DECISION & ORDER By notice of omnibus motion dated March 30, 2023, defendant moves for an order dismissing misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law (“CPL”) §§30.30 and 170.30. Specifically, defendant contests the validity of the People’s certificate of compliance (“COC”) due to the prosecution’s failure to comply with disclosure obligations pursuant to CPL §245.20 (1) within their prescribed speedy trial time. If the court denies his request to dismiss the information, defendant seeks an order: granting sanctions pursuant to CPL §245.80 for the People’s failure to disclose evidence; suppressing evidence related to his purported unlawful arrest pursuant to CPL §710.20, or in the alternative, a Mapp1 hearing; suppressing properly noticed statements taken from defendant during a purported custodial interrogation pursuant to CPL §§60.45 (2) (b) (ii) and 710.20 (3), or in the alternative, a Huntley/Miranda2 hearing. Upon review and consideration of the submissions, court file and relevant legal authority, defendant’s motion is granted in part and denied in part, as follows: 1. The People’s COC filed February 10, 2023 is deemed VALID; 2. Dismissal pursuant to CPL §30.30 is DENIED; 3. Suppression of evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 and 710.20 (3) is DENIED; 4. Sanctions pursuant to CPL §245.80 are DENIED; and 5. Pre-trial hearings are ORDERED as provided herein. PROCEDURAL BACKGROUND On October 24, 2022, defendant Jhonathan Melo Matos was arrested and issued a desk appearance ticket pursuant to CPL §150.10. On November 13, 2022, defendant was arraigned and charged with Penal Law (“P.L.”) §170.20 (criminal possession of a forged instrument in the third degree),3 Vehicle and Traffic Law (“VTL”) §511 (1) (a) (aggravated unlicensed operation of a motor vehicle), and VTL §509 (1) (unlicensed operation of a motor vehicle). The People filed their COC and statement of readiness (“SOR”) off-calendar on February 10, 2023, which represented, in relevant part, that the prosecution had produced an “Underlying Giglio Document” concerning Civilian Complaint Review Board (“CCRB”) allegation history for testifying witness and arresting officer, Hilarioseverino (“P.O. Hilarioseverino”).4 By letter dated February 10, 2023, the prosecution further advised defense counsel that P.O. Hilarioseverino had been the subject of an unsubstantiated CCRB investigation, and had also been named in a civilian lawsuit in her professional capacity. At a conference held on February 17, 2023, before Hon. Matthew Bondy, the parties were directed to submit a joint discovery letter concerning any disputed items. In the parties’ discovery letter, dated March 13, 2023, defense counsel enumerated three items in dispute: 1) underlying documentation concerning the civilian lawsuit against P.O. Hilarioseverino, 2) the People’s incomplete witness list, and 3) records from the state of New Jersey’s Department of Motor Vehicles (“NJ DMV”).5 The prosecution’s response was that the People had shared everything in their possession concerning the lawsuit against P.O. Hilarioseverino but would endeavor to supplement if additional information became available. The People further advised defendant that they intended to call a witness from the NYS Department of Motor Vehicles (“NYS DMV”) whose identity had not yet been determined, but they would not call any witness from the NJ DMV. At the March 15, 2023 court appearance, defense counsel asserted that the People’s COC was illusory, the prosecution reiterated their intention to call a witness from NYS DMV, and the instant motion schedule was set. On March 30, 2023, defendant filed his motion. On May 19, 2023, the People filed their opposition. DISCUSSION I. Applicable Standard for COC Challenge Where defendant alleges that the accusatory instrument should be dismissed because the People’s COC is illusory based upon the prosecution’s failure to discharge their automatic disclosure obligations pursuant to CPL §245.20, the People must establish that they have met their discovery burden (see e.g., People v. Adrovic, 69 Misc 3d 563, 572 [Crim Ct, Kings County 2020] ["The People must certify that they have complied with their discovery requirements before they may be deemed ready for trial"] citing CPL §245.50 [3]). Courts will then conduct an inquiry to determine whether the People are in compliance by examining the prosecution’s efforts to obtain outstanding discovery materials (see People v. Askin, 68 Misc 3d 372, 380 [Nassau County Ct 2020]; People v. Quinlan, 71 Misc 3d 266, 271 [Crim Ct, Bronx County 2021]; People v. Pierna, 74 Misc 3d 1072, 1088 [Crim Ct, Bronx County 2022]). Inherent in this inquiry is an examination of the People’s exercise of good faith and due diligence and the reasonableness of their actions based upon the particular circumstances of the case. (see Id.). Where the prosecution’s efforts evince due diligence and good faith were made manifest although some items remain unavailable, a court can deem the COC to be valid and the People ready for trial (see People v. Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022]). Additionally, pursuant to CPL §245.80, a court may impose a remedy or sanction where discoverable information is disclosed belatedly, if warranted, which is appropriate and proportionate to the prejudice suffered by the party entitled to the discovery (CPL §245.80 [1] [emphasis added]). However, where the People fail to detail their efforts to obtain discoverable items such that a court is unable to find a demonstration of either good faith or due diligence, their COC will be found invalid (see People v. Perez, 75 Misc 3d 1205 [A], *3, 2022 NY Slip Op. 50387 [U] [Crim Ct, Bronx County 2022] ["Rather, when the People submit documentation to the court certifying their compliance with their statutory obligation, they must do more than merely mouth the words" citing Adrovic, supra at 574-75][internal citations omitted]). II. The Parties’ Arguments Defendant’s motion to dismiss is premised upon the prosecution’s failure to provide within 90 days of his arraignment: 1) underlying information concerning a civilian lawsuit against P.O. Hilarioseverino, 2) the name of the specific witness from the NYS DMV they intend to call at trial, and 3) the name of the witness/representative from the NJ DMV, without which he asserts that he cannot effectively defend himself at trial. (affirmation of defendant’s counsel at 8, 12, 14). Specifically, defendant maintains that any information concerning a civilian lawsuit against P.O. Hilarioseverino is presumptively discoverable pursuant to CPL §245.20 (1) (k) (iv) as impeachment material. Defendant argues that the summary provided to him which states the name of the litigants, index number, county, and date of incident, is insufficient to fulfill the People’s statutory obligation and he avers that the prosecution is in constructive possession of the underlying case material because the New York City Law Department may have represented the police officer. (affirmation of defendant’s counsel at 10). Additionally, defendant argues that although the People have provided discovery from the DMV, they cannot sustain their burden of proof under VTL §511 unless the prosecution produces a live witness at trial. (affirmation of defendant’s counsel at 13). Defendant asserts that the Confrontation Clause of the Sixth Amendment of the United States Constitution requires the People to produce a witness whom the defendant can cross-examine concerning their personal knowledge of the mailing procedures which were in effect when he was allegedly sent a suspension notice from the NYS DMV. Moreover, insofar as defendant has been charged with criminal possession of a forged instrument (a NJ license plate), he asserts that the prosecution’s witness list is incurably defective because the People have not proffered the name of a representative from the NJ DMV who would have personal knowledge of how New Jersey license plates are created. (affirmation of defendant’s counsel at 14). Defendant also argues that if the court does not dismiss the information, he is entitled to the suppression of evidence and statements unlawfully obtained pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 and 710.20 (3), or pre-trial hearings to determine findings of fact or conclusions of law. As an initial matter, the People state that their Giglio disclosure letter referencing a civilian lawsuit against P.O. Hilarioseverino was sent in error.6 (affirmation in support of the People’s opposition at 5). The People blithely assert that they and the defendant were both unaware that the tax identification number attached to the civil lawsuit, as stated in their disclosure letter dated February 10, 2023, was different from the one assigned to P.O. Hilarioseverino, indicating that a different officer was actually involved in the lawsuit. (affirmation in support of the People’s opposition at 6). The People’s opposition elides an explanation of why their contribution to the parties’ May 13, 2023 joint discovery letter did not clarify the issue. However, they now state, unreservedly, that there is no lawsuit information concerning P.O. Hilarioseverino. (affirmation in support of the People’s opposition at 6). Next, the People acknowledge that they failed to note on their Automatic Disclosure Form that they would indeed call a witness from the NYS DMV. However, the prosecution claims that the identity of the witness is unknown and could not have been previously disclosed because NYS DMV witnesses testify on an alternating schedule and could not be named until closer to the trial date. Moreover, the People contend that the disclosure of NYS DMV records, made contemporaneously with their COC filing, constitute business records which were certified by a named NYS DMV employee. (affirmation in support of the People’s opposition at 6-7). Lastly, the People reiterate that they had already advised defense counsel that the prosecution would not call a witness from the NJ DMV. Thus, the People argue that they satisfied their CPL §245.20 (1) obligations and their COC should not be deemed illusory. The People state that they have no objection to defendant’s request for a Huntley hearing but do object to his request for an order suppressing evidence pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 and 710.20 (3), or other pre-trial hearing for findings of fact and conclusion of law. (affirmation in support of the People’s opposition at 7-15). III. The Court’s Analysis While CPL §245.50 (1) mandates that the prosecution file a COC after complying with their discovery obligations, CPL §245.20 (1) unambiguously qualifies the People’s duty to disclose discoverable information which is in the “possession, custody or control of the prosecution, [or] under the prosecution’s direction or control” (CPL §245.20 [1] [emphasis added]; see also, People v. Williams, 2021 NYLJ 1187, *26 [Sup Ct, Kings County 2021] [internal citations omitted] citing People v. Lustig, 68 Misc 3d 234, 241-42 [Sup Ct, Queens County 2020]). Moreover, CPL §245.20 (2) provides that where the prosecution is not in possession, custody or control of discoverable material, they shall make a diligent, good faith effort to ascertain the existence of discoverable material and “cause such material or information to be made available for discovery” (CPL §245.20 [2] [emphasis added]). Giglio material for P.O. Hilarioseverino In the case at bar, defendant reasonably relied upon multiple representations set forth in the People’s disclosure which inferred that underlying Giglio material for P.O. Hilarioseverino concerning a civilian lawsuit was in their constructive possession. The prosecution did not undertake to provide clarification in the parties’ joint discovery letter nor at the last pre-motion conference held before this court on March 15, 2023. However, it is axiomatic that what does not exist cannot be disclosed, and this court is persuaded by the People’s affirmation that they failed to note that the lawsuit information initially provided for P.O. Hilarioseverino did not correspond to her tax identification number and, thus, was improperly attributed. This court believes the prosecution’s claim that there is no discoverable Giglio material relating to the testifying officer. NYS DMV Witness Identification Curiously, by invoking the Confrontation Clause of the Sixth Amendment, defendant argues that the People would not sustain their burden of proof without presenting a live witness from the NYS DMV- even though that would enure to his benefit if a trial court agreed with his reasoning. Nevertheless, the People had already clarified their position pre-motion that they would indeed call a representative from the NYS DMV for trial. Defendant provides two cases to buttress his claim that the People’s failure to specify who will testify on behalf of the NYS DMV at trial renders their COC illusory (see People v. Pacer, 6 NY3d 504 [Ct of App, 2006]; People v. Abelo, 79 AD3d 668 [1st Dept 2010]). Specifically, defendant makes the claim that he is unable to determine whether there are any further discoverable items connected to the NYS DMV witness without knowing their name, which might potentially hamper his cross-examination. As a result, defense counsel contends that defendant is in a comparable position to someone who has been denied the ability to face his accuser at trial due to the People’s failure to specify its NYS DMV witness. Although the court finds the attempted analogy unavailing, the issue of whether documents admitted into evidence at trial without accompanying testimony from a witness warrants exposition in order to distinguish them from the case at bar. For context, Crawford v. Washington, 541 US 36 [2004] is a seminal case involving “testimony statements,” in which the Supreme Court ruled that the Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right […] to be confronted with the witnesses against him” (see Id. at 42 [internal citations omitted]). The issue in Crawford was the admissibility of statements which were testimonial in nature and had been pronounced as reliable by the court without having been subjected to cross-examination by the defendant, or after a finding that the affiant was unavailable to testify (see Id. at 67-68). The Crawford decision held that testimonial statements not previously subjected to cross-examination, such as affidavits, were inadmissible against a criminal defendant (see Id.). However, the Crawford decision acknowledged that business records were not by their nature testimonial (see Id. at 56). In Pacer, the defendant was convicted of aggravated unlicensed operation of a vehicle where People introduced an affidavit at trial to prove that he knew or should have known that his driver’s license had been revoked (Pacer, 6 NY3d at 509). However, the Court of Appeals held that the admission of the affidavit was reversible error because “[w]ithout an opportunity to cross-examine the affiant, defendant had no chance to inquire about the basis for the affiant’s information and belief that the Department mailed the [revocation] notice” (Id. at 512). Conversely, in the instant matter, defendant cannot extrapolate from the Pacer holding to posit that he is similarly disadvantaged because the identity of the specific NYS DMV witness has not yet been disclosed. The People have stated that the witness will be named closer to the trial date. There is no comparison here. In Abelo, the People entered into evidence an affidavit which had been specifically prepared for trial to prove that the defendant had previously been mailed notice of his license revocation (see Abelo, 79 AD3d at 669). Moreover, upon cross-examination, the NYS DMV witness admitted that she was unfamiliar with the practices in effect when the defendant’s license was revoked (Id. at 670). The court reversed the defendant’s conviction for aggravated unlicensed operation, holding that a witness who was unqualified to testify about NYS DMV procedures which were employed when the revocation notice was issued could not provide a foundational basis for admitting the notice of suspension into evidence (see Abelo, 79 AD3d at 670). However, defendant’s reliance on Pacer and Abelo amounts to a preemptive objection to a witness whose name is presently unknown but whose evidence, namely the People’s NYS DMV disclosures, including defendant’s driving abstract, had already been disclosed. The court finds that the People’s omission of a NYS DMV witness in their automatic disclosures and COC is de minimus error where the prosecution provided NYS DMV-related discovery contemporaneously with their COC filing. It is well-settled that material in the possession of a state agency, like the NYS DMV, is not within the People’s control (see People v. Flynn, 79 NY2d 879, 882 [Ct of App 1992]; People v. Nova, 206 AD2d 132, 136 [1st Dept 1994]). Similarly, the People, having been advised by the NYS DMV that the specific witness would not be identified until closer to trial, have no recourse because the witness is not a member of law enforcement personnel within their control. This court credits the prosecution’s statement that defendant will be apprised when the witness is identified. NJ DMV Witness Identification Defense counsel cites to People v. Searles, 170 NYS3d 813 [App Term, 2nd Dept 2022] in support of the proposition that a charge of criminal possession of a forged instrument cannot be sustained without testimony from a witness employed by the NJ DMV. In Searles, the defendant was alleged to have presented a forged Pennsylvania driver’s license at a car stop in New York. However, the prosecution did not provide any witnesses who could attest to the authenticity of a purported Pennsylvania driver’s license, thus, the court found the evidence to be legally insufficient (see Id. at 817). The court understands defendant’s reliance on Searles. However, it is the People’s prerogative to forego witness testimony from the NJ DMV, and whether they can ultimately sustain their burden at trial is not within the purview of a court currently charged with determining whether the prosecution has timely filed a valid COC. Accordingly, the court denies that part of defendant’s motion that seeks an order deeming the People’s COC illusory. The court further denies defendant’s request for an order imposing sanctions on the prosecution pursuant to CPL §245.80. IV. Defendant’s Request for a Hearing if his Motion is Denied Defendant moves alternatively for an order suppressing evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 and 710.20 (3), or granting pre-trial Mapp, Huntley and Miranda hearings. Despite opposing defendant’s request for an order suppressing evidence and noticed statements, the People do not object to a Huntley hearing. This court respectfully defers to the trial court to decide defendant’s request for suppression orders. Accordingly, the court denies that part of defendant’s motion which seeks an order suppressing evidence and notice statements pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 and 710.20 (3), but grants his request for Mapp, Huntley and Miranda pre-trial hearings. V. The CPL §30.30 Calculation Criminal Procedure Law §245.50 (3) provides that “the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section” (see Pierna, 74 Misc 3d at 1087 [internal quotation marks omitted]; People v. Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). In a motion to dismiss misdemeanor charges pursuant to CPL §30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL §30.30 [1] [b]); People v. Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see, Luperon, 85 NY2d at 78). In the case at bar, the People’s 30.30 calculation commenced the day after defendant’s arraignment on November 13, 2022. When the People filed a valid COC on February 10, 2023, they declared their readiness for trial and stopped their speedy-trial clock. Therefore, this court finds that the People were ready for trial 88 days after arraignment, within the statutorily allotted time (see CPL §30.30 [1] [b]). CONCLUSION Based upon the foregoing, defendant’s motion for orders dismissing the misdemeanor charges on statutory speedy trial grounds pursuant to CPL §30.30, or suppressing evidence and noticed statements pursuant to CPL §§§60.45 (2) (b) (ii), 710.20 and 710.20 (3), or imposing sanctions pursuant to CPL §245.80 are all DENIED. However, the court GRANTS defendant’s request for an order for Mapp, Huntley and Miranda pre-trial hearings. This constitutes the opinion, decision, and the order of the court. Dated: June 6, 2023
