DECISION AND ORDER Procedural History: This matter was commenced on July 22, 2022. Defendant is charged with Criminal Contempt in the Second Degree, pursuant to Penal Law (PL) §215.50, a class A misdemeanor, and related charges. On October 17, day 89 of the People’s speedy trial time, the People moved pursuant to Criminal Procedure Law (CPL) §245.70(2) to Modify the Time to Provide Discovery. Also on this date, the People served and filed discovery, as well as a Certificate of Compliance (COC) and Statement of Readiness (SOR). The People filed a Supplemental COC (SCOC) on November 29, 2022 and on January 3, 2023, and on January 20. On January 27, the defendant moved to dismiss on CPL §30.30 grounds, arguing that the People’s COC of October 17 was invalid and did not stop the speedy trial clock. The People oppose defendant’s motion. Defendant submitted a timely Reply which was considered by the court. In her Reply, defendant addresses the People’s Motion to Modify Time to Provide Discovery. Whereas both motions were addressed by counsel, and in the interest of expediency, this court will address both motions in this decision and order. People’s Motion to Modify Time to Provide Discovery: Parties’ Contentions: The People contend that they “have provided more than seventy items of discovery. This number includes many items which the People were able to obtain after multiple attempts at contacting various members of the NYPD”. People’s Motion, 4. They detail efforts to obtain body worn camera (BWC) footage generated by Police Officer (PO) Rexha and PO Charles, which efforts began on September 30, and continued October 4, October 5, October 6, October 12, October 14, and October 16. They opine that “[i]t is the People’s understanding that technical difficulties may be preventing the undersigned ADA from accessing this footage”. Id. at 5a. They detail efforts to determine if there was a scratch arrest report, and if so, to obtain the report. These efforts began on September 30, and continued October 12, and October 16. The People move for the court to extend the time period for discovery, and further, they move for the court to “accept for filing the attached Certificate of Compliance”. Id. at 7. In her Reply, defendant points out that the People’s efforts to obtain this discovery began 72 days after Ms. McGee’s arraignment and a mere 18 days before the speedy trial deadline”. Defendant’s Reply, pg. 3. Defendant continues that the People’s obligation is to provide initial discovery on day 35, and further, the fact that the People “followed up several times after the September 30 request does nothing to remedy their lack of due diligence”. Id. Defendant, therefore, opposes the People’s motion, and moves for an order denying the People’s motion to extend their time for discovery. Court’s Reasoning: CPL 245.70(2) provides: “Upon motion of a party…the court may alter the time periods for discovery imposed by this article upon a showing of good cause”. A pre-trial motion will, generally stop the clock unless the court finds it was not made in good faith, or that it was frivolous. The following courts found the People’s motion did stop the speedy trial clock: People v. Erby, 68 Misc.3d 625 (Sup. Ct., Bronx County 2020) (People’s motion for a protective order) holding that “[n]on-frivolous motions made in good faith, whether filed by the prosecution or the defense, are excludable under CPL §30.30(4)(a)” at 637; People v. Barnes, 160 AD3d 890 (2nd Dept. 2018), lv. denied, 31 NY3d 1145 (2018) (People’s motion to compel a handwriting exemplar); People v. James, 170 AD3d 477 (1st Dept. 2019), lv. denied, 33 NY3d 1070 (People’s motion to consolidate). The People’s motion to dismiss counts, however, would not stop the speedy trial clock. In People v. Thomas, 59 Misc.3d 64 (App. Term, 1st Dept. 2018), lv. denied, 31 NY3d 1088 (2018), the court held that People’s Motion to Dismiss Counts did not constitute a pretrial motion, as “they had [other] remedies available to them”, at 66. Accord, People v. Saavedra, 2022 NY Slip Op. 22235 (Crim. Ct., Bronx County). People v. Lewis, 72 Misc.3d 686, 691-691 (Crim. Ct. Kings County 2021), remains the only published decision dealing with the specific issue of whether the People’s motion to extend time pursuant to CPL §245.70(2) stops the speedy trial clock. The court there held that “[p]ursuant to CPL 30.30(4)(a), a reasonable period of delay due to the filing of any pretrial motion, including those related to discovery, is excludable…This provision was not amended by the recent revisions to the discovery and speedy trial rules”. The court ruled that CPL §30.30(4)(a) applied and the period of pre-trial motion to extend their time for discovery was excluded. “By allowing for the possibility that the People be deemed ready even when some discovery is outstanding, the legislature acknowledged that unavoidable delays and unforeseen hurdles may prevent a diligent prosecutor from complying with their discovery obligations despite their best efforts to obtain all the relevant material in a timely fashion”. See also, People v. Cooper, 71 Misc.3d 559 (County Ct., Erie County 2021); People v. Bautista, 67 Misc.3d 279 (Crim. Ct., Queens County 2020); People v. Pealo, 71 Misc.3d 337 (Justice Ct. Monroe County 2021) “This court agrees that the People have the option of making a motion under CPL §247.70(2) for a good cause extension of additional time in which to deliver the required discovery”, at 343 (emphasis provided); People v. Aquino, 72 Misc.3d 518 (Crim. Ct., Kings County 2021). However, the exceptions should be limited. The court notes that the People’s motion was filed on day 89 of their speedy trial time and is vigilant of the slippery slope that looms in the near future and the more distant future. While the court does not condone the filing of the People’s instant motion at this late stage, the court also cannot summarily dismiss the motion since the People are still — just barely — within their allotted speedy trial time. Therefore, their application, even at this stage, should be available where the People persuade the court that their efforts to comply with their discovery obligations were sufficient. The People here have, in fact, persuaded the court that their efforts were serious and diligent, and that their motion did, therefore, stop the speedy trial clock pursuant to CPL §30.30(4)(a). It is worth noting, again, that the People’s application was primarily with regard to bodyworn camera footage which did not upload. Attached as People’s exhibits were numerous emails between the prosecutor and various police officers which reflected the efforts to acquire this material. Their tenacious efforts unequivocally amount to any definition of due diligence. These technological problems should not adversely determine the People’s motion to extend their time to comply with their discovery obligations. See, People v. Sime, 76 Misc.3d 1109 (Crim. Ct., Kings County 2022); People v. Nelson, 75 Misc.3d 1203(A) (Crim. Ct., New York County 2022). Defendant’s argument that the People’s motion should be precluded on the grounds that discovery was not completed within the 35/65-day time periods provided by CPL §§245.10, is misplaced. A violation of this requirement only impacts possible sanctions later in the proceedings. See, People v. Rafoel, 77 Misc.3d 1231(A) (Crim. Ct., Queens County 2023). Therefore, based on the foregoing, the People’s motion to extend their time for discovery pursuant to CPL §245.70(2) is granted. Further, this pre-trial motion stops the speedy trial clock pursuant to CPL §30.30(4)(a). Defendant’s Motion to Dismiss: Parties’ Contentions: Defendant argues that the People’s COC served and filed on October 17 was illusory and failed to stop the speedy trial clock since items of discovery were not shared with the defense. These items include: The name and contact information for a civilian witness;1 Activity logs for officers Charles and Rexha;2 BWC footage, and AXON datasheet for officers Charles and Rexha;3 Complainant’s phone records showing calls giving rise to the instant offense.4 See, Defendant’s Motion, 15. The People counter that they made available to the defense all discoverable material that they had when they filed their COC, and that they exercised due diligence in providing those items which were outstanding on that date, and that they have since provided all outstanding discovery on the day they were provided to the prosecution. Court’s Reasoning: This court finds that the People used due diligence to comply with the mandates of Article 245. Pursuant to Criminal Procedure Law §30.30 (5), “any statement of trial readiness must be accompanied or preceded by a certificate of good faith compliance with the disclosure requirements of section 245.20.” CPL §30.30(5), see, People v. Robbins, 206 AD3d 1069, 1071- 72 (3d Dept. 2022). For a COC to be valid, the prosecution must disclose “all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.” CPL §245.20(1); People v. Hewitt, 201 AD3d 1041, 1042-43 (3d Dept 2022). Thus, the prosecution shall not be deemed ready for trial for purposes under CPL 30.30 until it has filed a proper certificate of compliance. CPL §245.50(3); CPL §30.30(5). The discovery statute further requires that the People “make a diligent, good faith effort to ascertain the existence of material or information discoverable”. CPL §245.20(2). Thus, in any challenge to the People’s COC with their discovery obligations the court must determine whether the People exercised due diligence in obtaining the materials, whether their COC was filed in good faith, and whether the COC was filed reasonably under the circumstances. CPL §245.50(1); People v. Erby, 68 Misc.3d 625 (Sup. Ct., Bronx County 2020). In People v. Knight, 69 Misc.3d 546, 552 (Sup. Ct., Kings County 2020), the court held that “[Article 245] should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute”; accord, People v. McKinney, 71 Misc.3d 1221A (Crim. Ct., Kings County 2021); People v. Adrovic, 69 Misc.3d 563 (Crim. Ct., Kings County 2020); Similarly, People v. Kheir, 74 Misc.3d 712, 717 (Justice Ct., Westchester County 2022). “The discovery statute should not be construed as an inescapable trap for the diligent prosecutor”. In addition, the People have a continuing duty to disclose automatic initial discovery. CPL §245.60. If the People obtain additional material or information which is discoverable under the discovery statute, the People must file a supplemental COC disclosing such materials or information to the defendant. CPL §§245.50(1); 245.60. The People must detail their efforts and provide sufficient facts to allow the court to reach an independent conclusion whether the good faith and due diligent efforts were reasonable under the specific facts of the case before the court. See, People v. Georgiopoulos, 71 Misc.3d 1215(A), (Sup. Ct., Queens County 2021), the court found that courts should not invalidate a COC where the delay resulted from minor oversights in the production of certain items, or a good faith position that the material in question was not discoverable. Accord, People v. Barralaga, 73 Misc.3d 510 (Crim. Ct., New York County 2021), “The statute does not require the impossible; it does not demand that every scrap of discoverable information be turned over before the People may file a certificate…But it does demand that the People use due diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC” at 514; see also, People v. Deas, 75 Misc.3d 190 (Sup. Ct., Westchester County 2022). The defense asserts that the People’s COC must be declared invalid because they failed to provide several items. The People showed that they had made prompt and extensive efforts to confer with the defense regarding the allegedly missing items and to obtain anything that the defense requested and that had not been provided. As detailed above, this court finds the People’s exercised due diligence reasonable under the circumstances to share discovery with the defense. Conclusion: The People’s motion to extend their time for discovery is granted; People are presently in compliance with their discovery mandates. All outstanding discovery has been shared. The People are charged with 89 days from the commencement of this action through the date they filed their initial COC and SOR and filed their motion pursuant to CPL §30.30(4)(a). Defendant’s motion is, therefore, denied. This is the decision and order of the court. Dated: April 28, 2023
