DECISION & ORDER Defendant, Zachary Cummins, is charged with driving while ability impaired by drugs, an unclassified misdemeanor, in violation of Vehicle and Traffic Law §1192(4); uninspected motor vehicle, a traffic infraction, in violation of Vehicle and Traffic Law §306(b); improper or unsafe turn/without signal, a traffic infraction, in violation of Vehicle and Traffic Law §1163(a); and failure to signal stopping (decreased speed), a traffic infraction, in violation of Vehicle and Traffic Law §1163(c). On October 5, 2022, the People filed a Certificate of Compliance and Statement of Trial Readiness. Thereafter, on October 19, 2022, on the eve of the scheduled suppression hearings, the People filed a supplemental certificate of compliance disclosing for the first time two additional potential witnesses, Deputies Antonio Archina and Joseph Martel. On the same day, defendant, through his attorney Richard A. Burger (via e-mail), argued that the People’s supplemental certificate of compliance is not a supplemental certificate but rather, the first valid certificate of compliance filed on this matter. Thus, arguing the October 5, 2022, certificate of compliance was invalid and illusory. On October 20, 2022, the court conducted a discovery inquiry prior to commencing the scheduled suppression hearings. At the conclusion of the discovery inquiry, the court set a motion schedule for the parties to submit their position in writing as to whether the original certificate of compliance was invalid and illusory based upon the late disclosure of the two additional witnesses in the People’s supplemental certificate of compliance. Defendant moved, by motion filed on November 21, 2022, through his attorney Richard A. Burger, Esq., for an Order striking the People’s certificate of compliance and statement of trial readiness as invalid and illusory. On January 17, 2023, the People responded through an affirmation in opposition of Nicholas S. Pittari, Esq. On January 19, 2023, defendant filed a reply affirmation in further support of defendant’s pre-trial motion to strike the initial certificate of compliance. The matter now comes before the Court for a decision. Challenge to the People’s Discovery Compliance and Declaration of Trial Readiness Defendant moves to challenge the original certificate of compliance on the ground that the People’s statement of readiness for trial was not preceded by a proper certificate of good faith compliance with CPL §245.20. For the reasons stated below, this court grants the motion to challenge the first certificate of compliance, filed by the People on October 5, 2022. Starting with CPL §245.20(2)’s unambiguous discovery directive, the “prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery…” The statutory obligation is twofold: the People must make a “diligent, good faith effort to ascertain” discoverable material and information, and then make it “available” to the defense. After completing their CPL §245.20(2) obligations, the People must certify their discovery compliance. CPL §245.50(1). The People must certify that they first “exercis[ed] due diligence and ma[de] reasonable inquiries…[and then, second,] disclosed and made available all known material and information subject to discovery.” Id. This certification requirement explicitly recognizes that not all discoverable items will be turned over. Some materials may be “lost or destroyed…[or the] subject of [a protective] order.” Id. In such case, the People may file a “proper” certificate of discovery compliance by providing the defense with “information” about the discovery not actually provided. CPL §245.50(1) and (3). Where the propriety of the People’s CPL §245.50(1) certification is at issue, as it is here, the legislature provided specific guidance: “No adverse consequence to the prosecution or the 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 of this article.” Of course, if the People fail to demonstrate that they proceeded with “due diligence and ma[de] reasonable inquiries” or they fail to establish that their efforts were made “in good faith and reasonable under the circumstances” their CPL §245.50(1) certification would not be “proper.” This statutory structure creates a burden shifting analysis. First, the defendant must identify a specific defect with the People’s CPL §245.50(1) certificate of discovery compliance. In response, the burden shifts to the People to demonstrate the propriety of their certification. The People must make a factual showing that establishes their due diligence and reasonable inquiries with respect to the specific items of discovery at issue. They must demonstrate that their efforts were made in good faith and reasonable under the specific circumstances of the case. See generally People v. Pierna, 74 Misc3d 1072, 163 NYS 3d 897 (Crim Ct, Bronx County, Mar 2, 2022). “This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good faith arguments for why certain materials are not discoverable under the statute.” People v. Rodriguez, 73 Misc3d 411, 152 NYS 3d 879, 884 (Queens County Ct, 2021). “[W]here the People fail to set forth their efforts to locate items of discovery or determine that they do not exist or the efforts they describe do not amount to due diligence, their certificate may be invalidated.” People v. Knorr, 73 Misc3d 285, 152 NYS 3d 556 (Henrietta Just Ct 2021), quoting People v. Adrovic, 69 Misc3d 563, 574 (Crim Ct, Kings County 2020). Here, defendant met his initial burden. He identified a specific defect with the People’s CPL §245.50(1) certificate of discovery compliance: the People’s failure to disclose and designate two additional hearing/trial witnesses pursuant to CPL §245.20(1)(b). The newly disclosed witnesses were Deputies Antonio Archina and Joseph Martel, who had respectively signed the Bill of Particulars, arrest reports, and the accusatory instruments in this matter. It is uncontested that the identity of the deputies and their relevance to this case were known to the People when this case was commenced on or about July 11, 2022. Although the People should have provided a timely and complete Witness List that included Deputies Antonio Archina and Joseph Martel, they failed to do so. The People knew of the existence of these potential witnesses but failed to make it available to the defense in their initial filing of their certificate of compliance. With the burden shifted, the People must account for the belated disclosure and provide the court with allegations of fact that allow the court to determine whether the People exercised due diligence to provide the defendant with all known discovery material (See People v. Perez, 73 Misc3d 171, 177 [Sup Ct, Queens County 2021] ["upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL §245.20 (1) with respect to the statutory subsections or specific items of discovery at issue"]). In this case, the People provided no relevant information that would permit this court to determine whether the prosecutor exercised due diligence in attempting to identify all hearing/trial witnesses before filing the certificate of compliance on October 5, 2022. In fact, during the October 20, 2022, discovery inquiry, the People admitted that they had not realized the significance of Deputies Archina and Martel until after conferencing the case even though their names appear on most of the arrest paperwork. In the People’s response affirmation, they merely state that subsequent to the initial filing of their certificate of compliance, the People learned of two additional witnesses. The People did not explain the reason for the belated disclosure of the two new trial witnesses, Deputies Antonio Archina and Joseph Martel, or state what efforts, if any, had been made to identify said witnesses before the certificate of compliance was filed. Note, the discovery statute permits supplemental discovery and permits the People to file a supplemental certificate of compliance when additional discovery is later provided (see CPL §245.50 [1]). But the statute permits supplemental discovery only when the People “subsequently learns” that additional discovery material exists but has not been disclosed (see CPL §245.60). Here, the People did not allege that they just learned about these new witnesses after they had filed the certificate of compliance on October 5, 2022. In the absence of any information to explain the belated disclosure of these witnesses and the efforts made to ascertain their existence, this court has no basis to find that the People exercised due diligence to identify these witnesses and learned about it only after they had filed the certificate of compliance. The People answered only that through its submission, the People have successfully demonstrated due diligence. In addition, they assert, assuming arguendo that the People did fail to provide discoverable materials under the relevant law, the defendant is still not entitled to a remedy or sanction as they fail to assert any form of prejudice. The People’s contention that the certificates of discovery compliance are proper because defendant failed to establish prejudice as a result of the belated disclosures misapprehends the law. The statute’s framework does not contemplate a prejudice analysis when assessing the validity of a certificate of compliance, which is a threshold matter (See Adrovic, 69 Misc 3d at 575, 130 NYS3d 614 ["the People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant"]; see also, People v. Aquino, 72 Misc3d 518). The impact of missing or belated discovery and whether prejudice was incurred by either party are evaluated separately when either party seeks a remedy or sanction for non-compliance under CPL §245.80. Here, Defendant has not moved for sanctions. Thus, prejudice is not relevant. The record here demonstrates that the People’s efforts were not made in good faith and were not reasonable under the specific circumstances of this case. Accordingly, defendant’s motion to invalidate the People’s October 5, 2022, certificate of compliance and statement of readiness is granted. Renewal of Motions CPL §255.20(1) mandates that all pre-trial motions be brought within one set of moving papers within forty-five (45) days of arraignment. To that extent, defendant’s request is denied. Defendant may make such further motions and applications that he could not, with due diligence, have raised in his original motion papers, and that are not inconsistent with Article 255 of the CPL. Other Motions This opinion shall constitute the Decision and Order of the Court. The matter is adjourned for further proceedings on Friday, April 14, 2023 at 10:00 AM. SO ORDERED. Dated: March 13, 2023
