The defendant is charged with two counts of Attempted Aggravated Assault on a Police Officer [P.L. §110/120.11], two counts of Attempted Assault in the First Degree [P.L. §110/120.10(1)], two counts of Menacing a Police Officer or Peace Officer [P.L. §120.18], and one count of Criminal Possession of a Weapon in the Fourth Degree [P.L. §165.01(2)]. The defendant has moved, pursuant to CPL §30.30, for an order dismissing the indictment on the ground that the People’s Certificate of Compliance is invalid leading to over six months of delays since the commencement of the criminal action. The People oppose the motion, claiming that the delay chargeable to them is within the statutory limit. The defendant was arraigned in Criminal Court on April 13, 2022, at which time the criminal action was commenced (People v. Osgood, 52 NY2d 37 [1981]). Where, as here, a defendant is charged with a felony, the People must announce readiness for trial within six months of the commencement of the criminal action (CPL §30.30[1][b]). Once a defendant has shown a delay of more than six months, the burden is on the People to prove that certain periods within that time should be excluded (People v. Santos, 68 NY2d 859, 861 (1986); People v. Berkowitz, 50 NY2d 338, 349 (1980)). In the case at bar, the Court has reviewed the moving papers, the court file, and record and makes the following findings regarding the People’s discovery compliance. Relevant Law On January 1, 2020, the newly enacted article 245 replaced article 240 of the Criminal Procedure Law and significantly expanded the scope of discovery in criminal cases. Shortly after these changes went into effect, several amendments were made to the new law. See NY Legis. 56 (2020), 2020 Sess. Law News of NY Ch. 56 (S 7506-B) Part HHH (McKinney’s). Pursuant to C.P.L. §245.20(1), the People are required to 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 and control.” The statute provides a non-exhaustive list of materials subject to disclosure under this provision. C.P.L. §245.20[1]. C.P.L. §245.10 sets forth specific timelines for the People to comply with the automatic discovery requirements and provides for an additional thirty days without the need for a motion in cases where the discovery materials are “exceptionally voluminous.” The statute explains that the People “shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [C.P.L. §245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control.” C.P.L. §245.20(2). It clarifies, however, that the People “shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.” C.P.L. §245.20(2). The statute further specifies that “all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.” C.P.L. §245.20(2). Additionally, the statute dictates that “[t]here shall be a presumption in favor of disclosure” in interpreting article 245. C.P.L. §245.20[7]). A significant component of the new discovery statute is the requirement that the People certify their discovery compliance in writing. The certificate of compliance must “state that, after exercising due diligence and making reasonable inquires 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. It shall also identify the items provided.” C.P.L. §245.50(1). In keeping with the presumption in favor of disclosure, the People’s discovery obligations are ongoing. Should the People learn of additional material or information that they would have been required to disclosure pursuant to C.P.L. §245.20, they must “expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article.” C.P.L. §245.60. If the People provide additional discovery in connection with their ongoing obligations outlined in C.P.L. §245.60, they must file “a supplemental certificate…identifying the additional material and information provided.” C.P.L. §245.50(1). The filing of a certificate of compliance is a prerequisite to asserting trial readiness under C.P.L. §30.30. See C.P.L. §§245.50(3); 30.30(5). Pursuant to C.P.L. §245.50(3), “absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section.” The statute clarifies that “[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [C.P.L. §245.80(b)], despite diligent and good faith efforts, reasonable under the circumstances.” C.P.L §245.50(3). Importantly, the statute further specifies that “[n]o adverse consequences 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 [C.P.L. §245.80].” C.P.L §245.50(1). Importantly, where a defendant has been committed to the custody of the sheriff in a criminal action, he or she must be released on bail or on his or her own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial within ninety days from the commencement of his or her commitment to the custody of the sheriff, where the defendant is accused of one or more offenses, at least one of which is a felony. See C.P.L. §30.30(2)(a). The Current Motion In this case, defendant seeks to invalidate the People’s Certificate of Compliance, on the ground that they failed to provide certain discoverable materials under C.P.L. §245.20(1), specifically: (1) Video surveillance footage; (2) audio recordings; (3) “threat, resistance or injury” paperwork; (4) supervisor “fitness for duty” paperwork; (5) handwritten detective notes; (6) aided reports; (7) line of duty reports; (8) disciplinary records; (9) property invoices; (10) body worn camera video; (11) DD5′s; (12) “medical treatment of prisoner” notes; and (13) NYPD social-media review request form. First, regarding the disciplinary records for police witnesses, the Honorable Michelle Johnson previously rendered a decision to the defendant’s previous motion. In the decision dated October 26, 2022, the Honorable Michelle Johnson declined to invalidate the People’s certificate of compliance based on said materials. The defendant has not filed a motion to renew or re-argue said decision. This Court declines to consider the arguments regarding disciplinary materials for police witnesses. With regards to the remaining items, the Court finds that the People acted with reasonable due diligence as prescribed by C.P.L. §245 and in good faith. Additionally, the defendant has failed to establish prejudice as a result of any delayed disclosures. Finally, neither the defendant nor the People have provided court minutes in support of their arguments. Conclusion The Defendant’s motion to invalidate the People’s Certificate of Compliance is denied, as it was filed in good faith and reasonable under the circumstances. The People are directed to comply with their continued discovery obligations. Accordingly, the defendant’s motion for dismissal under C.P.L. §30.30 is denied. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: March 15, 2023
