On September 22, 2022, over 350 days after commencing this case, the People disclosed the criminal convictions of the complainant and two alleged witnesses. Citing the plain text of the automatic discovery statute, the defense now argues that the failure to disclose these convictions rendered the People’s prior certificates of discovery compliance improper. The People respond that the defense has not shown that it was “prejudiced” by the failure to disclose the complainant’s “Brady information” and other witnesses’ convictions. They also argue that they did not decide to call the two additional witnesses until recently. The court agrees that the People’s failure to fulfill their automatic discovery obligations regarding their witnesses’ prior convictions rendered their July 14, 2022, certificate improper. Accordingly, the People’s accompanying and subsequent statements of readiness based on that certificate were illusory. As a result, over 90 days of C.P.L. §30.30 time have accrued since arraignment, and this case must be dismissed.1 LEGAL ANALYSIS I. The trial readiness determination Article 245 of the Criminal Procedure Law requires that the People “actually produce[]” automatic discovery to the defense before stating ready for trial. (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]; C.P.L. §§245.20[1], 245.50[1], 245.50[3], 30.30[5]). Automatic discovery includes “all” items and information in the People’s possession that “relate to the subject matter of the case.” (C.P.L. §245.20[1]). The People’s “possession” includes discoverable material that is in their actual possession, (id.), and the possession of the police, (C.P.L. §245.20[2]), as well as favorable information that is “known to police,” (C.P.L. §245.20[1][k]). After the People have “actually turn[ed] over all known material and information,” they must affirm it in a “proper” certificate of discovery compliance. (People v. Quinlan, 71 Misc 3d 266, 271 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] [same]; C.P.L. §§245.50[1], [3]). A certificate of compliance is “proper” if it is filed “[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20,” except for materials that are lost, destroyed, or under a protective order. (C.P.L. §245.50[1] [emphasis added]). Indeed, that is precisely what the statute directs the People to do in their certificate of compliance. They must certify that they have complied — 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.” (Id. [emphases added]). Alongside this plain text, courts hold that a certificate of compliance ” [can]not be deemed complete” until discovery is “actually produced” to the defense. (Ferro, 197 AD3d at 787-88; Quinlan, 71 Misc 3d at 271 [requiring that the People file a certificate of compliance only after they "actually turn[ed] over all known material and information”]; Adrovic, 69 Misc 3d at 574 [same]). Such a proper certificate is a prerequisite to a valid statement of readiness. (C.P.L. §§245.50[3]; 245.50[1]). As a result, “a prosecutor who fails to engage in ‘open file’ discovery (except for ‘work product’ and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution.” (Hon. William C. Donnino, Practice Commentaries, C.P.L. §245.10). While automatic discovery includes “all” information in the People’s possession that “relate[s] to the subject matter of the case,” the statute also explicitly “enumerate[s] a non-exhaustive list of materials subject to the prosecution’s automatic disclosure mandate.” (People v. Aguayza, 2022 NY Slip Op. 22333, at *3 [Sup. Ct. Queens County 2022]; see C.P.L. §245.20[1]). That list specifically requires the People to disclose the “names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto.” (C.P.L. §245.20[1][c]). It also requires that the People include a “designation…as to which of those persons may be called as witnesses.” (Id.). And it requires that the People disclose a “complete record of judgments of conviction” for “all persons [so] designated as potential prosecution witnesses.” (C.P.L. §245.20[1][p]). Despite this clear mandate, the People here purported to certify compliance with these discovery obligations before actually disclosing the complete records of conviction for all persons who may be called as potential prosecution witnesses. (See Aguayza, 2022 NY Slip Op. 22333, at *4 [where the People did the same regarding grand jury minutes, the certificate could not support a valid statement of readiness]). This rendered the affirmations in their certificate of compliance to be “patently false.” (Id.). While the certificate affirmed that the People “had disclosed…all existing known material and information subject to discovery,” the People had not, in fact, disclosed a “complete record of judgments of conviction” of all potential prosecution witnesses. (See C.P.L. §245.20[1][p]). The People provide no justification for their failure to disclose the complainant’s prior convictions. (See Pr. Resp. at 3-4). Instead, the People simply argue that they should not be “charged time” for failing to disclose the complainant’s “Brady information,” as it did not “prejudice[]” the defense. (Id.). The People misunderstand the discovery and speedy-trial statutes. “ Prejudice” is a consideration for C.P.L. §245.80 sanctions — it is not a factor in a C.P.L. §30.30 motion, like this one. (Adrovic, 69 Misc 3d at 574; People v. Darren, 75 Misc 3d 1208[A], at *5 [Crim. Ct. NY County 2022]; People v. Diaz, 75 Misc 3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc 3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; Quinlan, 71 Misc 3d at 272]). “[T]he People’s obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant.” (Adrovic, 69 Misc 3d at 574). “Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance.” (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. §245.80], however, from a dismissal under C.P.L. §30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance.”]). The People also provide no legitimate justification for failing to disclose the prior convictions of the two additional witnesses. The People argue that they did not need to turn over this information before their certificate “because, although the People knew of [the witnesses'] existence, the People did not anticipate on calling them as witnesses until further investigation of the case and while preparing for trial.” (Pr. Resp. at 3). However, the discovery statute requires that the People disclose prior judgments of conviction for those persons who they “may” call as witnesses. (See C.P.L. §245.20[1][c] [emphasis added]; C.P.L. §245.20[1][p]). It does not only require that the People disclose prior judgments of conviction for those persons who they intend to call as witnesses. (See id.). Indeed, when the discovery statute limits discovery obligations to witnesses that the People intend to call at trial, it says so. (See, e.g., C.P.L. §245.20[1][f] [limiting expert witness discovery to those "whom the prosecutor intends to call at trial"]; C.P.L. §245.20[1][g] [requiring disclosure of 911 caller identities only where "the prosecution intends to call" such callers as witnesses]). However, where the statute requires disclosure for persons that “may” be called, that provision covers everyone who is a “potential prosecution witness.” (C.P.L. §245.20[1][p] [emphasis added]; see also C.P.L. §245.20[1][c]). The People cannot credibly claim that two persons they describe as “witnesses,” who appear “numerous times in the discovery,” were not at least potential prosecution witnesses. (See Pr. Resp. at 3-4). In sum, the discovery statute explicitly requires that the People turn over a “complete record of judgments of conviction” for all persons whom they may call as witnesses. (C.P.L. §§245.20[1][p], [c]). The People had to do so before validly stating ready for trial. (Ferro, 197 AD3d at 787-88; C.P.L. §§245.20[1], 245.50[1], 245.50[3]). Indeed, C.P.L. §30.30[5] requires that “[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance” with automatic discovery. ([emphasis added]). Here, the People’s statements of readiness on July 14, 2022, and afterwards were not accompanied or preceded by such a certification. If the People fail to disclose material that is explicitly enumerated as automatically discoverable, then they fail to file a good-faith certificate of discovery compliance. Therefore, the People’s statements of readiness on July 14, 2022, and afterwards were illusory. II. The C.P.L. §30.30 calculation A prior court decided that by May 25, 2022, the People had accrued 53 days since arraignment. That decision was handed down at a court date on May 30, 2022. On that day, the court adjourned the case to July 27, 2022. In the interim, on July 14, 2022, the People filed an off-calendar certificate of discovery compliance and a statement of readiness. On July 27, 2022, the court adjourned the case to August 18, 2022. On August 18, 2022, the People again stated ready, and the court adjourned the case to October 4, 2022. Off calendar, on September 22, 2022, the People filed another certificate of discovery compliance, disclosing their three witnesses’ prior convictions for the first time. It is the People’s burden to prove that any of these periods of time “should be excluded.” (E.g., People v. Wearen, 98 AD3d 535, 537 [2d Dep't 2012]). However, the time from May 25, 2022, to July 27, 2022, is plainly excluded for motion practice and because the People are entitled to reasonable exclusion after a decision. (See People v. South, 29 Misc 3d 92, 95 [2d Dep't, App. Term 2010]). The People’s statements of readiness on July 14, 2022, and after were illusory. “Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance” with automatic discovery, and these statements were not. (C.P.L. §30.30[5]). But other than arguing that their statements of readiness were valid, the People identify no reasons why any of the time between July 27, 2022, and September 22, 2022, should be excluded. As a result, time continued to accrue again starting on July 27, 2022, and it ran until September 22, 2022. That is 57 days. In addition to the 53 days that the prior court found had accrued to the People by May 25, 2022, the People have now accrued 110 days since arraignment. That is more than the 90 days that the People are allotted to validly state ready for trial in this matter. (See C.P.L. §30.30[1][b]). Therefore, the case must be dismissed. The defense’s remaining arguments and motions are moot. The foregoing constitutes the order and decision of the court. Dated: November 16, 2022
