, that no prejudice has been shown. CPL 245.50, states in relevant part: “No adverse consequence to the prosecution or 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. “1-a. Any supplemental discovery 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. The filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence pursuant to section 245.20 of this article, or it the additional discovery did not exist at the timing of the filing of the original certificate of compliance.” The assigned ADA clearly made diligent good faith efforts to comply with Article 245, that were reasonable under the circumstances; and, endeavored to ensure the flow of information; and, that the delayed disclosure here does not impact the propriety of the CoC. Defendant’s application to strike the CoC and dismiss the case on these grounds is respectfully, denied. The Second Detective Once again, in meeting her obligation under Article 245, the assigned ADA made diligent inquiries into the existence of this second Detective and whether they had any involvement in the case, as well as any 245 material this Detective may have generated. The assigned ADA determined, to the satisfaction of the Court, that the inclusion of this Detective’s name to this case was the product of clerical entry that generated no material owed under Article 245. This is, essentially, a non-issue. Defendant’s application to strike the CoC and dismiss the case is respectfully, denied. Motion to Dismiss Pursuant to CPL 30.30 Pursuant to CPL 30.30 (1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument (People v. Cooper, 98 NY2d 541, 543 [2002]). The highest charge in this case is an A misdemeanor. Pursuant to Penal Law §70.15, a class A misdemeanor is punishable by a definite sentence not exceeding one year. Because the charge is punishable by a sentence of imprisonment of more than three months, the People were required to announce their readiness for trial within 90 days of commencing the criminal action against defendant (CPL 30.30 [1] [b]). In order to be successful on the instant motion, therefore, defendant has the burden of demonstrating the existence of a delay in excess of 90 days. Once he has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded (People v. Brown, 28 NY3d 392, 403 [2016]; People v. Santos, 68 NY2d 859, 861 [1986]; People v. Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002]). On January 13, 2022, defendant was arraigned in criminal court and the case was adjourned to April 18, 2022, for supporting deposition. On March 11, 2022, the People filed their supporting deposition, Certificate of Compliance and Statement of Readiness pursuant to CPL 30.30 (5-a). (61 days charged) On April 18, the People stated that they were ready for trial and the case was adjourned to June 7, 2022, for pre-trial hearings. On May 27, 2022, defendant filed the instant motion. On June 7, the court set a motion schedule: defense to file a supplemental motion by June 17, People to file the response by July 8, and the decision on motion for August 15, 2022. (0 days charged) The Court finds, therefore, that 61 days of chargeable time have accumulated in this matter. The defendant’s motion to dismiss the information is denied. This constitutes the decision of the Court. Dated: August 9, 2022
