By: Garguilo, P.J., Driscoll, McCormack, JJ. Nassau County District Attorney (Judith R. Sternberg and Sarah S. Rabinowitz of counsel), for appellant. Brian J. Davis, P.C. (Mark E. Goidell of counsel), for respondent.
2021-671 N CR. PEOPLE v. LACLAIR, KEVIN — Appeal from an order of the District Court of Nassau County, First District (Colin F. O’Donnell, J.), dated September 22, 2021. The order granted defendant’s motion to strike the People’s certificate of compliance and to dismiss the accusatory instrument on statutory speedy trial grounds. ORDERED that the order is modified, on the law, by providing that the branch of defendant’s motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds is denied; as so modified, the order is affirmed. Insofar as is relevant to this appeal, defendant was charged in an accusatory instrument with forcible touching (Penal Law §130.52 [1]) in connection with an incident that occurred on July 25, 2019. On that date, Police Officer Cosby prepared the case narrative and spoke to the complainant, who indicated that she did not wish to pursue criminal charges against defendant at that time. The complainant changed her mind in or around August 2020, and defendant was arrested on August 4, 2020. On January 26, 2021, the matter was adjourned to February 10, 2021 for the People’s discovery compliance. The People filed a certificate of compliance (CoC) and a certificate of readiness for trial (CoR) on February 9, 2021. On February 10, 2021, the matter was adjourned to March 29, 2021, with defendant’s consent, for defendant’s discovery compliance. The matter was advanced to March 26, 2021, then adjourned to April 26, 2021, with defendant’s consent, due to defense counsel’s engagement on another matter. On April 26th, the matter was adjourned, with defendant’s consent, to May 14, 2021 for trial. On May 14th, Police Officer Cosby, who had been included on the People’s list of trial witnesses, appeared in court to testify in the event the case proceeded to trial and told the prosecutor that there were four additional law enforcement officers who had been at the scene of the incident but who were not documented in any of the Nassau County Police Department (NCPD) paperwork. The People submitted a discovery request to NCPD for material related to the four additional officers on May 21, 2021, turned over the material received to defense counsel on May 27 and 28, 2021, and filed a supplemental CoC and a CoR on May 28, 2021. On the same day, defendant moved to strike the People’s February 9, 2021 CoC on the ground that the People had not complied with their discovery obligations (see CPL 245.20 [1]) and to dismiss the accusatory instrument on statutory speedy trial grounds (CPL 30.30). The People opposed. By order dated September 22, 2021, the District Court (Colin F. O’Donnell, J.) granted defendant’s motion, striking the February 9, 2021 CoC and dismissing the accusatory instrument on statutory speedy trial grounds, upon finding 115 days chargeable, more than the 90 days allotted to the People to be ready for trial (see CPL 30.30 [1] [b]). CPL 245.20 (1) provides that the People 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,” including “[t]he name and work affiliation of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto” (CPL 245.20 [1] [d]). Pursuant to CPL 245.20 (2), “[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 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…. For purposes of [CPL 245.20 (1)], 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.” CPL 245.50 (1) states that, when the People have provided the discovery required by CPL 245.20 (1), they “shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state 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.”
