yet again, this court is faced with the People’s intentional refusal to comply with the discovery statute and disclose police misconduct records. (See generally People v. Best, 76 Misc 3d 1210[A] [Crim. Ct., Queens County 2022] [Gershuny, J.]; see also People v. Rodriguez, 2022 NY Slip Op. 22393 [App. Term, 1st Dep't 2022]; Matter of Jayson C., 200 AD3d 447, 448-49 [1st Dep't 2021]). The People filed their certificate of discovery compliance without disclosing the disciplinary records of Detective Keith Machtel, one of their police witnesses. Instead, the People only provided a letter “stating that the officer was the subject of unsubstantiated allegations.” (Pr. Resp. at 4). The People’s refusal to comply with the discovery statute rendered their statement of readiness illusory. (Rodriguez, 2022 NY Slip. Op. 22393). The discovery statute 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. §§245.50[1], 245.50[3], 30.30[5]). Automatic discovery includes “[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.” (C.P.L. §245.20[1][k][iv]). Evidence of “a police witness’s prior bad act…can be proper fodder” for such impeachment. (People v. Smith, 27 NY3d 652, 661 [2016]). Disciplinary records that underlie allegations of a police witness’s misconduct are information of that witness’s prior bad act, so the People may not withhold those records. (Rodriguez, 2022 NY Slip Op. 22393; Jayson C., 200 AD3d at 448-49; see also People v. Trotman, 77 Misc 3d 1210[A] [Crim. Ct., Queens County 2022]; People v. Bravo, CR-002662-22QN [Crim. Ct., Queens County 2022]; People v. Goggins, 76 Misc 3d 898 [Crim. Ct., Bronx County 2022]; People v. Martinez, 75 Misc 3d 1212[A] [Crim. Ct., NY County 2022]; People v. McKinney, 71 Misc 3d 1221[A] [Crim. Ct., Kings County 2021]; People v. Perez, 71 Misc 3d 1214[A] [Crim. Ct., Bronx County 2021]; People v. Edwards, 74 Misc 3d 443 [Crim. Ct., NY County 2021]; People v. Castellanos, 72 Misc 3d 371 [Sup. Ct., Bronx County 2021]; People v. Polanco-Chavarria, 74 Misc 3d 1210[A] [County Ct., Rockland County 2021]; People v. Cooper, 71 Misc 3d 559 [County Ct., Erie County 2021]). In defense of their non-compliance, the People make three arguments that they have made before the appellate courts, none of which have succeeded there. (See Appellant’s Br., People v. Javier Rodriguez, 570002/22 [App. Term, 1st Dep't Apr. 12, 2022]; Rodriguez, 2022 NY Slip Op. 22393, at *2 ["We have considered the People's remaining arguments and find them unavailing."]). The court similarly rejects them here. First, the People incorrectly state that “unsubstantiated” disciplinary allegations are not discoverable. As at least ten different courts have explained, the People are wrong. (Best, 76 Misc 3d 1210[A] [Gershuny, J.]; Goggins, 76 Misc 3d 898 [Morales, J.]; People v. Alvia, 76 Misc 3d 704 [Crim. Ct., Bronx County 2022] [Licitra, J.]; Edwards, 74 Misc 3d 433, 442 [Weiner, J.]; Castellanos, 72 Misc 3d 371 [Clancy, J.]; Polanco-Chavarria, 74 Misc 3d 1210[A] [Schwartz, J.]; People v. Soto, 72 Misc 3d 1153 [Crim. Ct., NY County 2021] [Rosenthal, J.]; McKinney, 71 Misc 3d 1221[A] [Kitsis, J.]; Perez, 71 Misc 3d 1214[A] [Johnson, J.]; Cooper, 71 Misc 3d 559 [Eagen, J.]). These courts have explained the issue in depth, but the court summarizes the analysis here. “‘Unsubstantiated’ allegations of misconduct have not been disproven; they are termed ‘unsubstantiated’ because the absence of evidence precludes resolution of the allegation one way or the other.” (Edwards, 74 Misc 3d at 442). “[T]here is no prohibition against cross-examining a witness about bad acts that have never been formally proved at trial.” (Smith, 27 NY3d at 661). As a result, “unsubstantiated findings may provide a good faith basis for cross examination” and so the underlying disciplinary records must be disclosed. (Castellanos, 72 Misc 3d at 374). Second, the People insist that their intentional refusal to disclose these records was done in “good faith.” But “good faith” is not a talismanic phrase that shields any certificate of compliance; instead, the People must genuinely certify compliance after actually producing automatic discovery. (See Ferro, 197 AD3d at 788 [rejecting the People's claim of "good faith" that purported to justify their failure to actually disclose items]; see also People v. Francis, 75 Misc 3d 1224[A], at *2 [Crim. Ct., Bronx County 2022] [explaining Ferro]). “[T]he People can’t file a Certificate of Compliance claiming they have disclosed all known discovery if they have not actually done so without the express permission of the court.” (People v. Aguayza, 2022 NY Slip Op. 22333, at *5 [Sup. Ct., Queens County 2022]; see also People v. Sozoranga-Palacios, 73 Misc 3d 1214[A] [Crim. Ct., NY County 2021] [the People do not act in "good faith" where they choose to withhold disciplinary records without court permission]; People v. Quinlan, 71 Misc 3d 226 [Crim. Ct., Bronx County 2021] [requiring that a certificate of compliance be filed when discovery is "actually turn[ed] over”]). Here, however, “the People knowingly failed to disclose discoverable material in their possession without leave of the court or a protective order demonstrating a blatant disregard for the disclosure requirements of the statute.” (Best, 76 Misc 3d 1210[A], at *8). Their refusal to disclose is “merely an expression of policy and desire.” (People v. Darren, 75 Misc 3d 1208[A], at *6, 2022 WL 1614380 [Crim. Ct., NY County 2022]). But the People have no discretion to engage in this exercise. Determining what should be discoverable “is not the People’s province.” (Id.). “That the People might have applied good faith and due diligence in making their own determination that disciplinary records do not — or should not — fall within the statute is of no moment.” (People v. Williams, 72 Misc 3d 1214[A], at *5, 2021 WL 3356381 [Crim. Ct., NY County 2021]). That is “not the People’s determination to make.” (Id.). Under Article 245, “the People’s responsibility is solely to disclose ‘all material and information’ that ‘tends to impeach’ the officer witness.” (Darren, 75 Misc 3d 1208[A], at *6). Finally, the People reiterate their argument about C.P.L. §245.80, “prejudice,” and “sanctions” — all of which are irrelevant to a C.P.L. §30.30 motion. Such an analysis is for situations where the People only violate the 20- or 35-day discovery deadlines, not where they fail to state ready for trial within the entire 90-day speedy trial timeframe. (People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020]; 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.”]). Indeed, no appellate court has ever applied a “prejudice” or C.P.L. §245.80 analysis to a C.P.L. §30.30 motion challenging a certificate of compliance. (See Rodriguez, 2022 NY Slip Op. 22393 [affirming that a certificate was invalid without discussing prejudice or C.P.L. § 245.80]; People v. Guzman, 75 Misc 3d 132[A] [App. Term, 2d Dep't 2022] [same]; Ferro, 197 AD3d 787 [reversing a lower court and finding that a certificate was invalid without discussing prejudice or C.P.L. §245.80]; see also People v. Elmore, 2022 NY Slip Op. 07345 [4th Dep't 2022] [discussing C.P.L. §245.80 sanctions and "prejudice" separately from C.P.L. §30.30 readiness]). The People here had ninety days from arraignments to file a good-faith certificate of discovery compliance and state ready for trial. (C.P.L. §30.30[1][b]). This case was arraigned on February 1, 2022. Because the People chose to withhold Detective Keith Machtel’s disciplinary records, the People never filed a proper certificate of discovery compliance. As a result, the C.P.L. §30.30 clock ran until the defense requested a motion schedule on August 18, 2022. That is 198 days. It is the People’s burden to prove that any of that time should be excluded. Other than arguing that their statement of readiness was valid, they do not point to any such exclusions. As a result, no time is excluded. Because 198 days of delay exceeds the People’s allotment of 90 days, the court must grant the defense’s C.P.L. §30.30 motion to dismiss. The foregoing constitutes the order and decision of the court. Dated: January 9, 2023
